William H. Rehnquist, R.I.P.

May I humbly suggest you check out today's New York Times? It contains what I must say is a quite excellent essay. It's by me. In it, I pay homage to one of my favorite jurists, the late William H. Rehnquist, Chief Justice of the United States. You can read my essay here.

You might be surprised at how positive my essay about Chief Justice Rehnquist is, especially compared with the recent essay about him by my Harvard colleague and good friend, Alan Dershowitz, which you can read here. In it, Alan makes a few negative points. For example:

1. Rehnquist set back "liberty, equality, and human rights" more than any other judge in the world during the past 30 years.

2. While a student at Stanford Law School in the early '50s, Rehnquist "outraged Jewish classmates by goose-stepping and heil-Hitlering with brown-shirted friends in front of a dormitory that housed the school’s few Jewish students. He also was infamous for telling racist and anti-Semitic jokes."

3. Rehnquist maintained his racist attitude as a law clerk for Justice Jackson on the U.S. Supreme Court. During the Court's consideration of Brown v. Board of Education, Rehnquist wrote a memorandum arguing that the notorious 1896 "separate but equal" decision in Plessy v. Ferguson "was right and should be reaffirmed."

4. When confronted with this memo in his Supreme Court confirmation hearings in 1971 and 1986, in sworn testimony before the Senate, Rehnquist perjured himself by claiming that in the memo he had merely been parroting Justice Jackson's views, not stating his own views. This prompted Justice Jackson's secretary to attack Rehnquist for his attempt to "smear[] the reputation of a great justice." Only later did Rehnquist admit he'd personally defended the Plessy decision in arguments with fellow law clerks.

5. Continuing with his racist ways, Rehnquist "started out his political career as a Republican thug" by aggressively challenging African-American and Hispanic voters at Phoenix polling places to keep them from voting, "for trivial political reasons."

6. Rehnquist’s vote as a justice was generally “based on who the parties were, not what the legal issues happened to be,” with “gays, women, blacks, aliens, and religious minorities” typically losing, and “corporations, polluters, right wing Republicans, religious fundamentalists, homophobes, and other bigots” typically winning -- just what you’d expect from someone who was a goose-stepping, heil-Hiltering, racist, perjuring Republic thug before he went on the bench.

With all that invective from Alan, why didn't I, too, "go negative" on Rehnquist, especially considering he consistently voted against pretty much everything and everybody I've ever cared about? I guess it's just a difference of outlook. Some people see a dead guy and say, "Let me say some stuff relating to him that makes him look bad that he can't refute." I say, "Let me say some stuff relating to him that makes me look good that he can't refute."

And so that's what I did in my essay, "Gentleman of the Court," which as its title suggests is ostensibly about Rehnquist. In it I set forth my own list of Rehnquist anecdotes. Unlike Alan's list, I'm in all the anecdotes. And if I do say so myself, the essay makes me look pretty darn good. In fact, if you look carefully at my essay, you'll see it's actually more about me than about Rehnquist, as the references to "I," "me" or "my" outnumber the references to Rehnquist. Here are some examples from my essay:

1. In 1978, I was "an unknown law professor in his mid-30s," yet Rehnquist, recognizing I was his equal, was willing "to engage me . . . in a public debate . . . on the role of an active judiciary in a pluralistic democracy, moderated by the legendary Judge Henry Friendly." Rehnquist charmed me and my wife with "his disarming informality and candor during the debate and at the private dinner that followed," leaving us with "fond feelings toward" him. (We were great pals!)

2. "I began arguing regularly before the Supreme Court two years later," and in "more than 30 oral arguments over the past 25 years," continuing to treat me as an equal, Rehnquist always made me feel "that I was conversing with a brilliant colleague." (Rehnquist loved me!)

3. In a 1997 oral argument, Rehnquist told me I was "approaching a dead end" on one argument, which enabled me to shift "to the other pillar on which my case stood." I won that case. (Thanks, Bill!)

4. In a 1998 oral argument, Rehnquist reminded me to "paint [a] larger picture," helping me win that case, too. (Thanks again, Bill!)

5. In the two gay rights cases I argued in the mid '80s, Rehnquist wasn't "puritanical" like Chief Justice Burger and Justice White, and wasn't a "movement conservative" like Justice Scalia. Instead of being "shocked" by my clients, he "calmly" considered their cases. Then he voted against them (I suppose Alan would say because they were gay).

6. In the abortion financing gag order case I argued in 1991, Rehnquist "let me enjoy the laughter" on a joke I cracked about the State Department. (Bill, I forgive you for voting against me on that one!)

7. Rehnquist wrote "deliberately playful solo opinions" in dissenting in two cases I won in 1980 and 1982 -- opinions which "I enjoyed reading" a lot more than the "sober" opinions ruling for my clients. (Bill, you sure were a playful guy!)

8. Based on all the nice things he did for me, and how he treated me as an equal, even like a colleague, I cannot escape the conclusion that Chief Justice Rehnquist "was a master" at helping the Supreme Court "earn the respect of all who take part in its proceedings" (even me!), which is why "I will always remember him with profound gratitude and admiration."

Alan, perhaps Chief Justice Rehnquist did have a few faults. However, I fear you did not know him well enough to take the true measure of the man. If you'd been invited to debate him and have dinner with him, and if you'd had the opportunity to argue more than 30 cases before him over the past 25 years and had seen how nice and helpful and playful he could be, and if he'd treated you like a colleague, as he treated me -- well, you, too, might have been as charmed by him as I was. You might have viewed him as a gentleman, not a scowler.