Rehnquist, Powell, and the Cult of the Pro
Lessard, Suzannah
Rehnquist, Powell, and the Cult of the Pro by Suzannah Lessard On the surface, the Nixon nominees lend themselves to pleasing textbook simplicity. The starred four make a nice multiple...
...The candidate must have an “awareness of the great issues of our times,” said an illuminating Wuskington Post editorial...
...all the sketchy evidence here is insufficient to make a judgment...
...This is the tendency which comes crashing into conflict with the desire to think of oneself as ready to stand up for what one believes, which, given the currency of issues like the war, has been especially plaguing of late...
...toleration of differences of outlook...
...His content may not differ that much from his co-nominee’s, but Powell speaks gently, with an air of moderation, wisdom, tradition, whereas Rehnquist at times tempts one to do a take-off in a heavy German accent...
...The Squeamish Belief The insecurity runs deep...
...But, nervous that they might appear to be attacking out of petty partisan spleen-though civil rights, it would seem, is an issue on which one can be partisan with a clear conscience-the liberal ranks generally clung to the simpler standards of competence and integrity as long as possible...
...The radical left, strongly led and with a growing base of support, is plotting violence and revolution...
...The starred four make a nice multiple choice: Haynsworth, unethical...
...The sticky issue is the third criterion, which has to do with the nominee’s ideas...
...Going beyond the nasty feeling that the fundamental distinction between Powell and Rehnquist is that the gentleman from Virginia would make a charming dinner guest while the Goldwater conservative from Arizona, brazen, a little sweaty, and outspoken...
...People no longer assume that those tags guarantee performance and are suspicious that the merchandise may be less than first rate, that the holder could just as well be a bumbler as an ace...
...Nevertheless, the principles proclaimed and the cornerstones bandied about during the melee, particularly with regard to the last two nominees, are worth examination, as are some unar t iculated assumptions which guided the course of events as much as, if not more than, the spouted doctrine...
...These are the only true theologians in the crowd-no fickle casting around for convenient principles here-but they are not totally unrelated to the sloppier hybrids in the ranks...
...Brilliant lawyers, for instance, are likely to arrive at the same estimation of the merits of a given case-even if they have dramatically antithetical sympathies...
...An exaggerated horror of “disorderly demonstrators” and antiestablishment sen timen ts, with little or no evidence that he is aware of the reasons behind such movements, pervades his rhetoric...
...In Nixon Agonistes, Garry Wills dissects a similar set of liberal contradictions contained in the notion of academic freedom...
...Behind them hover the disembodied grimaces of Herschel Friday and Mildred Lillie, sacrifices...
...ing sense of hitting the bullseye...
...An assumption behind the Kraft position is that ultimately intelIigenCe agrees-or arrives at what is “right...
...Looking at your own vote in terms of the whole system, over time, if you cast a vote against a Rehnquist then you have to accept the right-winger’s prerogative to cast a vote against a Douglas...
...Why...
...In the frantic search for Thomistic consistency, Carswell provides a welcome absolute, but unfortunately he is the exception, and no help against the quicksand beyond him...
...Rehnquist’s likely decisions with some misgivings...
...On the floor, liberal supporters rose to laud his distinguished legal career, to refer to him insistently as a gentleman, and often to note that they held many friends in common, progressing to the curious and disturbing spectacle of men like Senators Bayh, Percy, Hart, and Mansfield joining Senators Fannin, Eastland, and Robert Byrd to expound enthusiastically on the nominee’s deep dedication to civil liberties and the Bill of Rights...
...He leaves no question about his views...
...Having had their emotions trifled with by the six outrageous suggestions, they accepted both nominees after some well-ordered dissent, declarations of the need to avoid acrimony, and a good-humored reminder from Hugh Scott that if nothing else, they all held in common a desire to go home for the holidays...
...As Schmidt explained it to me, the reason it is self-defeating for senators to approve or disapprove of a nominee according to whether thky agree with the votes he is likely to cast, is that if everyone in the Senate insisted on a Justice with views which were acceptable to him, then we would end up with a Court which closely reflected the consensus of the legislature, thus gravely undermining the function of the Court as a separate and independent branch of government...
...Speaking of domestic dissidents, he has said, “There may have been a time when a valid distinction was made between external and internal threats...
