by Matt Barr

WHR

As is usually the case the morning after a figure who cast a long shadow on government dies, it's an open question how Chief Justice Rehnquist will be remembered. Crank is probably right that in the short term he's likely to be regarded as an irreplaceable giant... by the left. Judge Roberts has seemed bulletproof so far, but whoever is nominated next is sure to be painted as a serious and unacceptable shift to the right from the brilliant, moderate Rehnquist.

The right may have a harder time coming to terms with his legacy. It may dawn on the people it hasn't yet (on the right; it won't dawn on the left) that there has been no "conservative bloc" on the Court the last 11 years, and his tenure as Chief may be judged against frankly unrealistic expectations not met.

In the long term, of course, there's nothing to admire about WHR on the left, and there's no criticism on the right that should stick. A new Court or two will be necessary to write the history of the Rehnquist Court, but it's likely to mention a tide-stemming effort to rein in Congress' power under the Commerce Clause that his successor did or did not move forward; short and in the end muted bursts of federalism that his successor did or did not enlarge; and a nearly imperceptible in real time shift toward greater majoritarianism -- a dirty word these days, so "right of the people to govern themselves in the absence of strict constitutional prohibitions," if you prefer.

The vast majority of constitutional scholars will not regard these as positive developments, nor certainly will any of the people about to paint a halo around his memory in order to smear the President's next nominee. Rightward commentators will find themselves lining up behind them, perhaps after time to purge their initial disappointment that Rehnquist didn't remake the world in their image.

The Chief was a vital, brilliant jurist. Beyond that, he was an outstanding administrator, a student and servant of the Court with deep respect for its traditions, and a man of vigorous principle. It is testament to the first two that historical regard for his commitment to principle, and his intellectual legacy in general, will be muddled. His heroic efforts at comity and compromise in assembling voting blocs and assigning opinion authorship appropriately subsumed his personal convictions at times. It is because this is an essential function of a great Chief that Mr. Justice Scalia should not be elevated.

Whatever facets of Rehnquist's career come to dominate discussion in history books, and there are certainly many choices, they will speak well of him. He served his country and his institution with a dogged commitment to first things -- the right ones -- and brimming with energy and care. A Senator who did and loved her job as well as Rehnquist did would likewise die in office in her 80s. A President who did would get on Mount Rushmore.

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