[Congressional Record Volume 152, Number 122 (Tuesday, September 26, 2006)]
[Senate]
[Pages S10121-S10125]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   MARKING THE 20TH ANNIVERSARY OF THE APPOINTMENT OF SUPREME COURT 
                    ASSOCIATE JUSTICE ANTONIN SCALIA

  Mr. HATCH. Mr. President, I proudly rise to mark the 20th anniversary 
of a great event.
  Twenty years ago today, Antonin Scalia took the oath of office to 
become an Associate Justice of the Supreme Court of the United States.
  Through his dogged commitment to the fundamental principles of 
liberty, and the brilliance and passion with which he expresses that 
commitment, Justice Scalia is having a profoundly positive impact on 
our nation.
  In the time I have this morning, I would like to offer a few general 
remarks about Justice Scalia's judicial philosophy, his judicial 
personality, and his judicial impact.
  Antonin Scalia was born on March 11, 1936, in Trenton, New Jersey, 
the only child of immigrant parents.
  After graduating first in his high school class, summa cum laude and 
valedictorian from Georgetown, and magna cum laude from Harvard Law 
School, he embarked on a legal career that would include stints in 
private practice, government service, the legal academy, and the 
judiciary.
  President Reagan appointed Antonin Scalia in 1982 to the U.S. Court 
of Appeals for the D.C. Circuit, and then in 1986 to his current post 
on the Supreme Court.
  President Reagan did not choose Justice Scalia simply because he is 
smart and talented.
  With all due respect to the good Justice, there are many smart and 
talented people around.
  No, President Reagan chose Justice Scalia because his smarts and 
talents are connected to a deeply considered and deliberately framed 
judicial philosophy rooted in the principles of America's founding.
  Indeed, as Pepperdine law professor Douglas Kmiec has said, Justice 
Scalia ``is the justice who works the hardest to construct a coherent 
theory of constitutional interpretation that does not change from case 
to case.''
  When the Judiciary Committee hearing on Justice Scalia's nomination 
opened on August 5, 1986, I quoted from the Chicago Tribune's 
evaluation that the nominee before us was ``determined to read the law 
as it has been enacted by the people's representatives rather than to 
impose his own preference upon it.''
  Consider for a moment the vital importance of this simple principle.
  Since the people and their elected representatives alone have the 
authority to enact law, the way they have enacted it is the only sense 
in which the law is the law.
  The way they have enacted it, then, is the only legitimate way for 
judges to read it.
  This fundamental principle is at the heart of Justice Scalia's 
judicial philosophy.
  This principle springs directly from the separation of powers, which 
America's founders said was perhaps the most important principle for 
limiting government and preserving liberty.
  Alexander Hamilton wrote in The Federalist No. 78 that there is no 
liberty if the judiciary's power to interpret the law is not separated 
from the legislature's power to make the law.
  In his dissenting opinion in Morrison v. Olson, Justice Scalia 
highlighted the Massachusetts Constitution of 1780 which, to this day, 
contains what Justice Scalia called the proud boast of democracy, that 
this is a government of laws and not of men.
  The Massachusetts charter, however, also states what is required for 
this boast to be realized.
  It requires the separation of powers, including that the judiciary 
shall never exercise the power to make law.
  Today, only 42 percent of Americans know the number of branches in 
the federal government and fewer than 60 percent can name even a single 
one.
  But America's founders insisted that identifying them, defining them, 
and separating them is essential for liberty itself.
  In Marbury v. Madison, the great Chief Justice John Marshall wrote 
that it is the duty of the judicial branch to say what the law is.
  Not what the law says, but what the law is.
  The law is more than simply ink blots formed into words on a page.
  Saying what the law is requires saying what the law means, for that 
meaning is the essence of the law itself.

