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To the outside world, Chief Justice William Rehnquist’s opinion for a unanimous Supreme Court in Leocal v. Ashcroft, issued Nov. 9, was a reassuring sign that, in spite of his serious illness, he is still able to perform his duties. But inside the marble halls of the Court, reassurance came in a different, more poignant form: Rehnquist’s letter inviting employees to the annual Court Christmas party on Dec. 17. “Bring your best singing voices,” read the note, which closed with Rehnquist’s distinctive signature. It is not at all certain that Rehnquist himself will be able to attend the party he prizes, or sing the carols he wants employees to enjoy as much as he does. But the note was one of several indications last week that the direst of the stories about Rehnquist’s battle with thyroid cancer were at least premature, if not also overblown. Court officials and Rehnquist’s circle of former clerks have been tight-lipped about his condition, a reflexive stance that has given sustenance to many of the worst rumors. But from numerous sources it appears that Rehnquist is neither bedridden nor unable to speak � something that was feared because of his tracheotomy. The 80-year-old chief justice has received visits from friends, including some former clerks, and one says “he is glad to receive them” at his Arlington, Va., home. Rehnquist is in frequent contact � including verbal communication � with his administrative assistant, Sally Rider, and his secretary, Janet Tramonte. The cumulative effect of these indications is to soften the likelihood that Rehnquist is leaving imminently or that a recess appointment will be needed to replace him. The next big indicator of Rehnquist’s health and future, one Court official says, will come Nov. 29, when the next two-week cycle of oral arguments begins. If Rehnquist is unable to attend those arguments, that may signal whether he can ever return to the bench. But for now, the business of the Court and of the chief justice is continuing in spite of his absence from the building and his schedule of chemotherapy and radiation treatments. Leocalwas a typical Rehnquist opinion � a terse and speedily written 11-page treatise. “Nothing different from 30 years of his trying to get things off his desk and out the door,” says H. Bartow Farr III, a 1973 Rehnquist clerk, now with D.C.’s Farr & Taranto. The immigration case was argued Oct. 12, just days before medical tests turned Rehnquist’s life upside down. Typically, a law clerk writes Rehnquist’s first drafts, which Rehnquist then uses as the basis for a brief period of revision. That appears to be how Leocalwas written. “He is such an efficient writer. He has that job down to a tee,” says a more recent former clerk, who declined to be named. At the beginning of every Court session since Rehnquist’s illness, presiding Justice John Paul Stevens has said without equivocation that Rehnquist “will participate” in cases argued that day by reading briefs and argument transcripts. That is a daunting goal since justices meet on Wednesdays to take initial votes on cases they heard that Monday, and at Friday conferences they vote on cases heard Tuesday and Wednesday. Court officials would not detail how Rehnquist is able to keep to that schedule, but one suggested that in these extraordinary circumstances, transcripts could be prepared and sent to the chief justice on the same day of the argument, rather than on the usual seven-day turnaround. If that is the case, Rehnquist’s votes � and even opinion assignments � could be conveyed by Justice Stevens to the conference, which no one but justices attend. But the chief justice’s duties go beyond opinion writing, and there, too, indications are that Rehnquist is keeping up. Officials of several outside agencies with business before the Court say they are able to put questions to the chief justice through Rider and receive Rehnquist’s replies from her or Tramonte within hours. One Court insider likened the procedure to the way in which Rehnquist is contacted during the summer recess when he is at his Vermont home. Rider has declined to talk about the Court’s operations in Rehnquist’s absence. “The business of the Judicial Conference with the chief justice is ongoing,” says Carolyn Dineen King, a judge on the U.S. Court of Appeals for the 5th Circuit. King chairs the Executive Committee of the Judicial Conference, the judiciary’s policy-making body headed by the chief justice. She says Leonidas Ralph Mecham, director of the Administrative Office of the U.S. Courts, has been able to “send things over” to the Court and get the answers from Rehnquist he was seeking. The conference has been on “pins and needles” about congressional action on the judiciary’s budget, says King, and Rehnquist is up to date on the issue. “I have enormous respect for him, and a lot of affection,” says King, adding that news of Rehnquist’s illness, first announced Oct. 25, hit her “like a personal loss. It’s very sad.” That has also been the reaction of Rehnquist’s tight circle of former law clerks. Several spoke of the last time they saw him, at a surprise birthday party at the Monocle restaurant in the District in late September, just before he turned 80. “Or at least he pretended to be surprised,” says one clerk who was there. “He seemed very happy and doing fine.” Another clerk who was there says, “With no vacancies in the last 10 years, we were lulled into believing that he and the others are ageless. That was wrong, of course, but we did not realize it until we heard the news about the chief.” Universally, Rehnquist’s friends and former clerks say he will know when he has reached the point when he should depart. Rehnquist, several noted, is the only current justice who was on the Court during the painful decline of the late Justice William O. Douglas before his retirement in November 1975. As an associate justice, Rehnquist was one of eight justices who signed a letter to Douglas a month later sternly repelling his effort to continue participating in the work of the Court. Speaking of Rehnquist, one former clerk says, “He has a great sense of duty to the Court and will not stay a moment longer than he should. But he is not there yet by any means.” CLERK TALLY After a couple of years of hiring record numbers of minority law clerks, the Court this term seems to have slipped backward. None of this term’s 35 clerks is African-American, and the complement of clerks in the chambers of Chief Justice Rehnquist and Justices Antonin Scalia, Anthony Kennedy, and David Souter are all white. Rehnquist also has no female clerks. Since attention was drawn to the demographics of law clerks in 1998, the Court itself has offered no official assistance in tallying the racial or ethnic backgrounds of its clerks. But based on research and observation, it appears that 19 of the clerks are white males, 11 are white females, one is a Hispanic female, one is a Hispanic male, and four are Asian-American