Justice Rehnquist: should his passing be mourned?

We are all hearing great things about Justice Rehnquist. But how about a complete picture? I first became interested in this when I read Hillary Clinton's book "Living History": she recounted that then President Elect Clinton balked at being sworn in by the Chief Justice as he had some reservations about the justice's moral character. President Clinton decided to go along with tradition, but had some reservations about it.

So, what about Justice Rehnquist's moral character? Well, for one, he was an unrepentant bigot. Law professor Alan Dershowitz wrote in the Huffington Post (and I loved his book, Shouting Fire:

" So here's the truth about Chief Justice Rehnquist you won't hear on Fox News or from politicians. Chief Justice William Rehnquist set back liberty, equality, and human rights perhaps more than any American judge of this generation. His rise to power speaks volumes about the current state of American values.
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When he was nominated to be an associate justice in 1971, I learned from several sources who had known him as a student that he had outraged Jewish classmates by goose-stepping and heil-Hitlering with brown-shirted friends in front of a dormitory that housed the school's few Jewish students. He also was infamous for telling racist and anti-Semitic jokes.

As a law clerk, Rehnquist wrote a memorandum for Justice Jackson while the court was considering several school desegregation cases, including Brown v. Board of Education. Rehnquist's memo, entitled Random Thought on the Segregation Cases, defended the separate-but-equal doctrine embodied in the 1896 Supreme Court case of Plessy v. Ferguson. Rehnquist concluded the Plessy was right and should be reaffirmed. When questioned about the memos by the Senate Judiciary Committee in both 1971 and 1986, Rehnquist blamed his defense of segregation on the dead Justice, stating under oath that his memo was meant to reflect the views of Justice Jackson. But Justice Jackson voted in Brown, along with a unanimous Court, to strike down school segregation. According to historian Mark Tushnet, Justice Jackson's longtime legal secretary called Rehnquist's Senate testimony an attempt to smear the reputation of a great justice. Rehnquist later admitted to defending Plessy in arguments with fellow law clerks. He did not acknowledge that he committed perjury in front of the Judiciary Committee to get his job.
The young Rehnquist began his legal career as a Republican functionary by obstructing African-American and Hispanic voting at Phoenix polling locations (Operation Eagle Eye). As Richard Cohen of The Washington Post wrote, [H]e helped challenge the voting qualifications of Arizona blacks and Hispanics. He was entitled to do so. But even if he did not personally harass potential voters, as witnesses allege, he clearly was a brass-knuckle partisan, someone who would deny the ballot to fellow citizens for trivial political reasons -- and who made his selection on the basis of race or ethnicity. In a word, he started out his political career as a Republican thug.

Rehnquist later bought a home in Vermont with a restrictive covenant that barred sale of the property to ''any member of the Hebrew race.

Rehnquist's judicial philosophy was result-oriented, activist, and authoritarian. He sometimes moderated his views for prudential or pragmatic reasons, but his vote could almost always be predicted based on who the parties were, not what the legal issues happened to be. He generally opposed the rights of gays, women, blacks, aliens, and religious minorities. He was a friend of corporations, polluters, right wing Republicans, religious fundamentalists, homophobes, and other bigots.

Rehnquist served on the Supreme Court for thirty-three years and as chief justice for nineteen. Yet no opinion comes to mind which will be remembered as brilliant, innovative, or memorable."

