A Court Choice Well Schooled in Chief Justice Job's Pitfalls

LINDA GREENHOUSE - New York Times: "As a Supreme Court law clerk to William H. Rehnquist decades ago, John G. Roberts Jr. learned how not to be chief justice.

Now that President Bush has chosen him for the position, he will, if the Senate confirms him, have the rare chance to put those lessons into practice.

His boss back in 1980-81 was an associate justice, one who often chafed under the leadership style of Chief Justice Warren E. Burger and who freed, even encouraged, his law clerks to poke fun at what they saw as the chief justice's pomposity and penchant for self-aggrandizement.

Robert M. Weisberg, who clerked during the same term for another justice, said Monday that he would never forget walking down a corridor at the court and coming upon Justice Rehnquist and his law clerks, who were all peering through a window into an inner courtyard, where Chief Justice Burger was supervising preparations for a reception.

"It was very funny to see Rehnquist and his clerks just spontaneously cracking up at the sight of the chief justice directing the proper placement of the silver," Mr. Weisberg said.

Later, when Mr. Roberts was working in the White House counsel's office, memorandums from that period show, he devoted considerable attention to knocking down various proposals from Chief Justice Burger, including one for a new tribunal to ease the Supreme Court's workload.

In a 1983 memorandum, to Fred F. Fielding, the White House counsel, he said a Burger request for authority to name an administrative "chancellor" for the federal courts was "the silliest" of various proposals and added, in a reference to the Anglophilia for which the chief justice was well known around the court, "The bill does not specify whether the Chancellor will wear a powdered wig."

Justice Rehnquist, upon becoming chief justice in 1986, promptly made changes that clearly reflected his own disapproval of how Warren Burger had run the court. For example, he converted the job of administrative assistant to the chief justice into a two-year appointment rather than a permanent position, to avoid the empire-building that had become evident during the Burger years.

The very different Rehnquist management style, straightforward and unadorned, was much appreciated within the court, as reflected in the statements the associate justices issued after Chief Justice Rehnquist's death on Saturday night. Justice Ruth Bader Ginsburg called him "the fairest, most efficient boss I have ever had."

As a law clerk, Judge Roberts, who now sits on the federal appeals court here, would not have been in a position to observe the justices' conference, the twice-weekly closed-door sessions that only the justices themselves attend. But he certainly knew how frustrating Justice Rehnquist found the meandering and confusing way in which the conference proceeded under Chief Justice Burger's leadership.

Among the papers that Justice Harry A. Blackmun left to the Library of Congress is a letter Justice Rehnquist sent to Chief Justice Burger that began: "Dear Chief: I had a feeling that at the very close of today's Conference we may have fitted Matthew Arnold's closing lines in 'Dover Beach' wherein he refers to those 'Swept with confused alarms of struggle and flight/Where ignorant armies clash by night.' "

Justice Rehnquist then went on to "take the liberty of stating my understanding" of what had taken place. When he became chief justice, he streamlined the conference considerably, and justices rarely came away with any doubt about what had occurred.

Running the conference is only one of a chief justice's many functions that are not visible to the public. Indeed, the job is somewhat like an iceberg, with much of it below the surface. And it is confusing: there is no one place to look for a definitive description of the job.

The modern chief justiceship is "a mix of custom, practice and statute," according to Judith Resnik, a professor at Yale Law School who has made a close study of the federal judiciary and the role of the chief justice in particular. In an interview on Monday, Professor Resnik noted that there were dozens of federal statutes that mention the chief justice, with "half a dozen that really matter." The Constitution itself did not even establish the office except by implication, mentioning it only in connection with presiding over impeachment trials conducted by the Senate.

"It's basically a role that has developed over the 20th century, as the federal judiciary has developed into a kind of administrative agency," Professor Resnik said. For example, Chief Justice Burger established, and Chief Justice Rehnquist continued, the practice of issuing an annual "state of the judiciary" report to give voice to the concerns of federal judges and the chief justice's own priorities.

The chief justice presides over a corps of some 2,000 federal judges, including 1,200 with life tenure and the rest, including magistrate and bankruptcy judges, who serve for fixed terms. The judicial branch includes a staff of 30,000, with the chief justice picking the most important central administrators, and runs on an annual budget of $5.4 billion. The chief justice also picks the members of important policy-making judicial committees and of specialized courts, including the 11-member Foreign Intelligence Surveillance Act Court, which issues special national security surveillance warrants.

In addition, the chief justice leads the Judicial Conference of the United States, a group of judges who make policy for the federal courts and who present the judiciary's views to Congress. The Judicial Conference has its roots in an organization created by Congress in 1922 at the behest of Chief Justice William Howard Taft, the former president, who carved out an active policy role for the chief justice. He shaped the modern court by lobbying successfully for legislation to give the court discretion in choosing which cases to hear.

As a student of American history, Judge Roberts may find none of this a surprise. Nor is it a surprise that Professor Resnik and other scholars are beginning to ask whether this array of powers, having grown bit by bit over the years, with hardly anyone noticing, really belongs in the hands of a single, unelected, life-tenured official.

"As a democracy, we generally don't believe that power should be centralized in one person for so long," she said, while offering the concededly audacious suggestion that the chief justiceship might rotate every four years or so.

Perhaps that is a conversation that might move from the recesses of the legal academy to the public, sometime during the 25 or 30 years that Chief Justice Roberts would be likely to serve."