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Context of 'January 7, 1972: Rehnquist Appointed to Supreme Court; Dodges Allegations of Racial Harassment'

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Deputy Attorney General William Rehnquist is sworn in as an associate justice of the Supreme Court, replacing the retiring John Harlan. Rehnquist was active in the Arizona Republican Party, and became well-known in the state as a conservative activist who, among other things, opposed school integration. Rehnquist befriended fellow Phoenix attorney Richard Kleindienst, who, after becoming attorney general under Richard Nixon, brought Rehnquist into the Justice Department. Rehnquist faced little difficulty in his confirmation hearings in the Democratically-led Senate Judiciary Hearings. (Oyez (.org) 9/3/2005) Rehnquist may have perjured himself during those hearings. He was confronted with charges that, as a Republican Party attorney and poll watcher, he had harassed and challenged minority voters in Arizona during the 1962, 1964, and 1966 elections. Rehnquist swore in an affidavit that the charges were false, even though the evidence available to the Senate showed Rehnquist did take part in such activities, which were legal in Arizona at the time. (Rehnquist will again deny the charges in 1986, when he is nominated for chief justice—see September 26, 1986). Former Nixon White House counsel John Dean will observe: “After reading and rereading his testimony, it appears to me that what he was really saying to the Senate [in 1971] was that he was not quite sure himself of his behavior, but he could not bring himself to tell the truth. Thus, his blanket 1971 denial forced him to remain consistent to that denial in 1986, and since his blanket denial was a lie, he had to continue lying. His false statement to Congress in 1971 was a crime, but the statute of limitations had passed. His false statement to Congress in 1986, however, was pure perjury.” (Dean 2007, pp. 129-137)

According to former Reagan Justice Department official Terry Eastland, writing in his 1992 book Energy in the Executive, the process of selecting Antonin Scalia as a Supreme Court Justice begins now, well before anyone knows there will be a vacancy for him. Attorney General Edwin Meese asks his assistant attorney general, William Bradford Reynolds, to advise him in preparing a nominee, “just in case.” Reynolds assembles a team of Justice Department officials, who examine about twenty possible choices, mostly federal judges, focusing primarily on conservative judicial philosophy. Two individuals stand out: Robert Bork and Scalia. Eastland writes, “Neither was ranked over the other; both were regarded as the best available, most well-qualified exponents of Reagan’s judicial philosophy.” Both are seen as powerful and influential legal figures. When Chief Justice Warren Burger announces his decision to retire from the bench, Reynolds advises Meese to choose Justice William Rehnquist to replace Burger as Chief Justice (see September 26, 1986), and to choose either Bork or Scalia to replace Rehnquist. Reagan makes the final decision: Scalia. (Dean 2007, pp. 133)

William Rehnquist.William Rehnquist. [Source: US Department of Justice]Associate Justice William Rehnquist becomes Chief Justice of the Supreme Court. A strict conservative, Rehnquist will oversee the transformation of the Court from a middle-of-the-road, sometimes left-leaning instrument into a conservative entity dominated by the “axis” of Rehnquist, Antonin Scalia (see September 26, 1986), and Clarence Thomas (see July 2-August 28, 1991). (Mauro 9/5/2005)
False Testimony? - According to former Nixon White House counsel John Dean, writing in his 2007 book Broken Government, Rehnquist is the first true conservative fundamentalist to be appointed to the Court, “and he would set a pattern for other fundamentalists who found it necessary to make their way through the confirmation process by deception.” Dean, and others, have alleged that Rehnquist lied to the Senate both in his 1971 appointment to the Court as an associate judge (see January 7, 1972) and in his 1986 hearings for becoming chief justice. Dean will write that Rehnquist’s testimony during both sets of Senate confirmations hearings was “conspicuously false,” and in 1986 he committed “pure perjury.” In both sets of hearings, Rehnquist was embarrassed by a 1952 memo he had written while clerking for then-Justice Robert Jackson, in which Rehnquist had urged Jackson not to vote in support of the Brown v. Board of Education verdict that overturned the “separate but equal” clause that allowed for state-sponsored segregation. Although it is clear Rehnquist was stating his own pro-segregationist views, he apparently lied to the Senate over this memo as well, claiming that the memo was written to reflect Jackson’s own views and not his own. Dean will write, “It was an absurd contention, and a defamation of the dead justice for which he worked.” Law professor Laura Ray will observe in 1996: “With the [top] seat on the Supreme Court almost in his grasp, Rehnquist may well have retreated from an uncomfortable position taken almost twenty years earlier in the only way that seemed open to him. That such a step might tarnish the reputation of Justice Jackson years after his death does not seem to have been a concern.” (Dean 2007, pp. 129-137)

