Let’s call this an offshoot of my self-interest thread.
Chief Justice William Rehnquist is one of the more conservative members of the High Court, matched only by Antonin Scalia and Clarence Thomas. At 76, Rehnquist is also the second-oldest of the Supreme Court justices (John Paul Stevens is four years older). It’s not unreasonable to assume that Rehnquist–who has had increasingly severe back trouble–would wish to retire during a Republican administration, in order to ensure the appointment of a right-leaning replacement.
Given this, to what degree is Rehnquist’s ostensible impartiality compromised in effecting a judgment which decides the 2000 presidential race in favor of the Republican candidate? What if the philosophy espoused in the opinion–which directly overrides the interpretation of state law by a state supreme court, something very rarely done–is in stark contrast to Chief Justice Rehnquist’s consistent advocacy for the rights of states to govern themselves?
Is it at all possible that self-interest could have played a significant role in Rehnquist’s personal judgment? Discuss.
What if his opinion is in conflict with his past opinions about states’ rights? Uh…were you watching the same show I was? Because it doesn’t look to me as if his opinion was at all in line with his other opinions. It’s like we were watching another justice up there.
That said, I don’t think his opinion is wrong (I know you didn’t want debate on that), just different.
But what you’re asking, it seems, is if a Supreme Court chief justice would be willing to put aside his most sacred duty to uphold the Constitution, and fly in the face of all that is good about this country and under law, so that he could get someone a little more conservative to replace him. Is that right? I may be cynical, but I don’t think I’m that cynical.
I’d be much more willing to buy that he compromised his trust in order to help a conservative win the presidency, but even that’s a stretch for me. I honestly think that the justices voted their consciences, and with their knowledge of the law and didn’t let politics get in the way of it. I may be in the minority for feeling that way, though.
Um, to the extent that there are liberal justices–let alone a “most liberal justice,” which is like talking about the most mature subscriber to Tiger Beat magazine–then no, he/she didn’t. Who are you talking about? Ginsburg? Dissented. Breyer? Dissented. Had he been alive, I don’t think Bill Brennan would have gone along with the decision…and he was the last liberal justice.
Anyway, aside from the fact that you’re wrong, what was your point, Asmodean?
The Court’s opinion was no so much a reasoned legal decision as a glorified retirement speech by Rehnquist and O’Connor. I will be very surprised if both do not retire during Bush’s term.
The Court “reasoned” that because no identical objective standards would be used to count the undercounted ballots in each county, that there was a violation of the Equal Protection clause. Result: none of the undercounted votes were considered.
Huh?
By the same logic, since the ballots in punch card counties were much more error-prone than the ballots in opti-scan counties, were the voters in punch card counties being denied their equal protection rights? Does that mean (following the logic of the Court’s opinion) that none of Florida’s votes should have been counted at all?
Don’t even get me started on the stay of the recount. What was the “irreparable harm” that would have resulted if the recount had continued? Absent a showing of such irreparable harm, the stay was improper. There was no potential irreparable harm; the justices just didn’t want the American public to know the results of the recount because it would have undercut the legitimacy of their ultimate ruling.
I am very disappointed in the Court, particularly Rehnquist and O’Connor. From Scalia and Thomas, this sort of thing doesn’t surprise me. They have always been nakedly partisan.
Nope. Everyone is self-interested, which is a completely different thing, and you and I have been down this road before. Bias comes when you allow your self-interest to color your perception enough that objectivity becomes subordinate to achieving your interest.
There are several steps in between “impartial” and “biased,” which is why I wasn’t asking if Rehnquist was displaying bias, but rather whether or not his impartiality was compromised by self-interest.
Do you disagree with any of the three assertions I make in my original post? (Rehnquist is very conservative, Rehnquist is very old, Rehnquist–being conservative and old–would like to see his spot on the bench appointed by a Republican president) If so, how so? If not, I’d appreciate an answer to the question I posed.
Lemme repeat it: Given those assertions, to what degree is Chief Justice Rehnquist’s ostensible impartiality compromised in effecting a judgment which decides the outcome of the 2000 presidential race?
Particularly when his judgment is in favor of the Republican candidate?
Particularly when he’s demonstrated himself to be an extremely sharp guy in the past, and the reasoning of his decision is somewhat specious in several key areas?
Everyone is self-interested, but judges are supposed to lay that self-interest aside. All I want to know is whether or not you think Rehnquist was able to do that in this case.
Necros:
I don’t think it’s cynical, necessarily, particularly if you unpack your above statement a bit. Supreme Court justices have certainly shown themselves to be susceptible to partisanship in the past, and like it or not, office-holders “put aside their sacred duty to the Constitution” all the time.
Often, though, that’s not the way they look at it. I doubt Reagan, his advisors, or Oliver North (pick one) believed they were “flying in the face of all that is good about this country and under law” when they knowingly violated the Boland Amendment, traded arms to a hostile power, and aided the Nicaraguan rebels in direct violation of congressional and constitutional directive. On the contrary, they felt they were being patriots.
