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Mulhauser on Rehnquist:
Over at the New Republic Online, Dana Mulhauser has a rather odd article on Chief Justice Rehnquist that manages to paint Rehnquist as egotistical and self-important without offering any real evidence to back up the claim. The article is mostly about Mulhauser's failed effort to write another article that is not directly about Rehnquist, but Mulhauser manages to turn that unrelated experience into speculation that Rehnquist has not yet announced his resignation because Rehnquist revels in the power of being the Chief Justice:
  Rehnquist knows his place in the world, and he revels in it. Which is not to say that a resignation might not be forthcoming today, tomorrow, or next week. But when retirement does call, Rehnquist will be fighting it all the way. This is not a man with any desire to rush from the limelight. This is a man who is Number One--and wants to make sure you know it.
  The Chief Justiceship of the United States is kind of a cool job, and my sense is that most people who have had the job weren't eager to leave it. But what's the evidence that Rehnquist "is a man who is Number One--and wants to make sure you know it"? Well, the main evidence Mulhauser offers is that we know Rehnquist graduated first in his class from Stanford Law School, even though Stanford did not publish class rankings. According to Mulhauser, this is likely evidence that Rehnquist "spread the word" so everyone would know how smart he is:
  In all likelihood, the only people with the knowledge and incentive to keep track of the rankings were the future justices themselves. If we know that Rehnquist was Number One and O'Connor was Number Three, then it is probably because they have spread the word.
  There's a different and more likely explanation for why we know this, however. According to John Dean's book about the Rehnquist nomination, The Rehnquist Choice, Rehnquist was nominated after President Nixon had floated a series of names that had been shot down as mediocrities. Nixon decided that he needed to find someone who everyone agreed was brilliant. Nixon was impressed with Rehnquist in large part because Rehnquist had clerked for the great Justice Robert H. Jackson and was at the top of his class at Stanford Law.

  When considering whether to nominate Rehnquist, Nixon specifically instructed his staff to find out whether Rehnquist had been #1 in his class or merely #2 or #3. Although it seems strange to modern ears, Nixon apparently thought it would be a significant political selling point if Rehqnuist had been #1 in his Stanford class. When Nixon announced the Rehnquist nomination, he made a big deal about how Rehnquist was #1 in his law school class at Stanford.

  Maybe Rehnquist bragged about being #1 in his class before his nomination to the Court. But I doubt it. The more likely explanation is that the one who needed to brag about Rehnquist's law school class rank was Nixon, not Rehnquist.
Steve:
On the Internet, we can all be #1 in our class!
7.8.2005 12:29pm
aslanfan (mail):
Several justices, including Breyer and Scalia, are on record praising the egalitarian manner in which the Chief runs the court. Herding those cats can't be easy. To receive public praise from his colleagues suggests that the man is anything but an egomaniac.
7.8.2005 12:32pm
Paul Gowder (mail):
Three words. Shiny. Gold. Stripes. :-)
7.8.2005 12:39pm
WB:
I read his book about the Supreme Court, and he didn't come across as egotistical at all.

If you're first in your class and others find out about it, it doesn't follow that you told them. If Stanford had any interest in promoting the career of its top students, it might have gotten the word out, at least to Jackson's chambers.

Yes, he likes the stripes, and he will correct lawyers who refer to him at oral argument as "Justice Rehnquist," but that doesn't mean that his enjoyment of being Chief is so strong that it would trump all other factors in his decision on whether to retire.

I've never been too impressed with Mulhauser's stuff, anyway.
7.8.2005 12:49pm
Jon Weinberg (mail) (www):
I think I got a good sense of the man during the year I clerked for Thursgood Marshall, and my firm impression was that he really was a nice and non-egotistical guy. Shiny gold stripes notwithstanding.
7.8.2005 12:50pm
Butter lover (mail) (www):
As a matter of fact, a few years ago, in a speech at UVA, he remarked that, because Stanford's Law School was relatively new when he went (he might have been in the first graduating class), if you could write the check you got accepted. And I'm sure he's told that story in many other speeches. That's hardly someone trumpeting his intellect.
7.8.2005 12:59pm
rbj (mail):
Bob Woodward's book on the Supreme Court, The Brethren, painted a picture of Rehnquist as very down to earth, eating meals with his law clerks in the cafeteria. It was Douglas who came across as arrogant. It may be that Rehnquist wants to keep the job because he enjoys it. Plus, leaving due to age and health means that one has to face one's mortality.
7.8.2005 1:40pm
Anonymous:
As for egotism, wouldn't it be better evidence to point out how petulant CHIEF Justice Rehnquist is whenever a lawyer addresses him as "Justice Rehnquist"?
7.8.2005 2:26pm
w. lyle stamps, esq. (mail) (www):
Anon:

Wouldn't it say alot more about the respect and tact of lawyer(s) in question?
7.8.2005 2:51pm
Eugene Volokh (www):
Rehnquist is an odd mix in this respect. The insistence that people refer to him as Chief Justice Rehnquist (though it's quite accurate to also call him Justice or even judge) suggests a man a bit full of himself; so do the gold stripes (though it's still possible they're a bit of a joke).

