[Congressional Record Volume 152, Number 77 (Thursday, June 15, 2006)]
[Senate]
[Pages S5940-S5944]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
TRIBUTE TO CHIEF JUSTICE WILLIAM H. REHNQUIST
Mr. STEVENS. Mr. President, today the Chief Justice and associate
Justices of the Supreme Court held a memorial observance honoring Chief
Justice William H. Rehnquist. It was a really grand event. I am sorry I
could not be there the whole time.
At 2 p.m., resolutions in tribute to the Chief Justice were presented
for consideration by members of the Supreme Court bar. There were
presentations made by the Solicitor General and by the Attorney General
of the United States during a special sitting of the Court, which
commenced at 3:15 p.m. this afternoon. Following that, the Supreme
Court held a reception for friends of the former Chief Justice.
I think one of the great joys of my life was to be able to say that I
was a long-time friend of our former Chief Justice. He and I met here
as young lawyers the year we got out of law school. We were very
friendly. As a matter of fact, we double-dated during those days. And
as the years went on, as I went to Alaska and came back as U.S.
Attorney and had various other functions, we kept in touch. We were
divided by a continent, but we remained friends.
Years later, when I came to the Senate, he was with the Department of
Justice. I can say it was one of the longest friendships I have had,
and I was sad when he passed away. I am here really to ask that the
Senate review some of the comments made about my friend and former
Chief Justice of the United States.
I ask unanimous consent that the schedule of the Supreme Court for
today, Thursday, June 15, 2006, and also the resolution of the bar of
the Supreme Court of the United States in gratitude and appreciation
for the life, work, and service of Chief Justice William H. Rehnquist
presented to the Supreme Court today be printed in the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
There being no objection, the material was ordered to be printed in
the Record, as follows:
SUPREME COURT OF THE UNITED STATES
Chief Justice William H. Rehnquist Memorial
thursday, june 15, 2006
Meeting of the Supreme Court Bar--Upper Great Hall, 2:00
p.m.
Call to Order--Paul D. Clement, Solicitor General of the
United States.
Introduction of Speakers--Ronald J. Tenpas, Associate
Deputy Attorney General, Clerk to Chief Justice Rehnquist
(1991 Term), Chairman of the Meeting.
Remarks--Allen R. Snyder, Partner (retired) at Hogan &
Hartson LLP, Clerk to Justice Rehnquist (1971 Term).
Remarks--James C. Rehnquist, Son of the Chief Justice.
Remarks--Maureen E. Mahoney, Partner at Latham & Watkins,
Clerk to Justice Rehnquist (1979 Term).
Remarks--Courtney Simmons Elwood, Deputy Chief of Staff and
Counselor to the Attorney General, Clerk to the Chief Justice
(1995 Term).
Remarks--James C. Duff, Partner at Baker, Donelson,
Bearman, Caldwell & Berkowitz PC, Administrative Assistant to
the Chief Justice (1996-2000).
Motion to Adopt Committee Resolutions--Honorable Steven M.
Colloton, Court of Appeals for the Eighth Circuit, Clerk to
the Chief Justice (1989 Term), Chairman of the Committee on
Resolutions.
Call for Second and Closing Remarks--Ronald J. Tenpas,
Chairman of the Meeting.
Special Session of the Supreme Court--Courtroom, 3:15 p.m.
Presentation of Resolutions--Paul D. Clement, Solicitor
General of the United States.
Request to Accept Resolutions--Paul McNulty, Deputy
Attorney General of the United States.
Response--John G. Roberts, Jr., Chief Justice of the United
States.
____
Resolution of the Bar of the Supreme Court of the United States In
Gratitude and Appreciation for the Life, Work, and Service of Chief
Justice William H. Rehnquist, June 15, 2006
Today, the members of the Bar of the Supreme Court honor
the life and legacy of a
[[Page S5941]]
gifted lawyer, a selfless public servant, and a treasured
teacher, mentor, and friend. Those who knew William Rehnquist
will remember him as one who, in the words of Justice Oliver
Wendell Holmes, ``lived greatly in the law.'' To his credit,
however, Bill Rehnquist cared less about being ``great'' than
about doing and living well. As President George W. Bush
remarked on the occasion of his funeral, ``to work beside
William Rehnquist was to learn how a wise man looks at the
law and how a good man looks at life.''
