Text 6365, 92 rader
Skriven 2004-12-17 16:21:38 av Alan Hess
Ärende: should Rehnquist retire?
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http://www.baltimoresun.com/news/opinion/bal-op.chapman17dec17,0,135808.story?
coll=bal-pe-opinion
Ailing chief justice should put public interest first


By Steve Chapman

December 17, 2004

CHICAGO - When the chief justice of the Supreme Court falls gravely ill and is
unable to carry out the normal duties of his office, the subject is a matter of
serious public concern. And William H. Rehnquist has a message for Americans
who would like to know what is going on: Get lost.

The secrecy surrounding his condition makes the Chinese Communist Party look
like a model of openness. We haven't been granted a candid appraisal of his
prospects or the effects of his treatment. We don't even know exactly what he
has.

All we've been told is that he is suffering from thyroid cancer - which happens
to come in four varieties, whose usual consequences vary greatly. Experts have
said that, based on the tiny droplets of information released by the court's
press office, it appears Justice Rehnquist has an aggressive form that is
almost always fatal within a year.

The 80-year-old chief justice, who had a tracheotomy in October before starting
radiation and chemotherapy treatments, planned to be back on the bench by the
first of November. But he had to postpone his return, for reasons that were
never specified. He wasn't present for oral arguments in any of the cases heard
by the court in November.

As of this week, he is still working from home. On Monday, the court announced
he will skip voting in some cases, unless he is needed to break a tie.

That sounds like a reasonable concession to his infirmity, until you consider
what it actually means: He will get to cast the deciding vote even though he
missed the oral arguments. His condition won't allow him to be one of nine
justices in a unanimous decision, but it will let him be a majority of one.

As legal historian David Garrow points out, this solution is the exact opposite
of the approach adopted by the court in 1975, after Justice William O. Douglas
suffered a stroke. Then, the justices elected to put off any cases in which he
might play the pivotal role. They included him only when it didn't matter.

Justice John Paul Stevens, who presides in Justice Rehnquist's absence,
portrays the accommodation as no big deal. He says that though the chief
justice can't be present to hear lawyers make their case, he "will participate
in the decision of cases on the basis of the briefs and the transcripts of the
oral arguments."

But if that were an adequate substitute for the real thing, we might expect
several members of the court to phone it in on days when they don't feel like
fighting traffic. Worse, Justice Rehnquist apparently will vote without taking
part in the meetings where the justices hash out their views of each case -
which is a bit like a groom skipping the wedding but showing up for the
honeymoon.

For Justice Rehnquist to keep voting despite the drain of his disease is an
abuse of a public trust. But despite all the checks and balances built into our
system, he is unaccountable to anyone, even his fellow justices.

Because federal judges are appointed for life, he can't be prevented from
exercising the powers of his office, no matter how incapacitated he may be -
except by the drastic remedy of impeachment. Nor can he be forced to disclose
anything about his condition.

This episode illustrates a serious drawback to lifetime appointment, which was
created to protect judges from political pressure. Justice Rehnquist is in a
long line of Supreme Court members who have stayed put when they should have
retired.

What can be done? Given the constitutional guarantee of life tenure, Congress
can't pass a law forcing justices to step down. So three options come to mind.
One is a constitutional amendment mandating retirement at 70 or 75, to head off
the infirmities commonly suffered by elderly justices. Another is impeachment -
which is normally reserved for serious misconduct, but which could and should
be applied to judges whose health seriously compromises their performance. The
third is to offer justices a large cash bonus for quitting at a specified age,
which might make retirement too good a deal to pass up.

But none of these solutions is any help at the moment, when the court is
burdened by a chief justice who is no longer up to the job. Justice Rehnquist
ought to put the interests of the public above his own desires. But the public
interest doesn't seem to have entered his mind.

Steve Chapman is a columnist for the Chicago Tribune, a Tribune Publishing
newspaper. His column appears Tuesdays and Fridays in The Sun.

Copyright + 2004, The Baltimore Sun

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