09.08.05

Rehnquist, Roberts, and the Relationship with Congress

Madam Speaker, as we honor Chief Justice William Rehnquist's life, we pause to reflect on his service to our country, a record of service that was colored with honor, dignity, and distinction.

Many commentators are focused on his success ushering in a quiet, conservative revolution on the Court. Another remarkable facet of Rehnquist's legacy, however, is found in a much more understated role of the Chief Justice, that of the judiciary's chief advocate and ambassador. The hallmark of his style, no matter how volatile the issue or context, from abortion to impeachment, was one of respectful debate, a quality that garnered an enormous degree of loyalty and respect among his fellow Justices, litigants, and Court watchers.

But the Chief Justice not only worked to foster respect and collegiality within the walls of the Court; he did more. For the last 2 years of his tenure, Rehnquist turned his focus to a matter that has also been a source of growing concern for many, the deterioration in relations between the Congress and the courts. As the Chief Justice reported in his year-end analysis of the state of the judiciary, and again in his customarily understated way, ``During the last year, it seems that the traditional interchange between the Congress and the Judiciary broke down.''

This hostility long preceded congressional intervention in the tragic case of Terri Schiavo and has taken many forms beyond the most simple and pernicious, that of defunding the courts. It includes measures stripping the courts of jurisdiction to hear particular cases, condemning the courts for the citation of certain precedent, and splitting circuits out of a dislike for their jurisprudence.

One constitutional amendment would even change the Framers' design-of-life tenure for lower Federal courts and subject judges to costly campaigns and retention elections. If Members think political campaigning by elected officials and the growth of 527 organizations and other independent expenditure efforts are already out of control, just imagine adding negative attack ads in judicial races around the country: ``Call Judge Jones and tell him to stop coddling criminals'' or ``Call Judge Smith and ask him why he denied relief to widows and orphans.'' One can just imagine what the judicial ads might look like.

Even though many of these legislative initiatives have yet to pass, we are already witnessing the direct consequences to our court system. In recent years there has been a marked decline in the level of interest and service on the bench among highly qualified attorneys. Judges are leaving the bench to return to private practice. Reckless talk in the House Committee on the Judiciary about the potential impeachment of judges not for unethical conduct but out of a disagreement with their decisions has only added to the chilling effect on the courts and people's willingness to serve.

Ultimately, this protracted war against the judicial branch will only denigrate both Congress and the courts. This is not the first time relations between the two branches have been at a dangerously low ebb, nor was Rehnquist the first Chief Justice to express alarm.

Former Chief Justice Charles Evans Hughes admonished the Congress of his day that ``in the great enterprise of making democracy workable, we are all partners. One member of our body politic cannot say to another `I have no need of thee.'''

Increasingly, however, the Congress has been saying just that, and Rehnquist was among the first to spot the danger. When the gentlewoman from Illinois (Mrs. Biggert) and I formed a bipartisan caucus to improve relations with the courts, Justice Rehnquist was the first to sit down with us. We invited him to meet with our caucus. He came to the Hill, sat down with us, and it was a very important meeting and interchange. After presiding over the high Court for the last 2 decades, he was clearly disturbed at the turn of events in relations between the branches and the resulting attack upon the independence of the judiciary.

Why does it matter if the Congress and the courts are at war? Because if the separation of powers has eroded and an independent judiciary is impaired, decisions become increasingly politicized. Public confidence in the rule of law erodes and people begin taking law into their own hands: 174 years ago, Supreme Court Chief Justice John Marshall warned, ``The greatest scourge an angry heaven ever inflicted upon an ungrateful and sinning people was an ignorant, a corrupt, or a dependent judiciary.''

During the confirmation hearings of John Roberts next week, there will be a great many important questions asked about Roberts' judicial philosophy, his views on individual rights and freedoms. But I hope that at least one Senator will ask whether Roberts, a prodigy of and potential successor to Rehnquist, will aspire to succeed not only his mentor's conservative revolution but his all too solitary work to repair the damage to the historic and vital comity between the Congress and the courts.