...there will be a backward movement...
...But in no way does it follow that they would arrive at the same verdict, should they be in a position to judge the case...
...The schematic neatness breaks down, however, when one tries to make the cast act out the object lesson they promise...
...Rehnquist is more explicit than Powell in his recommendations for inroads on the first amendmentparticularly as regards free speech for federal employees and extensive wiretapping, but Powell has hardly shown qualms about such alterations in the law...
...A precise, penetrating mind like Rehnquist’s could be a contribution not only in itself, but in prodding sloppier thinkers to shape up...
...The chief evidence that Rehnquist has countertendencies is in the various opinions he wrote or helped write, many of them years ago...
...Powell, on the other hand, as chairman of the Virginia state board of education in the 1960s, in the face of desegregation suits advocated “freedom of choice” or statefunded tuition to private schools for those who chose not to integrate...
...and that as long as a citizen is “law-abiding,” what difference does it make to him if the government listens to his conversations...
...Rehnquist, Powell, and the Cult of the Pro by Suzannah Lessard On the surface, the Nixon nominees lend themselves to pleasing textbook simplicity...
...Many of the passages quoted from articles written over the years, including that memo recommending a return to the separate-butequal doctrine, reveal a subtlety, agility, and ability to penetrate to essentials, which is dazzling...
...Only Carswell escapes scrutiny, with his touted image as second-rate and sloppily bigoted inSuzannah Lessard is an editor of The Washington Monthly...
...Later, when Senator Roman Hruska accused the opposition to Rehnquist of insisting that nominees correspond to their mold, Bayh, stung, retorted, “How can the Senator from Nebraska make the assessment in the light of the fact that only one hour ago on the Powell nomination only one senator dissented...
...It is of the highest importance that professional excellence characterize members of the Supreme Court and any other crucial position...
...and, raised a bit, Hollywood-handsome Mr...
...When people get labeled brilliant at every turn, one sometimes wonders whether the label isn’t a mindlessly parroted exaggeration, but even a cursory look at Rehnquist assures one that the man is impressive...
...Actually, the rejection of Haynsworth on grounds of integrity was clearly motivated by his record on civil rights, and the outrage at Carswell’s mediocrity was heavily fueled by his blatant racism...
...But the series does provide opportunity to examine the principles, point out some liberal foibles, and clarify a little more what we care about, and what we can expect the men we elect to do about it...
...They seem to feel, at the bottom, that if you are innocent you will get fair treatment (that those rights really only give the guilty loopholes through which to escape punishment), that the government is made up o? reasonable men against whom only troublemakers would dissent (why go to such lengths to protect them...
...Rehnquist considers the revelation that minorities feel strongly about their rights as a satisfactory explanation for why he into account the rights of everyone, including those who don’t even know their rights, much less feel strongly about them,’’ exploded Herblock in a letter to the Washington Post-Powell, in tones of moderation, states “the need is for greater protection, not of criminals but of law-abiding citizens,” missing, as a letter to The New York Times pointed out, that it’s not just “criminals” but persons accused of crimes that are protected...
...Ultimately those who believe in the essential role of the Supreme Court as an active and principled protector of individual liberties must rest their faith on process, not outcome...
...and Powell, correct...
...would be a disonant presence, one gets back to the liberal susceptibility to intellectual style...
...Rehnquist will restore intellectual distinction to the Court...
...Burger, but I voted for him and Justice Blackmun...
...The prototypes are the aggressive, brilliant people whom Kennedy gathered around him, and on whom he came to rely increasingly as the princes of the establishment, many of them holdovers from Eisenhower days, failed him...
...Justifiably horrified, it launched into stern rebuke at Nixon for the mediocrity and lack of distinction that characterized the Lillie-Friday six-“only two of the six are recorded in Who’s Who,” remarked the Post disapprovingly, a little like a grande dame confronted by her daughter’s salesman boyfriend...
...The central political problem of a populist country is to preserve some modicum of elite valuesrespect for achievement...
...We’ll take the Burgers and Blackmuns, but not the Carswells,” said Senator Birch Bayh after Nixon had floated out his six surprise balloons this fall...
...Freedom of choice is the segregationists’ alternative to closing the schools...