Rehnquist was born in Wisconsin, on October 1, 1924, the
son of a paper salesman and a homemaker who also worked as a
translator. Christened William Donald Rehnquist at birth, the
future Chief Justice changed his middle name to Hubbs--a
family name--in high school. His mother, Rehnquist later
explained, had once met a numerologist on a train, and Mrs.
Rehnquist was advised that her son would enjoy great success
in life if his middle name were changed to begin with the
letter ``H.''
Rehnquist was raised in Shorewood, a Milwaukee suburb on
Lake Michigan. Early on, he displayed his love of the
friendly wager, betting his sister on a Memorial Day weekend
that he could dive into the lake more often than she. He won,
and contracted pneumonia in the bargain. Rehnquist graduated
from high school in 1942, and after a year at Kenyon College,
he joined the United States Army Air Corps. Consistent with
his life-long interest in the weather--a fascination that
would be the stuff of many jokes and memories among his
friends and law clerks--he signed up for a premeteorology
program. He was reassigned to work as a weather observer
when, as he later put it, ``the brass realized that someone
had mistakenly added a zero to the number of weather
forecasters that would be needed.'' His war-time service took
him not only to Oklahoma, New Mexico, Texas, New Jersey, and
Illinois, but also to more exotic destinations such as
Casablanca, Marrakesh, Tripoli, and Cairo.
Rehnquist's assignment in North Africa impressed upon him
that ``if you lived in the right place, you didn't have to
shovel snow for four months a year.'' Accordingly, after
discharging from the service as a sergeant, he headed west,
and matriculated as an undergraduate at Stanford University
in 1946. There, he supplemented the financial assistance he
received through the G.I. Bill with odd jobs, including
working as a ``hasher'' in the dormitory of his future
colleague, Sandra Day.
After graduation, Rehnquist thought he wanted to become a
professor of political science, so he studied government for
a year at Harvard and earned his master's degree. But he
later decided against continuing his graduate work, and
instead took a standardized occupational examination, the
results of which suggested that he might thrive as a lawyer.
He then returned to the west, and to Stanford's law school,
where he flourished. As he recalled, some fifty years later,
in his typically understated manner, ``the law curriculum
came more easily to me than it did to some others.'' His
friend and classmate, the future Justice O'Connor, was more
definitive: ``[H]e quickly rose to the top of the class and,
frankly, was head and shoulders above all the rest of us in
terms of sheer legal talent and ability.''
One of Rehnquist's professors had been a law clerk for
Justice Robert Jackson, and thought highly enough of
Rehnquist to recommend him to Jackson as a prospective clerk.
When Jackson hired the young lawyer, the position was
Rehnquist's first ``honest-to-goodness job as a graduate
lawyer'' and, more significantly, his first exposure to the
institution to which he would dedicate thirty-three years of
his professional life. Rehnquist later described his
clerkship during the 1951 and 1952 Terms as ``one of the most
rewarding experiences of my life.'' His time in Washington
proved doubly rewarding, for during this period he began
dating Natalie ``Nan'' Cornell, a San Diegan he had met at
Stanford. They started with ``Thursday night'' dates, until
Nan was convinced that she liked the young lawyer enough to
move on to Saturdays.
After the clerkship, Rehnquist kept in his study a
photograph of his boss, inscribed ``To William Rehnquist,
with the friendship and esteem of Robert H. Jackson.'' Later,
as a member of the Court, Rehnquis would make the same
inscription for his law clerks, recounting Jackson's remark,
``You may not be impressed, but it might impress your
clients.'' Perhaps most telling, the personal attributes that
the young William Rehnquist admired most in Justice Jackson
include many of the same qualities his own law clerks
remember and appreciate about him: ``[H]is own ego or view of
his own capacities was never unduly elevated by any of the
successes which he achieved''; he ``never succumbed to the
temptation,'' so common in Washington, to ``become . . .
isolated in high public office''; and ``[h]e did not have to
read the view of some particular columnist, commentator, or
editorial writer in order to know what he thought about a
particular factual situation.''
