William H. Rehnquist, the Chief Justice of the U.S. Supreme Court, succumbed to thyroid cancer on Sept. 3 at the age of 80. He had served on the Court for 33 years, first as a Justice and then as Chief Justice. It was one of the longest tenures in the Court's history.
President George W. Bush wasted no time in announcing Supreme Court nominee John G. Roberts as the successor to Rehnquist, on the morning of Sept. 5. Twenty-five years ago Roberts served as a law clerk to the elder jurist.
Rehnquist was a conservative and he certainly helped to move the Court in that direction, but there was no wholesale rolling back of precedents with which he disagreed. His greatest influence on jurisprudence was in the areas of restricting the power of Congress to enact legislation and the immunity of state governments from federal law.
Despite his long tenure, his name was associated with few groundbreaking precedents, in fact, he often was in the minority on the most noteworthy cases decided over those years. His strongest legacy is his commitment to the courts as an institution and his efforts to strengthen their administration.
The GLBT community had little reason to mourn his passing as Rehnquist's vote consistently fell in opposition to equal treatment of gays under the law. He joined with the majority in the 1986 Hardwick decision that endorsed the state of Georgia's right to enact and enforce antigay sodomy laws.
He was in the dissenting minority when the Court saw fit to protect gay Americans in the Romer case by striking down Colorado's Amendment 2, in 1996, and when it overturned Hardwick with the Lawrence decision in 2003.
And yet, while he had ample opportunity to pen either the majority decision or a dissent on these cases, Rehnquist chose not to do so, leaving that task to others. It suggests that antigay animus was not a driving factor in his life.
The late Chief Justice's body lay in repose for public viewing at the Court on Tuesday. Burial at Arlington National Cemetery, beside his wife Natalie who died of cancer in 1991, is scheduled for Wednesday.
The ambivalence over Rehnquist was reflected in the response of the national GLBT organizations. While his death did occur over a holiday weekend, none of those organizations issued releases on his passing until two days after it was announced.
First out of the gate was the National Gay and Lesbian Task Force.
Executive Director Matt Foreman expressed condolences to the family, but then went for the gut, 'Chief Justice Rehnquist's record has been consistent—consistently reactionary and consistently hostile to individual freedoms and equal justice, across the board. His record on lesbian, gay, bisexual and transgender rights has been beyond regrettable; it has been dismal.'
Sen. Charles Schumer, D-NY, a member of the Judiciary Committee who voted against Roberts' confirmation to the D.C. circuit Court of Appeals two years ago, called for the Committee to delay the confirmation hearing on Roberts 'to mourn Justice Rehnquist,' when he appeared on a Sunday talk show.
But with the announcement that Roberts is being put forward to succeed Rehnquist, there is little likelihood that those hearings will be delayed more than a few days, though that is still in flux. The most likely scenario at this writing is that the Wednesday hearing will be postponed or abbreviated so that Senators can attend Rehnquist's burial.
Most political observers believed that Roberts was virtually assured of confirmation to the Court. His nomination to be Chief Justice has, if anything, enhanced those odds. He will be succeeding one of the most conservative members of the Court, not Sandra Day O'Connor, who has been more of a swing vote on issues of concern to liberals.
Those who have opposed Roberts' confirmation often have tried to frame it as a 'replacement' for O'Connor. Now they will be deprived of that rhetoric.
O'Connor is likely to be sitting on the bench when the Court convenes for its new session on the first Monday in October. In a clause in her very brief letter of resignation, which was little noted at the time, she said it becomes effective 'upon the nomination and confirmation of my successor.'
Speculation is rife as to who the President will nominate to the Court. It centers around the same names raised earlier this year, though there is a heightened sense that the nominee will not be another white male.
Whoever is nominated, the investigation and confirmation process will take several months. The earliest that a successor Justice is likely to be sworn in is for the second half of the session, which beings in January. Controversy over a nominee could push that back farther.
