[Congressional Record Volume 162, Number 28 (Tuesday, February 23, 2016)]
[House]
[Pages H847-H850]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
IN TRIBUTE TO UNITED STATES SUPREME COURT JUSTICE ANTONIN SCALIA, A
PREEMINENT MIND
The SPEAKER pro tempore. Under the Speaker's announced policy of
January 6, 2015, the Chair recognizes the gentleman from Texas (Mr.
Gohmert) for 30 minutes.
Mr. GOHMERT. Mr. Speaker, I rise tonight in tribute to one of the
greatest jurists in this Nation's history. Justice Antonin Scalia had a
preeminent mind following an excellent education. He has a beautiful
family and has already been very sorely missed.
I thought it might be helpful, Mr. Speaker, to get a sense of the man
and how profoundly concerned he was with the place in which this
country finds itself after world wars, after depressions, after all
kinds of threats: a massive civil war in the 1860s, all kinds of things
that have threatened this Nation, even the War of 1812 during which
this Capitol was set on fire.
There were all of these threats; yet, at this time in which we live,
he could see and he tried to sound the warning alarms for what the
majority of the Supreme Court was doing to this country.
It seemed to be encapsulated rather well back in the June 12, 2008,
decision in the case of Boumediene vs. George W. Bush, President of the
United States, combined with another case.
The decision of the majority of the Court, as Justice Scalia pointed
out, was so totally inconsistent with the majority's own majority
opinion in a prior case regarding people who were captured on the
battlefield and who were clearly at war with the United States.
Throughout the history of warfare at least among civilized nations
during the period of warfare, the civilized thing to do was to hold
those who were at war with you until such time as the groups they
represent, they come from, declare they are no longer at war with you.
Then they can be released unless they have committed some heinous
crime for which they should account beyond that of being part of the
war against the Nation.
The Supreme Court majority had previously said basically that, of
course, the Constitution gives the Congress the power to create
tribunals, to create courts.
As my former constitutional law professor said, there is only one
Court in the whole country's Federal system that owes its creation to
the U.S. Constitution, and that is the U.S. Supreme Court. All other
Federal courts, tribunals, owe their existences and their jurisdictions
to the United States Congress.
So the majority Court had previously said, in effect, that Congress
could, in cases where enemy combatants are seized on the battlefield,
hold them without right of writ of habeas corpus, because that has
basically been the history of civilized warfare.
Obviously, in uncivilized warfare, people were taken, abused,
tortured, made slaves. That has happened throughout the history of
mankind. But for nations that were civilized, you simply held them,
hopefully, in humanitarian conditions.
In the Boumediene case, Justice Scalia starts his dissent by writing:
``I shall devote most of what will be a lengthy opinion to the legal
errors contained in the opinion of the Court. Contrary to my usual
practice, however, I think it appropriate to begin with a description
of the disastrous consequences of what the Court has done today.''
Justice Scalia goes on:
``America is at war with radical Islamists. The enemy began by
killing Americans and American allies abroad: 241 at the Marine
barracks in Lebanon, 19 at the Khobar Towers in Dhahran, 224 at our
embassies in Dar es Salaam and Nairobi, and 17 on the USS Cole in
Yemen.
``On September 11, 2001, the enemy brought the battle to American
soil, killing 2,749 at the Twin Towers in New York City, 184 at the
Pentagon in Washington, D.C., and 40 in Pennsylvania.
``It has threatened further attacks against our homeland; one need
only
[[Page H848]]
walk about buttressed and barricaded Washington or board a plane
anywhere in the country to know that the threat is a serious one. Our
Armed Forces are now in the field against the enemy, in Afghanistan and
Iraq. Last week, 13 of our countrymen in arms were killed.
``The game of bait-and-switch that today's opinion plays upon the
Nation's Commander in Chief will make the war harder on us.''
What comes next is, perhaps, one of the most profound statements that
any Justice on the Supreme Court ever put in writing, but he was right.
And being right in his discernment of the Supreme Court's decision, he
knew he needed to put this next sentence in print.
So, in talking about the majority opinion, Justice Scalia wrote this:
``It will almost certainly cause more Americans to be killed.''
He wrote:
``That consequence would be tolerable if necessary to preserve a
time-honored legal principle vital to our constitutional Republic. But
it is this Court's blatant abandonment of such a principle that
produces the decision today. The President relied on our settled
precedent in Johnson vs. Eisentrager''--this was back in 1950--``when
he established the prison at Guantanamo Bay for enemy aliens. Citing
that case, the President's Office of Legal Counsel advised him `that
the great weight of legal authority indicates that a federal district
court could not properly exercise habeas jurisdiction over an alien
detained at Guantanamo Bay.'''
