Rehnquist: Stopping to Smell the Roses

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After I wrote last week about the justices and graduation speeches, a longtime Supreme Court employee reminded me of the late Chief Justice William Rehnquist’s advice for graduates: Stop and smell the roses. “Do not let the law be too jealous a mistress,” he used to say. “You must give yourself time not only to do a variety of things, but to allow yourself time to appreciate and enjoy what you are doing.”

A leader of the Court’s conservative revolution, Rehnquist cut a stern, sometimes cold, figure in the courtroom. Yet he had plenty of friends, liberals among them, outside the marble columned building. He was a man of many interests, travels and recreational pursuits.

Some of Rehnquist’s best tales were recalled against the backdrop of a party, charade game or travel adventure. He told me that the offer to be an assistant attorney general in the Nixon Justice Department (the job that first brought him to Washington) was made by his old Phoenix pal Richard Kleindienst (deputy to Attorney General John Mitchell) at a Christmas party. One of Rehnquist’s favorite stories of time with Sandra Day O’Connor’s family arose from a shared two-week pack trip along the Gila River. The Rehnquists and O’Connors also played regular charades and bridge together in Phoenix.

In Washington, Rehnquist took up painting and once missed a State of the Union address because it conflicted with his evening art class. In 1995, when he had four gold stripes sewn on each sleeve of his black robe, he was copying a character in Gilbert and Sullivan’s “Iolanthe.” Rehnquist drew on a set of “Iolanthe” lyrics for one of his favorite quips, too: “I did nothing in particular, and I did it very well.”

Rehnquist, in fact, lived large and beyond his legal interests.

Earlier this month, NBC’s Norah O’Donnell asked me on the Chris Matthews’s show if I thought — as some critics did — that Elena Kagan was too “programmed,” too ambitious and calculating in her climb up the legal ladder. My response was that no one gets to the Supreme Court without ambition and that Washington is filled with such focused people who never step outside predictable lines. But in recalling Rehnquist, I’m thinking that maybe it wasn’t always that way.

Graduation Apprehension

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When I was doing research some years back in the files of the late U.S. Appeals Court Judge Skelly Wright, of the District of Columbia Circuit, I came across an exchange between Wright and Justice William Brennan in which they shared their apprehension about giving Commencement speeches. These two giants in the law had regular-Joe worries about boring the graduates and having their words fall flat.

I’ve been thinking about their Commencement aversion this season because I am giving two speeches and have found that for those of us down some rungs, the mental burden is much lighter. We can plumb their most intriguing thoughts to make our points.

I spoke Saturday at Marquette University Law School’s Hooding Ceremony, and – focused on the importance of preparing to be challenged ethically and avoiding the fallacy that you automatically make the right choices – I turned to something Chief Justice William Rehnquist had told me related to the Watergate scandal. The break-in at the Democratic headquarters that led to the cover-up and fall of President Richard Nixon in 1974 occurred in June of 1972. Only five months before that precipitous incident, Rehnquist had left the Justice Department and taken his seat on the Supreme Court.

Several of Rehnquist’s former colleagues ended up embroiled in Watergate, indicted and convicted. In fact, when the Watergate tapes case came to the Court in summer 1974, Rehnquist recused.

Rehnquist told me he was relieved to have been gone from the Justice Department when the Watergate cover-up occurred. And he said something interesting about the temptations he might have faced if he had remained behind. “You presume you will do the right thing,” he said, “but you never know how you might handle the pressure at the time.” Rehnquist spoke of potential pressure from his bosses and of simply being caught up in a bad situation while thinking you are doing good.

It occurred to me then, and many times since, what a wise thought this was. None of us can presume we are immune from the pressures of politics or money or any of the enticements that come to people who have power — but that especially come to lawyers.

I was reminded twice in the past week of the culture of notes and letters at the Supreme Court. When I spoke to a group of mid-career journalists at the National Press Foundation on Monday, a reporter asked who at the Court I would call or e-mail if I wanted to interview a justice. I said I often wrote a letter to the justice detailing my request. “A letter?” she said with disbelief and a tone of who-does-that-anymore? But this is an old-fashioned bunch and that is how they regularly communicate with each other and the outside world. Many of them e-mail and even text now, but they still write letters — handwritten letters on heavy, engraved stationery.

