Chief Justice William H. Rehnquist died in office last night at age 80, after a year-long bout with thyroid cancer, and just one month after warning journalists not to follow him around waiting for him to announce his resignation.
With the resignation of Associate Justice Sandra Day O’Connor, Rehnquist’s death leaves two openings on the high court. Several weeks ago, President Bush nominated John Roberts, a conservative, to replace the more moderate O’Connor. On Monday though, Bush nominated Roberts, who once clerked for the conservative Rehnquist, to succeed him as chief justice.
"It's pretty much all bad," said attorney Jeffrey Douglas, assessing the entire high court situation. "No one worse than Rehnquist is likely to be nominated, so the Court is not going to get much worse, but the chief is an incredibly powerful position that defines policy for a generation. The spectre of having Bush pick the chief, although predictable, is very disturbing."
Chicago attorney Reed Lee, a Free Speech Coalition board member, had a more nuanced view of the developments.
"This could give Bush a chance to balance his nominations," Lee opined. "It could give him a chance to do what I thought he might do after O'Connor announced her resignation, which might not be so bad, and that is to nominate [Attorney General Alberto] Gonzales, or maybe to switch them so that Roberts is up for chief."
Few in the adult industry dispute that the Rehnquist court has, over all, not been good for the industry, despite some excellent rulings on adult issues in the last few years, including Ashcroft v. Free Speech Coalition (the Child Pornography Prevention Act case), Lawrence v. Texas (upholding adults' right to private sexual conduct), United States v. Playboy Entertainment Group (the "signal bleed" case), and the remands of City of Los Angeles v. Alameda Books (which established important criteria for adult zoning considerations) and ACLU v. Ashcroft (the COPA case). Of course, Rehnquist himself was on the opposite side of every one of those.
On the other side have been City of Erie v. Pap's A.M. (upholding an anti-nudity ordinance for strip clubs), United States v. American Library Assn. (the CIPA case), Thomas v. Chicago Parks (limiting prompt judicial review) and several others, all of which have, in one way or another, damaged free sexual speech.
The adult industry and its supporters have plenty to worry about regarding whoever is nominated to the various openings. While the future of Alameda Books, which is now back before the district court in Los Angeles, is unknown, the COPA case is due to begin trial in the Third Circuit early next year; Nitke v. Gonzales, challenging the obscenity provisions of the Communications Decency Act, will have a petition for certiorari to be acted upon this term; Williams v. Pryor, the Alabama sex toy case which has been remanded by the Eleventh Circuit twice, is likely to be petitioned within the next couple of years; and whatever the outcome of October's hearing into the dismissal of obscenity charges against Extreme Associates will be appealed to the new Supreme Court as soon as that decision is rendered.
The new justices will also play crucial roles in innumerable mainstream disputes that will ultimately affect the adult industry, not the least of which is the possibility of extreme limitations on Roe v. Wade, which established women's right to abortion; myriad facets of the USA PATRIOT Act, whose grant of power to conduct secret searches of citizens' library records is currently under challenge in Connecticut, and whose other provisions will provide fodder for civil rights suits for decades to come; and the related Guantanamo Bay "enemy combatant" cases that will deal with right to counsel, right to confront witnesses, habeas corpus and other fundamental constitutional guarantees.
There is no question that whoever else Bush nominates to the high court, whether as associate or chief, will be in the Rehnquist mold as a conservative thinker, and that person, as is the case with John Roberts, is likely to share Bush supporters' fundamentalist religious views as well. Rehnquist's final Supreme Court opinion upheld the constitutionality of the placement of a Ten Commandments monument outside the Texas state Capitol in Austin, ruling that the tablets were merely an acknowledgment of the nation's religious heritage rather than the unconstitutional promotion of religion the monument clearly is. In 1985, in his dissent from a decision in Wallace v. Jaffree that struck down an Alabama law requiring a "moment of silent prayer" in public schools, Rehnquist termed Thomas Jefferson's description, in a letter to the Danbury (CT) Baptist Association, of a "wall of separation" between church and state a "misguided metaphor based on bad history."
Rehnquist's history is conservative through and through. In 1972, he was appointed as an associate justice by Richard Nixon, then elevated to chief justice in 1986 by Ronald Reagan, being confirmed by the Senate 65-33.