On the other hand, I agree with Jon that in person he is down-to-earth, not stuffy or elitist at all. He's less concerned, I'm told, with tony educational backgrounds for his law clerks than are some other Justices. More generally, his reputation supports the down-to-earth theory, and makes me think that the Chief Justice and the gold stripes are more the exceptions rather than the rule.
7.8.2005 2:54pm
Fredrik Nyman (mail):
Eugene,

Very general question: To what extent do clerks of Supreme Court justices get to interact with the justices (both "theirs" and the other 8)?
7.8.2005 3:24pm
Edward Swaine:
I think it's easy to portray Rehnquist as self-important, which is why the original post about class rank is a useful corrective. It's also useful to acknowledge that people can be multidimensional, as Eugene does.

At the risk of ignoring that point, it may also be that Rehnquist's noteworthy behaviors -- the insistence on "Chief," which rubs me the wrong way (especially as a petty correction to oral advocates), and perhaps even the robes! -- aren't just personal in character, but may reflect his commitment to maintaining the respect he thinks is owed the office of the chief justice. This is consistent with his interest in the Court and its traditions (if not the tradition of its robing).

Anyway, I take that view in a recent piece available on SSRN . . .which then argues that the office of the chief justice as we know it can be abolished.
7.8.2005 3:31pm
Cold Warrior:

Three words. Shiny. Gold. Stripes. :-)


And you might also add: Scolds counsel when they have the nerve to refer to Supreme Court judges [see Article III] as, e.g., "Judge Rehnquist."

So what's the best term for it? Pompous? Arrogant? Self-important?

This is clearly a man so taken with the trappings of his job that he is willing to put his own status above the orderly functioning of the Court. Or (as I often think when I see elderly people in poor health clinging to their jobs -- choose the Senator of your choice) so disaffected from their families that they are afraid to call it quits to "spend more time" with those same families.
7.8.2005 3:35pm
Robin:
So who was #2 in the class at Stanford Law the year that Rehnquist was #1 and O'Connor was #3?
7.8.2005 3:38pm
William Baude (mail) (www):
There's debate, but my money is on David Salisbury. See here.
7.8.2005 3:41pm
Clerk (mail):
I'm sorry but if I were number one at Stanford, I would tell the people who mattered (future employers, judges, etc...). I would be proud of the fact that I was brilliant and had worked my butt off. What is wrong with that? Seriously!! And I am sure that if I were number one at Stanford, people would talk. That is just how it goes. Who cares? Good for him!
7.8.2005 3:52pm
Ted (www):
Rehnquist's pique at people who call him "Justice" instead of "Chief Justice" may just be formality rather than arrogance. When I clerked for the Seventh Circuit, one judge would make a point of correcting anyone who used the (Illinois state court appellate) title "Justice" instead of "Judge."

Salisbury was Order of the Coif, which puts him somewhere between #2 and #10, so there's at least a one-in-eight chance that he's the guy. The only other Stanford 1952 Order of the Coif I could find on the web was Loren H. Russell—not many lawyers who graduated in 1952 are still practicing.
7.8.2005 3:56pm
A Blogger:
Cold Warrior writes:

"This is clearly a man so taken with the trappings of his job that he is willing to put his own status above the orderly functioning of the Court. Or (as I often think when I see elderly people in poor health clinging to their jobs -- choose the Senator of your choice) so disaffected from their families that they are afraid to call it quits to "spend more time" with those same families."

Rehnquist's wife is dead. She did a few years ago. Who do you want him to spend time with?

Also, do you feel the same way about Justice Stevens, who is 85?
7.8.2005 4:11pm
Cold Warrior:

Also, do you feel the same way about Justice Stevens, who is 85?

Yes, I do. In other words, this has nothing to do with my political leanings.

Rehnquist's wife is dead. She did a few years ago. Who do you want him to spend time with?

His three children, perhaps his grandchildren (if he has any), maybe a good book, maybe his dog or even his tropical fish.