I was also reminded of the practice when I read Adam Liptak’s story last Tuesday in the New York Times about studies of oral dissents. In my research for the O’Connor biography, I was tipped off to the timing of her first-ever dissent from the bench (in 1991, a decade after being sworn in) by a personal letter she wrote to then-retired Justice Lewis Powell. I found it in his archive at Washington and Lee University. O’Connor had been the lone dissent in the case of Pacific Mutual Life Insurance v. Haslip, upholding a punitive damages award, and she let Powell know she was so disturbed she took the unusual (for her) step of reading portions of her statement from the bench. She lamented what she perceived as a lack of standards for such damages: “Rarely is a jury told anything more specific than ‘do what you think best.’”

To this day, Justice Ruth Bader Ginsburg is a prolific letter writer, as is Chief Justice John Roberts. The late Chief Justice William Rehnquist would often pen whimsical notes to colleagues as he sat on the bench, and earlier when he was an associate justice (1972-1986), he wrote letters to friends when oral arguments bored him.

One of my favorite Rehnquist letters was written to Powell when he was recuperating from cancer surgery:

“We have now finished our January argument calendar, of course, and I must say I can’t ever remember a less interesting or stimulating group of cases. If you had to miss one oral argument session, I don’t think you could have picked a better one to miss. Even the conference today got a little bit testy, as it does at times. Some of the Chief [Warren Burger]’s discussion is quite good, when he feels very strongly about something and when he feels he has a majority with him; but some of it can be singularly uninspiring. Sometimes when he runs out of things to say, but he doesn’t want to give up the floor, he gives the impression of a southern Senator conducting a filibuster.

“I sometimes wish that neither the Chief nor Bill Brennan would write out all their remarks beforehand and deliver them verbatim from the written page. Bill is usually thorough, but as often as not he sounds like someone reading aloud a rather long and uninteresting recipe. Then of course Harry Blackmun can usually find two or three sinister aspects of every case which ‘disturb’ him, although they have nothing to do with the merits of the question. And John Stevens, today, as always, felt very strongly about every case, and mirabile dictu had found just the right solution to every one. As you might imagine, my conference discussion was, as always, perfectly suited to the occasion: well researched, cogently presented, and right on target!”

In 1996, Justice Scalia wrote a particularly dispirited note to Harry Blackmun that I and other researchers have used over the years: “ … I am more discouraged this year than I have been at the end of any of my previous nine terms up here. I am beginning to repeat myself, and I don’t see much use in it any more.”

One particularly amusing personal note from Justice Scalia came in 2001, after I had switched from the Washington Post to USA Today. He was not happy with some of my coverage at the Post but said he wouldn’t hold it against me:  “Nursing grudges is a very Sicilian vice, but … not one of mine.”

I received enough reaction from the post on that snowy February 10 regarding whether journalists should call law clerks for information that I have a sequel. (See “But Would the Supreme Court Law Clerk Have Taken My Call?”)

University of Texas Law Professor Scot Powe, who clerked for William O. Douglas during the 1970-71 term and whose latest book is The Supreme Court and The American Elite, told me that reporters called him on the direct line into his office at the Court. He was not sure how they got the number. Powe said the reporters sought clarification of an opinion, rather than gossip about behind-the-scenes maneuvering. He said he tried to help when he could, without compromising confidentiality. Other former clerks told me they might have taken a journalist’s call — not on the substance of cases but on some of the social dynamics at the Court, for example, from the clerks’ end-of-term skit or, more seriously, regarding ideological maneuverings by clerks. That latter theme of the late 1980s was brought out publicly by former law clerk Edward Lazarus (who worked for Harry Blackmun) in his book Closed Chambers. Some justices were furious about that 1998 book, which had the subtitle: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court.

In my earlier post, I referred to memos filled with apprehension and anger over The Brethren by Bob Woodward and Scott Armstrong. That 1979 classic relied on scores of law clerks and five of the justices for inside information. I’ve collected other internal memos through my years of research that show how intensely justices act in response to any report that lifts the veil.

