JT: It seems all but inevitable that Chief Justice Rehnquist will resign very soon. Much will be written about him in the days ahead, analyzing his legacy on the court. But you were in a unique position to know him personally and to work for him professionally, clerking for him from 1996-1997. Can you tell us a little bit about that experience? What is the Chief Justice like as a person?
RG: Working for the Chief Justice was a wonderful experience. He is a top-shelf lawyer, an excellent judge, a gifted administrator, and a decent and down-to-earth person. It’s not really possible, in a few sentences, to explain what he’s like “as a person,” and I don’t imagine that I know him any better than hundreds of others who’ve worked with him over the years. For me, what sticks in my memory about the Chief is his even keel, his complete lack of snobbery or pretension, his balanced and “long view” attitude toward the Court’s work and his own decisions, and the care he took to teach, and not merely to supervise and command, his law clerks. I have a great job, and I owe a great deal of my professional happiness to the Chief.
JT: How do you think history will judge the Chief Justice?
RG: I think he will be viewed as one of the great Chief Justices: He has run the Court well and efficiently, and enjoys the respect and affection of all the Justices with whom he has worked. He has been an effective administrator of the Judicial Branch generally, and of the Judicial Conference. I think he has been an effective advocate for the judiciary, and for the rule of law, in Congress and in the public square. He’s done a valuable service to the education of Americans generally about the Constitution, and our history, through his popular history books (All the Laws But One, Centennial Crisis, etc.). In terms of the Court’s doctrine, he not only contributed to, and presided over, important developments in criminal procedure and habeas corpus, religious freedom, federalism, state action, and federal Indian law, he also—more generally—helped to fundamentally transform our conversations about the Constitution, by re-introducing important premises about enumerated powers, state sovereignty, and originalism that had been forgotten, or pushed to the margins, during the 1960s.
JT: Seven of the justices on the current court were nominated by Republican presidents. Of those seven, it seems that conservatives have only really been happy with Rehnquist and Thomas. [Ed.—I inadvertently left Scalia out of the question here.] Why has there been a failure to appoint genuinely conservative justices?
RG: Conservatives have been happy with Justice Scalia, too, of course. (That said, many conservatives probably did not appreciate Justice Scalia’s view that flag-burning is protected by the First Amendment, or that the use of a heat-detector on a house constitutes a “search” under the Fourth Amendment.). My first point would be to warn about labels like “liberal” and “conservative.” Justice Thomas and Chief Justice Rehnquist, for example, differ markedly on First Amendment matters; Justice Scalia and Justice Thomas have different views about the “privileges or immunities” and “necessary and proper” clauses; etc. Next, “conservatives” should remember that Justices Kennedy and O’Connor have been—in the vast majority of cases—fairly consistently “conservative” Justices. (Obviously, their votes in some of the culture-war and social-issue cases have frustrated some conservatives).
As for the “failure,” I just don’t know. I suspect that the hearings on the nomination of Judge Bork so poisoned the process that—at least for a time—Republican administrations felt safer going with easier, unknown nominees like David Souter and Anthony Kennedy.
JT: Do you believe opposition-party senators have an obligation to support a nominee if they believe he is qualified, even if they disagree with his ideology?
RG: No. That is, I don’t think they have an “obligation” to support a nominee whose ideology they oppose. Generally speaking, though, it seems to me that minority-party senators should understand that elections matter, and that the President’s nominees will, almost by definition, have views that differ from minority-party senators’. I do think there is an obligation to be honest, and to not use ridiculous epithets like “extremist” or “reactionary” or “radical” to describe nominees who are simply “conservative” or “constitutionalist.”
JT: Do you think a filibuster of President Bush’s nominee will be likely?
RG: No, I don’t. The interest groups will cause a great deal of noise—because this helps to raise money—and some Senators will make a scene (getting ready for the 2006 and 2008 elections), but I do not believe there is any plausible Bush nominee who would trigger a sustainable filibuster. I suspect there are enough Democrats who realize that a filibuster would almost certainly trigger the “constitutional option.’
JT: I suspect that in the days ahead, we’ll be hearing a lot about “originalism” and “strict constructionism.” Can you explain those terms and how they differ?
