[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.

                          ____________________