Last November, the first segment of the extensive collection of the late Chief Justice William Rehnquist's papers became public at the Hoover Institution Archives at Stanford University. It was a small batch, limited by Rehnquist's stipulation that no files about specific cases be released during the lifetime of any other justice serving at the time. With Justice John Paul Stevens, who joined the Court in 1975, still alive, that meant only the case files from Rehnquist's arrival at the Court in 1972 until 1975 could be released.
But within the last few weeks, and without fanfare, the archives allowed public access to the next batch -- no case files, but an extensive compilation of Rehnquist's correspondence with justices and with others as recently as 2005, the year he died in office. The material offers a glimpse at the inner workings of the Court and of Rehnquist's own dealings with other justices as an associate and then chief justice.
We've visited the archives and will be blogging on The BLT: The Blog of Legal Times about the contents. In Monday's edition of The National Law Journal we'll have a package including some of the memos and handwritten notes from the collection.
WHITE HOUSE WANTED PUBLICITY ON THOMAS OATH-TAKING
When new Justice Sonia Sotomayor was sworn in at the Supreme Court Aug. 8, we wrote about the Court's mostly quiet campaign to have such ceremonies at the Court, not the White House. Justices have been concerned that swearing in justices at the White House sends an inappropriate message that justices are like political appointees or Cabinet members who are beholden to their president. According to correspondence found in Thurgood Marshall's papers at the Library of Congress, it became an issue in 1991 when the first Bush White House wanted to have Clarence Thomas sworn in there, and several justices tried to devise ways of keeping it at the Court.
The same correspondence is in the Rehnquist papers just released at the Hoover Institution Archives, and it underscores the importance that several justices -- especially John Paul Stevens -- placed on the issue. (It's worth noting that for Sotomayor, separate from the oaths, the White House staged a public celebration of her achievement at the White House Aug. 12, and Stevens attended.)
A new memo in the Rehnquist papers, apparently released for the first time, tends to confirm the concerns the justices had. On Oct. 2, 1991, the chief justice's administrative assistant Robb Jones informed Rehnquist of a conversation he had with associate White House counsel Lee Liberman. "She said that the White House wanted the ceremony there, since 'you don't have television,'" Jones reported to Rehnquist. "I reiterated the [Court's] sentiment that one ceremony be held at the Court and mentioned the date we were targeting. She appreciated the information, but said words to the effect that the White House could not pass up the opportunity to get some publicity out of the confirmation."
Lee Liberman Otis, reached for comment Thursday, said "I don't recall the specific conversation at all," adding, "I doubt I would have put it the way he put it."
The files do not contain further information about negotiations that may have ensued, but Thomas was given his constitutional oath at the White House Rose Garden on Oct. 18 before a national television audience. On Oct. 23, Rehnquist gave Thomas the judicial oath in a more private ceremony at the Court. The judicial oath was repeated during a formal investiture ceremony at the Court on Nov. 1.
ON SINGING 'DIXIE' AND MINORITY LAW CLERKS
In the summer of 1999, then-Chief Justice William Rehnquist was under fire for leading fellow attendees at a judicial conference in a sing-along that included the song "Dixie." African-American leaders said the song is offensive, with words that seem nostalgic for the era of slavery. Rehnquist was also at the time dealing with criticism from Congress and elsewhere over the dearth of minority law clerks at the Supreme Court. As was his practice, Rehnquist did not respond at length in public to either controversy.
Among Rehnquist's papers is a letter of support from longtime friend Malcolm Wilkey, a retired judge who had replaced Warren Burger on the D.C. Circuit in 1970 when Burger became chief justice. "Hurray for you!" Wilkey wrote Rehnquist, referring to singing "Dixie." "All of our history is important, whether it fits in with the current political correctness or not. You above all people ought to take cognizance of the varied strains of our history which merge in the mosaic that is America today."
Wilkey also remarked on the "utterly asinine" argument over the lack of minority clerks. Wilkey noted that during his own 15-year tenure on the D.C. Circuit, he had interviewed 7 to 25 potential clerks every year based on academic excellence, but "no blacks turned up."
Rehnquist responded to Wilkey on Oct. 8, 1999 with thanks for his "encouraging letter." Rehnquist said, "I really feel that it does not bode well for race relations in this country if people constantly strain to find some basis for taking offense." Rehnquist continued, "I am also glad that you agree with the Court's position as to the hiring of minority law clerks; the pool of applicants whom we consider is not a large one, and there are not many minorities in it. I think some of our critics, because the position uses the term 'clerk,' imagine that it is some sort of entry level position, which of course it is not."
This article first appeared on The BLT: The Blog of Legal Times.