The Nation's David Corn writes:
"I confess: I have a hard time saying William Rehnquist, rest in peace. Supreme Court Chief Justice Rehnquist, who died on Saturday night, spent much of his adult life trying to restrict the rights of American citizens and to empower further the already-powerful. He rose to prominence as a right-wing attorney who decried the Earl Warren court for being a hotbed of judicial activism (left-wing judicial activism, as he saw it). He then became, as a Supreme Court justice, a judicial activist of the right-wing sort, overturning laws made by Congress (that protected women against domestic violence, banned guns near school property, and prohibited discrimination against disabled workers) and steering the justices into Florida's vote-counting mess in 2000 (an act that only coincidentally--right?--led to George W. Bush's presidency). In that case--Bush v. Gore--Rehnquist, for some reason or another, placed aside his much heralded belief in state sovereignty, which led him on other occasions to grouse about limits on the abilities of states to execute criminals. When it came to states frying prisoners, he advocated a hands-off approach. In vote-counting, he was all for intervention.
But let's be clear: in recent years there has been no other Supreme Curt justice who had a personal history so loaded with racism--or, to be kinder than is warranted, tremendous insensitivity to racial discrimination--as did William Rehnquist. As a law clerk for Justice Robert Jackson in the early 1950s--when the Court was considering the historic Brown v. Board of Education school desegregation case--Rehnquist wrote a memo defending the infamous 1896 decision, Plessy v. Ferguson, which established the separate-but-equal doctrine. Rehnquist noted, "That decision was right and should be reaffirmed." In other words, he favored continuing discrimination and racial segregation. During his 1971 confirmation hearings, after he was nominated to serve as an associate justice on the Supreme Court, he said that memo merely reflected Jackson's view not his own. But few historians have bought that shaky explanation.
It's not hard to conclude that Rehnquist was on the wrong side of history and then lied about it--especially given actions he took later. In 1964, Rehnquist testified against a proposed ordinance in Phoenix that would ban racial discrimination in public housing. As The Washington Post notes in today's stories on his death, Rehnquist wrote at the time, "It is, I believe, impossible to justify the sacrifice of even a portion of our historic individual liberty for a purpose such as this." In other words, people are not truly free if they are not free to discriminate. In his 1971 hearings, Rehnquist repudiated that stance. But did he really mean it? Twelve years later, he was the only justice to say that Bob Jones University--that hotbed of racial discrimination and religious bigotry--had a legal right to keep African-Americans off its campus.
"He Lived for The Law"--that's how AOL headlined the story on Rehnquist's death. But it's not that Rehnquist had a blind spot on race. He was an active proponent of discrimination. Yet this fellow--without truly making amends--became chief justice of the highest court of the land. Only in America. "

Of course, Justice Rehnquist was smart, and he wanted everyone to know about it; Dana Mulhauser of The New Republic writes:
"After Chief Justice William Rehnquist announced his cancer diagnosis in October, almost everyone thought his retirement would come within days. But Rehnquist held on then, and it appears that he wants to hold on now. What accounts for Rehnquist's headstrong and impressive desire to stay on the Court? A magazine article I wrote--or rather, attempted to write--six months ago left with me a theory. "

Mulhauser writes about how it was well known that Rehnquist was first in his law class at Stanford and that O'Connor was third. But it was unknown who was second that year; in those days class rank was kept private and only known to a small number of faculty and staff, though an individual student could find out their own rank. Mulhauser continues:

"The question is how we've come to know that Rehnquist and O'Connor were Number One and Number Three. No shortage of references can be found to the justices' respective rankings (see here and here). But if there was no public list, then how do we know? As Elke noted, "nobody cared until Rehnquist and Sandy got on the Court." In all likelihood, the only people with the knowledge and incentive to keep track of the rankings were the future justices themselves. If we know that Rehnquist was Number One and O'Connor was Number Three, then it is probably because they have spread the word.
Promoting his law school success would certainly not be out of character for the Chief Justice, who is known to have a flair for the dramatic and the self-congratulatory, putting gold stripes on his robe and going on "Charlie Rose" to promote his book. He is reported to genuinely relish being the man in charge--peppering clerks with trivia questions and presiding jauntily over the Supreme Court Christmas party.
His former classmates remember him the same way, as brilliant, authoritative, and somewhat distant. Olson, who was a year behind Rehnquist, said: "When I talked to him, I didn't understand half of what he said. I'd go out of there shaking my head." Another classmate, noting Rehnquist's archaic manner and mind, told me that Rehnquist was known around the school as "one of the finest legal minds of the nineteenth century." (In contrast, many of the former students I talked to had warm memories of "Sandy," as they refer to her even now.)
The longer I searched for Number Two, the more I came to recognize something about the future Supreme Court justice who beat him out: Rehnquist knows his place in the world, and he revels in it. Which is not to say that a resignation might not be forthcoming today, tomorrow, or next week. But when retirement does call, Rehnquist will be fighting it all the way. This is not a man with any desire to rush from the limelight. This is a man who is Number One--and wants to make sure you know it. "

So there you have it. Rehnquist was a professional success, but also an arrogant bigot. In my opinion, he was a disgrace to our highest court.

So why should he be mourned? Well, I am a liberal who recognizes that we all have faults, and that all human beings have inherent value, even if they arecommitignorant and committ petty crimes, or if they are smart, wealthy, arrogant and bigotted.