Characteristically unconventional, Rehnquist passed up
opportunities at lucrative East Coast law firms. He thought
California too big and too populated, and decided to look for
a home in the southwestern United States, hoping to find the
American equivalent of the North African climate he so
enjoyed. Rehnquist married his beloved Nan in August 1953,
and the couple ultimately settled on Phoenix. He later told
his law clerks that the descent into Phoenix, without air
conditioning, in his 1941 Studebaker, was like ``driving into
Hell.''
He was the ninth lawyer at one of the ``large'' law firms
in Phoenix, and he was paid $300 per month. Two years later,
hoping for more courtroom experience, he opened a two-lawyer
office, and for a time, Rehnquist took whatever clients came
in the door. He volunteered to represent indigent criminal
defendants in federal court, but suffered a series of
defeats, leading a federal prosecutor to joke that a cell
block at Leavenworth had been named after Rehnquist. He
delighted in telling stories of his practice before eccentric
jurists in Arizona's remote ``cow counties.'' A favorite
involved the representation of state legislators in a lawsuit
adverse to the state's attorney general, during which
Rehnquist made pointed reference to an inconsistency between
his adversary's litigating position and previous public
statements. Summoned to the judge's chambers after oral
argument, young Rehnquist remembered that his ``heart almost
stopped'' as he prepared himself for a trip to the woodshed,
only to hear the jurist from Cochise County remark: ``I was
sure glad to see you tee off on the Attorney General in your
argument on that last motion. He's a worthless son-of-a-
bitch, and the sooner this state gets rid of him the better
off we'll all be.''
During his 16 years of private practice, Rehnquist
represented a broad array of clients and handled a wide range
of litigation matters. He was also active in politics,
providing legal advice and draft speeches for the 1964
Goldwater presidential campaign. He wrote op-ed pieces and
bar journal articles, spoke before bar and civic groups,
served as President of the Maricopa County Bar Association,
and was a favorite at continuing legal education seminars. He
spent four years as the town attorney for Paradise Valley,
was special counsel to the Arizona Department of Welfare,
served as Special Assistant Attorney General for the Arizona
Highway Department, and represented the State Bar of Arizona
in attorney disciplinary matters. In 1971, the Board of
Governors of the State Bar of Arizona praised Rehnquist for
having ``continually demonstrated the very highest degree of
professional competence and integrity and devotion to the
ends of justice.''
Through it all, Rehnquist maintained a balanced life. He
would work typically from 8:30 a.m. to 5:00 p.m., then close
the law books, and go home for a family dinner. He and Nan
were blessed with three children, Jim, Janet, and Nancy. Even
when Rehnquist was in trial, the family dinner was sacred,
and he would either bring work home or make the ten-minute
drive back to the office after dinner. Keeping a schedule
that was unusual then, and virtually unheard of today, for
the family of a top litigator, the Rehnquists managed to take
a month's vacation every year. Rehnquist especially loved
camping vacations across the West, visits to a small cabin
in the Bradshaw Mountains of Arizona, and driving fast on
country roads, telling his children that a double yellow
line was ``just a recommendation.'' The Rehnquists also
maintained an active family-oriented social life,
including bridge, charades, cookouts, and hikes. Later in
life, Rehnquist reminisced that he ``had the good fortune
to realize long ago, instinctively, what I now see very
clearly--and that is that time is a wasting asset.''
Rehnquist spent abundant time with his wife and young
children, ``not out of any great sense of duty, but just
because I enjoyed it so much.''
After the 1968 presidential election, Rehnquist's
involvement in politics resulted in an opportunity to serve
as Assistant Attorney General for the Office of Legal Counsel
in the United States Department of Justice. Upon receiving
word of this job offer, Rehnquist visited the Phoenix public
library to see what he could learn about the office, and he
was sufficiently intrigued by what he read to accept the
position. The family moved to Washington, but Rehnquist never
lost his deep affection for Arizona or his fond memories of
these earlier years. He left Phoenix, as he put it, ``very
much richer for the experience, but having accumulated very
little of the world's goods.''