...The combined agility and depth of his thinking guarantee that argument would not be a Buckley-type dueling match but a creative challenge to the basic precepts of one’s bel;efs...
...they are neutral only insofar as one grades a professional as a technician...
...That is why, where Benno Schmidt would have been concerned for the system if the liberal flank had solidly voted against both nominees, I am equally concerned for the system that so many voted for them both, and that only one senator, Fred Harris, chose to vote against them both...
...To many, Powell represents the type of cultured, responsible, white leadership the upper classes of the South have promised and so often failed to produce,” said an article in the Washington Post...
...Powell, fuzzier, seems to have arrived at his opinions through common sense and “particular insight,” and hence they don’t seem to hang together in quite so threatening a way...
...He doesn’t cut his opinions with that soothing politesse of indefiniteness The Legal Theologians A quite different set of arguments was made for the acceptance of both nominees...
...The scion of propriety, he will shy away from doing anything that will stand out...
...The search for dogma, itself relative to mood (no such fervor marked the confirmations of Kennedy or Eisenhower appointments), created more religious atmosphere than theology, and if anything, demonstrated the futility of the quest for rational and explicit justification in the vague constitutional mandate “advice and consent of the Senate...
...He is not exactly in the mold of the Senator from Indiana, and neither is the distinguished Chief Justice, Mr...
...But that doesn’t cancel out the fact that he, with Powell and the other Nixon selections, have expressed their proclivities away from the values of free speech, civil liberties, and the rights of accused persons, and now are close to holding it in their power to turn the Court in their own direction...
...He quotes Arthur Schlesinger: “ ‘But a difference remains between a faith which is submerged and one which is formulated and codified in a body of dogma...
...If that happens, the consequences will be equally damaging whether it is done brilliantly or by mediocre minds...
...Schmidt has, of course, handed anyone so plagued with the perfect solution: the principle on which you can stand is the principle of the system, of process, but such clarity has never been, nor is it likely to be, characterisitic of politicians, which is one of the reasons why the theory doesn’t work...
...The only good idea is the particular insight...
...I i has “changed” his views on those ~ rights-“A judge is supposed to take ~ The Sweaty and the Gentle In trying to figure out why Rehnquist’s opponents got such bad vibrations from him, yet reacted as favorably to Powell, it’s difficult to overlook the social overtones of remarks about Powell...
...Rehnquist, direct, consistent, and icily cerebral, comes on like an ideologue...
...When forced by Rehnquista man of undoubted ability and honor-to stand or yield on the issue of philosophy, many yielded, and those who did oppose him fumbled for the concept that would rank theoretically with competence and integrity...
...In terms of race relations I would expect him to be retrograde...
...then, essential concerns reasonably well safeguarded, one could surrender to the dictates of process without fear...
...What does it mean to take the Powells but not the Rehnquists, the Blackmuns but not the Haynsworths...
...According to Washington Post reporter John Mackenzie, last year Powell prepared a friend-of-thecourt brief urging a slowdown on bussing...
...Since the two of you are likely to agree only on a middle-oftheroader, then the cost you have to be Brepared to accept if you vote against the Rehnquists is, in time, a middle-of-the-road Court...
...he’ll be 100 per cent in favor...
...Rehnquist is hardedge...
...In a way, the liberal community set the trap for itself...
...A defensive touchiness, a straining against charges of unreasonable partisanship and towards building a solid case for that supposedly definitive boundary that separates Rehnquist from Powell, pervaded the debate in the press as well as in the Senate...
...tact, a glorious booboo who canbe nixed by the student with the gratify...
...The President has acknowledged that philosophy is a concern of his,” said Senator Edmund Muskie...
...But protecting the independence of the Supreme Court by subjecting nominees to an outcomedeterminative test is self-defeating...
...Just as they pounced on Haynsworth’s peccadillos, the result in the Rehnquist controversy was an absurd debate between Bayh and Goldwater over whether or not Rehnquist himself was involved, was likely to have been involved, or was nearby when black Arizonans were blocked and harassed on the way to the polls many years ago...
...Among those who supported Rehnquist from a liberal standpoint, professional excellence was, if not, as with Joe Kraft, the only reason, at least the saving grace...
...Process is important, and it’s of great importance also to have people around reminding us of its value, in clear terms...
