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Rehnquist dies at age 80

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Chief Justice William H. Rehnquist, who joined the bench a generation ago as its often lone voice of conservative dissent and then steadily steered its turn to the right, died yesterday evening at his home in suburban Virginia. He was 80 and had been undergoing treatments for thyroid cancer since October.

In more than 33 years on the high court, the past 18 as chief justice, Chief Justice Rehnquist was widely credited with leading the revolution that gave broader power to states and local governments. He was one of the court's premier conservatives, consistently supporting school prayer and capital punishment and voting against abortion rights and affirmative action programs.

He also presided over rare historic moments, including the court's central role in the disputed 2000 presidential election and the Senate impeachment trial of President Bill Clinton in 1999 - a moment that gave the public an unprecedented televised view of the chief justice in action, seated at the head of the Senate chamber in his self-designed judicial robe with its distinctive gold strips on each sleeve.

President Bush was informed of Chief Justice Rehnquist's death about 11 p.m., according to Jeanie Mamo, a White House spokeswoman.

"The president and Mrs. Bush are deeply saddened by the passing of Justice Rehnquist. His family is in their thoughts and prayers," she said. The president will make a statement after attending church services this morning, Mamo said.

Senate Majority Leader Bill Frist, a Tennessee Republican, joined other congressional leaders last night in expressing sorrow at the death of the chief justice.

"For over three decades, Chief Justice William Rehnquist served our nation with distinction on the Supreme Court of the United States," Mr. Frist said in a statement released by his office. "He was an inspiration to me to be mindful of our duty to history and our place in preserving the strength of this great nation we serve."

Senate Minority Leader Harry Reid, a Nevada Democrat, said Chief Justice Rehnquist led the federal judiciary "with great dignity and clarity."

Robert Weisberg, professor of law at Stanford Law School, Chief Justice Rehnquist's alma mater, said he will likely be remembered as pushing to more power for the states, less for the federal government, and turning the court away from the Roosevelt's New Deal court, with its expansive interpretation of the power of Congress under the Constitution's "commerce clause."

For that reason, Mr. Weisberg said it's "hard to imagine a case where he ever voted for a defendant in a criminal case," except in a 1995 decision that struck down a federal criminal law on gun possession near a school. Chief Justice Rehnquist voted with those who ruled Congress had overstepped its authority in adopting the law.

David J. Garrow, a legal historian, said, "Even those of us like myself who disagreed with many if not a majority of his opinions unanimously respect and acknowledge how he was one of the most successful chief justices in history. He will in the long run be rated a great or near-great chief justice, having nothing to do with ideology or the formal content of his opinons.

"This really really creates a major issue for the president," said Mr. Garrow, who until recently taught at Emory University and now is at Cambridge University.

Mr. Garrow said it's "highly unlikely" that John Roberts will instead be nominated for chief justice, and he predicted that Alberto Gonzales, the attorney general, is a likely choice.

Chief Justice Rehnquist, who was appointed to the court by President Richard M. Nixon in 1971 and elevated by President Ronald Reagan in 1986, was the second-oldest man ever to serve as chief justice. He also came close to matching the 36-year record for serving on the court, and in recent years, he was the subject of perennial speculation about which of the nine justices might announce retirement plans.

But he defied the rumors and stayed put. When the court opened its term in October last year, he was sitting in the middle seat, firing off questions in cases ranging from the future of the federal sentencing guidelines to the death penalty for juveniles.

Over three decades, Chief Justice Rehnquist carved out a staunchly conservative record. But he also showed moderation at key points - voting to protect free speech, for instance, in the Rev. Jerry Falwell's famous battle against Hustler magazine - and had displayed a gentler tone on issues such as affirmative action and gay rights as the court in recent years has shifted more toward more moderate middle ground.

His sometimes gruff questioning and cutting legal opinions belied what longtime court observers say was a genial personality. Even as the court's top administrator, Chief Justice Rehnquist did not take himself too seriously or revel in the pomp of his position. He hosted an annual Christmas caroling party and liked to make small bets with court workers on everything from sporting events to snowfall amounts.

An avid tennis player, he hired three law clerks each year instead of the now-customary four - the better to round out a decent doubles match.

Harvey Rishikof, an administrative assistant to Chief Justice Rehnquist from 1994 to 1996, said he had a wry sense of humor that often escaped notice.

"People often thought that he appeared to be disengaged at a public event when in reality he was registering and taking in everything around him with a very analytical and wry sensibility," said Mr. Rishikof, chairman of the Department of National Security Strategy and professor of national security law at the National War College.

Chief Justice Rehnquist had chronic back pain for years and underwent knee surgery two years ago. But he had appeared in generally good health before the court announced his cancer diagnosis in a terse statement in late October last year. Chief Justice Rehnquist released few details about his illness, but medical experts said that his treatment regiment suggested that he had an aggressive form of thyroid cancer that is fatal in nearly every case.