As Assistant Attorney General, Rehnquist was ``in effect,
the President's lawyer's lawyer,'' as President Richard Nixon
would later say. Rehnquist served in the Justice Department
during challenging years in the midst of the Vietnam War. He
helped to hone the position of the Executive Branch on
delicate legal issues and carried the message of the
Administration around the country in numerous public
appearances. He discharged his responsibilities with such
great distinction that President Nixon would declare that
``among the thousands of able lawyers who serve in the
Federal Government, he rates at the very top as a
constitutional lawyer and as a legal scholar.'' When Justice
John Marshall Harlan II retired in 1971, Rehnquist was the
President's choice to be the 100th Associate Justice of the
Supreme Court.
Confirmed in 1972 at age 47, Rehnquist was one of the
youngest Justices of the Supreme Court in modem history. Yet
his views on important matters of constitutional law were
remarkably well formed. Rehnquist once wrote that ``[p]roof
that a Justice's mind at the time he joined the Court was a
complete tabula rasa in the area of constitutional
adjudication would be evidence of lack of qualification, not
lack of bias,'' and Rehnquist's mind certainly was no blank
slate.
In 1976, he summed up his judicial philosophy in an essay
entitled, ``The Notion of a
[[Page S5942]]
Living Constitution.'' He rejected the notion that judges
``are a small group of fortunately situated people with a
roving commission to second-guess Congress, state
legislatures, and state and federal administrative officers
concerning what is best for the country.'' That elected
representatives had not solved a particular social problem,
he wrote, did not necessarily authorize the federal judiciary
to act: ``Surely the Constitution does not put either the
legislative branch or the executive branch in the position of
a television quiz show contestant so that when a given period
of time has elapsed and a problem remains unsolved by them,
the federal judiciary may press a buzzer and take its turn at
fashioning a solution.'' Rehnquist was critical of a mode of
constitutional interpretation that would allow ``appointed
federal judges'' to impose on others a rule that ``the
popularly elected branches of government would not have
enacted and the voters have not and would not have embodied
in the Constitution.'' This approach, he warned, was a
``formula for an end run around popular government,'' and
``genuinely corrosive of the fundamental values of our
democratic society.''
As an Associate Justice, Rehnquist emerged as a powerful
intellectual force. He authored a number of significant
opinions for the Court, but also did not hesitate to express
his position in solitary dissent, thus inspiring an early
group of law clerks to bestow upon him a Lone Ranger doll as
a mantlepiece. When Chief Justice Warren Burger resigned in
1986, it was precisely Rehnquist's powerful intellect, his
stellar record on the Court, and his consistent judicial
philosophy that made him President Ronald Reagan's pick to
lead the Court. But no less important were Rehnquist's
leadership qualities and the respect he garnered from all of
his colleagues, owing to his pleasant and down-to-earth
nature, quiet confidence, quick wit, and basic fairness.
On June 17, 1986, the President announced his nomination of
Justice Rehnquist to become the sixteenth Chief Justice of
the United States. During the ensuing confirmation hearings,
numerous witnesses testified glowingly to Rehnquist's
distinguished service on the Court and his high-powered legal
mind. Former Solicitor General Rex Lee, for instance, stated:
``Of all the lawyers with whom I am acquainted, I know of
literally no one who is better qualified to be Chief Justice
of the United States.'' A representative of the American Bar
Association reported the ``genuine enthusiasm'' felt by other
Justices and Court employees about Rehnquist's nomination to
be Chief Justice: ``There was almost a unanimous feeling of
joy. . . . [H]e is regarded as a close personal friend of men
who are diametrically opposed to him philosophically and
politically.''
As Rehnquist took his new seat as the leader of the Court
in 1986, President Reagan presciently remarked that he ``will
be a Chief Justice of historic stature.'' Rehnquist served as
Chief Justice for nearly 20 years, and together with his
service as an Associate Justice for more than 14 years, this
tenure made him one of the Supreme Court's seven longest-
serving members. In that time, Rehnquist left an indelible
mark on the Supreme Court, on the functioning of the federal
Judiciary, and on the face of American law.