...So there is no question that Rehnquist’s qualifications are headily seductive...
...Joe Kraft expressed his estimation of the significance of this quality quite plainly...
...Claiming that Powell not only met all three but was, more important, “a humane man,” Bayh went on to say, “It is this reason that compels me not just to vote for Lewis Powell, but to argue as persuasively as I can that this man meets the standard which we in the Senate are duty-bound to apply to any nominee, and when the time comes, to argue equally as vigorously that the second nominee, William Rehnquist, does not...
...Powell’s attitudes are all half-submerged, soft-form, and further veiled in the pleasing hues of classy respectability...
...If the Court were well populated with civil liberty advocates, then it would make sense to vote for a Rehnquist...
...Seventeen senators from the South voted against Potter Stewarthardly a far-out leftist-when it became apparent he wasn’t inclined towards reversing Brown vs...
...He was brilliant...
...Powell possesses a rich cluster of certifications by which the establishment recognizes a top professional: partnership in a prestigious law firm, membership on powerful corporate boards, presidency of the ABA, social status, and the manners, appearance, and life style of a gentleman...
...But it is an indicator of why, to me anyway, Rehnquist and Powell both give the strong impression, not just that they are oriented to the establishment, government powers, and authority in general, but that they don’t really understand the dangers that the Bill of Rights guards against...
...I do not believe he will put the manacles back on the slaves, but I’m sure from his point of view it will be more than a pause...
...But such a distinction is now legally meaningless...
...The conflict is between a sense of the necessity of openness and compromise, and the desire to be unmoving, “principled,” (or pigheaded and doctrinaire) on fundamental issues...
...The differences between Powell and Rehnquist seem, on inspection, a good deal finer than their characterizations in the press and in the Senate...
...He honestly doesn’t believe in civil rights and will oppose them...
...I voted for Lewis Powell...
...Powell and Rehnquist have both explicitly stated that they strongly favor dramatic retrenchment on the recently expanded constitutional rights of defendants...
...On free speech Bill will be restrictive...
...On the one hand they meant Powell was eminently worthy and capable, the kind of grade-A talent we want in high levels of government...
...A tome full of precedents of liberals humbly accepting more segregation-oriented nominees would not have been likely to change those votes...
...On criminal matters he will be a supporter of police methods in the extreme...
...Too bland to fit neatly into a multiple choice, he provides a neutral anchor to the schema...
...Putting philosophy before professional excellence in choosing the people you want in government doesn’t mean that when you get the person with the right philosophy but second-rate skills you accept him...
...The purpose is not to set up another set of guidelines-that would be impossible, as some of the principles are in irreconcilable tension, an example of what has been called the “beauty of the system...
...When a Senator casts a vote, he isn’t writing the Constitution...
...Make one idea capable of coupling with another, and it is already turning into a bad idea...
...And they should be...
...If he decides to swallow his misgivings in favor of the process, all he is guaranteeing for the interests he represents is that next time, when his kind of candidate comes up, he can upbraid his conservative colleague for voting nay without contradicting himself...
...the unsingular figure of Blackmun, who mysteriously escapes all pigeon-holes...
...a priceless unintended revelation of the liberal mentality...
...The Supreme Court refused to let him argue and rejected many of his arguments unanimously...
...The technician cannot be separated from the ends to which he employs his skills-particularly in a judge...
...When a President is filling up the Court with people who are antipathetic to what you consider crucial concerns, in a time when popular opinion is also tending in that direction, then you cannot risk those values in the abstract interest of process...
...Benno Schmidt Jr., an associate professor of constitutional law at Columbia University wrote a letter to the Senate Judiciary Committee recommending Rehnquist’s confirmation: One who reveres the person and performance of Chief Justice Warren, as I do, cannot but look forward to Mr...
...Board of Education...
...As long as one sticks to particular insights one is always ‘open’: no large segments of thought get automatically excluded, no particular segments are given even partial ‘monopoly.’ ” If anything, perceiving the contemporary importance of civil rights (in the narrow sense of the rights of ethnic minorities) is a “particular insight...
...What principle would dictate that you reject the Haynsworths but accept the Rehnquists...
