Jurist would be 'at home' in Senate trial

By , Staff writer of The Christian Science Monitor

It's been the practice of William Rehnquist, the Supreme Court's chief justice, to take his new law clerks on a field trip of sorts: a quick hop across the street to the original Supreme Court chamber, which is housed in the Senate side of the Capitol.

There, under a ceiling vaulted like an umbrella, John Quincy Adams once pleaded on behalf of slaves from the ship Amistad. And there, with the aid of this architectural prop, Justice Rehnquist expounded before his young charges on the history and solemnity of the highest court in the land.

Now, with the extraordinary trial of President Clinton looming here, the chief justice may end up spending much of his time on the Senate side of the street, presiding over the first impeachment trial of a president since 1868.

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According to legal experts, a trial couldn't be in better hands.

Not only does Rehnquist have 26 years' experience on the high court, he's also a historian who has written an authoritative book on the obscure subject of impeachment. As the 100 senators-cum-jurors struggle with a unique proceeding that is neither purely legal nor political, the black-robed Rehnquist will be there with his history, his solemnity - and, add legal analysts, also his fairness - to steer these Republicans and Democrats through the unknown.

"I think he will be pretty much more at home than anyone else in the room," says Charles Cooper, a 1978 participant in the Rehnquist field trip to the old Supreme Court chamber, who now has his own law firm here.

But there are varying opinions on just how much influence the chief justice would have in an impeachment trial.

It's up to the senators, for instance, to set the rules for the proceeding, while Rehnquist would simply enforce them. The chief justice won't necessarily have the final say because his rulings can be overturned by a simple majority of lawmakers.

His greatest power, the ability to cast a tie-breaking vote for conviction or acquittal, is unlikely to ever be triggered, since it's a near certainty that Republicans could not muster the two-thirds majority needed to remove the president. And if the senators decide to censure instead of try the president, Rehnquist would have no say in this essentially out-of-court settlement.

Michael Young, another former Rehnquist clerk, explains the chief justice's role in the Senate as mostly procedural, like that of Congressman Ray LaHood (R) of Illinois, who presided over the House impeachment debate and vote. "His principal role will be to keep this from becoming more of a food fight than it's likely to become," Mr. Young says.

New trial, more power?

But never underestimate procedure in a legal setting, say others. That's especially true in this case, where senators have only 26 written rules handed down from the impeachment trial of President Andrew Johnson 130 years ago. The rules were updated after the Watergate scandal of 1974, but the senators - most likely in conjunction with Rehnquist - would have a long way to go in setting up rules of evidence and burden of proof.

Charles Tiefer, a law professor at the University of Baltimore, says Rehnquist can set the "tone" and "scope" of the trial with decisions such as whether to accept grand jury testimony as sufficient evidence. As chairman of the House Judiciary Committee, Henry Hyde (R) of Illinois, relied exclusively on 60,000 pages of testimony and documents and never called a single witness. That, says Mr. Tiefer, will not fly with Rehnquist.

And then there's the question of witness credibility. Tiefer can imagine a scenario in which Democrats present a "he-said, she-said" case, and Rehnquist has to decide how many of Monica Lewinsky's confidants need to be brought to the Senate to testify to the accuracy of her version.

Meanwhile, if the White House again sends in their defense team on another mission to discredit independent counsel Kenneth Starr's investigation, Rehnquist may have to decide how much evidence of prosecutorial abuse to allow in the trial.

Even though the senators can overrule the chief justice, his stature - as well as the ever-watchful eye of the nation's television cameras - will discourage them from this, says Tiefer, who has also written a 1,000-page tome on congressional practice and procedure.

"Woe to the Senate majority leader who visibly tries to reverse Rehnquist's fair, judicial approach and railroad through the removal of a president," he says.

Any pattern of overruling by the majority Republicans, says Tiefer, would be spotted immediately by "the watching press and public, aided by commentary from 45 or so enraged minority senators" and they would "raise a fierce alarm."

In fact, say those who know or have studied Rehnquist, the chief justice will brook no shenanigans from senators, and will work to keep long-windedness from blowing through the Senate chamber.

Running a tight ship

In his own courtroom, the no-nonsense Rehnquist is famous for his efficiency. He keeps lawyers strictly to their time limits, cutting them off when they run over. His booming voice and firmness have been known to frighten spectators, whom he admonishes if they get too noisy. A very private individual, the chief justice allows no television cameras in the courtroom.

Though a conservative, Rehnquist is believed by both sides of the court to be fair and evenhanded.

At his most visible moment in his career, Rehnquist will know that "the credibility of the court is at stake," and will not be swayed by whatever personal feelings he might have on the case, says Viet Dinh, a law professor at Georgetown University here.

Business as usual?

Just how a trial would affect the business of the Supreme Court is not yet clear.

The court is scheduled to hear 23 cases in January, February, and March - a fairly light load. Justice Sandra O'Connor has suggested Rehnquist could join other Supreme Court justices to hear cases in the morning, and then preside in the Senate in the afternoon. Other options would be to delay the court's schedule, extending it into the summer, or to have Justice John Paul Stevens act as chief justice in Rehnquist's absence.

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