[[Page S10122]]

  But here is the crux of the matter, Mr. President.
  The meaning of the words in our laws comes from those who made them, 
not from those who interpret them.
  Those who chose the words in our laws gave them life by giving them 
meaning, and the judicial task of saying what the law is requires 
discovering the meaning they provided.
  The separation of powers, therefore, excludes from the judiciary the 
power to change the words or meaning of the law and secures to it the 
power to interpret and apply that law to decide cases.
  As President Reagan put it when swearing in Justice Scalia 20 years 
ago today, America's founders intended that the judiciary be 
independent and strong, but also confined within the boundaries of a 
written Constitution and laws.
  No one believes that principle more deeply, and insists on 
implementing it more consistently, than Justice Scalia.
  President Reagan often used the general label judicial restraint for 
this notion of judges restrained by law they did not make and cannot 
change.
  A speech last year at the Woodrow Wilson International Center for 
Scholars here in Washington was one of many instances in which Justice 
Scalia used the more specific label originalism for his judicial 
philosophy.
  When judges interpret the law, he said, they must ``give that text 
the meaning that it bore when it was adopted by the people.''
  Whether that simple statement elicits growls or cheers today, Justice 
Scalia was merely echoing America's founders.
  James Madison said that the only sense in which the Constitution is 
legitimate is if it retains the meaning given it by those who alone 
have the authority to make it law.
  This body unanimously confirmed Justice Scalia on September 17, 1986, 
the 199th anniversary of the Constitution's ratification.
  I see that as having more than coincidental significance, for it is 
Justice Scalia's judicial philosophy that gives the most substance and 
power to the Constitution.
  The Constitution cannot govern government if government defines the 
Constitution.
  That includes the judiciary, which is as much part of the Government 
as the legislative or executive branch.
  To once again cite Chief Justice Marshall from Marbury v. Madison, 
America's Founders intended the Constitution to govern courts as well 
as legislatures.
  It cannot do so if, as Chief Justice Charles Evans Hughes famously 
claimed, the Constitution is whatever the judges say it is.
  If the Constitution is little more than an empty linguistic glass 
that judges may fill or a checkbook full of blank checks that judges 
may write, it is not much of anything at all. We all know better.
  I am not sure what such a collection of words without meaning might 
be called, but it is not a Constitution.
  Thankfully, Justice Scalia rejects such an anemic and shape-shifting 
view of the Constitution, insisting that even judges must be the 
servants rather than the masters of the law.
  Justice Scalia insists that judges stick to judging so the 
Constitution can indeed be the Constitution.
  Analyzing Justice Scalia's jurisprudential approach in the Arkansas 
Law Review, one scholar described what he called the justice's 
meticulous, almost obsessive, attention to language.
  Let us remember that the epicenter of the remarkable system of 
government America's founders crafted is indeed a written Constitution.
  They, too, were obsessed with language.
  President George Washington warned in his 1796 farewell address 
against changing the Constitution through what he called usurpation 
rather than the formal amendment process.
  George Mason actually opposed ratification of the Constitution, in 
part because giving the Supreme Court too much power to construe the 
laws would let them substitute their own pleasure for the law of the 
land.
  President Thomas Jefferson said that ``our peculiar security is in 
the possession of a written Constitution. Let us not make it a blank 
paper by construction.''
  Justice Scalia appears to be in some good obsessive company.
  No one should assume that while originalism is relatively straight-
forward to describe, it is either perfect or easy.
  Writing in the University of Cincinnati Law Review just a few years 
into his Supreme Court service, Justice Scalia himself acknowledged 
that originalism is, in his words, not without its warts.
  But it is consistent with, I would say compelled by, the principles 
underlying our form of Government.
  And it is certainly better than the alternative, which puts judges 
rather than the people in charge of the law's meaning and the nation's 
values.
  Let me emphasize that Justice Scalia's judicial philosophy is about 
the process of interpreting and applying the law, to whatever ends the 
law requires.
  That process can produce results in individual cases that political 
conservatives or liberals will support or oppose.
  But when the law, and not the judge, decides the outcome of cases, 
those who do not like the outcome can work to change the law.
  When, however, the judge and not the law decides the outcome of 
cases, the people are nearly always left with no voice at all.
  Justice Scalia's critics attack his judicial philosophy for the same 
reason he embraces it.
  Originalism limits a judge's ability to make law.
  The famed Senator and Supreme Court orator Daniel Webster once said 
that ``there are men in all ages who mean to govern well, but they mean 
to govern. They promise to be good masters, but they mean to be 
masters.''
  Justice Scalia has often said that judges are no better suited to 
govern than anyone else, and certainly have no authority to do so.
  Unelected judges, no matter how well-intentioned, do not have the 
power to be our masters.
  The temptation and danger of judges making law reminds me of a scene 
in The Fellowship of the Ring, the first installment of the Lord of the 
Rings trilogy.
  Gandalf the wizard has discovered that Bilbo's ring is indeed the One 
Ring of power and Frodo insists that he take it.
  Gandalf wisely says: Understand Frodo, I would use this ring from the 
desire to do good. But through me, it would wield a power too great and 
terrible to imagine.
  In that same spirit, Justice Scalia declines the power to make law.
  As Hamilton put it, the great and terrible cost of judges rather than 
the people making law would be liberty itself.
  Thomas Jefferson warned that by playing with the meaning of the 
Constitution's words, the judiciary would turn the charter into a mere 
thing of wax that they would twist and shape into any form they chose.
  In the last 70 years or so, the judiciary has been doing a lot of 
twisting and shaping.
  One of Justice Scalia's predecessors on the Supreme Court, Justice 
George Sutherland, was also one of my predecessors as a Senator from 
Utah.
  Justice Sutherland wrote this in 1937:

       The judicial function is that of interpretation; it does 
     not include the power of amendment under the guise of 
     interpretation. To miss the point of difference between the 
     two is to . . . convert what was intended as inescapable and 
     enduring mandates into mere moral reflections.

  In 1953, Justice Robert Jackson lamented what had become a widely 
held belief that the Supreme Court decides cases by personal 
impressions rather than impersonal rules of law.
  Many people, conservatives as well as liberals, do not seem to mind 
this trend so long as it is their moral reflections and their personal 
impressions that are twisting and shaping the Constitution.
  Many people, conservatives as well as liberals, applaud or criticize 
the Supreme Court when it amends the Constitution, depending on whether 
they like the Court's amendments.
  Yet I ask my fellow citizens, both conservatives and liberals: would 
you rather have your liberty secured by moral reflections and personal 
impressions or enduring mandates and impersonal rules of law?
  If you cede to judges the power to make law when you support the law 
they make, what will you say when

[[Page S10123]]

judges--and they will--make law you oppose?
  Liberty requires separating judges from lawmaking.
  Liberty requires that judges take the law as they find it, with the 
meaning it already has, apply it to decide concrete cases and 
controversies, and leave the rest to the people.
  Professor John Jeffries of the University of Virginia Law School 
writes that Justice Scalia ``is the most nearly consistent of our 
judges. He cares more about methodology than is usual among judges, 
worries more about fidelity to the law laid down, feels himself more 
closely bound by external sources, and is more dedicated to a vision of 
constitutional law as something distinct and apart from constitutional 
politics.''
  That is precisely the kind of judge America needs on the bench.
  The second thing I want briefly to describe, is what has been called 
Justice Scalia's judicial personality.
  It animates, communicates, and gives practical force to his judicial 
philosophy.
  It turns up the volume, making people sit up and take notice of what, 
from someone else, might be little more than some quiet ramblings at a 
seminar somewhere.
  One way to describe Justice Scalia's judicial personality would be 
simply to read from his opinions.
  Even while enjoying his powerful prose, however, this might miss the 
real point.
  Justice Scalia's piercing logic, witty and provocative writing, 
verbal jousting in speeches and debates, and aggressive questions in 
oral argument are but means to an end.
  He uses wit, humor, logic, sarcasm, and the rest to expose the 
premises and implications of arguments, to assert and defend important 
principles, and to make the necessary application of those principles 
absolutely inescapable.
  Justice Scalia does not suffer fools gladly, nor will he ignore the 
man behind the jurisprudential curtain.
  His judicial personality makes his judicial philosophy more potent 
and, quite frankly, impossible to ignore.
  As a result, the adjectives attached to his name by media, political 
activists, and commentators seem to be multiplying, as if a single 
descriptive--or even two or three--just will not do.
  Some call him outspoken, provocative, or fiery; others say he is 
aggressive, engaging, and articulate.
  One profile said he is colorful, controversial, and combative; 
another said he is testy, witty, and sarcastic.
  If adjectives are a measure of one's presence, Justice Scalia is very 
present indeed.
  Justice Scalia is also a funny man.
  What is not to like about a judge who uses words such as pizzazzy 
when talking about constitutional interpretation?
  I had no idea how to spell pizzazzy until I read it in one of Justice 
Scalia's speeches.
  Following our modern penchant for everything statistical, we also 
have empirical evidence that Justice Scalia is indeed the funniest 
member of the highest court in the land.
  Professor Jay Wexler at Boston University Law School examined 
transcripts of Supreme Court oral arguments, noting when they 
identified laughter.
  During the October 2004 term, Justice Scalia was way ahead of the 
laugh pack, good for slightly more than one laugh per session.
  Finally, I want to address Justice Scalia's judicial impact in two 
respects.
  The first is the impact that comes directly from him, from his 
judicial personality propelling his judicial philosophy.
  One biography cites an unnamed Supreme Court observer noting that if 
