Published Tuesday, September 13, 2005, in National Review Online.

Supreme Rhetoric: Remember the past when watching the hearings.

John R. Lott, Jr.*

You have to wonder sometimes whether politicians really mean all the angry things they say about their opponents. If they weren't at least somewhat convincing in their delivery of disingenuous remarks, after all, they just wouldn't be good politicians. And presumably they can justify going over the top simply by what it does for their cause.

Yet once in a while it becomes pretty obvious to everyone that the vicious political attacks we hear everyday are simply empty rhetoric.

Justice William Rehnquist's passing last weekend provided one such moment. We often think that the personal attacks on judicial nominees started with Robert Bork, but the politics of personal destruction actually began a year earlier when Rehnquist was nominated for chief justice. The year was 1986, and the New York Times wrote that "Justice Rehnquist's opponents challenged his judicial ethics, his candor, his record on civil rights and individual liberty..."

Rehnquist's supporters phrased things more strongly. Senator Orrin Hatch remarked, "They've done everything they could to destroy this man's reputation." President Ronald Reagan described the charges against Rehnquist as nothing less than those of a "liberal lynch mob."

Senator Ted Kennedy was among those attacking Rehnquist: "Justice Rehnquist might have made a brilliant 19th-century chief justice, but brilliance of judicial intellect in the service of racism and injustice is no virtue in our times." Senator Howard Metzenbaum questioned Rehnquist's "candor, honesty and judicial ethics." Other senators were similarly critical.

Opponents claimed Rehnquist was a "John Bircher," a member of a fringe right-wing group that believed that Communists were everywhere.

Rehnquist was attacked as someone who tried to prevent minorities from voting, and as a person who refused to sell his property to Jews or African Americans.

In the end, Rehnquist was confirmed as chief justice after a lengthy 89 days, but 33 senators voted against Rehnquist as chief justice more negative votes than against any other justice who had been confirmed to the High Court up to that time. The most no-votes anybody had previously received was 26, a number mustered only by Mahlon Pitney in 1912, Charles Evans Hughes in 1930, and Rehnquist in 1971, when he was first confirmed to the court as an associate justice.

After Rehnquist's death last weekend, it was almost impossible to believe that Democrats were talking about the same person who they had previously bashed. Senator Charles Schumer, the point man in many of the attacks on the man now nominated to replace Rehnquist, Judge John Roberts, said that "people of all philosophies and viewpoints greatly respected Justice Rehnquist and will miss him." He also said that we will "mourn" Rehnquist's death.

Senator Kennedy now says of Rehnquist: "I respected his leadership of the federal judiciary and his strong commitment to the integrity and independence of the courts." But if you really believed that someone has really devoted themselves to the "service of racism and injustice," would you ever praise this person's integrity and leadership?

Kennedy's initial attacks against Rehnquist were made after he had already served on the Court for 13 years. For Kennedy's statements this weekend to make any sense one would have to believe that, after 1986, Rehnquist stopped being the type of racist that Kennedy had described. But it is not clear that anyone, including Kennedy, believes that Rehnquist ever underwent some type of political conversion.

But then Senator Kennedy is no stranger to incredibility. He once made history with the most famous attack on a judicial nominee ever when he stated that: "In Robert Bork's America, women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rouge police could break down citizens' doors in midnight raids. School children could not be taught evolution..." This attack had its intended effect, but it is again hard to conceive that Kennedy really believed these charges against Bork any more than he believed the claims that Rehnquist was a racist.

Of course, the real test would be if another Rehnquist clone were to be nominated. Would Democrats like Kennedy again denounce the nominee as a racist and question his honesty and integrity, while strongly denying any similarities to past cases?

With John Roberts's confirmation battle this week and another battle coming soon, a little perspective is something we might want to keep in mind.

Mr. Lott, a resident scholar at the American Enterprise Institute, is the author of a forthcoming paper in The Journal of Empirical Legal Studies that examines these aspects of the confirmation process.


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