Rehnquist's jurisprudential legacy cuts a broad swath, but
it is undoubtedly substantial in the areas of criminal
procedure and the constitutional rights of criminal
defendants. Rehnquist was appointed to the Court shortly
after a series of decisions by the Warren Court had expanded
the constitutional rights of the accused in criminal cases,
and his early opinions made clear that he believed the
pendulum had swung too far in that direction. Dissenting from
the denial of a stay in California v. Minjares, he called for
re-evaluation of the ``exclusionary rule'' applied to the
States in Mapp v. Ohio in 1961. Complaining that evidence was
suppressed ``solely because of a good-faith error in
judgment'' on the part of arresting officers, Rehnquist
disputed that the exclusionary rule was necessary to preserve
the ``integrity'' of the courts: ``[W]hile it is quite true
that courts are not to be participants in 'dirty business,'
neither are they to be ethereal vestal virgins of another
world, so determined to be like Caesar's wife, Calpurnia,
that they cease to be effective forums in which both those
charged with committing criminal acts and the society which
makes the charge may have a fair trial in which relevant
competent evidence is received in order to determine whether
or not the charge is true.'' In another early opinion,
explaining the controversial 1966 decision in Miranda v.
Arizona, Rehnquist wrote for the Court in Michigan v. Tucker
that the procedural safeguards recommended by Miranda ``were
not themselves rights protected by the Constitution but were
instead measures to insure that the right against compulsory
self-incrimination was protected.''
Neither Mapp nor Miranda was overruled during Rehnquist's
long tenure on the Court. Indeed, in Dickerson v. United
States, the Chief Justice wrote for the Court in 2000 that
``[w]hether or not we would agree with Miranda's reasoning
and its resulting rule, were we addressing the issue in the
first instance, the principles of stare decisis weigh heavily
against overruling it now.'' Yet the pendulum surely swung
back, with the Court affording the States more latitude in
developing procedures for the prosecution of criminal cases,
recognizing the practical needs of the police in
investigating crime, and fashioning clearer rules for law
enforcement officials and citizens alike. The exclusionary
rule remains in effect, but the suppression of evidence
seized in ``good faith,'' decried by Rehnquist in his
Minjares dissent, is far less common in light of the good-
faith exception to the exclusionary rule adopted during
Rehnquist's tenure. Miranda remains a ``constitutional
decision,'' but exceptions and limitations adopted by the
Court ensure that it gives way to competing concerns such as
the protection of public safety and the strong interest in
making available to the trier of fact all relevant and
trustworthy evidence. Testifying in support of Rehnquist's
appointment as Chief Justice, former Attorney General Griffin
Bell aptly observed that Justice Rehnquist had joined in
making the right to counsel, Miranda rights, and the
exclusionary rule ``more workable,'' and cited the good-faith
exception as ``a good example of saving the exclusionary rule
from its own excesses.''
Another area where Rehnquist's work had a powerful effect
on the shape and development of the law is religious freedom
and church-state relations. In First Amendment cases,
Rehnquist consistently endorsed the idea that governments
may, consistent with the Constitution, do quite a bit to
accommodate and acknowledge religion, but are not required by
the Constitution to provide religious believers with special
exemptions from generally applicable laws. It is not an
``establishment'' of religion, he maintained, for politically
accountable actors to act in ways that benefit religious
believers and institutions or to recognize religious
traditions and teachings. That governments may not
``establish[]'' religion does not mean, he believed, that
religion has no place in public life or civil society. At the
same time, he insisted, it is rarely a violation of the free-
exercise guarantee for those same actors to apply to
religious people and religiously motivated conduct the same
rules that apply generally.
As it turned out, Rehnquist's last opinion was for a
plurality in Van Orden v. Perry, in which the Justices ruled
that Texas had not ``establish[ed]'' religion by including a
Ten Commandments monument among the nearly 40 monuments and
historical markers on the grounds surrounding the State
Capitol. He wrote: ``Our cases, Januslike, point in two
directions in applying the Establishment Clause. One face
looks toward the strong role played by religion and religious
traditions throughout our Nation's history. . . . The other
face looks toward the principle that governmental
intervention in religious matters can itself endanger
religious freedom. This case, like all Establishment
Clause challenges, presents us with the difficulty of
respecting both faces. Our institutions presuppose a
Supreme Being, yet these institutions must not press
religious observances upon their citizens. One face looks
to the past in acknowledgment of our Nation's heritage,
while the other looks to the present in demanding a
separation between church and state. Reconciling these two
faces requires that we neither abdicate our responsibility
to maintain a division between church and state nor evince
a hostility to religion by disabling the government from
in some ways recognizing our religious heritage[.] '' In
this last opinion, Rehnquist returned to themes that he
had developed at length in one of his most famous
opinions, a dissent in Wallace v. Jaffree.