Similarly, Roosevelt’s desire to pack the court with his own partisans was hardly adherent to the tenor of his office or the spirit of the Constitution. But he was willing to do it–or at least to threaten it–because he believed he was acting in the best interests of the country. You know why? Because people always think they’re acting in the best interests of the country.
So why are Supreme Court justices somehow exempt from this? For Rehnquist to decide a case on the partial basis of his desire to retire in the next four years isn’t nearly in the league of Iran-contraor court-packing! It’s not like I’m spinning some wild conspiracy theory here; I’m just pointing out a possible conflict of interest.
It’s safe to say that Justice Rehnquist would like to see the Court continue to move in a rightward direction. Why, then, is it unthinkable that he might bear this in mind while “voting his conscience?” Despite what you say, it’s not about getting someone “a little more conservative”–in the next four years under Bush, Justices Rehnquist, O’Connor, and Stevens will almost certainly resign. Think about how the landscape of the Court would change if they were replaced by Mario Cuomo, Laurence Tribe, and Bruce Babbitt. (Not that Gore would ever nominate actual liberals, but…)
With due respect, why is this much easier to buy for you? What’s the difference between this scenario and the one in the OP–other than that mine assumes a more direct self-interest?
I’m not saying, mind you, that Rehnquist did base his decision on the future of the Court…I just think it’s an interesting happenstance.
I have already discussed elsewhere on this MB my opinion on this decision. To sum, I generally agree with the Ginsburg dissent, as a matter of law. I think the majority opinion was biased due to many factors, possibly including the one you’ve outlined, but not limited to this one. (They are more in favor of a Bush presidency, they would like to see more appointments to the bench of people who share their philosophy, they are overreacting to a biased Florida SC, they are upset that the Florida SC ignored (for a while) their first remand, they are angry at Gore over his attacks of the conservative court, and possibly other biases). But I think all the other players in this drama also have self interest which colors their perception, if only ideological symphathy. One need not look past this message board to see the degree to which one’s opinion on matters like dimpled chads is influenced by one’s opinion of the outcome.
As such it is trivial to keep on pointing out every instance of bias (or self interest etc.). Yes yes yes, they’re all biased, self-interested, whatever.
I think if there’s one good thing that comes out of this flawed decision (actually there’s more than one - Bush becomes president :D) it is a lessening of respect for the Supreme Court and the silly notion that these men are somehow excempt from the passions which possess all other humans. This court has far too much power IMHO, and I wouldn’t mind if they get clipped a bit).
Given that I cannot think of any decision by Rehnquist that ever demonstrated impartiality, I am not sure that the question of the OP has relevance or meaning. Rehnquist is not conservative, he is an active proponent of restoring the U.S. to that glorious period, the mid-nineteenth century, when poor people knew their places and left rich people alone to make the correct decisions for the country and where arrested people were probably guilty because why else would the police have arrested them?
I mentioned this in another thread. I had heard political historians talk about how the Supreme Court had not always enjoyed the level of approval it has in recent years. Public opinion of the Supreme Court and it’s impartiality comes and goes. They’ve enjoyed a break from this kind of criticizim in recent years. Of course the historians realized that this decision, no matter what the outcome would probably change all of that.
I don’t think it’s trivial to point out these instances of impartiality at all. I think it’s important despite the fact that it seems glaringly obvious to some of us who have given it some thought. I wish the media would spend some time discussing this issue intelligently (wishful thinking?) so that the public at large may realize the issues and possible consequences of the decisions being made by the highest court in the land.
I don’t think a knowing nudge and wink - as if to say, I know what you’re doing but I’ll let it slide this time - is in the best interest of anyone. A dialogue on this subject would go a long way in fighting complacency among the general public and various public servants.
Yes, I agree with you, in most cases this is true. Of course, there are many public servants out there who do what they do to aggrandize themselves, but on the whole, I’m sure they do do it because they truly believe they’re doing the right thing.
[hijack]
Speaking of this, I wonder what’s going through Sen. Breaux’s mind right now, and, if he accepts a cabinet position with Bush, what his personal reasoning will be. “Do I leave the Senate and unbalance the balance there, but gain a cabinet post for my own good? Do I take a cabinet post in the greater interest of fostering unity?”
[/hijack]
Because to me it doesn’t seem to be more dirtect. I understand that it more directly affects him in a limited sort of way, but it seems like an ineffectual play for which to sacrifice the court’s credibility. I see the “helping out a friend” motivation as a greater one than “maybe, down the road, I’ll get someone I agree with on the court.” I mean, I doubt that Bush is going to appoint someone as rabidly conservative as Rhenquist, no matter which justices he says he admires. The political reality probably won’t let him.
So it’s more of a gamble, with no sure reward. Whereas if Rhenquist helps out a fellow conservative, direct action effects a direct result. There’s little to no speculation needed about the outcome. That’s why it seems to me to be more direct, and a little less JFK-like conspiracy theory. The more complex a system becomes, the more unstable it is, and the chain of events from Rhenquist’s decision to a conservative nominee seems more complex than the one from his decision to a Bush presidency win. Sort of the “Occam’s Razor of Judicial Motivation” theory.