females. Adding together the Hispanic and Asian-Americans, that totals five minorities, down from eight last term and a record nine the term before that. Those familiar with the crop of applicants chalk up the decrease to the vagaries of law school competition and other factors. Justice Clarence Thomas was scheduled to have an African-American law clerk working for him this term � Larry Thompson Jr., the son of the former deputy attorney general, who is a longtime friend of Thomas � but his start was put off until next term. The impact of the law clerk hiring plan that slowed down the competition among appeals court judges for top candidates last year won’t be felt at the Supreme Court level until next term’s class of clerks. The African-Americans who are at the top of the classes of the law schools most clerks are drawn from � Harvard and Yale, primarily � are often in demand for more lucrative positions, say some observers. “The pool just isn’t there yet, and those who are available are snapped up instantly,” says one judge familiar with the law clerk landscape. The lagging economy may also be a factor, says Debra Strauss, author of the leading book on judicial clerkships. Minority law students saddled with debt may be under more pressure than usual to seek scarce law firm jobs rather than take a lower-paying two-year law clerk detour � clerking for an appeals court judge, then a justice. “The economy can definitely have an effect,” says Strauss, who offers advice and information on clerkships through her Web site: www.judicialclerkships.com. Strauss says the American Bar Association and other organizations have stepped up outreach efforts to attract minorities to clerkships, but help with loan payments is still a problem. As usual, Harvard was the predominant source for high court law clerks (nine), with the University of Chicago, placing seven clerks, not far behind. Five clerks are Yale Law School alumni, and four went to Stanford. Another recently noted trend has continued this term. Eleven of the law clerks came to the high court after doing something else since their appeals court clerkship. James Dowden, for example, worked at Ropes & Gray in Boston and taught at his alma mater, Boston College Law School, before beginning his clerkship with Justice Breyer. The top feeder judge was Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit, who sent four of his clerks to the Supreme Court. Three of D.C. Circuit Judge David Tatel’s clerks are at the Court this term. BUCKEYE BLOGGING The hottest law school vantage point from which to keep an eye on the Supreme Court and related legal issues these days is nowhere near the marble palace. It’s the Moritz College of Law at Ohio State University in Columbus. That’s where professor Douglas Berman runs his Sentencing Law and Policy blog, which examines every jot and tittle of the aftermath of last term’s Blakely v. Washingtondecision, as if it were a thing of beauty. His blog is cited in lower court decisions and Supreme Court briefs. It’s where current professor David Goldberger is preparing to face off with Ohio State Solicitor Douglas Cole � himself on leave as a professor at the school � early next year at the Supreme Court in the important religious liberty case, Cutter v. Wilkinson. Students in the school’s clinical program are helping with briefs. And it’s where professor and former Supreme Court law clerk Edward Foley runs [email protected], a combination of scholarship and blogging that tapped the knowledge of 18 faculty members and even more students to help the outside world and the media understand election-related legal developments in Ohio and beyond. Jeffrey Sutton, another former high court clerk now sitting on the U.S. Court of Appeals for the 6th Circuit, teaches a sought-after appellate advocacy class that draws on his experiences as a top-notch high court litigator. The full-time faculty boasts five former Supreme Court clerks. Dean Nancy Rogers is glad to have her school viewed as a center of Supreme Court scholarship, and that in itself attracts quality faculty and students, she says. “But the focus has been to bring faculty here who want to make a difference,” she adds. “They are not just ivory tower scholars.” The election law blog was a key example, she says, where 18 professors came together to provide a public service “and no one asks for credit.” As Election Day neared, she says, “they slept in four-hour shifts” to stay abreast of developments that could have brought election challenges to the high court. Berman agrees, grateful that he has been allowed to spend the considerable time needed to write for his post- Blakelyblog on sentencing issues. “It’s scholarship in action. There’s a vision of public service here where saying something in 5,000 words may be better than 50,000 words.” Berman, who has been on the OSU faculty for eight years, adds, “Part of the ethos here is to let us do work that is valuable.” BLACKMUN BRIEFS: SICK DAYS PAST Despite its outward calm and continued work output, the Court can be unsettled considerably by the illness of a justice. That is likely true today in light of Chief Justice Rehnquist’s bout with thyroid cancer, and it was definitely true during Justice William O. Douglas’ final months on the Court in 1975. The late Justice Harry Blackmun’s papers at the Library of Congress offer proof. The Court’s then-public information officer, Barrett McGurn, sent the justices frequent reports on how the media were handling the story of Douglas’ stroke and other ailments that put him in a wheelchair and required him to leave oral arguments abruptly at times. Justice William Brennan Jr. in February 1975 wrote his colleagues about his trip to Bethesda Naval Hospital to see both Douglas and Justice Thurgood Marshall, who was hospitalized with pneumonia. Brennan said Marshall’s physician told him “Thurgood is very seriously ill with pneumonia and that his condition is causing them grave concern.” Brennan continued that Douglas, on the other hand, was “in splendid fettle and looking vastly improved. He’s restive that the doctors will not release him and eager to see any of his colleagues who can get out there.” Douglas retired later that year and died in 1980. Marshall stayed on the Court until 1991 and died in 1993. Statements to the press and public were also carefully calibrated. In January 1975, then-Chief Justice Warren Burger sent his colleagues the draft of a statement he planned to release soon, part of which said Douglas was being treated “with anti-coagulants to lessen the possibility of blood clots moving from the heart.” That phrasing, said Burger, “will be clear to medical writers; the worry is that of another stroke.” In the most recent of Court statements about Rehnquist’s illness, specific mention of both radiation and chemotherapy was the information that led outside experts and medical writers to speculate that Rehnquist’s cancer was particularly aggressive.

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