...The Pro Ethic If reverence for smooth process, less codified than Schmidt’s, but instinctual, propelled many towards accepting both nominees, another kind of reverence-the pro ethic-also played a part in the crosscurrents of motivation...
...Rehnquist lent himself less well to the general taste for “distinction” but offered a more specialized brand...
...You want both...
...And if his kind of candidate does come up...
...The question of how active a role the Senate should play in accepting or rejecting Supreme Court nominations was a major variable throughout the debate...
...On the other hand, this genre of certification has been discredited in the last decade...
...Even more questionable is to say that this third “fundamental quality” can be isolated in the differences on matters of civil rights between William Rehnquist and Lewis Powell...
...Looking back, it seems pretty clear that despite pious rationalities, the Senate liberals went after Haynsworth like a pack of dogs, had no choice but to go after Carswell, then, exhausted, were a pushover for Blackmun, and with Powell and Rehnquist attempted to make some sense out of their overall behavior...
...To borrow a phrase, it is not self-defeating but imperative that some of the people in the system some of the time be willing to subject the process to a short-range “outcomedeterminative test...
...Important as it may be at the moment-and reason to accept or reject a nomineea sensitivity to current issues of civil rights cannot in itself be construed as a basic and eternal requisite for sitting on the Supreme Court in the sense that integrity and competence are...
...But neither, despite Bayh’s avowals, have anything like a “demonstrated commitment to fundamental human rights...
...Carswell, incompetent...
...When Rehnquist and Powell, both undeniably of a high caliber, were finally named, editorials stammered in relief for days about how important it was to have “distinguished’ ¶ people named to the Court, which is how the exaggerated appreciation of Powell got started...
...Nor is this an isolated example...
...How can the Senator say you have to have someone who marches along in lockstep...
...Attacks on the pro ethic so often leave the unspoken assumption that having seen how far astray the whiz-kids can lead us-Vietnam, for instance-intelligence and technician-like excellence should not feature as a key prerequisite for aspirants to power...
...Then, even more bluntly, “What the court needs is brains...
...Blackmun, it turns out, was guilty to the same degree as Haynsworth of holding stock in companies whose cases were before his court...
...Leaning Together The most telling difference between Rehnquist and Powell, as I see it, is intellectual style...
...It doesn’t make sense to take a concrete risk that the next decade or two will witness specific setbacks in these areas-with real effect on people’s lives-on the grounds that by taking that risk you affirm the theory according to which, over a hundredyear span, those crucial principles in a larger sense, will be well served...
...It’s all true, and horrible to think of, but we must eat humble pie before the rules of the system...
...The Supreme Court controversies, however, conjured up the “Consti tu tion,” which, like “morality ,” sends the liberal conscience into a tailspin brought on by a collision between this distaste and another set of liberal fears-that of being spineless and wishy-washy...
...As the image of the pro as the est ab lis hmen t -certified gentleman faded-as Groton alumni no longer rose in such numbers to positions of power-it has been replaced by the brash, mind-like-a-steel-trap young man from nowhere...
...Competence and .integrity are clearly qualities on which the Senate has a duty to confirm or reject, although the standard is fairly flexible, as the different treatment of Haynsworth and Blackmun proves...
...The problem with the concept is that the system isn’t a museum model...
...But one cannot look at those qualities as though they are neutral...
...If he’s still around...
...They come closest of all liberal concepts to espousing an ideology, in that for them the “natural laws” of the system are of supreme importance and “pirticular insights” should be subordinated to the overall functioning of those laws...
...These are perhaps small slips...
...Justice Burger...
...The Senate and the press seem to have read these signs in a schizoid way...
...The answer is no principle, no lucid rationale or set of clean guidelines emerge from the turbulent court series...
...Garry Wills gets at the core of this distinction...
...If it’s a legitimate concern for him, then that imposes a responsibldity on the Senate”-implying that it isn’t a legitimate concern of either, but if the President is going to be partisan, the Senate must stoop to retaliate...
...On loyalty programs...
...There is no way that everyone in the Senate is going to think in these terms...
...Because such combinations are like cartels, stifling competition in the marketplace of ideas...
...They are the product of a special brand of legaj-minded liberalism, and while self-enclosed, they represent in concentrate, attitudes which exist in more diffuse, muddier forms in the wider community of politicians and observers...