the mind were muscle, Justice Scalia would be the Arnold Schwarzenegger 
of American jurisprudence.
  The inherent power of the principles on which Justice Scalia stands, 
propelled by the way in which he asserts and defends them, force us 
confront, whether we like it or not, the issues most basic to a system 
of self-government based on the rule of law.
  As a result, Harvard law professor John Manning writes, Justice 
Scalia has had a palpable effect on the way we talk and think about the 
issues of judicial power and practice.
  In addition to the immediate work of judges, which is to decide 
cases, Justice Scalia has prompted, poked, and prodded us to grapple 
more seriously with these fundamental issues.
  But he is not simply a judicial provocateur. When he enrages, he also 
engages. If Justice Scalia had no impact, he would get no attention. 
Even the commentators that call him a bully, or worse, feel they have 
to call him something. His harshest critics know they cannot ignore 
him.
  Scholars or political activists can no longer simply describe the 
political goods they want judges to deliver, they must defend why 
judges have the authority to deliver those goods.
  Justice Scalia has helped lead this transformation by so powerfully 
and consistently arguing that the political ends do not justify the 
judicial means.
  As a result, the left-wing groups that today fight President Bush's 
judicial nominees often use Justice Scalia as the bogey-man, the model 
they say America must avoid.
  To borrow an image from one of Justice Scalia's many famous 
dissenting opinions, he is used by some as the proverbial ghoul in the 
night, used to scare citizens and small children.
  Somehow, I think, that is fine with Justice Scalia because, even as a 
foil, his judicial philosophy must be reckoned with.
  He is indeed a happy warrior.
  His speech at Harvard in September 2004 was typical.
  According to news reports, nearly three times as many sought tickets 
as obtained them and he held the rapt attention of a standing-room-only 
crowd.
  Legal scholars from across the political spectrum concede Justice 
Scalia's impact.
  Professor Michael Dorf of Columbia Law School, for example, says that 
because of Justice Scalia's influence, we start more often with text 
rather than its history when looking at written law.
  America's founders, it seems to me, assumed that judges would always 
start with the text and be kept in check because the meaning of that 
text already exists.
  This is why America's founders could call the judiciary the weakest 
and least dangerous branch.
  Putting statutory text ahead of statutory history would be a judicial 
no-brainer to them.
  If Professor Dorf is correct, we should first lament that the courts 
had gotten so far off course and then cheer Justice Scalia for helping 
point the way back.
  The second, more general, way of looking at Justice Scalia's impact 
has a human face.
  Like every Federal judge, Justice Scalia each year has the assistance 
of law clerks, those super-brainy, hyper-kinetic workhorses who seem 
able to leap a courthouse in a single bound after virtually no sleep.
  As his Judiciary Committee hearing opened 20 years ago, Justice 
Scalia introduced his law clerk Patrick Schiltz who had helped him 
prepare and who would go on to clerk for him on the Supreme Court.
  Several months ago, this body confirmed Patrick Schiltz to be a U.S. 
District Judge in Minnesota.
  In 2004, we confirmed Mark Filip, who clerked for Justice Scalia 
during the October 1993 term, to be a U.S. District Judge in Illinois.
  In 2003, we confirmed Jeffrey Sutton, who clerked for Justice Scalia 
during the October 1991 term, to the U.S. Court of Appeals for the 
Sixth Circuit.
  Justice Scalia must be proud of these former clerks who now sit on 
the Federal bench, and the many who have argued cases before him, even 
when he might vote against their position or reverse one of their 
decisions.
  Justice Scalia's former clerks are now serving in many significant 
positions throughout the country.
  They are partners at the Nation's leading law firms, on the faculty 
of the Nation's leading law schools, and heading legal teams at the 
Nation's major corporations.
  Some, such as Solicitor General Paul Clement, serve in the top tier 
of the executive branch.
  Ed Whelan, who clerked for Justice Scalia during the October 1991 
term, served as my counsel when I chaired the Judiciary Committee and 
is now president of the Ethics and Public Policy Center here in 
Washington.
  Through these talented and dedicated men and women who have served in 
his

