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But some scholars argue that Senators are justified in opposing court appointments on ideological grounds as well. When the Founding Fathers were framing the Constitution, they considered giving the Senate the power to appoint judges. Instead, a compromise was struck: the President would make the choices with the "advice and consent" of the Senate. Throughout the 19th century, this was taken to mean that the Senate could balk on ideological grounds, and indeed, the Senate refused to confirm some 20 Supreme Court nominations. But in the past 50 years, the only serious challenges (such as the rejection of Nixon Appointees Clement Haynsworth and G. Harrold Carswell) have occurred when political objections were linked to questions of fitness and competence. Some liberals feel that it is time for the Senate to reassert < its political prerogatives. In that case, Scalia and Rehnquist make inviting targets. "My own view is that the Senate's role is to be a partner in the appointment process and examine the views of the nominees, at least when the President is so self-consciously trying to shape the court," asserts Yale Law School Professor Paul Gewirtz. Democrat Alan Cranston of California, who voted against Rehnquist's confirmation as a Justice in 1971, last week asked, "Can a man who has an extreme right-wing ideology manage the court in a fair and balanced way?"
The man Reagan chose to remake the high court shares many of his roots and values. Like Reagan, Rehnquist left his boyhood home in the Midwest to head for the Far West, where he embraced the frontier verities of rugged individualism and a respect for law-and-order. The son of a paper salesman, Rehnquist grew up in the quiet Milwaukee suburb of Shorewood. After serving three years in the Army Air Corps during World War II, he used the G.I. Bill to go to Stanford. Graduating first in his class from Stanford Law (a classmate was Sandra Day O'Connor), he was selected to clerk on the Supreme Court for Justice Robert Jackson.
As a law clerk in 1952, Rehnquist wrote a memo for Justice Jackson stating that "separate but equal" public education for blacks was "right and should be reaffirmed." Questioned about this at his confirmation hearings in 1971, Rehnquist insisted that he was expressing the Justice's views, not his own. But University of Chicago Law School Professor Dennis Hutchinson, who is writing a biography of Jackson, calls Rehnquist's explanation "absurd." Jackson always instructed his clerks to express their own views, not his, says Hutchinson. Last year Rehnquist stated that he now believes that the Supreme Court's 1954 landmark decision Brown vs. Board of Education outlawing school segregation is correct, but added, "I think there was a perfectly reasonable argument the other way."