A third area where Rehnquist's legacy is both striking and
significant involves the structure and powers of the federal
government created by our Constitution and the role and
retained powers of the States. From his earliest to his final
days on the Court, Rehnquist was committed to what he called
``first principles:'' Ours is a national government of
limited, delegated, and divided powers, and the government's
structure, no less than the Bill of Rights, is a safeguard
for individual liberty. Rehnquist's dedication to these
principles, and to enforcing the limits and boundaries that
our Constitution imposes on federal power, reflected his
understanding that our constitutional design leaves ample
room for diverse policy experiments and different answers to
pressing social questions.
Rehnquist's commitment to judicial enforcement of
enumerated powers and the federal-state balance was perhaps
most discernible in the Court's cases interpreting the
Commerce Clause. As early as 1975, dissenting alone,
Rehnquist argued that the federal government must treat the
States like sovereign entities, rather than like individuals.
Even when Congress has authority under the federal commerce
power to regulate private conduct in a particular area, it
could not apply that regulation to the States if doing so
would interfere with what he called ``traditional state
functions.''
As happened a number of times during his tenure,
Rehnquist's position in dissent ultimately was embraced by a
majority of his colleagues. In National League of Cities v.
Usery, a majority of the Court adopted his ``traditional
governmental functions'' test. Although the Court ultimately
overruled National League of Cities nine years later,
Rehnquist, in a pithy reply, thought it not ``incumbent on
those of us in dissent to spell out further the fine points
of a principle that will, I am confident, in time again
command the support of a majority of this Court.'' And true
to his prediction, Rehnquist's promotion of federalism forged
ahead, serving as the basis for the Court's declaration of an
anti-commandeering principle, its strengthening of the
States' sovereign immunity, and
[[Page S5943]]
its reaffirmation of the existence of ``judicially
enforceable outer limits'' on the commerce power itself, in
United States v. Lopez in 1995.
Rehnquist's dedication to judicial restraint and popular
government is perhaps most evident in his writings on the
subject of ``substantive due process.'' At his death,
Rehnquist was the last remaining member of the Court that had
decided Roe v. Wade. He had dissented from the opinion of the
Court, comparing the majority's reasoning to the discredited
doctrine of Lochner v. New York, and commenting that the
Court's opinion in Roe ``partakes more of judicial
legislation than it does of a determination of the intent of
the drafters of the Fourteenth Amendment.'' While Rehnquist
garnered only four votes for his later view that Roe should
be overruled, the Court ultimately did adopt his restrained
approach to substantive due process. In Washington v.
Glucksberg, Chief Justice Rehnquist wrote for the majority
and recognized that ``[b]y extending constitutional
protection to an asserted right or liberty interest, we, to a
great extent, place the matter outside the arena of public
debate and legislative action.'' The Court declared that it
would ``exercise the utmost care'' whenever asked to ``break
new ground in this field, lest the liberty protected by the
Due Process Clause be subtly transformed into the policy
preferences of the Members of this Court.'' Thus, Rehnquist's
opinion was consistent with the view articulated more than 20
years earlier, in his essay on the ``living Constitution,''
that judicial review under the Fourteenth Amendment should
not be employed as an ``end run around popular government,''
in a way that is ``genuinely corrosive of the fundamental
values of our democratic society.'' Running through his
opinions on any number of questions--from assisted suicide
and abortion to Christmas displays, campaign finance, and the
death penalty--is a deep commitment to the idea that our
Constitution leaves important, difficult, and even divisive
decisions to the people.
Rehnquist's legacy on the Supreme Court involves much more
than doctrinal contributions and particularly noteworthy
decisions. He encouraged and exemplified collegiality,
fairness, and graciousness among the Justices, urging them
towards greater consensus where possible, and thereby
enhancing the respect enjoyed by the Court in American
society. To some degree, Rehnquist's achievements as the
leader of the Court were the result of a subtle
transformation in Rehnquist himself--from Justice Rehnquist,
``The Lone Dissenter,'' to Chief Justice Rehnquist, the
consensus-builder.