[[Page S10124]]

chambers, Justice Scalia's impact extends far beyond the halls of the 
Supreme Court.
  Mr. President, I have received letters from some of Justice Scalia's 
former law clerks offering their own thoughts, reflections, and 
congratulations on this important anniversary.
  I ask unanimous consent that they be made part of the record at the 
conclusion of my remarks.
  The PRESIDING OFFICER (Mr. Burr). Without objection, it is so 
ordered.
  (See exhibit 1.)
  Mr. HATCH. While I have just scratched surface, my time is almost 
gone.
  Justice Antonin Scalia is the kind of judge America needs and the 
kind of man Americans would want living next door.
  He considers aggressively and defends passionately the principles 
responsible for the ordered liberty that makes America the envy of the 
world.
  He refuses to let politics supplant principle and with a confident 
humility, or perhaps a humble confidence, submits himself to the rule 
of law and the collective judgment of his fellow citizens.
  In the process, by the force of the principles in which he believes 
and the personality with which God has blessed him, Justice Antonin 
Scalia has made our liberty more secure, our citizenry and leaders more 
responsible, and given us all plenty to ponder, and chuckle about, 
along the way.
  Mr. President, I have such respect for the Federal judiciary. I have 
such respect for those who interpret the laws rather than make them. 
Justice Scalia is at the head of the pack.
  Justice Scalia, congratulations on your first 20 years on the Supreme 
Court. Thank you for all you continue to do for our Nation