"Rehnquist served longer as chief justice than anyone in a century, and his 33-year career as a justice was among the half-dozen longest in the court's history," wrote David Savage of The Los Angeles Times. "Under his leadership, the court restored the death penalty, allowed more public funding for religious schools and pulled back from the frontiers of civil rights and individual liberties."
Rehnquist's "conservative roots" stretch back for decades. For instance, when undergoing confirmation hearings for his chief justice position, Rehnquist was questioned by Sen. Edward Kennedy about reports, which Rehnquist denied, of Rehnquist approaching black voters at the polls in Phoenix in the early '60s to take makeshift "literacy tests," implying that if they failed the test, they would be refused the opportunity to vote. "Literacy tests" and "poll taxes" were common methods used by segregationists across the south and elsewhere to prevent blacks, Hispanics and other minorities from exercising their voting rights.
As a clerk for Justice Robert H. Jackson in the early '50s, Rehnquist apparently presaged his Phoenix philosophy by opining, in a memo to his boss, "I take a dim view of this pathological search for discrimination" against African Americans. He also suggested that "drawing and quartering" would be a more appropriate punishment than the electric chair for convicted spies Julius and Ethel Rosenberg. In 1969, as an assistant attorney general with the U.S. Department of Justice, Rehnquist referred to anti-war demonstrators as "the new barbarians."
Rehnquist was also generally an advocate of state power over federal power, as demonstrated by his 1995 opinion in U.S. v. Lopez, which struck down a federal law prohibiting gun possession in "school zones" on the basis that Congress had exceeded its constitutional power.
Of course, Rehnquist violated that principle when it suited him, as in Bush v. Gore, when he led a high court majority to stop the recounting of votes in Florida during the 2000 presidential election. Rehnquist called the state court's interpretation of state election law "absurd" and stated, in an opinion joined by fellow Court conservatives Antonin Scalia and Clarence Thomas, that the state court decision could be overturned federally on the grounds that it fundamentally revised the law after the election.
The justice who will serve as acting chief justice, John Paul Stevens, apparently does not share Rehnquist's views of federal versus state/citizen power. Stevens authored two important opinions this term, one of which established the primacy of the federal commerce clause over the purely intrastate non-commercial legalization of medical marijuana (Gonzales v. Raich), and the other of which denied Fifth Amendment "takings" clause protection to individuals who challenged a state use of eminent domain to seize properties for redevelopment by a private contractor (Kelo v. City of New London). Interestingly, Rehnquist voted against the majority in Raich.
There is little doubt that Bush will feel pressured to name a Rehnquist replacement as either associate or chief very quickly, and there is equally little doubt that Senate Republicans will pressure their Democrat colleagues to confirm Roberts quickly because of the "crisis" on the Court – not to mention the fact that Roberts clerked for Rehnquist, so he's almost "family." Democrats will be hard-pressed to demand a thorough vetting of the candidate, especially in light of the array of right-wing media that will be hawking that Republican agenda item.
Indeed, decisions by a seven-member Court would have less precedential force than ones delivered by a full nine-member body, and an eight-member Court, as the session which begins Oct. 3 is likely to open with, has the greater drawback of possibly producing 4-4 decisions, which would establish no precedent and leave the appeals court ruling in the case as the holding. Justice O'Connor has offered to remain on the Court until her replacement is confirmed, but her husband's illness may prevent her from carrying out that commitment.
It is difficult to play the "leading candidate" game, since as the announcement of the O'Connor replacement approached, administration officials reportedly were responsible for the disinformation campaign that had the nomination going to either Edith Clement or Edith Jones, both of the Fifth U.S. Circuit Court of Appeals – good possibilities, since both oppose abortion rights and many expected Bush to replace a woman with a woman, so both of those are still in the running as Rehnquist's replacement.
Although Jones joined her Fifth Circuit colleagues in rejecting an attempt by Norma McCorvey, the "Roe" of Roe v. Wade, to reopen that case based on "new evidence," she issued a concurring opinion crediting the evidence presented by McCorvey and sharply criticizing the Supreme Court's ruling in Roe, calling it an "exercise of raw judicial power."
"That the court's constitutional decision-making leaves our nation in a position of willful blindness to evolving knowledge should trouble any dispassionate observer not only about the abortion decisions, but about a number of other areas in which the court unhesitatingly steps into the realm of social policy under the guise of constitutional adjudication," Jones wrote.
