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Rehnquist Nomination

August 08, 1986

I was a bit surprised to discover that my dear friend and dedicated liberal, Stanley Mosk, has endorsed the nomination of William Rehnquist for chief justice of the United States (Editorial Pages, July 30).

I doubt the endorsement indicates a swing to the right by Stanley. Rather, I suspect it comes as part of Stanley's admirable belief that the judiciary should be above the daily push and tug of politics. I am in complete agreement with that view. Yet, as Stanley pointed out, I am opposed to the Rehnquist nomination in part because Rehnquist is "too conservative." Stanley's contrary view, although based upon an admirable principle, simply overlooks a number of important factors.

First, Stanley does not recognize an important distinction between the federal appointment process, which has always been political, and a subsequent vote for retention in office such as we have in California, which should never be political.

The focus in California is on the quality of the performance in office, not upon the individual judge's particular philosophy. Although that philosophy may be taken into account at the appointment stage, to continue to do so throughout the judge's career would place all sitting jurists under constant pressure to rule in accordance with the most current opinion polls.

The appointment process, however, both state and federal, was, is and always will be political. Believe me, Stanley, I know. Certainly President Reagan's nomination of Rehnquist was based in large part on Rehnquist's ideology and politics. The same is true with respect to the nomination of Antonin Scalia to the high court.

The President has a clear political agenda for the Supreme Court and he intends to accomplish that agenda through the nomination process. I simply cannot understand why the Senate, which is constitutionally a part of the federal appointment process, should not take those same factors into account.

The Senate is granted the power of advice and consent over presidential nominations. This power carries the responsibility to insure that the Supreme Court does not become mired in far-right (or far-left) ideology, regardless of whether that ideology comes in the garb of politics or in the cloak of constitutional philosophy.

Next, Stanley ignores the fact that Rehnquist is being nominated to be chief justice of the United States. While it may be true that Rehnquist's point of view is one that ought to be considered as part of the judicial review process, it does not necessarily follow that this viewpoint must be elevated to the most prestigious judicial office in the nation. Additionally, as an associate justice, Rehnquist has been all too willing to manipulate doctrine and case law to suit his personal ideological code. Will he carry this proclivity with him as chief justice when he assigns cases to his fellow justices?

Finally, Stanley's observation that Rehnquist is not a "die-hard reactionary" all of the time, is far from reassuring. Yes, once in a while Justice Rehnquist authors an opinion that is not marked by his otherwise right-wing ideology. But that is surely not reason enough to jump on the bandwagon. This apologetic approach reminds me of the lad who has been beaten black and blue, but who later defends his tormentor by saying, "Well, he never beats me up on Sundays."

In his article, Stanley Mosk describes eloquently the constitutional protections of individual liberties as having a federal floor, below which no state can venture, and a state ceiling that can soar to heights limited only by the state Constitution. Stanley, when Justice Rehnquist and his ilk finish dismantling the floor of federal constitutional protection and when the organized right-wing assault upon the California Supreme Court and our state Constitution eliminates the ceiling of state constitutional protection you have worked so long to erect and preserve, you and I will find ourselves back at that pathetic time when constitutions protected the government from the people and not the reverse as it should be.

Your call for political neutrality has its place. It has nothing to do with the appointment of an ideologue as chief justice of the United States.


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