In his 1986 confirmation hearings, Rehnquist alluded to the
role of a Chief Justice in gaining consensus, and allowed
that deviation from his personal judicial philosophy may be
proper ``where there are constraints that there ought to be a
court opinion rather than a plurality opinion.'' Rehnquist
later acknowledged, in a 2001 interview, that while his legal
philosophy had never changed, since becoming the Chief
Justice he had ``become a lot more convinced of the need for
the Court to get a Court opinion in each case. . . . I'm more
conscious of the need for that and also conscious of the . .
. lack of need for a lot of concurring opinions.''
For those attorneys privileged to argue before the Supreme
Court during Rehnquist's long tenure, his legacy is probably
as much about his commanding presence on the Bench as his
approach to the Constitution or the Conference. Rehnquist's
view of oral argument was emblematic of his no-nonsense
approach to judging and life. He wrote that oral argument
``forces the judges who are going to decide the case and the
lawyers who represent the clients whose fates will be
affected by the outcome of the decision to look at one
another for an hour, and talk back and forth about how the
case should be decided.''
Rehnquist preferred plain-spoken arguments to flowery
rhetoric or pretense. Although he was a kind and easygoing
man, he adopted a stem and no-nonsense demeanor on the Bench,
running arguments with Nordic precision. The moment the red
light came on, the Chief thanked counsel for the
presentation, even if the lawyer was in mid-sentence, and
then called the next lawyer or case. When one lawyer rose to
present his rebuttal, the Chief ended the argument by
stating, while breaking a wry smile, ``the Marshal says you
have 5 seconds left, and under the principle of de minimis
non curat lex, the case is submitted.''
Rehnquist's dry sense of humor often was on display during
argument sessions. During one argument, a lawyer gave what he
described as an ``honest and principled answer'' to another
Justice's question, and the Chief quickly replied, ``we hope
all your answers will be principled.'' When a lawyer
responded to Rehnquist's recitation of a case by saying ``you
are correct, Chief Justice,'' the Chief said, ``I'm glad to
know that.'' During his last public session on the Bench,
Rehnquist observed that seven different opinions had been
written in a case, then remarked, ``I didn't know we had so
many Justices.''
As the Chief Justice, Rehnquist presided over not only the
Bench and the Conference, but over the entire Judicial Branch
as well. He brought to this role the same collegiality,
wisdom, effectiveness, and clarity of purpose that marked his
leadership of the Supreme Court itself. As with so many
things he did, he impressed all with his ability to perform
so effortlessly the myriad tasks of running the Judiciary.
His colleague Justice Byron White remarked in 1996 that ``of
the three Chief Justices with whom I have served, the man who
now sits in the center chair. . . seems to me to be the least
stressed by his responsibilities and to be the most efficient
manager of his complicated schedule.'' Rehnquist, he said,
``reminds me of a highly conditioned cross between a quarter
horse and racing thoroughbred.''
Rehnquist brought his penchant for innovation and
efficiency to management of the judicial branch. He adopted
changes that dramatically improved the efficiency and
operation of the Judicial Conference, including what he
termed a ``notably strengthened Executive Committee,'' which
became the senior executive arm of the Judicial Conference.
He fostered inclusiveness by requiring, for the first time,
that members of Judicial Conference committees rotate
regularly, and he never asserted his authority as Chief
Justice to govern with a heavy hand. A vigorous defender of
the Third Branch, Rehnquist effectively used the pulpit
provided by his position to support and defend the Judiciary
and to improve inter-branch relations. He wisely understood
that Congress had an important role to play in overseeing the
Judiciary, and he communicated often with congressional
leaders, in both formal and less formal settings, to advance
the goals of the Judiciary. As he put it, ``Judges. . . have
no monopoly of wisdom on matters affecting the Judiciary. . .
. Legislators and executive officials, no less than judges,
are committed to an effective Judiciary.''
But Rehnquist also understood full well the importance of
an independent and vibrant Judiciary, and he staunchly
defended the Judiciary from attacks, often resorting--as he
did in other areas--to lessons from history. In 2004, he
addressed congressional suggestions for impeachment of
federal judges who issue unpopular decisions by explaining
that ``our Constitution has struck a balance between judicial
independence and accountability, giving individual judges
secure tenure but making the federal Judiciary subject
ultimately to the popular will because judges are appointed
and confirmed by elected officials.'' His leadership
engendered great loyalty from the members of the federal
Judiciary, and in the end, one judge captured the
sentiment of a great many, saying that Chief Justice
Rehnquist ``was our wise leader, our strongest supporter
and our true friend.''
