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As a Justice, Rehnquist usually refused to budge from his perch on the far right edge of the court. "By and large he is consistent," says Law Professor Herman Schwartz of American University. "That's why I don't think he should be chief. I wonder about the choice of a man consistently on the fringes." But Columbia's Blasi contends, "Rehnquist is an excellent court infighter--certainly better than Burger and maybe even better than Earl Warren. He's an intensely political person. Some people see him sitting out there in his own world with his principles, but I think he really likes to win."
To forge majorities, Rehnquist will have to reach into the court's shifting, fluid middle. Although she has grown more independent of late, Justice O'Connor usually votes with her old Stanford Law School classmate. Justice Byron White, a Kennedy appointee, can often be counted on as a conservative vote, especially on criminal-rights cases. A careful balancer, Justice Lewis Powell is a pragmatic statesman who tries to find a middle way for the court on controversial cases. It was Powell, for instance, whose opinion striking down explicit quotas but permitting race to be a "factor" in university admissions achieved the court's Solomonic compromise in the famed 1978 affirmativeaction case Regents of the University of California vs. Bakke. Justice John Paul Stevens is a thoroughly unpredictable maverick, and Justice Harry Blackmun, once derided as Burger's "Minnesota Twin," is now often allied with the court's liberal duo, Brennan and Marshall.
If Rehnquist is looking for a model as consensus maker, he can find one in Brennan. Like Rehnquist, Brennan is popular with his colleagues. But unlike Rehnquist, Brennan has often swallowed his ideological scruples to pick up the votes of more moderate colleagues. His ability to preserve the legacy of the Warren Court on a bench well stocked with G.O.P. presidential appointees is testimony to his persuasiveness and collegiality.
Some court watchers think they see a recent willingness in Rehnquist to be more accommodating. This spring he joined the court's majority in Wygant vs. Jackson Board of Education to strike down racial quotas in laying off schoolteachers, even though the language of the opinion included a guarded endorsement of affirmative action.
Last week Rehnquist was the surprising author of a high-court decision recognizing that sexual harassment in the workplace is a violation of the civil rights laws. Rehnquist tried to strike a balance in the case, which involved a woman who said she had been harassed by sexual advances by her boss at a Washington bank. Writing for a unanimous majority, Rehnquist ruled that businesses could be held liable for sexual harassment but that they could defend themselves with such evidence as an employee's "provocative" dress or conduct.
Slow though it may be in coming, a tilt to the right by the Rehnquist Court may emerge in some critical areas. A thumbnail preview: