LAW FROM THE CENTER

For those who get up too early in the morning, or too late, to watch the Today Show on NBC, they had an exclusive interview with Chief Justice William Rehnquist, which held some telling clues about some controversies himself and his court are facing.

1. The Scalia recusal crisis. I have commented on it here and here. The CJ speaketh:

Should Chief Justice Antonin Scalia recuse himself from a case involving Vice President Dick Cheney because the two went on a recent hunting trip?

The chief justice wouldn't comment directly but told a personal anecdote to suggest that socializing with a justice might be ok.

Gangel: “You like to play cards?”

Rehnquist: “Yes.”

Gangel: “You have a well-known poker game in town. If someone in your game had a case before the courts would you recuse yourself in that case or not necessarily?”

Rehnquist: “No.”

Gangel: “You wouldn't?”

Rehnquist: “No. If it were a regular game and that sort of thing and the only occasion on which I saw the person was at the monthly game, no -- no, I don't think I’d recuse myself.”

2. Rumors of retirement. Will the CJ retire soon, or will he cling to power like the infamous Taney? Let's listen:

These days, Rehnquist knows there's much speculation about whether he plans to retire and admits he thinks about it.

Rehnquist: “Well, at age 79 you can't help but thinking about retirement.”

Gangel: “Seriously? Are you making news here?”

Rehnquist: “No, I’m not. I assure you I’m not making it. I’m just saying, when you get to be 79-years-old you know your life expectancy isn't what it once was and you've got to think about the possibility of retirement.”

Gangel: “For the foreseeable future though, you're staying on the court?”

Rehnquist: “Well, I’ll just stick with what I just said."

Hmmmm...

3. His book. I've previously told you here and here that the CJ's two previous historical books, The Supreme Court and All the Laws But One are nothing to write home about. Seems that his new book, Centennial Crisis, is about the disputed Presidential election of 1876, one that the Supreme Court also decided on:

Gangel: “You know Chief Justice, everyone is going to look in this book for clues for a connection with the election in 2000. Are there any clues in the book?”

Rehnquist: “I really don't think there are.”

That said there are striking similarities. An amateur historian, Rehnquist retells the story of another bitterly disputed presidential election -- the 1876 race between democrat Samuel Tilden and republican Rutherford B. Hayes. So close it, too, was decided by Supreme Court justices. “I think everybody seemed to know that it was going to be close going in. Of course the results in those days came in by telegraph and there weren't any exit polls. So people were a lot slower to find out what was going on. The New York Times, which in those days was very pro-republican, said, you know, ‘election undecided,’” says Rehnquist.

There was controversy over voter fraud, months of partisan wrangling, and in the end, the republican candidate won.

Rehnquist: “About four in the morning on March 2, Hayes was declared president and he served -- he served a term.”

Gangel: “He was called ‘Ruther…?’”

Rehnquist: “He was called ‘Ruther- Fraud’ by the democrats.” (Laughs)

It does sound remarkably familiar, but if you want to know what the chief justice thinks about the Bush-Gore case and the criticism of his court, you will have to read between the lines.

Gangel: “If you would read from the epilogue.”

Rehnquist: “Sure, ‘those who decide the contest with inevitably be subject to criticism by the party whose candidate is the loser.’”

Gangel: “Were you writing about 1876 there or 2000?” (Laughs)

Rehnquist: “Well, I think you could say that it applies to either one.”

And that's as close as you'll get.