Tuesday, October 23, 2012
A review of Jenkins, "The Partisan: The Life of William Rehnquist"
This weekend, the WSJ ran my review of John Jenkins' "The Partisan: The Life of William Rehnquist." It is a pretty tough review of (what should be seen, whether or not one shares my high opinion of the former Chief, as) a very bad book. That said, it struck me -- apart from the (minimal) merits of this particular book, that the genre is a tricky one:
It is true that gripping judicial biographies are difficult to write. The story
of the Supreme Court is compelling and dramatic, but the justices' own stories
are usually prosaic: They are, for the most part, gifted and well-credentialed
lawyers, not unlike many thousands of others, who work in relative privacy on
fairly technical questions and are, from time to time, hauled into the headlines
by virtue of a close vote in an abortion-regulation or affirmative-action case. . . .
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I haven't yet read "The Partisan," but I take issue with the review's closing line that Justice Rehnquist "had well-considered and eminently defensible views about the meaning of the Constitution, the nature of our federal system of government, and the limited role of unelected judges in our democracy." I've written about Justice Rehnquist's work in an Oxford University Press title, "A More Perfect Military: How the Constitution Can Make Our Military Stronger."
In the area of civil-military relations and constitutional control of the military, Rehnquist had anything but defensible views about the Constitution. He fundamentally changed the post-Vietnam military's relationship to law by writing a series of opinions that all but exempted the military from constitutional expectations. He believed that the military was morally superior to civilian America and properly distant from civilian society and values. He encouraged civilians, especially judges, to withdraw from active engagement on military issues and to see themselves as unqualified and undeserving to question assertions of military necessity.
I'm sure Rehnquist believed he was defending the military, but he did tremendous damage to military ethics and professionalism in the all-volunteer era. And none of it was based on any defensible or responsible view of the Constitution and civilian control of the military.
Posted by: DH Mazur | Oct 23, 2012 7:11:48 PM
Nice review, Rick. I certainly didn't know the Chief as well as you did, but my experience of him from clerking in the chambers next door was certainly closer to your description than Mr. Jenkins'.
Posted by: Ernie Young | Oct 24, 2012 3:28:00 PM
Your comment about the difficulty with judicial biographies makes an observation similar to observations previously made by Judge Posner. But he notes in his foreword to David Dorsen's spectacular biography of Henry Friendly that the genre can succeed (given certain conditions). After summarizing some of the difficulties facing the judicial biographer, Posner writes: "I questioned the value of the genre, and had I been asked whether Henry Friendly was a promising subject for a biography, I would have said no. He had not had an exciting early life, like Oliver Wendell Holmes or Byron White; he was not a 'character,' like Learned Hand, or an enigma, like Cardozo; he had not been involved in great political events, like Brandeis, Frankfurter, and Robert Jackson. He had practiced law in New York (mainly administrative law, his principal client being Pan American World Airways, now defunct) for thirty-one years after clerking for Brandeis; had been appointed to the Second Circuit in 1959; had served there for nearly twenty-seven years with great distinction while also writing highly influential law review articles (some collected into books); had died, aged eighty-two; and that was it. . . . I would, in short, have though a biography of Friendly an unpromising venture. Was I wrong!"
I'm not all of the way through the Friendly biography yet, but it is all that Posner cracks it up to be. (Not that I agree with all of his book reviews!) I suspect most readers of this blog would have a similar reaction.
With respect to Chief Justice Rehnquist, I learned a lot from Herman Obermayer's "personal portrait" book, more anecdotes than insights into his jurisprudence. For example, Obermayer reports that Rehnquist was adamant about tipping at restaurants only on the pre-tax amount (because he didn't want to reward the restaurant for its tax-collecting services, I think).
Posted by: Kevin C. Walsh | Oct 24, 2012 4:59:48 PM
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