                               Exhibit 1

                                               September 21, 2006.
     Senator Orrin Hatch,
     U.S. Senate,
     Washington, DC.
       Dear Senator Hatch: I am writing you on the occasion of 
     Justice Antonin Scalia's twentieth anniversary as a member of 
     the United States Supreme Court to reflect on some of the 
     enormous contributions the justice has made to our public 
     life during his service on the Supreme Court. I first met the 
     justice almost twenty-five years ago at the very first 
     Federalist Society conference ever held which was at Yale Law 
     School. I was struck then and am struck now by his vivacious 
     intellectual manner, his tremendous enthusiasm and energy, 
     and by his sharp wit. Justice Scalia is a brilliant man of 
     many talents, and he is in my view the intellectual leader of 
     the Court. I thought I would write you this letter to 
     describe some of the many ways in which Justice Scalia has 
     distinguished himself on the Supreme Court.
       First, the justice is one of the most gifted writers ever 
     to serve on the Supreme Court of the United States. Not since 
     Justice Robert Jackson has anyone served on the Court with 
     such a gift and flair for writing. Since his appointment to 
     the Court on September 26, 1986, Justice Scalia has emerged 
     as a brilliant, outgoing, and very outspoken Justice. His 
     sharp and pointed opinions, which all too often are dissents, 
     include many memorable lines. From the beginning, Justice 
     Scalia has also been a very active participant in the Court's 
     oral arguments where he asks probing and effective questions.
       While serving on the Supreme Court, Justice Scalia became 
     the most active proponent of originalism among the justices, 
     and it is fair to say he is the leading proponent of 
     originalism in American law today. Originalism is, of course, 
     the theory that constitutional language should be interpreted 
     according to the original meaning the relevant words had 
     when they were enacted into law. Justice Scalia defended 
     this theory in an important public lecture which was 
     published under the title Originalism: The Lesser Evil and 
     then in a book called A Matter of Intepretation: Federal 
     Courts and the Law. Justice Scalia's originalism is 
     evident in many of the most important decisions he has 
     written or joined including his opinions rejecting the use 
     of substantive due process in abortion, homosexual rights, 
     or assisted suicide cases. On criminal law and procedure 
     cases, Justice Scalia's originalism has sometimes led him 
     to favor criminal defendants claims with respect to issues 
     such as the right to jury trial in sentencing, in 
     determining the scope of the Confrontation Clause, and in 
     evaluating whether the President has power to detain 
     citizens who are enemy combatants without a court hearing.
       Justice Scalia has qualified his support for originalism in 
     two important ways which illustrate his intellectual depth 
     and contribution to legal theory. First, he has made it clear 
     in constitutional cases that it is the original meaning of 
     the text which controls and not the original intentions of 
     those who wrote the text. Justice Scalia applies this 
     approach as well in statutory interpretation cases where he 
     has led a campaign for formalism and against any reliance on 
     legislative history. Justice Scalia's formalism has had a big 
     effect on the Court, and the justices make much less use now 
     of legislative history than they did when Justice Scalia was 
     first appointed. The revival of formalism is thus another 
     major accomplishment of the Justice's during his twenty year 
     tenure on the Supreme Court.
       Second, Justice Scalia has also argued that when the 
     original meaning of the constitutional text would enmesh 
     judges in balancing judges ought in those cases to announce a 
     minimalist rule to further judicial restraint. As a result, 
     Justice Scalia rejects on judicial restraint grounds allowing 
     judges to assess the proportionality of punishments under the 
     Eighth Amendment or the necessariness of federal laws under 
     the Necessary and Proper Clause or the unconstitutionality of 
     broad delegations of power to the executive under the non-
     delegation doctrine. Justice Scalia has defended his approach 
     in an important law review article called The Rule of Law as 
     a Law of Rules. In this article, Justice Scalia makes it 
     clear that when the original meaning of the text would enmesh 
     judges in balancing he thinks they should abstain from acting 
     instead. This too is a major contribution to the theory of 
     judicial restraint in judging.
       Justice Scalia's most important opinions on the Court 
     include: his dissent in Planned Parenthood of Pennsylvania v. 
     Casey, where the Court reaffirmed Roe v. Wade and his dissent 
     in Morrison v. Olsen, where the court upheld the 
     constitutionality of court appointed special prosecutors. The 
     Morrison dissent amusingly came to be hailed by liberals as 
     prophetic during the Clinton impeachment proceedings, and it 
     helped lead to a situation where the political branches 
     jointly decided to junk the special prosecutor law in 1999. 
     Other very important Scalia opinions include: his majority 
     opinion in Printz v. United States; his concurrence in Bush 
     v. Gore; and his dissents in Romer v. Evans and in Lawrence 
     v. Texas. Justice Scalia was also a critical fifth member of 
     the majority which found that flag burning was protected 
     speech under the first Amendment. In recent years, Justice 
     Scalia has led a campaign to preclude the Court from relying 
     on foreign law in many constitutional cases. But most 
     important of all, no other justice who has served on the 
     Court since Justice Scalia's appointment in 1986 has ever 
     been able to match him in his intellectual leadership of the 
     Court or in writing ability. A brilliant mind and a sharp pen 
     have guaranteed Justice Scalia a place in American history as 
     one of our most influential justices.
           Best wishes,
                                              Steven G. Calabresi,
     Professor of Law.
                                  ____

                                               New York University


                                                School of Law,

                                 New York, NY, September 24, 2006.
     Hon. Orrin G. Hatch,
     U.S. Senate,
     Washington, DC.
       Dear Senator Hatch: I am pleased to join the celebration of 
     the 20th anniversary of Justice Scalia's swearing in as a 
     Supreme Court Justice by submitting this letter to the 
     Congressional Record. Although it is somewhat ironic that 
     this tribute to Justice Scalia will be contained in pages of 
     legislative history that he so often derides, I think even he 
     will be convinced that, in this instance, the legislative 
     history is authoritative. After all, if, as he has noted, the 
     use of legislative history is ``the equivalent of entering a 
     crowded cocktail party and looking over the heads of the 
     guests for one's friends,'' he will see many friends and 
     admirers today. I proudly include myself in that group. 
     Justice Scalia has been a valued mentor and serving as his 
     law clerk was an honor I will always treasure.
       All of the Justices play a significant role during their 
     time on the Supreme Court by virtue of their votes in the 
     important cases of the day. But most Justices fail to leave a 
     lasting imprint on the law that goes beyond those votes. 
     Justice Scalia's jurisprudence, in contrast, will long 
     outlast his time on the bench. For he has spent his twenty 
     years on the Court not merely voting in important cases; he 
     has been articulating his vision of the Court's place in the 
     constitutional order. Anyone interested in the Supreme 
     Court--from legal scholars to litigants, politicians to 
     pundits--must reckon with his impassioned and intelligent 
     defenses of originalism and textualism. These methodologies 
     have never had a more brilliant advocate on the bench, and 
     generations of law students will wrestle with the arguments 
     he has developed in his opinions. Whether you agree or 
     disagree with Justice Scalia's jurisprudence, there is no 
     denying the brilliance or coherence of his vision of the 
     Supreme Court.
       It is important to note that this clarity has not come 
     without costs to the Justice. It takes courage for a judge to 
     stake out a clear position on what methodology he or she will 
     follow in constitutional and statutory cases. For this 
     transparency allows outside observers to assess the judge's 
     performance by a clear metric. It is so much easier for a 
     judge to take each case as it comes without declaring an 
     overarching method or approach. This flexibility allows the 
     judge to change positions from case to case and vote his or 
     her preferences without much constraint. Justice Scalia 
     has not allowed himself that indulgence. Even if we cannot 
     predict his vote in a given case, we know how to judge his 
     performance, for he has told us in