"Time is a wasting asset; most of us realize it too late, before expending a lot of it very unwisely," he cautioned a group of new graduates in commencement address at Marymount University in Northern Virginia two years ago.

Chief Justice Rehnquist reportedly gave serious thought to retiring about 20 years ago, while he was still an associate justice. At the time, he hoped to travel and spend time with his wife, the former Natalie Cornell, who died of ovarian cancer in 1991. He also showed signs of growing impatience with the job, observing once: "The ballgame never ends in our court."

But when offered the chance by President Reagan in 1986 to preside over the court as chief justice, he chose to stay and helped guide the court's conservative shift in the nearly two decades that followed.

William Hubbs Rehnquist was born Oct. 1, 1924, to solidly Republican parents in otherwise Democratic-leaning Milwaukee. He grew up in the suburb of Shorewood, and after graduating high school enrolled at Kenyon College in Ohio.

After a year, he left school to join the Army Air Forces as a weather observer in 1943. He returned to college when the war ended. He earned bachelor's and masters degrees in political science at Stanford University. After a year at Harvard, he returned to Stanford for law school, graduating in 1952 at the top of his class. (Sandra Day O'Connor, who would later join Chief Justice Rehnquist on the Supreme Court, was third in the same class.)

His first legal job was as a clerk for Supreme Court Justice Robert H. Jackson in 1952 and 1953. In the introduction to his 1987 book, The Supreme Court, Chief Justice Rehnquist recounted his trek across the Midwest to his new job, driving an 11-year-old Studebaker Champion with no heater in the middle of a February snowstorm.

When he reported to work as a fledgling clerk, he recounted, he had virtually no clue what he was facing.

"Justice Jackson then remarked rather casually that he supposed I had a general idea of how the Supreme Court operated," Chief Justice Rehnquist wrote. "Actually, I had only the foggiest notion of how the Supreme Court operated, but I was naturally loath to volunteer this fact."

His work as a law clerk later became an issue when he faced Senate confirmation to the Supreme Court. A few months after he arrived in Washington, the court agreed to hear the historic school desegregation case, Brown v. Board of Education, and in a memorandum requested by Justice Jackson, he had suggested that the court should not step in to enforce individual civil rights.

"One hundred and fifty years of attempts on the part of this court to protect minority rights of any kind - whether those of business, slaveholders or Jehovah's Witnesses, have all met the same fate. One by one, the cases establishing such rights have been sloughed off and crept silently to rest," he wrote in the memo, which was signed "WHIR."

"I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by 'liberal' colleagues, but I think Plessy v. Ferguson was right and should be reaffirmed," he wrote, referencing the historic ruling that upheld the notion of "separate but equal" accommodations for blacks and whites.

During his Supreme Court confirmation process in 1971, he told the Senate that the memo "was prepared by me at Justice Jackson's request; it was intended as a rough draft of a statement of his views ... rather than as a statement of my views."

After his clerkship ended in June 1953, he returned to the West. He went into private practice at a small law firm in Phoenix, married and began raising a family. He also became involved in Republican politics and served as the legal adviser to the state party chairman, Richard Kleindienst.

When Richard M. Nixon was elected president in 1968, Mr. Kleindienst went to Washington as a top official at the Justice Department and brought Mr. Rehnquist along to head the highly regarded Office of Legal Counsel, which provides legal advice to the U.S. attorney general but is traditionally allied closely with the White House.

At the Justice Department, he drew up legal advice for the administration on a range of fronts, from the legality of wire tapping to a proposed constitutional amendment to halt busing for school desegregation. The plan was shelved, Los Angeles Times reporter David G. Savage wrote in his 1992 book, Turning Right: The Making of the Rehnquist Supreme Court. But his work was noticed.

"As an assistant attorney general, Rehnquist won admirers within the Nixon administration as a man of bold views and mild manners," Savage wrote.

Not that he was always remembered by name. In one conversation on the Nixon White House tapes from July 24, 1971, the president complained to aide John Ehrlichman about an earlier meeting at the White House that Rehnquist had attended.

"Do you remember the meeting we had when I told that group of clowns we had around here, Renchberg and that group - what's his name?" Mr. Nixon said on the tapes.

"Rehnquist," Mr. Ehrlichman answered

His name came up as a possible Supreme Court candidate in 1971, after the White House had gone through a series of other candidates to fill the vacancies created by the retirements of Justices Hugo Black and John Marshall Harlan. (Lewis F. Powell Jr., then a Richmond, Va., lawyer, was nominated for the other opening.)

Chief Justice Rehnquist was 47 and virtually unknown, but his strong conservative credentials and the fact that he had not attended an East Coast law school appealed to Nixon, former White House counsel John Dean wrote in his 2001 book, The Rehnquist Choice: The Untold Story of the Nixon Appointment that Redefined the Supreme Court.

