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Chief Justice Rehnquist's Annual Report on the Federal Judiciary:
A Clear Example of What Distinguishes A Radical From A Reactionary Conservative


Friday, Jan. 28, 2005

On January 1, the ailing Chief Justice of the United States, William Rehnquist issued his fourth annual report on the Federal Judiciary. The report is the Chief Justice's equivalent of the President's State of the Union message. This year, in his report, the Chief Justice strongly lectured those members of Congress who have recently mounted increasing "criticism of judges for engaging in what is often referred to as 'judicial activism.'"

This criticism has been accompanied by threats of action -- which may be what troubles Rehnquist. Members of Congress -- including prominent firebrands on the right -- have threatened, recently, to punish the judges they deem "activist." They have discussed seeking to impeach judges based on their opinions (rather than personal conduct). And they have also discussed curtailing federal jurisdiction in a number of ways -- although the extent of Congress's power to strip the federal courts of jurisdiction remains dangerously uncertain.

(Of course, charges of judicial activism can easily be made by the left, too, with the Rehnquist Court a prime offender. But with the Republicans holding political power, the real threat is that Congress will punish judges on the left, or curtail jurisdiction in areas in which it found decisions to be too left-leaning.)

Plainly, Rehnquist feels Congress's threats to punish activist judges are inappropriate. And this is not the first time he has said so. The fact that he has once again raised this issue -- and done so quite pointedly -- suggests that he feels it is a serious problem, and that he may know more than he has said.

David Savage of the Los Angeles Times has adeptly reported on the political context -- and subtext -- of the Rehnquist report and statement. Savage notes, for instance, that Republican House Majority Leader Tom DeLay of Texas "has repeatedly threatened to impeach liberal-leaning judges for their rulings, such as the ban on school-sponsored prayers." Accusing judges of being "drunk on their own power," DeLay wants to know, "Why shouldn't the people have a right to impeach these out-of-control judges?" As Savage reports, DeLay has even called "for Congress to enact legislation that would remove certain issues, such as the Pledge of Allegiance, from the jurisdiction of the federal courts." And DeLay is hardly alone: He may have the support of almost the entire Republican membership.

In analyzing the Chief Justice's report and statement, I've noticed that they provide a nice example of what distinguishes radical from reactionary conservatives. Rehnquist, they indicate, is a reactionary conservative. By contrast, the members of Congress who are calling for drastic solutions such as impeachment or jurisdiction-stripping, are radical conservatives. And, far from being natural bedfellows, reactionary and radical conservatives can end up directly at odds -- which is the case here.

Rehnquist Draws on History to Argue Against Criticizing Judges For Their Judicial Acts

Rehnquist draws on constitutional text and history to make his argument that Congress ought not to take federal judges to task for the opinions they issue.

"Criticism of judges has dramatically increased in recent years," the Chief observes, noting that it "is as old as our republic, an outgrowth to some extent of the tensions built into our three-branch system of government." Yet, Rehnquist says, federal judges have been given "life tenure" under the Constitution "not to benefit judges, but to promote the rule of law." This independence is vital, he explains, to insulate judges "from the public pressures that may affect elected officials."

Rehnquist reminds Congressional troublemakers of a famous, failed political impeachment: The 1805 impeachment of Justice Samuel Chase by Jeffersonian Republicans. Though the Jeffersonian Republicans overwhelmingly controlled the Senate, the party nevertheless broke rank to prevent a radical breakdown of the constitutional system. The House impeached Chase; the Senate refused to convict.

Rehnquist acknowledges that Chase was no "model judge." But he also suggests that the precedent that Chase's acquittal set ought to be respected, for it represents "a judgment that impeachment should not be used to remove a judge for conduct in the exercise of his judicial duties."

After all, he points out, the federal judiciary is not immune to public reaction: If there is a "sustained and widespread" negative reaction to decisions of the judiciary, it "can be a factor in the electoral process and lead to the appointment of judges who might decide cases differently." For instance, FDR - though he famously lost his bid to "pack" the Court with six additional, sympathetic Justices -- ultimately appointed seven Associate Justices and one Chief Justice, creating a Court to his liking.