When Supreme Court Justice Thurgood Marshall, the first and only African-American to serve on the Court, announces his retirement, the Bush administration is ready with a far more conservative replacement. President Bush himself is already under fire for previously naming a moderate, David Souter, to the Court, and Bush is determined to give his conservative base someone they can back. Although Bush had wanted to nominate an appropriately conservative Hispanic, his eventual nomination is Clarence Thomas, who is completing his first year as a judge on the DC Court of Appeals. Thomas has two qualifications that Bush officials want: like Marshall, he is African-American; unlike Marshall, he is as conservative a jurist as Antonin Scalia (see September 26, 1986) or Robert Bork (see July 1-October 23, 1987). Two of former President Reagan’s closest legal advisers, C. Boyden Gray and Lee Liberman (a co-founder of the conservative Federalist Society), privately call Thomas “the black Bork.” Bush calls Thomas “the most qualified man in the country” for the position. (Dowd 7/2/1991; Dean 2007, pp. 146-153) During the July 2 press conference to announce Thomas’s nomination, Bush says: “I don’t feel he’s a quota. I expressed my respect for the ground that Mr. Justice Marshall plowed, but I don’t feel there should be a black seat on the Court or an ethnic seat on the Court.” For his part, Thomas extols his upbringing as a desperately poor child in Georgia, crediting his grandmother and the nuns who taught him in Catholic schools as particular influences on his life and values. Republican senator Orrin Hatch says that opposing Thomas will be difficult: “Anybody who takes him on in the area of civil rights is taking on the grandson of a sharecropper.” (Dowd 7/2/1991) However, the non-partisan American Bar Association’s recommendation panel splits on whether Thomas is qualified or not, the first time since 1969 the ABA has failed to unanimously recommend a nominee. Twelve panelists find Thomas “qualified,” two find him “not qualified,” and none find him “well qualified.” One senior Congressional aide calls the assessment of Thomas “the equivalent of middling.” (Lewis 8/28/1991; Dean 2007, pp. 146-153) In 2007, former Nixon White House counsel John Dean will write, “For the president to send a nominee to the Supreme Court with anything less than a uniformly well-qualified rating is irresponsible, but such decisions have become part of the politicization of the judiciary.” Thomas, himself a beneficiary of the nation’s affirmative action programs, opposes them, once calling them “social engineering;” he has no interest in civil rights legislation, instead insisting that the Constitution should be “color-blind” and the courts should stay out of such matters. Civil rights, women’s rights, and environmental groups are, in Dean’s words, “terrified” of Thomas’s nomination. To overcome these obstacles, the Bush administration decides on a strategy Dean calls “crude but effective… us[ing] Thomas’s color as a wedge with the civil rights community, because he would pick up some blacks’ support notwithstanding his dismal record in protecting their civil rights. (Dowd 7/2/1991; Dean 2007, pp. 146-153) The nomination of an African-American quells some of the planned resistance to a conservative nominee promised by a number of civil rights organizations. (Dowd 7/2/1991) Three months later, Thomas will be named to the court after a bitterly contentious brace of confirmation hearings (see October 13, 1991).

Clarence Thomas.Clarence Thomas. [Source: AP / World Wide Photos]The Senate Judiciary Committee hearings for Supreme Court nominee Clarence Thomas begin (see July 2-August 28, 1991). Thomas is exhaustively coached by a team headed by former senator John Danforth (R-MO), whom Thomas had worked for when Danforth was attorney general of Missouri. As per his coaching, Thomas says as little as possible in response to senators’ questions, staying with generalities and being as congenial, diffident, and bland as the questions will allow. Still, some of his statements defy belief.
Abortion Rights - Thomas is well-known as an ardent opponent of abortion rights, but he claims in testimony that he has no position on the fundamental abortion case of Roe v. Wade (see January 22, 1973), even though he has disparaged the case in his own legal writings. He even claims not to have discussed the case with anyone. His sympathetic biographer Andrew Peyton Thomas (no relation) later admits that “these representations about Roe proved a laughingstock.” Even conservative stalwart Paul Weyrich, who is running a “war room” to counter any negative statements about Thomas in the press or in the hearings, says publicly that Thomas has spoken of the case in discussions between the two, and calls Thomas’s dissembling “disingenuous” and “nauseating.” Weyrich considers, and rejects, withdrawing his support for Thomas.
Comparison with Rehnquist Hearings - Author and former Nixon White House counsel John Dean will write, “[I]t was clear that Thomas was going the route that [Supreme Court Justice William] Rehnquist had traveled” (see September 26, 1986): “Say anything that was necessary to win confirmation, regardless of the conspicuousness of the lie. Regrettably, it would get worse.” The Senate Judiciary Committee splits on sending Thomas’s name to the full Senate, 7-7, therefore making no recommendation either way. But head counts show that Thomas has a narrow but solid majority of senators ready to vote him onto the bench. (Dean 2007, pp. 146-153)

Supreme Court Chief Justice William Rehnquist (see September 26, 1986), 80, dies after a ten-month battle with thyroid cancer. He will be replaced by John Roberts (see September 29, 2005), who formerly clerked for him. Rehnquist’s term as Chief Justice marked a “sea change” in the direction of the Court. Former Clinton solicitor general Walter Dellinger says: “It is quite clear that there are three dominant chief justices of American history, and they are John Marshall, Earl Warren, and William H. Rehnquist. I think that there’s just no question that he’s of enormous historical importance.” Conservative law professor and former Reagan Justice Department official Douglas Kmiec, a co-founder of the Federalist Society, says that Rehnquist presided over a “sea change” in the Court, taking it sharply to the right. (Neary 7/20/2005; Mauro 9/5/2005; Dean 2007, pp. 129-137)


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