[[Page S10125]]

     no uncertain terms the values he seeks to uphold and the 
     approach he is committed to follow.
       I will let history assess how each of the Justice's votes 
     has measured up to the standards he has set for himself. But 
     two things are clear. First, there are countless examples 
     that prove the Justice's fealty to his methodological 
     commitments. The Justice has not shied away from the 
     consequences of his chosen methodologies, even when it has 
     meant overturning an anti-flag burning law in Texas v. 
     Johnson, 491 U.S. 397 (1989), or rejecting the government's 
     attempt to deprive an American citizen accused of terrorism 
     of his procedural rights in Hamdi v. Rumsfeld, 542 U.S. 507 
     (2004). There are numerous other illustrations of his 
     commitment, including a multitude of criminal law cases where 
     the Justice has protected the rights of defendants. These 
     cases demonstrate that the Justice is not merely a great 
     intellect; he has the courage of his convictions.
       Second, and more importantly, regardless of how Justice 
     Scalia himself has performed under the standards he has set 
     for himself, we must thank the Justice for articulating those 
     standards brilliantly, cogently, and colorfully for twenty 
     years. His opinions are not only educational, they are 
     engaging. They make us think about the role of the Court in 
     our democracy, the nature of rights, and the balance of power 
     in government. His opinions are also beautifully written; he 
     is a master artisan of the craft of judicial opinion writing. 
     Whether his opinions prompt howls of delight or screams of 
     disgust, they are full of life, just like the Justice 
     himself.
       I hope we can look forward to at least twenty more years of 
     Justice Scalia's service. But even if he served not a day 
     more, his place in history is both assured and well-deserved.
           Sincerely,
                                                 Rachel E. Barkow,
     Associate Professor of Law.
                                  ____

                                                 Boston University


                                                School of Law,

                                   Boston, MA, September 25, 2006.
     Senator Orrin Hatch,
     U.S. Senate,
     Washington, DC.
       Dear Senator Hatch: One of the greatest privileges of my 
     life was the opportunity to clerk for Justice Antonin Scalia, 
     who has now reached his twentieth year on the Supreme Court. 
     He taught me lessons about law, writing, and life that I will 
     always value. I am particularly fond of two of his favorite 
     sayings that he would trot out when pointing out to law 
     clerks some deep complexity that they had missed: ``Nothing 
     is easy'' and ``It's hard to get it right.'' Right answers, 
     in law and elsewhere, do not come from slogans, party 
     platforms, or warm feelings. They come from hard work, 
     intellectual rigor and honesty, and a willingness to check 
     premises and follow arguments where they lead. Justice 
     Scalia's example in this regard was, and still is, inspiring.
       I also recall--more fondly with distance--Justice Scalia's 
     practice of checking every citation that his clerks put into 
     a draft. Justice Scalia's meticulous concern for accuracy is 
     truly remarkable, and the world would be a better place if 
     more people shared it.
       It has been a pleasure and an honor for me to watch this 
     man and this mind in action. I am grateful for the 
     opportunity to recognize one of the finest people ever to sit 
     on the United States Supreme Court.
           Sincerely,
                                                      Gary Lawson,
     Professor of Law.
                                  ____

