- The Washington Times - Wednesday, September 14, 2005

Apart from his success ushering in a quiet conservative revolution on the court, one remarkable facet of William Rehnquist’s legacy is found in a more understated role of the chief justice — that of the judiciary’s chief advocate and ambassador. The hallmark of his style, no matter how volatile the issue or context — from abortion to impeachment — was one of respectful debate, a quality that garnered enormous loyalty and respect among his fellow justices, litigants and court watchers.

But the chief justice not only worked to foster respect and collegiality within the walls of the court, he did more: For the last two years of his tenure, Mr. Rehnquist turned his focus to a matter of growing concern for many — the deterioration in relations between the Congress and the courts. As the chief justice reported in his year-end analysis of the state of the judiciary and in his customarily understated way, “During the last year, it seems that the traditional interchange between the Congress and the judiciary broke down.”

This hostility long preceded congressional intervention in the tragic case of Terri Schiavo, and has taken many forms beyond the most simple and pernicious — that of defunding the courts. It includes measures stripping the courts of jurisdiction to hear particular cases, condemning the judiciary citation of certain precedent and splitting circuits out of a dislike for their jurisprudence.

One proposed constitutional amendment would even change the Framer’s design of life tenure for the lower federal courts and subject judges to costly campaigns and retention elections.

If you think political campaigning by elected officials, the growth of 527 organizations and other independent expenditure efforts are already out of control, just imagine adding negative attack ads in judicial races around the country: “Call Judge Jones and tell him to stop coddling criminals.”

Though many of these legislative initiatives have yet to pass, we are already witnessing a number of direct consequences to our court system. In recent years, there has been a marked decline in interest in service on the bench among highly qualified attorneys, and judges are leaving the bench to return to private practice. Reckless talk in the House Judiciary Committee about the potential impeachment of judges, not for unethical conduct but out of disagreement with their decisions, has only added to the chilling effect on the courts and people’s willingness to serve.

Ultimately, this protracted war against the judicial branch will only denigrate both Congress and the courts. This is not the first time relations between the two branches have been dangerously low, nor was Mr. Rehnquist the first chief justice to express alarm. Former Chief Justice Charles Evans Hughes’ admonished the Congress of his day that “in the great enterprise of making democracy workable we are all partners. One member of our body politic cannot say to another — ‘I have no need of thee.’ ”

Increasingly, however, the Congress has been saying just that, and Mr. Rehnquist was among the first to spot the danger. When a group of House members formed a bipartisan caucus to improve relations with the courts, Mr. Rehnquist was the first to sit down with us. After presiding over the high court for the last two decades, he was clearly disturbed at the turn in relations between the branches and the resulting attack upon the independence of the judiciary.

During the confirmation hearings of John Roberts this week, a great many important questions will be asked about Mr. Roberts’ judicial philosophy, and his views on individual rights and freedoms. But I hope at least one senator will ask whether Mr. Roberts, a prodigy of and potential successor to Chief Justice Rehnquist, will aspire to succeed not only to his mentor’s conservative revolution, but his all-too-solitary work to repair the damage to the historic and vital comity between Congress and the courts.

Adam B. Schiff, California Democrat, is a member of the House of Representatives’ Judiciary Committee, and co-founded the Congressional Caucus on the Judicial Branch.

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