Rehnquist concludes that "our Constitution has struck a balance between judicial independence and accountability." On the one hand, he explains, it gives "individual judges secure tenure" during good behavior. On the other hand, it makes "the federal Judiciary subject ultimately to the popular will because judges are appointed and confirmed by elected officials."

Ours is not a perfect system, he admits, since it depends on unpredictable vacancies to change the courts. But he points out that, nonetheless, this system has served our democracy well for over two hundred years.

The Assault on Federal Judges: Why Rehnquist Feels the Need to Lecture.

William Rehnquist is no Chicken Little. He would not be issuing so severe a warning, if he did not judge this to be a potentially dangerous situation -- and if he did not fear Congress might truly do the federal judiciary harm.

Rehnquist knows how conservative Republicans can play hardball and it is not always pretty. As an Assistant Attorney General he was deeply involved in the partially successful efforts to "unpack" the Court by removing sitting justices through impeachment (or merely the threat of it). In the end, Nixon's Justice Department succeeded in forcing Justice Abe Fortas off the high bench (with threats), but it failed to force Justice William Douglas off (who didn't take the bluff).

Rehnquist has excellent political antennae. No doubt he recognizes that, with Republicans controlling Congress, there is a genuine risk of a repeat -- or a risk that they may actually have the votes to tamper with federal court jurisdiction.

The House could impeach a ham sandwich, as the expression goes. If an impeachment is purely politically motivated, however, it is highly unlikely to succeed in the Senate. An impeachment, then, would lead to grandstanding, and to a colossal waste of time, with no practical result. Fooling with federal jurisdiction is uncharted territory. It seems that Chief Justice Rehnquist wants to stop all this nonsense before it goes any further.

Not All Right Wingers Are Birds Of A Feather

Why is Rehnquist taking this stand, given that he, too, is conservative, and he, too, opposes the very rulings that have angered members of Congress?

The answer, it seems, is that Rehnquist is a "reactionary" conservatives, and the relevant members of Congress -- such as DeLay -- are "radical" conservatives. (I discussed conservatism generally in an earlier column on conservatism, but did not focus on this specific distinction -- which the Rehnquist/DeLay split nicely illustrates.)

The New Dictionary of Cultural Literacy defines a political radical as "someone who demands substantial or extreme changes in the existing system." Similarly, The American Heritage Dictionary defines a political radical as "favoring or effecting extreme or revolutionary changes." Certainly, DeLay -- with his talk of impeachment and jurisdiction-stripping -- fits the bill.

In contrast, The New Dictionary of Cultural Literacy defines a reactionary as "an extremely conservative person or position that not only resists change but seeks to return to the 'good old days' of an earlier social order." And The American Heritage Dictionary defines a reactionary as "an opponent of progress or liberalism."

These definitions of a reactionary perfectly fit Chief Justice Rehnquist. His thinking -- at a minimum, his judicial and political thinking -- is opposed to all that is liberal.

Moreover, Rehnquist's judicial rulings often look to the "good old days" -- as does his most recent annual statement. In the good old days, his statement reminds us, while the House impeached Justice Chase for political reasons, he was not convicted. In the good old days, when FDR tried to pack the Court to change its politics -- a radical option -- he lost.

On the other hand, DeLay and his court-criticizing cronies epitomize radicalism. They want to proceed with the extreme being their norm. It is difficult to find much that is conservative about those who demand such radical actions.

Rehnquist Was Right to Admonish Radical Conservatives to Take Care

What's wrong with a little radicalism, one might ask, if you feel strongly about the correctness of your position? After 9/11, and this nation's (and the world's) exposure to radical Islamic groups, that question is not worth addressing.

Let us hope the radical pique of DeLay, and others who think similarly, has not become Washington's new radical chic. Hopefully, they have listened to what the Chief Justice had to say, carefully considered it, and decided to halt their attacks on the federal judiciary.

John Dean, a FindLaw columnist, is a former counsel to the President. He is the author of The Rehnquist Choice.

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