Honoring Chief Justice William H. Rehnquist

Date: Sept. 7, 2005
Location: Washington, DC


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.

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.