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Rehnquist and other 'recusants'

What is ''judicial restraint?'' Senators Strom Thurmond and Orrin Hatch extol it in public speeches. The US attorney general has promised to encourage the Supreme Court to employ it in resolving social issues.

Politically speaking, the phrase is an ideological buzzword in the contemporary conservative campaign.

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Fundamentally, judicial restraint means setting aside personal biases in deference to the law. Justice Felix Frankfurter is usually cast as the leading spokesman of judicial restraint. Justice William O. Douglas is heralded as the champion of judicial activism, which is commonly associated with applying the law in such a way as to achieve ''liberal'' social objectives.

However, this dichotomy does not reveal the full spectrum of the judicial review question. Something very important is left out, namely, ''judicial recusancy.'' The judicial recusant is one who stubbornly refuses to apply the law's command in order to preserve the status quo. Chief Justice Frederick M. Vinson was just such a judge.

The difference between these three philosophies becomes apparent when one consults, for example, the justices' Bill of Rights voting record for the 1946- 49 court terms. During that period, Frankfurter sided with the party claiming constitutional protection 40 percent of the time while Douglas defended the constitutional claims twice as often. But Vinson voted in favor of the Bill of Rights claimant a mere 10 percent of the time.

Interestingly enough, Frankfurter appears almost activist when placed alongside the record of the judicial recusant. What this tells us is that judicial restraint should not be urged against ''liberals'' alone because in principle it applies equally to judges of a ''conservative'' bent.

Unfortunately, we seldom hear about the recusant judges. Who are they? Here are a few judicial profiles.

Vinson's political heir on the present Supreme Court is Justice William Rehnquist. His Bill of Rights voting record and his individual opinions support that contention. The point is yet better illustrated by Rehnquist's dissent in a 1978 Supreme Court case.

The controversy involved the constitutionality of a police-extracted confession from a badly wounded suspect. The hospitalized man on occasion lapsed into unconsciousness -- this in the course of interrogation. The majority opinion put it candidly: ''It is hard to imagine a situation less conducive to the exercise of a . . . free will.'' Rehnquist's lone dissent disclaimed any violation of fundamental constitutional rights. Surely, this is beyond the pale of Frankfurter's judicial restraint.

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D.C. Circuit Judge George MacKinnon, a purported judicial restraint advocate, was recently called upon to decide a freedom of expression question. At issue was the constitutionality of a statute which, as applied, prohibited a woman from displaying a sign (bearing the words of the First Amendment) on the sidewalk in front of the Supreme Court. The federal appellate court found the statute ''repugnant'' to the US Constitution. Judge MacKinnon disagreed with his two colleagues in the majority.

What is surprising are the reasons MacKinnon tendered for setting aside the First Amendment. One important reason, he argued, is ''the strong governmental interest'' in preserving the ''decorum of the Supreme Court.''

Maybe this position could carry in the Queen's England. But in the United States these judicial ''arguments'' make a mockery of its constitutional heritage. Judicial restraint? Hardly.

This abdication of the judicial duty is also prevalent among state judges. For example, it is no coincidence that since 1896 Utah appellate courts have never formally vindicated a claim under the state constitutional provision mandating that ''males and females'' shall enjoy ''equally all civil, political, and religious rights and privileges.''

Some of the blame for this must fall upon Utah's not long retired Justices J. Allan Crockett and A.H. Ellett. Time and again, this duo brushed aside the Utah and federal constitutions when sex discrimination was the complaint.

By 1975, one of their reactionary rulings was reversed by the US Supreme Court, which concluded that their decision allowing sex discrimination could ''not survive an equal protection attack'' under ''any test.'' Only Justice Rehnquist agreed with the Utah pair.

When the case was sent back to the state judges for further proceedings consistent with the high court's order, Ellett and Crockett turned a deaf ear to the decision and, in effect, reinstated their earlier holding. Faced with this raw display of judicial recusancy, an eight-member Supreme Court majority set aside the Utah ruling. Rebuking the state judges, the Supreme Court's 1977 opinion noted: ''Apparently the Utah Supreme Court did not read our opinion as requiring that (state) law must be nondiscriminatory.''

Judicial recusancy is hostile to any system of law. Now, when so much attention is devoted to combating ''judicial activism,'' it would be salutary for the concerned senators, the attorney general, and others to announce, with equal vigor, their abhorrence of judicial recusancy.

This, of course, presumes that judicial restraint is indeed the touchstone. Will the Reagan administration and the Congress champion that creed if it means speaking out against those who share Mr. Rehnquist's political ideology? Let us hope so.

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