Above and beyond his demanding official duties, Rehnquist
pursued and cultivated a rich array of interests and
passions. Family, friends, and law clerks remember well his
dedication to afternoon swims and weekly tennis matches, his
friendly wagering on football, horse races, or even the
amount of snowfall, his love for trivia and charades, and his
interest and voluminous knowledge of literature, geography,
history, and art. Rehnquist also served as Historian-in-
Chief, writing books on the history of the Supreme Court, the
impeachment trials of Chase and Johnson, the controversial
Hayes-Tilden presidential election of 1876, and civil
liberties in wartime. Remarkably, Rehnquist himself became
the second Chief Justice in history to preside over an
impeachment trial, confronted a disputed presidential
election in 2000, and led the Court as it decided pressing
questions involving civil liberties and security in the
context of the war on terror and the attacks of September 11,
2001.
For those who knew, worked with, learned from, and cared
about William Rehnquist, his personal qualities--the
unassuming manner, the care he took to put people at ease,
and his evident desire to serve as a teacher and mentor--are
as salient in memories of him as his re-invigoration of the
``first principles'' of our federalism, his re-focusing of
the Fourth Amendment on reasonableness, or his conviction
that the religion clauses of the First Amendment do not
require a public square scrubbed clean of religious faith and
expression. Rehnquist never forgot what it felt like to
arrive at the Court as a slightly awestruck and appropriately
apprehensive law clerk. He never lost his sense of gratitude
for the opportunity to learn and serve the law in that great
institution. And he never outgrew or got tired of teaching
young lawyers how to read carefully, write clearly, think
hard, and live well.
William Rehnquist served well his country, his profession,
and the Constitution. All the while, he kept and nurtured a
healthy focus on real things and places, and he embraced the
value, interest, and importance of ordinary, everyday life.
We are reminded of how the Chief had taken to heart Dr.
Johnson's dictum that ``[t]o be happy at home is the end of
all human endeavor.'' In a 2000 commencement address, he
invoked the wonderful old Jimmy Stewart movie, You Can't Take
it With You, to urge the assembled, ambitious young lawyers
to ``[d]evelop a capacity to enjoy pastimes and occupations
that many can enjoy simultaneously--love for another, being a
good parent to a child, service to your community.'' He
instilled in so many of his friends, colleagues, and law
clerks a commitment to building and living an integrated life
as a lawyer, a life that is not compartmentalized, atomized,
or segregated but that pulls and holds together work,
friends, family, faith, and community. Rehnquist understood
that the need for such a commitment is particularly acute
among lawyers, and he worried that the profession he so
thoroughly enjoyed and in which he thrived had become marked,
for many, by brutally long hours of well-paid stress and
drudgery.
[[Page S5944]]
In the final years of his life, he recalled happily that
the ``structure of the law practice'' in Phoenix when he
practiced there ``was such that I was able to earn a decent
living, while still finding time for my wife and children and
some civic activities. Lawyers were not nearly as time
conscious then as they are now; this meant that they probably
earned less money than they might have, but had a more
enjoyable life.'' He exhorted law school graduates to realize
that because of their abilities and opportunities, they would
have ``choices,'' and that ``how wisely you make these
choices will determine how well spent you think your life is
when you look back at it.'' Gathered here together, looking
back at his life, the Members of the Bar of the Supreme Court
are pleased and honored to announce the opinion that his was
a great life, and well spent.
Wherefore, it is Resolved, That we, the Bar of the Supreme
Court of the United States, express our great admiration and
respect for Chief Justice William H. Rehnquist, our deep
sense of loss upon his death, our appreciation for his
contribution to the law, the Court, and the Nation, and our
gratitude for his example of a life well spent; and it is
further
Resolved, That the Solicitor General be asked to present
these resolutions to the Court and that the Attorney General
be asked to move that they be inscribed on the Court's
permanent records.
Mr. STEVENS. Mr. President, I yield the floor and suggest the absence
of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. FRIST. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________