RG: That’s pretty hard, in this space! Both of these terms are sometimes used more as symbols, or codes, than as technical terms about interpretation. One important distinction, of course, is between “original intent” (i.e., what those who drafted, passed, and / or ratified the law or provision in question “intended” for it to achieve or mean) and “original meaning” (i.e., what the relevant text and words would generally have been understood to mean at the relevant time). By “strict construction,” I suppose a fair definition might be something like this: “An approach to legal texts that avoids, to the extent possible, relying on judges’ policy preferences, or judgments about the wisdom of laws, or guesses about the texts’ deeper ‘purposes,’ and that proceeds instead in a way that is meaningfully constrained by the forms and rules laid down.”
JT: And how would you define “The Living Constitution”?
RG: This is also tricky, and I apologize in advance for oversimplifying. The “living Constitution,” I think, connotes an approach to constitutional interpretation that candidly refuses to be bound by a provision’s “original meaning” (assuming it is knowable) and that instead assumes that a provision’s meaning should be understood and developed against a backdrop of evolving understandings of the fundamental values thought to be embodied in the Constitution and the changing needs and structure of society.
JT: Will Roe play a major role in the nomination proceedings? How would you counsel a nominee to answer the question: Would you vote to overturn Roe v. Wade?
RG: In my view, nearly all of the turmoil and controversy surrounding Supreme Court nominations—or judicial nominations generally—is attributable to Roe v. Wade and to our divisions concerning abortion. I do not believe a nominee should answer, or should be expected to answer, the question, “Would you vote to overturn Roe v. Wade?” I believe, though, that everyone should respect a nominee’s view that Roe v. Wade was wrongly decided (as it certainly was).
JT: With the retirements of Rehnquist and O’Connor, do you think President Bush will be tempted to “split the baby,” i.e., nominate one “conservative” and one “moderate”?
RG: As your “scare quotes” suggest, these labels are misleading; Justice O’Connor’s current status in the press as a “moderate” overlooks how conservative she has been in so many areas. Putting that aside, it seems to me that President Bush will take seriously the promises he made during two campaigns to appoint conservatives to the Court. This does not mean, though, that he will not nominate Attorney General Gonzales (who is, after all, almost certainly a “conservative” in nearly every respect). I would not expect him, though, to consciously “split the baby” in order to please the press or his political opponents.
JT: It’s well-known that President Bush has a strong friendship with Attorney General Alberto Gonzales and does not appreciate conservative criticism of Gonzales. On the other hand, President Bush has expressed his desire to appoint a “strict constructionist,” and says that he would like a Justice most like Scalia and Thomas. Which pole—I’m tempted to say “friendship and loyalty vs. principle”—will win out in the end?
RG: I simply do not know whether or not the Attorney General’s critics are correct in assuming that he is not, in fact, a “strict constructionist.” I do not believe, though, that President Bush would nominate Alberto Gonzales merely for reasons of friendship and loyalty; if he does nominate him, it will—I believe—be because the President has confidence that Gonzales actually is a “strict constructionist.”
JT: Would appointing Gonzales be bad for the country, given that Gonzales would presumably have to recuse himself on cases related to affirmative action, terrorism, partial-birth abortion, etc.?
RG: I have not studied the matter as carefully as some, so I do not know if, in fact, the Attorney General’s recusal obligations would be as sweeping as some have concluded. That said, it does seem to me that it would be undesirable for a new Justice to be recused from many high-profile cases.
JT: Do you think it is more likely that President Bush will elevate someone already on the Court to the role of Chief Justice, or that he’ll look outside the Court?
RG: In my view, the most likely internal candidate is Justice Scalia. Justice Scalia would certainly be confirmed, though the Democrats and the activist groups would certainly have a field day criticizing him. I guess my hunch is that the President will nominate someone from outside the Court to replace the Chief Justice.
JT: Conservatives have mentioned a number of judges they would like to see nominated: Mike Luttig, Mike McConnell, John Roberts, Emilio Garza, Edith Jones, Miguel Estrada, Janice Rogers Brown, and others. Whom would you most want to see picked?
RG: No comment! All of these judges are top-tier jurists and very good people. From that list, the President could not go wrong. (Some would, I suppose, cause more political turmoil than others, though.)
JT: Final question: what is your prediction? Who will President Bush nominate?
RG: Any prediction I might make would almost certainly be wrong, and so is not worth your time.