Rehnquist's Punch Line Overlooked

Attorney Andrew Cohen analyzes legal issues for CBSNews.com and CBS News.

If true, Rehnquist's comments on the phony-baloney issue of "judicial activism" would have been notable and worthy of attention. It's not every day that an archconservative justice stands up for judges of all political stripes at the expense of his political brethren.

But Rehnquist's "defense" of his fellow federal judges was tepid at best and more self-defeating than invigorating. And, anyway, the real news in the Justice's annual review came just before the ailing judge purported to turn his guns on the phony-baloney issue of "judicial activism." The real news came from Rehnquist's gloomy recitation of the "funding crisis currently affecting the Judiciary."

The man with thyroid cancer is practically screaming at Congress to help fix the problem of too few judges handling too many cases in too few courtrooms inundated with too many criminal defendants and civil litigants.

"The Fiscal year 2005 budget process has been very difficult," he wrote, in what likely will be his last annual message. "The recurring delays in enacting annual appropriations bills have severely disrupted the federal judiciary," Rehnquist added, forcing "many courts to impose hiring freezes, furloughs and reductions in force." It's not an isolated problem, either, the Chief Justice noted. "Nine out of the last 10 fiscal years began with no appropriation bills passed for the Judiciary."

How does the nation's top judge propose to solve the crisis? In two very logical ways. First, the judiciary endorsed a "cost-containment strategy" that, in the chief justice's words, "entails a moratorium on some courthouse construction projects, improving workforce efficiency," and other ways in which judges themselves can help keep costs down.

The other solution? Asking Congress to "immediately relieve the judicial budget crisis facing the country" by reassessing "the rent that the Judiciary is required to pay to the General Services Administration for courthouses around the country. These rental payments today account for no less than 20 percent of the Judiciary's budget."

Figures, right? That the judiciary would be required to pay for its own courthouses is a bookkeeping slight of hand that only our federal government could generate.

It also figures - in an ironic twist - that Rehnquist would be required, near the end of his long tenure on the bench, to literally beg the legislative branch for basic administrative needs. This from a judge who made his mark endorsing Congressional power at the expense of judicial decision-making. The man who believes that judges should defer to Congress whenever possible is now stuck deferring to Congress when it comes to the money it takes to run the judiciary. Now, THAT's a story worthy of headlines.

Especially so because the angle that did make the headlines - Rehnquist's defense of federal judges - doesn't find much support in the actual text of Rehnquist's report.

I read the 18-page report over and over again and did not find any strong defense of the federal judiciary. Instead, I found a "on the one hand, on the other hand" summary of the conflicts that exists between an independent judiciary and political pressures.

It was as if the headline writers read into Rehnquist's comments what they hoped he would say, or what they expected he would say, without paying attention to what he actually said.

Nowhere does Rehnquist say that personal attacks on judges ought to stop. The closest he came was to remind people that a judge's judicial acts "may not serve as a basis for impeachment."

Nowhere does he chastise Congress for its blatant (and blatantly unconstitutional) attempts to circumvent judicial authority and power. The closest he came was to say that "criticism of judges, including charges of activism, have in the eyes of some taken a new turn in recent years... And there were several bills introduced in the last Congress that would limit the jurisdiction of the federal courts to decide constitutional challenges to certain kinds of government actions."

Nowhere does Rehnquist ask Congress to help protect the independence of the judiciary. Instead, Rehnquist chose to talk about how "our Constitution has struck a balance between judicial independence and accountability, giving individual judges secure tenure but making the federal Judiciary subject ultimately to the popular will because judges are appointed and confirmed by elected officials."

Then, as if to hammer home his point, Rehnquist added: "It is not a perfect system - vacancies do not occur on regular schedules, and judges do not always decide cases the way their appointers might have anticipated."

In other words, according to the chief justice, the very elements that make the federal judiciary truly independent - lifetime tenure for judges and their insulation from the whims and caprices of the majority - make the federal judicial system imperfect. If that's not a backhanded defense of judges, I don't know what is.

In fact, the whole portion of Rehnquist's report that focuses upon this topic reads an awful lot like the court's infamous Bush v. Gore ruling that decided the 2000 presidential election. There is plenty of misdirection and very little clarity; there are plenty of grand statements but very little insight; and at the end of the day the words don't add up to the sum of their parts or to the coverage they receive.

So the chief justice - the most powerful single judge in the world - was forced to "hope that the Supreme Court and all of our courts will continue to command sufficient public respect to enable them to survive basic attacks on the judicial independence that has made our judicial system a model for much of the world."

Hope? Hope befits a litigant, not the chief justice of the United States. And "public respect" must be earned and not given over to Congress to define. After all, Congress and the White House have shown no recent inclination to suddenly lay off using "activist" judges as a political bogeyman. The "hope" line reads like Neville Chamberlain talking about Adolf Hitler just after Munich.

So if this report was designed to rally his fellow judges or to back off foul-mouthed politicians who say the words "judicial activism" like they do "anti-American" then surely it is a colossal failure. Colossal, but not surprising.

The problem for Rehnquist is that the issue of attacks on the judiciary require him to make a tough choice between defending the very branch of government that he leads and sticking up for his lifelong commitment to endorsing political solutions to legal issues and problems.

The headline writers thought he chose the former. He didn't. He chose the latter - and in so doing, he failed to stand up to the other two branches that are attacking his fellow judges. And that's a sad but not unexpected legacy for a man who has presided over, and in some ways even encouraged, a fairly alarming diminishment of judicial authority, power and respect.

By Andrew Cohen