Reagan's Mr. Right

Rehnquist is picked for the court's top job

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By their formidable intellect and persuasiveness as well as their personal charm, Rehnquist and Scalia stand at least a chance of making the court more cohesive and coherent. Their judicial

opinions will be more sprightly and readable than the turgid fare churned out by most of their brethren.

Reagan has made it clear that he wants to remake the federal judiciary in his own conservative image, not just on the high court but in the lower federal courts as well. Judicial appointments can be a President's most enduring legacy. Federal judges, appointed for life and removable only for "treason, bribery, or other high crimes and misdemeanors," often serve long after a President's term expires. Future vacancies on the high court may offer Reagan a back-door means of achieving the New Right social agenda-- including permitting prayer in schools and banning abortion--that elected politicians in Congress have so far rebuffed. Time, certainly, is on the conservatives' side: the leading liberals on the court, William Brennan and Thurgood Marshall, are respectively 80 and 77 years old. Rehnquist is 61 and Scalia 50.

The high-court shuffle was an unusually well-kept secret by Washington standards. Even within the marble temple of the Supreme Court, the Justices were not tipped off. Only 15 minutes before the President went on national television last Tuesday, the Chief Justice's clerks fanned out to other chambers bearing copies of Burger's resignation letter. The Justices and their staffs were then invited to the court's paneled conference room, where a pair of TVs had been set up. Only when the President appeared on the air with Rehnquist and Scalia standing beside him did the brethren learn the identity of their new chief and new colleague.

The selection process had begun quietly three weeks earlier. In late May, Burger asked for an appointment with the President, ostensibly to discuss the 1987 celebration of the 200th anniversary of the Constitution. Reagan's aides were reluctant; as chairman of the Commission on the bicentennial of the U.S. Constitution, Burger was constantly complaining that the celebration was short of funds and understaffed. Still, Burger was invited down to the White House. Only after he had chatted with Reagan for 20 minutes about the bicentennial did Burger drop the bombshell that he was resigning, a year earlier than most expected.

Burger, who was just recovering from a persistent case of the flu, explained that his chores on behalf of the anniversary celebration were so time consuming that he could not fulfill them and still do justice to the court. According to his aides, the President was somewhat taken aback that Burger wanted to give up the court to keep the celebration. But he did not try to talk the Chief Justice out of his decision. At least one reason was that Burger's timing was politically opportune. The Republicans stand a real chance of losing control of the Senate this fall, and a Democratic leadership might bitterly resist a Reagan-appointed Chief Justice.

White House Chief of Staff Donald Regan was determined to keep the choice of Burger's successor under tight control. He was afraid that leaks would set judges and politicians scrambling to lobby Reagan for their favorite choices. Instead, Regan wanted to present Reagan with a very few carefully screened names.

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