[Congressional Record (Bound Edition), Volume 151 (2005), Part 14]
[Senate]
[Pages 19602-19603]
[From the U.S. Government Publishing Office, www.gpo.gov]




              HONORING CHIEF JUSTICE WILLIAM H. REHNQUIST

  Mr. SESSIONS. Madam President, I will share a few personal thoughts 
about Chief Justice Rehnquist. I came to appreciate Justice Rehnquist 
as a young prosecutor. I was assistant U.S. attorney, tried a lot of 
cases and was involved in a lot of cases and had to read Supreme Court 
opinions on criminal law. I was impressed with his writings. It touched 
me in many ways. I felt he was speaking the truth when other Justices 
were missing and not understanding the reality of law enforcement in 
America.
  This was in the mid-1970s, when our crime was increasing at an 
exponential rate. We had double-digit percentage increases in crime in 
the 1960s and 1970s. In the 1950s, we did not lock the door of our 
house, and we left our keys in the car. People did not worry about 
crime. It became a growing problem. At the same time crime was surging, 
the Warren Court handcuffed the police and their ability to deal with 
it.
  Justice Rhenquist, during the Warren Court years, would often write 
dissents. Sometimes he would be the lone dissenter. I distinctly 
remember being in the U.S. Attorney's Office in Mobile, Alabama, 
reading an opinion and calling my colleagues to say: Look at this. At 
least one Justice understands the reality of crime and law enforcement 
in America.
  He helped create a different approach to law and order in America. 
Instead of ruling on emotion and politics, he made his decisions based 
on the law and facts. In fact, before he left office, cases he was 
dissenting 8 to 1, he was winning a number of them 5 to 4 and 6 to 3. 
What an accomplishment to see that happen over a lifetime. I never 
would have thought it possible. I thought the trends were against that. 
Being young, I never thought we would see the pendulum swing back, but 
it did, and he played a key role in that.
  From my observations as a member of the Department of Justice for 
nearly 15 years, as a member, now, of the Senate Judiciary Committee 
for 8 years, where I currently chair the Subcommittee on Administrative 
Oversight and the Courts, my humble opinion is Chief Justice Rehnquist 
is one of the greatest chief Justices ever to serve. Senator McConnell 
said after John Marshall, but I don't know. I am not sure any have 
served more ably.
  He was also a great Associate Justice. He wrote clean, succinct 
opinions that made sense. They were consistent with the law of our 
country and our heritage.

[[Page 19603]]

  He came to the Court when the Warren Court was in full bloom and 
judicial activism was at its apex. In case after case, he was the lone 
member of that Court to sound the alarm about the dangers that arise 
when a court detaches itself from a principled and honest commitment to 
the Constitution of the United States of America and the laws we 
passed. He saw the dangers in that, and he dissented many times--he 
joined with the majority many times, but he dissented many times--on 
matters of great principle in an intelligent and effective way.
  He played a key role in the demise of judicial activism as a dominant 
view of the Court. By ``judicial activism''--I will paraphrase Senator 
Hatch's definition of it--it means when a judge allows their personal 
or political views about what is good policy or bad policy to affect 
their rulings in a case. It is not faithful to the Constitution when 
you twist the words of the Constitution or of a statute so they come 
out to mean what you would like them to in order to achieve the result 
that you prefer in a given case. Justice Rehnquist loved our 
Constitution, the one that we have, the good parts of it and the parts 
he may not agree with. He loved every section all and respected each 
one of them. He followed them and was faithful to them.
  He understood liberty in America is dependent on order. Look what is 
happening, so sadly, in New Orleans: police are threatened, doctors and 
nurses could not get out to help or rescue people because order broke 
down. The Founders of our Republic never doubted the Government and the 
law enforcement of the United States of America. The States and 
counties and cities had to have certain authority to maintain order or 
we would never have liberty. This extreme commitment to libertarian 
views can undermine the basic order necessary to allow liberty to 
flourish in our individual capability first. He understood that very 
critically.
  An example of the dangers he saw on the Court would be in death 
penalty cases. Chief Justice Rehnquist, as Associate Justice and as 
Chief, fully understood the Constitution makes at least eight 
references to capital crimes, to not being able to take someone's life 
without due process; at least eight references were made in that great 
document to the death penalty. How could the Constitution declare the 
death penalty was unconstitutional when it absolutely approved it?
  Two Justices dissented in every single death penalty case, saying 
they thought it was cruel and unusual punishment. What a weird, 
unprincipled dangerous interpretation of the Constitution. Justice 
Rhenquist stood against that tide, often as a lone Associate Justice.
  Until now, people have come to realize that the Constitution and laws 
of this country allow a State or the Federal Government to have a death 
penalty, if they choose to have it. If you do not like that, take it to 
your legislative branch. The Constitution does not prohibit it, for 
heaven's sake. The Constitution explicitly authorizes it.
  He had a good understanding of church and State. I remember Senator 
Reid, the distinguished majority leader now, when he was the assistant 
leader under Thomas Daschle during that year when they were in the 
majority, and the Ninth Circuit struck down the Pledge of Allegiance, 
he criticized the Ninth Circuit. I have been a big critic of the Ninth 
Circuit, but I remember making remarks at that time saying as big a 
critic of the Ninth Circuit and as much of a critic of their striking 
down the Pledge of Allegiance, I have to say many Supreme Court rulings 
on separation of church and State are so extreme that could well be 
justified under language of the United States Supreme Court. The 
Supreme Court has given us a very confused jurisprudence on what is a 
legitimate separation of church and State in America.
  We got to the point in one case, the Jaffree case from Alabama, the 
Supreme Court, by a 6 to 3 majority, struck down a moment of silence in 
a classroom. Justice Rehnquist dissented in that case, as he 
consistently dissented against some of the confused thinking that was 
there.
  If this court had followed Justice Rehnquist's thoughts and opinions 
on the question of separation of church and State, we would not have 
the confusion we have today. We would not have one case where the Ten 
Commandments in Texas are OK and another case in Alabama where the Ten 
Commandments are not OK. What kind of jurisprudence is that? We need to 
get that straight. The Court has failed, in my view, in establishment 
clause jurisprudence. But Chief Justice Rehnquist has been a consistent 
and sound and reasonable voice on how to strike the proper balance. We 
need to go back and continue to read those opinions and see if we 
cannot make them correct.
  He also was a student of America. He wrote a number of books, grand 
inquests about impeachments, before we had the Clinton impeachment case 
in this body. He wrote a book, ``All The Laws But One,'' that deals 
with the rule of law in America in a time of crisis, and dealt with the 
Civil War and other times in our country. He was a historian who 
understood America, understood our exceptional nature, our commitment 
to law and the Constitution. He understood that deeply. Every day when 
he went to work, every opinion he ever wrote was consistent with his 
view and respect for America, her heritage, her rule of law, and her 
Constitution.
  He understood that States have certain powers in our country. He 
understood that the Federal Government, through the commerce clause, 
has broad power, but there are limits to the reach of the commerce 
clause. It does not cover every single matter the United States Senate 
may desire to legislate on, to the extent that the federal government 
controls even simple, discreet actions within a State. He reestablished 
a respect for State law and State sovereignty through a number of his 
federalism opinions.
  Madam President, we have lost one of the Nation's great Justices, a 
man who respected our Constitution, gave his life to his country, his 
whole professional career. All of us should be proud of that service 
and honor his memory.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California.

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