Further down, the Justice writes:
``In the short term, however, the decision is devastating. At least
30 of those prisoners hitherto released from Guantanamo Bay have
returned to the battlefield.
``But others have succeeded in carrying on their atrocities against
innocent civilians. In one case, a detainee released from Guantanamo
Bay masterminded the kidnapping of two Chinese dam workers, one of whom
was later shot to death when used as a human shield against Pakistani
commandos.
``Another former detainee promptly resumed his post as a senior
Taliban commander and murdered a United Nations engineer and three
Afghan soldiers. Still another murdered an Afghan judge. It was
reported only last month that a released detainee carried out a suicide
bombing against Iraqi soldiers in Mosul, Iraq.
``Their return to the kill illustrates the incredible difficulty of
assessing who is and who is not an enemy combatant in a foreign theater
of operations where the environment does not lend itself to rigorous
evidence collection.''
Justice Scalia goes on:
``During the 1995 prosecution of Omar Abdel Rahman, federal
prosecutors gave the names of 200 unindicted coconspirators to the
`Blind Sheikh's' defense lawyers; that information was in the hands of
Osama Bin Laden within two weeks.''
Justice Scalia went on to write page after page, explaining the
perils that the overzealous and underthinking majority of the Court had
imposed on the United States, on our military.
Justice Scalia made clear, when it comes to war, the decision that
the majority made was to basically tell our military: Instead of
protecting yourselves and protecting your brothers and sisters in arms,
we are going to require you to go out there, gather up DNA evidence,
get blood evidence, maybe just drive a forensic wagon out there onto
the field of battle. Start gathering evidence because some moronic
person in a palace in Washington--``palace'' being what some of the
Justices who first went through the new Supreme Court building said
about it back in 1935, that palace in which they reside--has said that,
in a time of war, we have lost our mind in America, and we are going to
now start putting our military at risk of their very lives so they can
go gather up evidence to satisfy some bloated judge in a palace in
Washington.
That is why he made the profound statement that he did in this
dissent.
{time} 2100
His words will almost certainly cause more Americans to be killed.
That is extraordinary.
Dear Justice Scalia finished the dissenting opinion by saying:
``Today the Court warps our Constitution in a way that goes beyond the
narrow issue of the reach of the Suspension Clause, invoking judicially
brainstormed separation-of-powers principles to establish a manipulable
`functional' test for the extra territorial reach of habeas corpus
(and, no doubt, for the extraterritorial reach of other constitutional
protections as well). It blatantly misdescribes important precedents,
most conspicuously Justice Jackson's opinion for the Court in Johnson
v. Eisentrager. It breaks a chain of precedent as old as the common law
that prohibits judicial inquiry into the detention of aliens abroad
absent statutory authorization. And, most tragically, it sets our
military commanders the impossible task of proving to a civilian court,
under whatever standards this Court devises in the future, that
evidence supports the confinement of each and every enemy prisoner.
``The Nation will live to regret what the Court has done today. I
dissent.''
What a magnificent man. What a brilliant man with extraordinary
common sense.
So, Mr. Speaker, my staff helped me. We have all been picking out
favorite quotes that Justice Scalia has provided, both in written
opinion and in speeches.
One of Justice Scalia's statements was: ``Never compromise your
principles, unless, of course, your principles are Adolph Hitler's, in
which case you would be well-advised to compromise them as much as you
can.''
Another statement by Justice Scalia was: ``More important than your
obligation to follow your conscience, or at least prior to it, is your
obligation to form your conscience correctly.''
Justice Scalia said: ``You think there ought to be a right to
abortion? No problem. The Constitution says nothing about it. Create it
the way most rights are created in a democratic society. Pass a law.
And that law, unlike a constitutional right to abortion created by a
court can compromise.''
Justice Scalia said: ``A Constitution is not meant to facilitate
change. It is meant to impede change, to make it difficult to change.''
Brilliant statement.
Some think the Constitution is a living, breathing document. I have
discussed this over at the Supreme Court palace with him, and I have
discussed it with him at lunches, breakfasts.
There are a handful of special privileges that I count myself blessed
to have been able to enjoy, and one of those handful has been time
spent with Justice Scalia. He had an incredible sense of humor. He
could crack me up. Most of the time, he meant to. Sometimes his sarcasm
was just too humorous not to laugh. And he attacked himself with self-
effacing humor.
He said this: ``I attack ideas. I don't attack people. And some very
good people have some very bad ideas. And if you can't separate the
two, you've gotta get another day job.''
He was a funny man, but a brilliant man. God blessed that man with
wisdom.
Justice Scalia said: ``I love to argue. I've always loved to argue.
