REHNQUIST'S UNSUNG REPORT ON THE FEDERAL JUDICIARY:
How To Make The Annual Roundup Rhyme

By JOHN DEAN

Friday, Jan. 04, 2002

The Chief Justice from central casting, Warren Burger, wanted to deliver an annual "state of the judiciary" message to a joint session of Congress, sort of like the President's State of the Union message. While the idea went nowhere, Burger did commence delivering an annual Report on the Federal Judiciary. It is a tradition his successor has followed.

On January 1, 2002, Chief Justice Rehnquist released his 16th Report on the Federal Judiciary, for 2001. Frankly, it is not much different than all his prior messages. Actually, it is pretty dull stuff, unless you happen to be a potential judicial nominee or a sitting federal judge. But Rehnquist could make his report far more interesting - by using a bit of creativity.

The Rehnquist 2001 Report Revisited

After all, Rehnquist's black robe with its four gold chevrons on each arm - inspired by Gilbert & Sullivan's Lord Chancellor from the comic operetta Iolanthe - shows the Chief Justice has no lack of imagination. Why couldn't he deliver his annual Report On the Federal Judiciary in a manner more consistent with his judicial vestment?

Understandably, it didn't happen this year, because there wasn't much to sing about. But maybe it should have. The Chief Justice's real audience for these reports is not the public, but other Federal judges, and a few key members of Congress. The news media cover the report on the judiciary only because there is nothing else to write about on New Year's Day, when it is released.

What if the Chief were to invite people to the high Court for a more private report, off-the-record? Say on New Year's Day, when the Court is closed. None of that formal "Oyez, Oyez," business. Rather, Chief Justice Rehnquist simply enters the chamber alone, wearing, of course, his familiar Lord Chancellor's robe. He proceeds to the place he usually sits at the center of the bench (but all the chairs would be removed) and nods to the clerk across the chamber when ready.

It initially appears that the Court's clerk is sitting at a large computer keyboard. But when Rehnquist nods, it becomes clear that it is actually an electronic piano, a one-man music making machine. Suddenly, the sound of music fills the chamber. More surprising, a full-throated Rehnquist begins to sing (he doesn't sound nearly as nasal as when he speaks) the opening song of the Lord Chancellor from Iolanthe:

The Law is the true embodiment
Of everything that's excellent.
It has no kind of fault or flaw,
And I, my Lords, embody the Law.

Comic opera, however, is too subtle for his annual report. So now that the Chief has everyone's attention, he stops after belting out these few lines.

Then, notwithstanding his bad back, he makes a remarkable move for a six foot four inch man who is seventy-six years old. He jumps with both feet to the top of the long bench, as the clerk (an occasional organist for the Washington Wizards) plays a zippy little crowd-pleasing refrain he has used for Michael Jordan.

The assembled judges, senators, congressmen and news people, all good friends of the Chief's, are stunned, unable to believe either their eyes or ears. While they knew the Chief was a great practical joker, he is outdoing himself.

Rehnquist simply smiles, for this is no joke. He clears his throat, shakes his long arms and shoulders to loosen up. Those listening - and it is impossible not to be - realize the musical accompaniment has drastically changed. This is not Gilbert & Sullivan.

The crotchety keeper of custom and civility in the United States Senate, West Virginia Senator Robert Byrd, is the first to recognize the rap tune baffling off walls and the twenty-four immense columns surrounding the chamber. "Bulworth," he shouts at the Senator seated beside him.

Ninety-nine year old Strom Thurmond of South Carolina, thought by many to be non compos mentis, smiles and winks. "Right," Thurmond grins, loudly snapping his figures in perfect syncopation with the booming basso beat.

Rehnquist, head bobbing and weaving in rhythm, begins his rap:

Now hear your Chief, if you will
Cause I've got stuff I need to tell.
This is my sixteenth report, on the nation's Judiciary
And frankly I'm more than a bit weary.

After canceling the presidential election,
And giving the country my selection,
I'd planned that Sandy O'Connor and I would skedaddle,
Putting Antonin and another Attila in the saddle.
But the reaction to Bush versus Gore
Has left so many people sore,
That I'm stuck in this job for a while,
Because those damn Democrats are vile.
All they do is smile.

As a ripple of applause erupts, the Chief holds up his hand - always a man to demand decorum in his courtroom. The clapping ceases instantly, the beat goes on, and so does Rehnquist:

Two things we need, right away.
More federal judges, and more pay.
We've got a problem recruiting Republicans for the bench,
Not enough bucks to put up with the confirmation stench.
Nomination of conservatives by the POTUS,
Means that the proceedings in the Senate will be odious.
Those damn Democrats are not just hintin'
They're doing to Bush what Republicans did to Clinton.

The chorus of hisses and hoots leaves no doubt that everyone shares the Chief's feelings. Senator Trent Lott of Mississippi is so excited, with everyone snapping their fingers to the contagious beat of the music, he jumps from his front row seat to lead a cheer, just like he used to do at Ole Miss.

But before he can steal the stage, or interrupt the Chief, he is grabbed by the strong young arms of Fourth Circuit Judge J. Michael Luttig, a former law clerk to Justice Scalia.

We need, in addition to a little greed, more seats for judges
And we can't get em, unless the Congress budges.
For a decade they've not acted on the court of appeals,
Ignoring all my suggested deals.

Today, Circuits one, two and nine,
Have more business than judges to opine.
Take the Ninth Circuit, where business has doubled
It's seventeen years since Congress could be troubled.
The wheels of justice are going to soon grind to a halt,
If Congress doesn't get to work, it will be its fault.

The only folks who really care,
Are judges, lawyers, and litigants who share,
The delays, added costs and wasted time
Because the Congress won't get off the dime.

As easily as Rehnquist jumped atop the bench he suddenly jumps off it. But he isn't finished:

Rather than rap out my entire report,
I've focused on its real purport.
But I hope you will read it all,
For there's no reason to stall.
It's time for conservatives to do what we do best,
And that's be meaner than all of the rest.
It's time to run the damn Democrats out of this city,
And do it without any pity.

The coming elections of twenty-oh-two,
Is the moment to give them the screw.
Cause Sandra and I want to get out of here,
Back to Phoenix where we can cheer,
Knowing Antonin and Clarence have it made,
And can at last reverse that terrible Roe versus Wade.

I close with a reminder about Democrats who smile,
Just remember that's not kindness but guile.
We understand what they do not,
That power is opportunity, and that's its lot.
As I told my colleagues in the conference on Bush v. Gore,
Democrats find power a responsibility, and that's a bore.
For that reason alone, we closed the recount door.
As said the raven, never more, never more.

With this the Chief bows graciously, and leaves the chamber while.... I stopped fantasizing about his bland, but not unimportant, Report on the Federal Judiciary. I hope you read it. But as you do, you might remember what I think he's truly rapping about.

Happy New Year.


John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.

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