Sandra Day O’Connor, who served 1981-2006, was among those who reacted most negatively to disclosures. She took the lead with then-Chief Justice Rehnquist in 1990 to try to get retiring Justice William Brennan not to turn over files to researchers. Three years later, she and Rehnquist were among the most agitated when the papers of Thurgood Marshall were opened at the Library of Congress. I was part of the Washington Post team that discovered the documents and used them for a four-part series published in May 1993. The stories about the once-private exchanges among the justices generally made the Court look good. We noted that, “The exchanges are serious, sometimes scholarly, occasionally brash and personalized, but generally well-reasoned and most often cast in understated, genteel language.” Yet the series also revealed internal deliberations, including O’Connor’s changed views and votes on abortion rights.

After the Post series began, Rehnquist drafted a letter to Library of Congress director James Billington that said, “I speak for all of the active Justices of the Court when I say that we are appalled by the Library’s decision to open to the public Justice Thurgood Marshall’s papers….” O’Connor echoed that sentiment in a memo back to Rehnquist and told him, “Perhaps the final sentence could state that the failure of the Library to consult with and to consider all the ramifications and effects of granting such an early release of confidential materials may discourage future grants of judicial papers to the Library of Congress.” Other justices, however, including Byron White and Anthony Kennedy, thought that the LOC had done exactly what Marshall, who died earlier in 1993, had wanted. Those justices would not endorse Rehnquist’s rebuke, and, in the end, the chief justice revised his letter to say he was speaking for only a “majority of the active Justices,” not “all of the active Justices.”

In 2004, the files of the Justice Blackmun were made public at the Library of Congress. They were exceedingly valuable to researchers because, as Linda Greenhouse wrote in her biography of Blackmun, he chronicled “his life and the world around him in astonishing detail.” He saved virtually every piece of correspondence he received — to the chagrin of some of his colleagues, whose personal thoughts can now be copied for 20-cents a page at the LOC. After that, O’Connor said it would be a long time before another justice’s files were open to the public.

Since then, some of the papers of Rehnquist, who died in 2005, have become available at the Hoover Institution on the campus of Stanford University. And as I noted in an earlier post, Justice O’Connor has warned about the opening of her files: “Don’t hold your breath.”

One final note on the subject of bypassing justices and trying to get current law clerks to talk: After my earlier post, I heard from reporters who said they were thinking about being more aggressive about calling clerks. Well, I wouldn’t want that! It goes without saying that I’m not trying to spur anyone to a more competitive advantage. And for any law clerks out there waiting for the call (as the professor who started all this was): Remember me, please.

Giving him “H”

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The late Chief Justice William H. Rehnquist could tell a good story. He once regaled the Supreme Court press corps with how his mother had insisted he change his middle name to Hubbs, so that he could have the initial H. This happened when Rehnquist, who grew up in suburban Milwaukee, was about 17 years old and after his mother had met a numerologist on a train ride. The man told Margery Rehnquist that young Bill would become a professional success if his middle name were changed and began with an H. Hubbs was a family name and easy enough to take on — although, as Rehnquist told it, his mother had to go to court to make it official. Rehnquist, as chief justice, seemed amused by the whole affair and a bit in wonder of whether the H had paid off.

At the Supreme Court yesterday, December 10, in an “Unveiling Ceremony” for the white marble bust of Rehnquist, who died in September 2005, his son Jim told an equally amusing story. He recounted how his father, a former assistant attorney general, was in the fall of 1971 on a Justice Department team screening potential nominees for two Supreme Court openings (caused by the retirements of Justices Hugo Black and John Marshall Harlan). The Nixon administration had run through several possible choices without success. One day Jim came home from school and found his father, as usual, downstairs watching TV while eating the standard fare of vanilla wafer cookies and apple juice. His father said President Nixon was ready to announce his two appointees the next day: Richmond lawyer Lewis F. Powell — “and me.”

            “And I said, ‘What?!’”

            “Yeah,” the old man said, “Do you believe it?”

            “And,” son Jim added at yesterday’s ceremony, “the rest is history.”