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TEN Legal Positivism, Federalism, and Rehnquist's Constitution He has an agile mind but not an open mind.—Sen. Joseph R. Biden, fr. (D., Del.) On the merits, Justice Rehnquist is not mainstream but too extreme—he is too extreme on race, too extreme on women's rights, too extreme on freedom of speech, too extreme on separation of church and state, too extreme to be Chief Justice.—Senator Edward Μ Kennedy [D , Mass ) The [Senate Judiciary Committee] hearings showed who the extremists really are.—Senator Ornn G. Hatch (R., Utah) On June 17, 1986, President Ronald Reagan announced his nom­ ination of William H. Rehnquist to succeed Warren E. Burger as chief justice of the United States. The president chose Antonin Scalia, a judge on the United States Court of Appeals for the Dis­ trict of Columbia, to fill Rehnquist's seat as associate justice. Until Reagan's nomination of Rehnquist, only two sitting asso­ ciate justices had been promoted to Chief Justice.1 Rehnquist's record during his fourteen and a half years on the Court made him, from the perspective of the Reagan administration, an ideal choice for chief justice. His positions regarding the applicability of the Bill of Rights to the states, abortion, the rights of the ac­ cused, prayer in the schools, school busing, and affirmative ac­ tion were all in accord with the policies of the Reagan adminis­ tration. In addition, his voting record and his willingness to dissent alone made it seem highly unlikely that Rehnquist would disappoint President Reagan by changing his views after he be­ came chief justice. Rehnquist's intellect and personal charm also must have have made him attractive to the administration. The administration's determination to fill judicial vacancies with people whose views were consistent with its own policy goals was particularly apparent in the active role played by the White House in the selection process at the lower court level.2 1 Edward D. White was promoted by President William Howard Taft in 1910, and Harlan Fiske Stone was promoted by President Franklin D. Roosevelt in 1941. 2 By the end of Ronald Reagan's second term in office more than half of the judges in the lower courts will be Reagan appointees. See Goldman 1985. 191 CONCLUSION That commitment was also clear when President Reagan nominated Sandra Day O'Connor to fill the vacancy created by Potter Stewart's retirement in 1981. By 1986, the advanced ages of five Supreme Court justices made it appear quite likely that President Reagan would have an opportunity to fill at least one additional vacancy on the Court. The prospect of two, possibly three, Reagan appointments to the Court rekindled the debate regarding the role of the Senate in providing "advice and consent" to the president. Justice Relinquish in an address he delivered in October 1984, underscored the limited success that presidents have had in their attempts to "pack" the Supreme Court (1985). Laurence Tribe, concerned that such comments could serve to "lessen the Senate's vigilance , when the time came to review the next nomination," published a short book that was, in essence, a response to Rehnquist 's speech.3 Tribe (1985b, 93) argued that the Senate has an obligation to examine not only a nominee's integrity and competence but also his or her judicial philosophy. Senators have the duty to vote against the confirmation of a candidate whose views of "what the law should be, and [his or her] . . . institutional views of what role the Supreme Court should play" fall outside the circle of acceptability. If a nominee is an extremist who does not subscribe to the "American vision . . . our aspirations, our idea of a just society," he or she should be rejected (ibid., 96, emphasis in original). An unacceptable nominee, according to Tribe, would be one who would disregard a constitutional amendment, or who believed that the Bill of Rights does not limit state action, or who would overturn the apportionment decisions, or who would construe equal protection to require the abolition of private property. Moreover, he asserted that the Senate should reject a nominee whom the administration had selected solely on the basis of his or her politically approved views on a single issue and should also consider carefully the effect confirmation of a nominee would have on the overall balance of the Court. REHNQUIST'S CONFIRMATION The issue of whether the Senate should probe and assess a nominee 's judicial philosophy or whether it should...


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