And I love to point out the weaknesses of the opposing arguments. It
may well be that I'm something of a shin kicker. It may well be that
I'm something of a contrarian.''
He said: ``Well, we didn't set out to have nine children''--talking
about his beautiful family. He said: ``We're just old-fashioned
Catholics, you know.''
Justice Scalia said: ``I think Thomas Jefferson would have said the
more speech, the better. That's what the First Amendment is all
about.''
Today I see around our college campuses conservatives like me are
often shunned. I am grateful to have been invited to speak at Oxford in
England and at Cambridge. But it is amazing that places like my
conservative Texas A&M, there are students there--much fewer there, but
all over the country at what are supposed to be enlightened
universities--that don't want to hear any view different from
themselves.
When I was at A&M, I mean, I helped host Ralph Nader. I didn't agree
with him on much, but I loved the exchange with him, the thoughts that
went back and forth. He was a very intriguing man. We weren't afraid of
discussions with liberals.
It is one of the things I loved about Justice Scalia. He was so
brilliant, so
[[Page H849]]
grounded. His faith was so strongly standing on God's Word, the Bible.
He knew who he was. He knew whose he was, and he knew whose was his,
and he loved his family dearly.
Justice Scalia said: ``Undoubtedly, some think that the Second
Amendment is outmoded in a society where our standing army is the pride
of our Nation, where well-trained police forces provide personal
security, and where gun violence is a serious problem. That is perhaps
debatable, but what is not debatable is that it is not the role of this
Court to pronounce the Second Amendment extinct.''
It was absolutely a great dissent. Pointing out the hypocrisy, the
flawed thinking, the incredible poor quality of the writing in the
majority opinion in the ObamaCare decision, Justice Scalia said: ``This
Court, however, concludes that this limitation would prevent the rest
of the act from working as well as hoped. So it rewrites the law to
make tax credits available everywhere. We should start calling this law
SCOTUSCare instead of ObamaCare.''
The Supreme Court of the U.S. care, how about that?
He went on to say: ``Under all the usual rules of interpretation, in
short, the government should lose this case. But normal rules of
interpretation seem always to yield to the overriding principle of this
Court: The Affordable Care Act must be saved.''
He goes on. It says: ``If a bill is about to pass that really comes
down hard on some minority and they think it's terribly unfair, it
doesn't take much to throw a monkey wrench into this complex system.
Americans should appreciate that; they should learn to love the
gridlock. It's there so the legislation that does get out is good
legislation.''
Mr. Speaker, it brings to mind a discussion I heard him have with
some people from my district, some senior citizens that were coming to
Washington, 50 or 60. They had asked me: They say you are friends with
Justice Scalia. Do you think we could meet him?
I felt comfortable enough to call him. He said: Sure. Bring them.
So we worked it out, brought them through the side entrance, came
into a meeting room. They were all seated there when Justice Scalia
came walking in. He leans up against the table in front of them, and
they were kind of in awe because they knew how brilliant Justice Scalia
was.
He said: Well, you wanted to meet me. Here I am. What questions have
you got?
It kind of took the group aback, so people were struggling to try to
come up with a question. Finally, one of them said: Well, Justice
Scalia, wouldn't you say that we are the freest Nation in the history
of the world because we have the best Bill of Rights?
In typical Scalia style, he said: Oh, gosh, no. The Soviet Union had
a much better bill of rights than we have got. It guaranteed a lot more
freedoms than we have.
And I've forgotten, but in college I made an A on a paper that
discussed the Soviet constitution and the bill of rights. He was right.
That old Soviet bill of rights guaranteed all kinds of rights, but it
didn't protect them.
He went on to say--and I am not quoting exactly--but the gist of what
he had to say is, now, the reason America is the most free Nation in
the history of the world is because the Founders didn't trust the
government, so they made it as difficult as they could to pass a law.
It wasn't enough to have one House; they wanted two Houses, and not
like England where one of them doesn't have all that much authority.
They wanted two Houses where either one of them could stop a law from
being passed. So even if one House were successful in finally getting a
majority of people to agree on a law, then the other House would have
to agree, and they could stop it completely in its tracks.
That wasn't good enough. They wanted another check and balance,
another way to stop law. They wanted to create gridlock. So they said:
You know what? We don't want a parliamentarian system where the
legislators elect a prime minister. No. We want an executive elected
totally different from the legislature. So we will have him elected in
a whole different way, and then he can stop any law they may try to
pass. And that is not good enough. Let's create another branch, the
judiciary branch, and then they can nix anything that is passed.
No, we are the most free Nation in history because the Founders
didn't trust government and they made it as hard as possible to pass
laws.
Mr. Speaker, how much time do I have remaining?