The pick was a surprise, even to Mr. Rehnquist. Mr. Dean recounted in the book running into a reporter at the White House one afternoon not long before the selection was made who said he had discussed the possibility with Mr. Rehnquist directly.

"He said he flat out asked Bill if Nixon might appoint him to the court," Mr. Dean wrote. "He told me Bill answered by saying it would never happen: 'I'm not from the South, I'm not a woman, and I'm not mediocre.'"

At his confirmation hearings, Justice Rehnquist faced questions about the memo he had written in the school desegregation case as a law clerk. He also was questioned about his role, in Arizona, helping organize controversial poll watching teams in predominantly black and Hispanic neighborhoods. He denied having challenged any voters.

Chief Justice Rehnquist was confirmed by a 68-26 vote in the Senate and took his seat on the court Jan. 7, 1972.

"I felt that at the time I came on the court, the boat was kind of heeling over in one direction," he said in a later interview. "Interpreting my oath as I saw it, I felt that my job was ... to kind of lean the other way."

For a number of years it was an often lonely position. He was one of two dissenting votes when the court in 1973 legalized abortion in the case of Roe v. Wade. In 1979, he wrote a fierce dissent in an early affirmative action case involving an United Steelworkers contract: "Congress outlawed ALL racial discrimination, recognizing that no discrimination based on race is benign, that no action disadvantaging a person because of his color is affirmative."

In a 1977 case where the court struck down a New York law that banned the sale of birth control to minors, he fired off another memorable dissent, invoking the constitutional amendments that grew out of the battle of Bunker Hill in 1775 and the Civil War battle of Gettysburg.

"If those responsible for these amendments, by feats of valor or efforts of draftsmanship, could have lived to know that their efforts had enshrined in the Constitution the right of commercial vendors of contraceptives to peddle them to unmarried minors through such means as window displays and vending machines located in the men's room of truck stops, notwithstanding the considered judgment of the New York legislature to the contrary, it is not difficult to imagine their reaction," he wrote.

His conservative record made him a prime candidate for chief justice when, in May 1986, then-Chief Justice Warren E. Burger announced he would retire. President Reagan nominated him to the chief post and nominated Antonin Scalia, a staunch conservative.

At his confirmation hearings, Justice Rehnquist again faced questions about voter intimidation in Arizona and his work as a law clerk. He was approved by a 65-33 vote in the Senate, the most votes ever cast against a chief justice candidate.

But once confirmed, and with Scalia serving as a solid additional conservative vote, he was able to shift the court to the right on a number of issues - most notably, states' rights. In his book, The Rehnquist Court: Judicial Activism on the Right, constitutional law expert Herman Schwartz called the court under Chief Justice Rehnquist "the most conservative Supreme Court since the New Deal."

"In an astonishing display of judicial activism not seen since the 1930s, the court's five conservatives have struck at the power of the federal government by annulling more federal statutes than any court in recent memory," Mr. Schwartz wrote.

In 33 years on the court, Chief Justice Rehnquist also showed signs of moderation and shifts in tone.

In 2003, to the surprise of many, he authored the 6-3 majority opinion - splitting the court's other solid conservatives - in allowing state employees to sue if they are not permitted to take time off of work to care for sick family members under the federal Family and Medical Leave Act.

Women's groups called him their new favorite feminist. The chief justice, for his part, noted that unlike in cases the court said state workers cannot sue based on federal disability or age discrimination laws, the family leave act, was "narrowly targeted at the fault line between work and family."

Writing the dissent in a closely watched affirmative action case involving the University of Michigan law school, Chief Justice Rehnquist set aside the angry language - and all capital letters - that had punctuated his writings on the same topic years before.

"We have said that when it comes to the use of race, the connection between the ends and the means used to attain them must be precise," he wrote. "But here the flaw is deeper than that; it is not merely a question of 'fit' between ends and means."

Chief Justice Rehnquist was expected in retirement to turn his attention to his writing. He had written four books about the court, including All the Laws But One, an examination of civil liberties in wartime and Centennial Crisis, about the disputed presidential election of 1876 - two titles that resonated in recent years.

"I do think the chief justice would like to spend more time with his grandchildren and writing history," Pepperdine University law professor Douglas Kmiec said last fall, before Chief Justice Rehnquist's cancer diagnosis was announced.

In his 1987 book, The Supreme Court: How Is Was, How It Is, Chief Justice Rehnquist recounted the first time he watched the court hear arguments as a young clerk and saw the ceremony of the court marshal opening the proceedings with a pounding of the gavel and the words, "Oyez, oyez, oyez":

"A year and a half's exposure to it on a regular basis as a law clerk, and now three decades' exposure to it as a member of the court, have convinced me that it is not only a stirring ceremony with which to open the court, but also one of the best tourist sights in Washington."

Sun staff writers Arthur Hirsch, Gwyneth K. Shaw and Bradley Olson contributed to this article.

Copyright © 2014, The Baltimore Sun
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