The Rehnquist Choice

FindLaw's Writ - Lazarus:2 Dean's indictment of the Chief Justice focuses on his confirmation testimony about a memo that Rehnquist had written while a law clerk to Justice Jackson during the Court's consideration of Brown v. Board of Education. In the memo, entitled "A Random Thought on the Segregation Cases," Rehnquist wrote, in part: "I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by 'liberal' colleagues but I think Plessy v. Ferguson [establishing the doctrine of "separate but equal"] was right and should be affirmed." For obvious reasons, this memo's opposition to the result reached in Brown presented Rehnquist with a confirmation problem. But he came up with a fairly ingenious solution. Rehnquist claimed that the memo did not embody his own views. Instead, Rehnquist claimed to have prepared the memo at Jackson's request "as a rough draft of a statement of his [Jackson's] views." As Dean parses with great care, this explanation does not hold water. The Rehnquist memo's reference to having "been excoriated by 'liberal' colleagues" makes no sense in the context of a statement of Jackson's views to be delivered to his colleagues. On the other hand, it makes perfect sense in the context of an expression of Rehnquist's views � as Rehnquist, by his own admission, saw himself as a lonely conservative clerk isolated in a sea of liberals. In light of Dean's analysis of Rehnquist's veracity, one is led in "The Rehnquist Choice" to a devastating conclusion. In the end, Rehnquist embodies Nixon's legacy in at least two respects. Strict constructionist as he himself defined it, Rehnquist alone among Nixon's four appointees stayed true to Nixon's politically conservative hopes for the Court. And, like the man who appointed him, Rehnquist's conduct has tragically advanced the steady erosion of the integrity of our institutions of government. http://writ.news.findlaw.com/books/reviews/20011102_lazarus.html