[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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