Judge steps into legal minefield

By Roger Franklin

NEW YORK - Almost every working day in Washington a tall, somewhat paunchy and slightly stooped figure leaves the Supreme Court and merges with the pedestrian traffic circling Capitol Hill. His pace is brisk, his bald head downcast and, even though he receives the odd death threat, bodyguards seldom follow in his wake.

But then, until yesterday when he was sworn in as the presiding judge at the Senate trial of William Jefferson Clinton, a peculiar brand of prominent anonymity has always been the best protection for Supreme Court Justice William Rehnquist. Seldom seen on the nightly news and disinclined to explain his court's rulings in anything but dry legalese, Rehnquist has enjoyed a paradoxical freedom: the public figure whom few people really know.

As for idlers who see him scuttle past on his lunchtime constitutionals, those who might presume to distract him as he whistles a favourite snatch of Gilbert and Sullivan know better than to do so. He has a formidable reputation for suffering neither fools nor interruptions.

Said Republican senator and frequent Clinton critic Fred Thompson: "Since the President cannot recognise the word `resignation,' he is the best man to guide us through this minefield."

From the other side, praise for Rehnquist was no less effusive. "There is a real danger this trial will become a circus," warned former US senator and diehard Clinton supporter Dale Bumpers. "Let me tell you, Justice Rehnquist is the perfect ringmaster to try and keep the beasts in line."

"Try" is the operative word. Which just goes to show that even now, even as America plunges into its first impeachment proceeding since 1868, candour in the Senate remains in short supply.

It was there that the 100 senators - 45 Democrats and 55 Republicans - lined up like dutiful schoolboys in the oak-panelled chamber to pledge their honesty and impartiality. And it was there, almost as soon as the oaths were uttered, that those same senators hurried across the thick blue carpet to the stormy privacy of their respective caucus chambers. In each room, among both Democrats and Republicans, the question was the same: just how far would Rehnquist be allowed to go?

"That's an issue that no one can predict: how far are the senators prepared to follow Rehnquist's lead?"
Bumpers explained. "He is nominally in charge of whatever unfolds. In reality, his powers and authority are severely curtailed by the constitution. If the Senate dislikes any of his rulings - if they don't like their political consequences - it takes just 51 votes to overturn them.

"What we've got is a deeply divided jury that can tell the judge to shut up as it sees fit. Rehnquist will be accorded all the respect and formality. But really, unlike his own courtroom, he is not a judge but a humble traffic cop. Just how he plans to stop bedlam and gridlock is beyond me."

The potential obstacles are endless, from simple questions of procedure to far weightier issues of what evidence may, or may not, be acceptable. Should witnesses undergo preliminary questioning before they enter the chamber? Will Starr's report define how far the trial can range? Are the independent counsel's fleeting and footnoted references to other allegations of Clinton's malfeasance also fair game?

Yesterday, even as the swearing in ceremonies marked the trial's formal beginning, there was almost no clear idea how - or even when - the case would proceed. Democrats who assailed Republicans on the House of Representatives' Judicial Committee for not calling any witnesses were fuming that the same people now want Monica Lewinsky on the stand. Later in the day, when a rumour swept the Hill that Republicans aim to summon Kathleen Willey, who says Clinton groped her in the Oval Office, apoplectic Democrats all but fought each other for a chance to go before the television cameras and denounce "this runaway witch hunt."

As for Republicans, refugees from the caucus meetings told those same reporters of stormy sessions that pitted moderates, who hoped to placate weary voters with a painless four-day trial, against hard-core conservatives demanding that every allegation, no matter how far-fetched, be dissected in full public view.

Sooner or later, perhaps as early as Tuesday New Zealand time, all those issues will land in Rehnquist's lap.

"The only weapon in his arsenal is his moral authority since the senators can overrule him any time they like," noted Georgetown University law professor Jonathan Turley. "The country had better pray that moral authority alone is enough to do the job."

The indications are that Rehnquist, who was appointed to the court 27 years ago and became Chief Justice in 1997, will give it his best shot. A 74-year-old widower whose small, tight circle of close friends includes several of Washington's conservative leading lights, he is a man whose personal history would seem at a glance to support the gripes of those Clinton operatives who have been quietly telling reporters their boss cannot expect a fair hearing.

Elevated to the court by Richard Nixon, he was chiefly notable for having opposed the racial integration of America's schools. At his later confirmation hearings as Chief Justice, Rehnquist denied holding racist views. He had expressed them, he said, because the Supreme Court justice for whom he worked at the time wanted to explore how the Deep South segregationists would defend their reprehensible position.