...By normal standards of Supreme Court appointments, Rehnquist is unequivocably entitled to be confirmed, regardless of his philosophy...
...But when the preservation of certain principles such as free speech (the linchpin of the Bill of Rights and far more directly threatened than the civil rights of ethnic minorities) is in danger of cavalier treatment, then one must be prepared to take chances with systematic principles...
...The trap for the seers seems to be that they cannot stand firm on their insight without making it into grand ideological dogma-in order to justify obstinacy-about which they are not only congenitally squeamish, but out of practice and therefore clumsy...
...You know that you would get to the real issues...
...If one is going to have principles or system it is better to keep them submerged, half-conscious, unadmitted...
...Both are potentially disruptive, and both run afoul of the sweet desire for compromise and the gentlemanly atmosphere of reasonable debate...
...Birch Bayh, his idealistic armor a little tarnished from his recent politically motivated vote for Earl Butz as Secretary of Agriculture, named legal ability, integrity, and a demonstrated commitment to civil rights as the three standards by which senators should judge nominees...
...Thus, John Frank, a constitutional lawyer and Supreme Court expert in Phoenix, Arizona, writes of Rehnquist: “Bill has been an intellectual force for reaction...
...One of his major observations is the liberal’s aversion to “ideology,” or systems of thought...
...so philosophy was, underneath, a major consideration all along...
...Nor does it mean that you reject a Rehnquist without bitter regrets...
...regularity of procedure...
...Such a Court would not be likely to produce those dissenting opinions on either side of the center which have hitherto been such an important part of constitutional law-a dialectic which has ultimately benefited the libertarian view...
...So the other side of the perception of Powell is that he is harmlessconservative maybe, but not likely to be terribly effective, and probably not original and creative enough to take shocking positions, even though his disposition, fuzzily, tends in those directions...
...Rehnquist, heretical...
...As conservatives of that caliber have not been appearing in droves, one longs on discovering Rehnquist, to sit down with him and pit your arguments against his...
...The final irony is that shying away at the last minute from rejecting a man on philosophical grounds-even though that is unquestionably what troubles them-the opposition ends up pouncing on what he has done, digging up incidents from the remote past and making them into pass-fail issues, in the manner of that ideologue upon whose mention all liberals bless themselves for protection, Joseph McCarthy...
...But the role that value should play has to be relative to circumstances...
...Their sublime faith in the system-process over outcome-governs much liberal behavior in vaguer, more diluted forms, evident chiefly in that ingrained reluctance to take risks with the smooth workings of things by forcing confrontation, or by taking uncompromising stands no matter how deeply concerned one might be with the issue...
...The pro ethic exercised a strong influence on the liberal defenders of both Powell and Rehnquist, but in slightly different forms...
...The Supreme Court has come to be the defender of these values-the elitist institution in a populist country...
...But if a person’s beliefs run counter to beliefs the protection of which you consider of vital importance, you can’t say, oh, well, that’s canceled out because he’s brilliant any more than you can say it doesn’t matter because he’s a gentleman, Direction, intent, remains the same whether it’s pursued in a brilliant, or gentlemanly, or mediocre fashion, and so must the objection to the intent...
...Powell’s dictum reveals a much weaker grasp of the realities than one would hope for in a Supreme Court Justice...
...Though we are more familiar with the type when cut out of a different philosophical cloth, they are the Rehnquists...
...The admiration Joe Kraft expressed isn’t misplaced, nor is the desire for such admirable qualities...
...The source, in an abstract sense, is the liberal distaste for being either pigheaded or doctrinaire (which you tend toward if you attack a man for his beliefs...
...The latter urge provides a problem of its own-that of distinguishing the fundamental issues from the secondary ones...
...Acute discomfort with attacking a man for his beliefs alone (far more comfortable to attack a Haynsworth because of his beliefs but under the guise of attacking ethical indiscretions) betrayed an endemic liberal insecurity, especially noticeable in the relief with which opponents to Rehnquist would rush back to the safe warmth of accepting Powell...
...Professional excellence is indeed valuable, if not indispensable on the Court...
...He was lauded in the Senate for working hard to keep the public schools open, from which it was apparently deduced that he was dedicated to integration...
Vol. 3 • February 1972 • No. 12