                                               September 26, 2006.
     Hon. Orrin Hatch,
     U.S. Senate,
     Washington, DC.
       Dear Senator Hatch: I write to join you in extending 
     congratulations to Justice Scalia on the occasion of his 
     twentieth anniversary on the Supreme Court of the United 
     States. I had the great privilege to clerk for Justice Scalia 
     during his third term on the Supreme Court, October Term 
     1988. As a teacher of various separation of powers courses, 
     first at Columbia and now at Harvard Law School, it has been 
     a happy part of my job to follow his career closely. Although 
     it is impossible to capture Justice Scalia's many 
     achievements in a brief tribute, it is worth noting just one 
     of the ways he has managed to change not only the law, but 
     also the way we think about the law.
       I refer to the rules of the game by which judges read 
     legislation. When I graduated from law school one year before 
     President Reagan (with the Senate's advice and consent) 
     appointed Justice Scalia to the Court, the question of 
     legitimacy lay deep in the background of the way federal 
     judges approached Congress's handiwork. Although the dominant 
     way of thinking about the law was known as the Legal Process 
     school, little was said about the relationship between the 
     legislative process and its output. The central precept of 
     the time was that judges should be guided by notions of 
     ``reasonableness.'' If legislation was awkward in relation to 
     its apparent purpose, judges should make it more coherent and 
     smooth out its rough edges. Who could be against that? 
     Surely, no one could object to reasonableness in the 
     abstract.
       The difficulty is this: Those in your line of work know all 
     too well that in the popularly elected bodies to which our 
     Constitution wisely assigns the task, lawmaking requires 
     compromise. Although sometimes the word ``compromise'' is 
     used pejoratively as the opposite of ``principle,'' the fact 
     is that compromise represents the way that a society as large 
     and diverse as ours works out the inevitable disagreements 
     that people of good faith have about the way we should solve 
     the most pressing problems that we face. Sometimes 
     compromises--good, socially valuable, even life-saving 
     compromises--are awkward, rough-hewn, and uneven. The Court's 
     former impulse to smooth out the rough edges of legislation--
     to make it always ``reasonable,'' no matter what the text 
     required--ignored that reality.
       No one drove this lesson home more forcefully than Justice 
     Scalia. Twenty years ago, he began to try to persuade his 
     colleagues on the bench and at the bar that the clear import 
     of the enacted text best captures the lines of compromise 
     that legislators work so hard to reach. In the old days, the 
     Court was prone to say that even the clearest text had to 
     yield to some often ill-defined ``spirit'' or ``purpose'' 
     that judges perceived to lie behind a statute. See Holy 
     Trinity Church v. United States, 143 U.S. 457, 459 (1892). 
     Today, the Court is much more likely to emphasize that 
     ``[t]he best evidence of [statutory] purpose is the statutory 
     text adopted by both Houses of Congress and submitted to the 
     President.'' West Virginia Univ. Hosps., Inc. v. Casey, 499 
     U.S. 83, 98-99 (1991). Or it might explain that judges ``are 
     bound, not only by the ultimate purposes Congress has 
     selected, but by the means it has deemed appropriate, and 
     prescribed, for the pursuit of those purposes.'' MCI 
     Telecomms. Corp. v Am. Tel. & Tel. Co., 512 U.S. 218, 231 n.4 
     (1994). In short, the Court now recognizes that the 
     compromises brokered in a complex, untidy, but ultimately 
     democratic process of passing legislation are not for federal 
     courts to second-guess.
       That change in judicial practice, I submit, is a healthy 
     one. It is much more respectful of the kind of democracy our 
     Constitution adopts. It is much more respectful of the wise 
     process by which you and your colleagues make law--a process 
     whose rules of procedure and whose practices quite obviously 
     stress the importance of compromise. Greater judicial respect 
     for that legislative reality has grown during, and because 
     of, Justice Scalia's tenure on the Supreme Court. It is one 
     of the many things for which Justice Scalia--and the Senate, 
     which confirmed him without dissent--have reason to be proud.
       Thank you for the opportunity to join you in celebrating 
     Justice Scalia's first twenty years on the Court.
           Very truly yours,
                                                  John F. Manning.

  Mr. HATCH. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.

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