Who would Rehnquist rather have appointing justices, Gore or Bush? C’mon, Necros…it’s not a matter of him getting someone he agrees with on the court “maybe, down the road.” Rehnquist can choose the circumstances of his own departure, and whatever justice Bush can get confirmed (remember, Scalia passed the Senate with a 98-0 vote) will in every likelihood be much more conservative than a Gore appointment. And it’s not just one justice, either–it’s probably two or three or four. Even if Gore wouldn’t have appointed someone like Tribe or Cuomo (and he wouldn’t), it’s hard for me to believe that the prospect of maintaining a solid right-wing majority on the Court for years to come didn’t enter into Rehnquist’s decision at all.
Usually, self-interest is Occam’s Razor.
Izzy: By and large, I agree with your last post. I do so, however, with Quicksilver’s qualification: it doesn’t do any of us any good not to raise these questions of partiality, particularly when they seem significant. And maybe I’ve been reading the wrong things (I stay away from the more objectionable ideological screeds), but I haven’t seen any discussion of the possibility that Rehnquist’s line of reasoning may have been motivated partially by politics.
I don’t know where you two get your news, but on the op/ed page of the Washington Post today there are five pieces by columnists, and three of them are on this topic. In fact, you can read them here.
I agree that it is important to appreciate that everyone, even a Supreme Court Justice, is subject to bias. I’ve pointed this out earlier. What is important about it is that one should accept this fact as a given, and act accordingly. It is not necessarily helpful to have an idealized view of the Justices. But it is a mistake if one continues to view the justices as being above partisan bias, and hence interprets this particular instance as being a unique departure from their usual lofty hights. Hence I believe that harping about this or that particular instance of bias is indeed trivial, when looked at in the larger context. If there’s one thing clear about this entire episode, it is that almost everyone involved acted in accordance with their own biases.
When I said “intelligent discussions by the media”, I of course meant on popular and informative programs like the Howard Stern Show and Elliot In The Morning!
<:o skulking away embarrassed and mumbling about having to read every damn paper before posting again on any subject in GD… :o >
Except for those Gore appointees that would have “shifted right,” of course.
I’m not saying that the prospect didn’t enter into it at all. I’m not that naive. I’m contesting the idea from your OP that it played a significant role in his decision. I’m taking that to mean that over 70 percent of his decision was based on this.
I am not a fortune-teller. Neither is Rhenquist. He has no idea what will happen to the Court after he retires. I do know (well, I believe, and I think he’s hinted at) he would prefer to retire with a Republican president in place. But for all he knows, with Dubya’s political difficulty, he could go the Eisenhower route and appoint a slate of liberals.
I’m not disputing these ideas: Rhenquist wants to retire with a GOPer at the helm and a GOPer would be more likely to appoint the kind of justices Rhenquist wants to see. I just think it’s a stretch from those ideas to saying that a significant portion of this decision was based on those concerns.
It’s a simple solution that he made his decision based on self-interest. It’s also simple to believe that he made this decision because of his perception of the facts of the case. I know that GD are just that, debates that can’t be resolved, but this is one where we can’t even come close. I don’t think Rhenquist’s motivations are as transparent as you’d like them to be.
“Significant” nitpick, Necros: My OP didn’t say that the prospect of a Republican president was definitely a significant factor in Rehnquist’s decision. Rather, my OP asked the Teeming Millions whether it was “at all possible that self-interest could have played a significant role in Rehnquist’s personal judgment.” Two substantively different things.
Oh, and thanks for the link, Phil. I’ll check it out now. (Being on the Left Coast and having been remiss in my online news-gathering the last few days, my information’s been coming mostly from the Oregonian and the wire services.) What’s your take on the questions I’ve posed, by the way?
Necros, I did an analysis a while back of the ideological shifts of Supreme Court justices in the last fifty years, relative to the perception of their politics upon confirmation. Before you talk about Gore’s appointees “shifting right,” you should probably read it.
Let me know if you want me to dig up the link–it was in a Supreme Court thread started (but not finished) by astorian.
Oh, well since you asked, my answer is no.
Wait, “at all possible”? Hmm. I guess it’s possible. Dang it, your using them words things ta just win stuff for you right off the bat!
C’mon, Necros…it’s not a matter of him getting someone he agrees with on the court “maybe, down the road.” Rehnquist can choose the circumstances of his own departure, and whatever justice Bush can get confirmed (remember, Scalia passed the Senate with a 98-0 vote) will in every likelihood be much more conservative than a Gore appointment. And it’s not just one justice, either–it’s probably two or three or four. Even if Gore wouldn’t have appointed someone like Tribe or Cuomo (and he wouldn’t), it’s hard for me to believe that the prospect of maintaining a solid right-wing majority on the Court for years to come didn’t enter into Rehnquist’s decision at all.