Rehnquist a 'don't fence me in' conservative

WASHINGTON — When the 1964 presidential candidacy of Arizona's Sen. Barry Goldwater carried only six states, many commentators concluded that conservatism, and especially his Southwestern sort, would not be heard from again. But many conservatives said to themselves, "Well, we'll just see about that."

One of those was a young Phoenix attorney, William Rehnquist. After graduating at the top of his Stanford Law School class in which another Arizonan, Sandra Day O'Connor, finished third, his political interests were quickened by Goldwater's campaign.

Another conservative undiscouraged by 1964 was a Californian who came to the nation's attention as a political figure by giving a nationally telecast speech for Goldwater. Twenty-two years later, Ronald Reagan nominated Justice Rehnquist to move along the Supreme Court's bench, where President Nixon had placed him, to the center chair — the chief justice's — a few feet from where Reagan's first Supreme Court nominee, O'Connor, sat.

Rehnquist's life of public service, which began when he clerked for Justice Robert Jackson, ended three days before the scheduled beginning of Senate hearings on the nomination to the court of Rehnquist's former clerk, John Roberts. If Rehnquist's death occasions a proper assessment of his jurisprudence, the assessment will be a suitable coda to his lifelong reverence for the court and will dispel some confusion about it.

Our language is, just now, fogging our intelligence. It is said that Rehnquist was an "activist." That is true, but not especially illuminating, absent a caveat and a distinction.

The caveat is that although Rehnquist was a conservative activist, he was not a radical. He was averse to overturning settled practices, and he knew how to honorably accept defeat — how to bring closure to an argument about the Constitution had his side lost.

One of his early passions was opposition to the 1966 ruling in Miranda v. Arizona — that state, again — concerning the constitutional duty of the police to notify criminal suspects of their rights to counsel. Rehnquist thought that the Constitution, properly read, did not require this and that effective police work could not countenance it. But 34 years passed, and when in 2000 the court heard a challenge to Miranda, Rehnquist wrote the majority opinion in a 7-2 decision upholding it: "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture. While we have

overruled our precedents when subsequent cases have underminded their doctrinal underpinnings, we do not believe that this has happened to the Miranda decision."