Clement too has a reputation as a conservative jurist and a strict constructionist who strongly supports principles of federalism, and would be far less objectionable than Jones.
Other floated possibilities include J. Harvie Wilkinson, who sits on the Fourth Circuit appeals bench, and Michael McConnell, a former law professor elevated last year to the Tenth Circuit. Wilkinson voted to uphold the military's "don't ask, don't tell" policy and rejected the claims of a gay-rights group that the policy violated the equal-protection clause of the Constitution by discriminating against homosexuals.
Wilkinson voted unsuccessfully, along with Fourth Circuit colleague Michael Luttig, another possible nominee, to reconsider a case in which a three-judge panel found that a superintendent at the Virginia Military Institute who required cadets to say a prayer before eating supper in the mess hall possibly violated the First Amendment principle of separation of church and state. He also agreed with fellow appeals court panelists that a "non-sectarian invocation" recited at the start of meetings of a county board of supervisors in Virginia does not violate church/state separation.
McConnell is perhaps the worst possibility. Besides having represented the Boy Scouts before the Supreme Court in their successful suit to keep out gay scoutmasters, in 1996, he signed a statement supporting a constitutional amendment to ban abortion. "We believe that the abortion license is a critical factor in America's virtue-deficit," the statement reads. McConnell also testified before Congress in opposition to a bill designed to limit the access of protesters to abortion clinics.
"Edith Jones would be disastrous," opined Reed Lee. "It's hard for me to see Roberts as being worse than Rehnquist, but if the other nominee is Harvie Wilkinson or Edith Jones or – the real difficulty would be McConnell out of the Tenth; then I think we'd have to think furiously about fighting and fighting hard. I've always been of the view that we should not give Roberts a pass and really rally against him if it appears that he would vote to overturn Roe."
One nominee Lee would be hard-pressed to oppose, considering that whoever the nominee is will be conservative, is Attorney General Alberto Gonzales.
"I think Gonzales is going to turn out to be a moderate," said Lee, recalling Gonzales' branding of Bush appeals court candidate Priscilla Owen as an extremist when both served on the Texas Supreme Court. "Gonzales for Rehnquist would be a good trade. Gonzales for O'Connor, still not bad, if that's what this effectively works out to be."
"My bottom line is, this is all very much in play," Lee continued. "It does depend a lot on what Bush does. I thought he was going to nominate Gonzales last time. If Bush thinks, 'I can't turn down my friend twice in such a public way' – the last time around, when he was talking about interviewing people, he was saying, 'You know, there's some people I don't have to interview, I know them so well.' He could have been talking about only one person."
"I think signals need to be sent now, very, very powerful signals that Bush can get himself out of a very sticky mess if he gives us a genuine moderate. Doesn't even need somebody who turns out to be [Associate Justice David] Souter, but remembering the Souter nomination is something we should all do."
Though nominated by the first President Bush, it was Souter who opened the door, in a dissent in the Paps case, to the introduction of evidence contesting administrative findings of adverse secondary effects when passing restrictive adult zoning regulations, and made equally good points in his writing in Alameda Books.
Sadly, the chances of another Souter or even Anthony Kennedy are remote, since the political and judicial philosophies of all potential nominees will have been vetted by Bush advisor Karl Rove or someone under Rove's direction.
"The current situation is such that they have seen the problem with failure to get guarantees in the past," noted Jeffrey Douglas. "There's an entire generation of candidates who have an ideological commitment, who know how to communicate that to someone like Rove without being so crude as to say, 'If you nominate me to the Court, I promise you that at first opportunity, I'll vote the following way.' But we're so far past the point that you could have judges or lawyers who feel a commitment to the process that they would say, 'I can't possibly pre-judge those [issues].' You know, if during the pre-nomination process, [the late Associate Justice William] Brennan had been asked those kinds of questions, or any judge in that era, they would have refused to allow the nomination process to go forward. It was unacceptable, but now it's part of the conservative ideology to take over the courts. So they'll be vetted very easily, and they'll be very comfortable with it."
"That's why the next few weeks are critically important," rejoined Lee. "We've got to make people understand, before it's too late, that Roe's on the line, because I think, if they do, we're going to have another Bork, and remember where we came out of the Bork nomination: Anthony Kennedy, who, on free speech cases, I'd take any day of the week."