The SPEAKER pro tempore. The gentleman from Texas has 7 minutes
remaining.
Mr. GOHMERT. Justice Scalia says in one of his dissents: ``I have
exceeded the speed limit on occasion.''
He said: ``A man who has no enemies is probably not a very good
man.''
He said: ``If you read the rest of the section, you would say, to
find a way to find a meaning that the language will bear that will
uphold the constitutionality. You don't interpret a penalty to be a
pig. It can't be a pig.''
He did know how to bring things back to tangible terms.
He said: ``If you're going to be a good and faithful judge, you have
to resign yourself to the fact that you're not always going to like the
conclusions you reach. If you like them all the time, you're probably
doing something wrong.''
I've experienced that myself. There were times I disagreed with the
law, but it was constitutionally made and passed, and I followed the
law as a judge and chief justice. That is exactly what he did.
In a dissent in 1996, Justice Scalia said: ``The Court must be living
in an another world. Day by day, case by case, it is busy designing a
Constitution for a country I do not recognize.''
Ten years later, in 2006, he says: ``So the question comes up, is
there a constitutional right to have homosexual conduct? Not a hard
question for me. It's absolutely clear that nobody ever thought when
the Bill of Rights was adopted that it gave a right to homosexual
conduct. Homosexual conduct was criminal for 200 years in every State.
Easy question.''
He made those statements in remarks at the University of Fribourg,
Switzerland, back in 2006.
In 2009, he said: ``The Court today continues its quixotic quest to
right all wrongs and repair all imperfections through the Constitution.
Alas, the quest cannot succeed.''
He also said: ``This case, involving legal requirements of the
content and labeling of meat products such as frankfurters affords a
rare opportunity to explore simultaneously both parts of Bismarck's
aphorism that `no man should see how laws or sausages are made.'''
He said: ``God has been very good to us. One of the reasons God has
been good to us is that we have done him honor.''
Certainly, Justice Scalia did God honor.
A lot of people don't realize what a tenderhearted man he was as
well. After the horrendous murder of Justice Michael Luttig's father
and the assault and attempted murder of his mother in their own garage,
two streets over from my house, the family did not want to call Michael
and describe the horrors that had been inflicted on his father and
mother.
{time} 2115
Middle of the night, Justice Scalia is in bed. Justice Scalia gets
called, would he go out to Michael Luttig, Judge Luttig's house, and
let him know in the wee hours of the morning that his father had been
killed. Justice Scalia, for whom Judge Luttig had clerked, he knew
Michael Luttig loved him. He put on his warmup suit and went out in the
middle of the night many miles away because he cared.
As I conclude, Mr. Speaker, I thought about the words of John Quincy
Adams in the Amistad case. He didn't think he had won the case. He was
finishing. He was afraid he had not done an adequate job defending
these Africans who should be free and should be free to go where they
wanted without chains, without bondage.
So he finished his argument by saying, and this is John Quincy Adams,
1841, in the Supreme Court:
``As I cast my eyes along those seats of honor and public trust, now
occupied by you, they seek in vain for one of those honored and
honorable persons whose indulgence listened then to my voice. Marshall,
Cushing, Chase, Washington, Johnson, Livingston, Todd--where are they?
Where is that eloquent
[[Page H850]]
statesman and learned lawyer who was my associate counsel in the
management of that cause, Robert Goodloe Harper? Where is that
brilliant luminary, so long the pride of Maryland and of the American
Bar, then my opposing counsel, Luther Martin? Where is the excellent
clerk of that day, whose name has been inscribed on the shores of
Africa, as a monument of his abhorrence of the African slave trade
Elias B. Caldwell? Where is the marshal? Where are the criers of the
Court? Alas, where is one of the very judges of the Court, arbiters of
life and death, before whom I commenced the anxious argument, even now
prematurely closed? Where are they all? Gone. Gone. All gone. Gone from
the services which, in their day and generation, they faithfully
rendered to their country. I humbly hope, and fondly trust, that they
have gone to receive the rewards of blessedness on high.''
In taking, then, his final leave of the bar there at the Supreme
Court, John Quincy Adams said he hoped that every member of the Supreme
Court may go to his final account with as little of earthly frailty to
answer for as those illustrious dead.
And he said: ``That you may, every one, after the close of a long and
virtuous career in this world, be received at the portals of the next
with the approving sentence: `Well done, good and faithful servant,
enter thou into the joy of thy Lord.' ''
Mr. Speaker, I have no doubt whatsoever that Justice Antonin Scalia,
my friend, our friend, the luminary of the Supreme Court, heard those
words days ago: ``Well done, good and faithful servant.''
Mr. Speaker, I yield back the balance of my time.
____________________