TRIAL OF THE CENTURY
Chief Justice William H. Rehnquist, Presiding
Jan 4, 1999, Vol. 4, No. 16 • By TOD LINDBERG
Rehnquist's public persona is humorless and unforgiving. He has a reputation for suffering fools badly, especially those making legal arguments he considers flawed. At the Supreme Court he has been known to interrupt oral arguments -- in a tone comprising of astonishment and contempt -- to ask an offending lawyer if it is really possible that he is making such a ridiculous point. Rehnquist is no politician. He has no detectable glad-handing skill or sensibility, and the notion that he would play to a camera is ridiculous to those who know him. In fact, there is widespread agreement that cameras will televise Supreme Court public proceedings only after he is long gone.
In short, there is a certain imperious authority that comes of being only the 16th chief justice of the United States. He will surely exert it at an impeachment trial. It is by no means a simple thing to ride herd on one hundred egos as large as those of U.S. senators. But it seems improbable that anything like an organized rebellion against his authority will arise. And while his manner may not seem cuddly to the television audience at home or sufficiently unctuous to senators used to a certain highfalutin deference, his mastery of the law is surely greater than that of anyone in the Senate, and the senators are likely to respect that.
Rehnquist has been preparing for this moment for a long time. Exhibit A in support of this proposition is his 1992 book, Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson, a popular history of what the chief justice clearly regards as the two most important impeachment proceedings in U.S. history -- at least to date.
Grand Inquests was respectfully and favorably reviewed in the popular press and the legal press when it appeared six years ago. The identity of its author was of course a key reason; when the chief justice speaks, lawyers listen, especially if they belong to the fraternity with business before the Supreme Court. Also, there was the novelty of at least the theoretical possibility that the author would one day preside, as the Constitution warrants, over the impeachment trial of U.S. president. But Rehnquist's recounting of how Justice Chase ran afoul of the House of Representatives in 1804-05 over the Alien and Sedition Act and of President Johnson's troubles over the 1867 Tenure of Office Act rang no particular bells with the reading public. Now, however, who would deny that Rehnquist's views on impeachment have become an urgent concern.
Rehnquist regards the two impeachments he writes about here as important for what they did not do. The Senate acquitted both Samuel Chase and Andrew Johnson. Rehnquist is at pains to establish that had either been convicted, it would have been a dangerous precedent. In the case of Justice Chase, the Senate declined to remove a judge with whom most senators disagreed politically. The result was an affirmation of the independence of the judiciary. Conviction and removal would have amounted to an assault on the ability of judges to reach their courtroom conclusions independently. President Johnson had enraged congressional majorities with his reluctance to accept Congress's views on post-Civil War Reconstruction of the national government. Had the Senate removed him, the country might have taken a long step away from a presidential system toward a parliamentary system, in which all it takes is a parliamentary vote of no confidence (a two-thirds vote, to be sure), for political reasons or over a policy disagreement, to topple the head of state and chief of government.
It will be tempting to infer from his conclusions in Grand Inquests that the chief justice is skeptical about impeachments in general -- including this one. A careful reading of the book shows a more nuanced view. The impeachment of Samuel Chase also had the effect of imparting a certain humility and discretion to the conduct of judges, both inside and outside the courtroom. The idea that federal judges should step out to offer their views on political matters has been alien ever since. And President Johnson himself did accommodate the concerns of the House majority on the principal point of contention between them. In general, he diminished his opposition to the House members' view of how Reconstruction should proceed.
The larger, historical, point, however, is clear. In Rehnquist's words, the Chase and Johnson acquittals confirmed that
Impeachment would not be a referendum on the public official's performance in office; instead, it would be a judicial type of inquiry in which specific charges were made by the House of Representatives, evidence was received by the Senate, and the senators would decide whether or not the charges were proven. The Johnson acquittal added another requirement. . . . It was not any technical violation of the law that would suffice, but it was the sort of violation of the law that would in itself justify removal from office.
The Rehnquist book also establishes, not by design but just as a matter of course, that for 200 years the quarrel over impeachment has been between those who would impeach only for crimes and those who would impeach for things that might broadly be construed as political disputes. The quarrel has not been over whether felonious conduct is impeachable. The notion that it isn't would seem to be a modern invention.
Grand Inquests is also interesting for the dog that isn't barking, especially in the account of the Johnson impeachment. Rehnquist has very little to say about the actions, reasoning, and rulings of Chief Justice Chase. He confines his discussion of Chase to the observation that Chase's own ambition for the presidency, in this highly charged and partisan climate, may have fed the unproven charges that Chase wanted acquittal and worked corruptly behind the scenes to achieve it. Rehnquist seems offended at the notion that serving as chief justice of the United States is somehow an insufficient accomplishment in life.
Surely Rehnquist has views on his predecessor's conduct of the Johnson impeachment trial. But he has kept whatever he learned from his research to himself -- perhaps in reserve for the day when he might be called upon to preside over an impeachment trial.
That day is fast approaching. And Rehnquist's few words about Chief Justice Chase may offer a cautionary note. This, too, will be a highly charged and partisan environment, if not in the Senate chamber, then surely among those second-guessing on the outside. The president's greatest ally is still public opinion. The White House has yet to make up its mind about the legitimacy of this process. As to what the White House and its friends might say about the chief justice if the rulings in an impeachment trial go against the president -- Rehnquist, after all, is a Republican -- well, it might just take the seriousness, if not indeed the imperiousness, of a Rehnquist to stand up to it.
Still to come, as Rehnquist knows well, is the judgment of history -- and by history's reckoning, it's not just the president on trial. It's also the House, the Senate, the chief justice, and even the nation.
Tod Lindberg, a frequent contributor, is a columnist for the Washington Times, where he was editorial page editor for seven years. In January, he becomes editor of Policy Review.