O.K., the comment is a bit flippant, but I do believe that people who refuse to retire when they are in failing health and facing their own mortality generally do so more out of fear (what on earth will I do now? this has been my whole life for 50 years?) than out of any sense of duty. And my wife -- a liberal -- is not too happy with Stevens hanging on into his 80s when he had 8 good chances to retire during the Clinton years.
7.8.2005 4:52pm
Bill Dyer (mail) (www):
One must keep in mind that in addition to presiding over the Supreme Court itself, the Chief Justice of the United States is the constitutional and statutory head of the entire judicial branch. I suspect that most Speakers of the U.S. House wouldn't much care to be addressed simply as "Congressman" -- and they shouldn't be. From what I've read of Chief Justice Rehnquist's writings, he has an extremely keen appreciation for both the current and historical importance of the institutions he presides over. Someone with that appreciation might well insist that due honor be paid to the office that he temporarily occupies, regardless of the size of his personal ego. I've never met nor had the opportunity to appear in person in court before the Chief Justice, but I tend to give him the benefit of the doubt on this.

Could the pomp be taken too far? Oh, sure. I once tried a case before a state court trial judge who insisted on wearing bright red robes himself (not mere stripes, but the robes entire!), and that all of the lawyers in his court refer to each other as "Doctor" (in European fashion, in recognition of the juris doctorate degrees we typically possess). I know that he was a sweet-natured and modest man, and that his concern was for due respect being shown for the positions, rather than something based on his personal ego. However, he was eventually reprimanded (mildly) by the state judicial commission for carrying the pomp too far; his courtroom had turned into something of a circus, and his practices were having the opposite effect of what he intended.

But certainly almost everyone can agree that William H. Rehnquist's conduct throughout his years on the bench, both as an Associate Justice and as the Chief Justice, has been honorable and dignified, regardless of whether one agrees with his judicial philosophy. And recall the man's calm and dignity as he filled his office's constitutional role of presiding over the Senate impeachment trial of Bill Clinton. Surely we can agree — and again regardless of our respective views about the outcome of that proceeding — that in the midst of that frenzy and firestorm, Chief Justice Rehnquist rendered the nation exemplary service. The criticisms of him on "style points" strike me as extremely petty.
7.8.2005 5:06pm
Cold Warrior:
And I might point to another sociological phenomenon: the job is too easy.

Not "too easy" in the sense that it isn't intellectually demanding, or even in the sense that it often requires great mental -- and sometimes physical -- stamina. Rather, it is "too easy" in that the Court decides its own workload, Supreme Court judges [not "justices"] no longer ride circuit (or, in an even more demanding requirement, handle the occasional district court trial), and Supreme Court judges have ample time to engage in expense-paid travel to lecture at summer sessions in Europe or at other resort locales.

What I'm saying is simple: if the job of Supreme Court Justice required the rigors of most jobs, you wouldn't see many 80 year old men or women clinging to it. Bringing back some of the old traditions (such as circuit riding) would also serve as a nice means of reconnecting these gerontocrats to their distant populace.

By the way, is there any restriction on the president requiring a promise from a Court appointee that he/she will retire at age 70? It wouldn't be enforceable at law, but the pressure to keep such a promise (if made public) would be intense.
7.8.2005 5:12pm
A Blogger:
Cold Warrior --

What is your guess for how many hours a week the Justices work?
7.8.2005 6:24pm
rbj (mail):
I'm reminded of a story about Picasso. A rich woman commissioned him to do a sketch of her. He spends five minutes doing it, and then hands it to her. She's unhappy and sues him, claiming that he obviously didn't care because he only spent 5 minutes on it. His reply was that he had spend twenty years learning how to do a sketch in five minutes. The Chief Justice doesn't need to put in as many hours as I would need (about 30 hours each day). Personally I think he might not be up to the demands of the job, but I'm not in any position to know.
7.8.2005 8:39pm
Eric Watson:

As a matter of fact, a few years ago, in a speech at UVA, he remarked that, because Stanford's Law School was relatively new when he went (he might have been in the first graduating class), if you could write the check you got accepted.


Not if you were black.
7.9.2005 12:26am
Bill Dyer (mail) (www):
Oh my gosh.

I don't know how many hours each Justice works per week on average, and I absolutely do not care.

I know their clerks generally work like demons. They're doing the stuff that requires grinding: finding and checking cites and quotations, unsplitting infinitives, reading mind-numbing cert petitions on denials of individual social security benefits, etc.

But I want wisdom from Justices, not billable hours. Anyone who doesn't get that is absolutely clueless about the function of the Court.
7.9.2005 12:50pm
Challenge:
I, some time ago, read Rhenquist's book on the Court. In it he discusses his clerkship, and he is very, very modest about it. He writes how fortunate he was to get the clerkship, as Stanford didn't have the reputation then that it does today.
7.9.2005 1:38pm
Difficulty (mail):
I happen to know that #2 at Stanford that year was:

This guy.

He is a small-town lawyer in Northern California.

Ah, the road less taken.
7.9.2005 9:07pm