Rehnquist is no stranger to big cases

He presided at impeachment

By Anne Gearan, Associated Press, 12/4/2000

ASHINGTON - In his long Supreme Court career, Chief Justice William Rehnquist has tangled with presidential politics three times before: during Watergate, in the Paula Jones case, and as presiding magistrate at President Clinton's impeachment trial.

This time, Rehnquist will try to forge unanimity on legal issues underpinning a 2000 presidential election that revealed a nearly evenly divided electorate.

Rehnquist and the other eight justices heard from lawyers for Republican George W. Bush and Democrat Al Gore on Friday. The issue before the court - whether the Florida Supreme Court overstepped its authority by extending the time for counties to certify their votes - will not decide the disputed election, but a ruling against Gore could add significant pressure for him to concede.

Rehnquist is an enthusiastic conservative whose ideology often is on display on the bench. His questions for Gore's lawyer, Laurence Tribe, sometimes seemed combative Friday.

But some who disagree with Rehnquist say he has been able to set aside bias when confronted with politically sensitive cases.

''He's someone who, with all his clearly felt ideological views, can see both sides of the question,'' said Perry Dane, law professor at Rutgers University and a former law clerk to Justice William Brennan, Rehnquist's liberal antagonist on the court for nearly two decades before retiring in 1990.

Rehnquist, 76, was a junior justice and among the most conservative when he was part of the court's unanimous 1974 ruling that forced Richard Nixon to turn over his Oval Office tapes. Not only had Nixon nominated Rehnquist to the court two years before, but Rehnquist had served in the Nixon administration's Justice Department and was a politically active Republican before joining the bench.

Rehnquist had risen to chief justice by the time the court issued its 1997 ruling, also unanimous, that Paula Jones could sue Clinton for sexual harassment. In that ruling, Rehnquist's legal reasoning was apparently persuasive enough to attract the court's two Clinton nominees, Ruth Bader Ginsburg and Stephen Breyer.

The following year Rehnquist did draw grumbles from partisan Democrats when, acting solo, he rejected White House attempts to shield Secret Service agents and Clinton lawyers from having to testify in the Monica Lewinsky investigation.

But amid the shrill partisanship of the 1999 Clinton impeachment hearings, Rehnquist was an implacable judge to the Senate's jury. He won praise from Clinton's lawyers at the time, and his own views, if any, on Clinton's guilt or innocence were not apparent.

The court has not said when it will rule in the Bush case, but legal scholars said whatever the court does will almost surely bear Rehnquist's signature.

''When the court wants to speak in its most institutional voice, it will turn to the chief justice'' to write the opinion, Dane said.

If the court is divided and Rehnquist is in the majority, he probably would assign himself to write the majority opinion, Dane said. Only if Rehnquist is on the losing side would another justice take the lead, he said.

A student of court history and politics, Rehnquist knows that by appearing united the court can give greater weight to its decisions in major cases, said James F. Simon, constitutional scholar at New York Law School and author of ''The Center Holds,'' a study of the ideological divisions on the Rehnquist court.

Simon and other legal scholars cite the unanimous 1954 Brown v. Board of Education decision that outlawed racial segregation in public schools, which predated Rehnquist, as well as the 1974 and 1997 presidential cases.

Still, in the Bush case, few if any specialists predict unanimity. Based on justices' questions, many felt it would be a close split decision.

''After hearing the arguments, you could think it will be a 5-4 decision in Bush's favor,'' said Northwestern University constitutional law professor Robert Bennett.

Legal scholars said whether it's unanimous or divided Rehnquist could maximize the impact of the decision by reading it aloud from the bench, rather than issuing an abbreviated written order, as the court has occasionally done in time-sensitive cases.

That spectacle would not be televised, since cameras are barred from the court, but would nonetheless place Rehnquist at political ground zero. It is not a position he seems to mind, as he himself may have hinted in 1976.

Commenting then on his future job, Rehnquist wrote: ''It may well be that the job of chief justice of the United States calls for skills and abilities more readily honed in the give-and-take of political life than in the practice and teaching of law.''

On Jan. 20, Rehnquist plans to administer the oath of office to whichever candidate wins.