[Congressional Record Volume 162, Number 28 (Tuesday, February 23, 2016)]
[Senate]
[Pages S938-S939]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                   Remembering Justice Antonin Scalia

  Mr. HATCH. Mr. President, I rise to honor the memory of one of our 
Nation's greatest champions of limited government under the 
Constitution, Justice Antonin Scalia. Justice Scalia set the standard 
for the kind of judge upon which liberty depends. He was a dear friend, 
and I will miss him greatly.
  The purpose of government, according to the Declaration of 
Independence and the Constitution, is to secure inalienable rights and 
the blessings of liberty. Liberty exists by design and, as Andrew 
Jackson put it, by eternal vigilance. America's Founders were clear 
that liberty requires separated and limited government powers, 
including a particular role for unelected judges. Judges who seek to 
determine what the law is promote liberty; judges who say what they 
think the law should be undermine it.
  Put simply, judges must interpret and apply the law impartially; that 
is, by setting aside their own opinions, preferences, or prejudices. 
Interpreting and applying the law impartially particularly leaves the 
American people and their elected representatives in charge of the law. 
When they interpret written law impartially, they discern what the 
original public meaning of the law is. When judges apply the law 
impartially, they pay no regard to the identity of the parties or the 
political effects of their decision. Judges can neither make nor change 
the law they use to decide cases. That is the kind of judge liberty 
requires. That is the kind of judge Antonin Scalia was.
  When President Ronald Reagan first appointed Antonin Scalia to the 
U.S. Court of Appeals for the DC Circuit in 1982, the future Justice 
said to those of us on the Judiciary Committee that if confirmed the 
time for him to opine on the wisdom of laws would be ``bygone days.'' 
When he again came before the committee a few years later as a Supreme 
Court nominee, he repeated that setting aside personal views is ``one 
of the primary qualifications for a judge.'' He described a ``good 
judge'' as one who starts from the law itself and not ``where I would 
like to come out in [a] particular case.''
  Justice Scalia's brilliance and wit were certainly impressive, but 
they were powerfully connected to this deeply considered and 
deliberately framed judicial philosophy rooted in the principles of the 
Constitution. He stuck doggedly to this ideal of the good judge whose 
role in our system of government is limited to properly interpreting 
the law and impartially applying it to decide cases. His approach 
requires self-restraint by judges. Judges, he often said, must take the 
law as they find it and apply it even when they do not like the 
results. In his own words, ``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.''
  Liberty requires such judicial self-restraint, whether it is en vogue 
or not. As President Reagan put it when he witnessed the oath of office 
administered to Justice Scalia in September 1986, 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 believed that principle more deeply and insisted on 
implementing it more consistently than our Justice Scalia. His approach 
to the law was often called textualism or, in the constitutional 
context, originalism--an approach which is nothing more than 
determining the original public meaning of the legal text. It leaves 
the lawmaking to the lawmakers and the people they represent, rather 
than to the judge.
  The Senate unanimously confirmed Justice Scalia's nomination on 
September 17, 1986, the 199th anniversary of the Constitution's 
ratification. That was very appropriate because his approach gives the 
Constitution its real due, treating it as more than empty words on a 
page but as words that already have meaning and substance. Justice 
Scalia knew that the Constitution cannot limit government's power if 
government actors--including judges--define the Constitution.
  Justice Scalia rejected judicial activism--what he called power-
judging--that treats the law as shape-shifting. For activists, the laws 
and the Constitution have no fixed meaning but can rather be contorted 
and manipulated to fit the judge's own policy preference. Such an 
approach puts the unelected judge, not the American people in their 
elected representatives, in the position of supreme lawmaker.
  Thomas Jefferson warned that if judges controlled the Constitution's 
meaning, it would be ``a mere thing of wax in the hands of the 
judiciary, which they may twist and shape into any form they please.'' 
That is exactly what activist judges do, treating the law like clay 
that they can mold in their own image.
  Rather than reinterpreting the law in his own image, the good judge 
conforms his decisions to the fixed meaning of the law. By insisting 
that even judges must be the servants rather than the masters of the 
law, Justice Scalia was simply following the lead of America's Founders 
and empowering the American people.
  Justice Scalia's approach to judging not only requires self-restraint 
by judges, but it also demands rigor and accountability by legislators. 
The good judge takes seriously the language the legislators enact, so 
the people can hold accountable the legislators they elect.
  The famed Senator and Supreme Court advocate 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.'' Those who object to Justice Scalia's approach embrace the 
notion that judges, rather than the people, should be the masters of 
the law.
  Justice Scalia's impact has been enormous. A liberal legal 
commentator may have put it best in his review of Justice Scalia's 
book, ``A Matter of Interpretation,'' with these words:

       We are all originalists now. That is to say, most judges 
     and legal scholars who want to remain within the boundaries 
     of respectable constitutional discourse agree that the 
     original meaning of the Constitution and its amendment has 
     some degree of pertinence to the question of what the 
     Constitution means today.

  Justice Scalia brought the boundaries of respectable constitutional 
discourse more in line with the principles of liberty than they had 
been in a generation. For that, our liberty is more secure, and we 
should be deeply grateful.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. CORNYN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


   Remembering Justice Antonin Scalia and Filling the Supreme Court 
                                Vacancy

  Mr. CORNYN. Mr. President, this past Saturday I was honored to attend 
the funeral mass for Justice Scalia. I couldn't help but recall back 
when President Reagan nominated him for the Supreme Court of the United 
States. At that time Judge Scalia said that ``[his] only [agenda] was 
to be a good judge.''
  Today, 30 years later, it is clear that Justice Scalia, who until his 
death served longer than any of the current members of the Supreme 
Court of the United States, was more than a good judge. In fact, he was 
a great judge. He was a giant of American jurisprudence.
  As I got to know him even better during the course of the more recent 
years, thanks to a mutual acquaintance, I can tell you he was also a 
good man. My first encounter with Justice Scalia was back in 1991 when 
I won an election to be on the Texas Supreme Court and the court 
invited Justice Scalia to come to Austin, TX, and administer the oath 
of office. At that time I already admired his intellect

[[Page S939]]

and commitment to the Constitution and the rule of law, and believe me, 
he was an inspiration to young judges like me who were inspired to do 
the same. He has been an inspiration to so many judges, lawyers, and 
law students for decades.
  I admired and respected Justice Scalia. Like many Texans, I was proud 
of the fact that he also seemed to love Texas, believe it or not, even 
though he was a Virginian. He remarked once that if he didn't live in 
Virginia, he would ``probably want to be a Texan.''
  I wish to spend a couple of minutes remembering this great man and 
the contributions he made to our Nation. Beyond his incredible resume, 
Justice Scalia was a devoted husband to Maureen for more than 50 years. 
He was a dedicated father to 9 children and a grandfather to more than 
30 grandchildren. As I said earlier, he was not only a family man, 
which I am sure he would have considered his most important job, he was 
a role model for a generation of lawyers, judges, legal scholars, and 
those who loved the Constitution.
  One of the interesting things about Justice Scalia--and perhaps he 
could teach all of us a little something these days--was that he was 
quick to build relationships with people who had different views from 
his own and fostered an environment of collegiality and friendship on 
the Court.
  As we learned earlier, Justice Scalia had relationships with people 
with whom he couldn't have disagreed more on key issues that the Court 
confronted--people like Justice Ginsburg, for example. We all know he 
was a gifted writer and possessed an infectious wit, but Justice 
Scalia's most important legacy is his life's work and his call for a 
return to our constitutional first principles.
  Justice Scalia strongly believed that words mattered, and I think 
that is one of the reasons why he quickly became one of the most 
memorable writers on the Court and one of the best in the Court's 
entire history. He believed the words written in the Constitution 
mattered because that was the only thing the States voted on when they 
ratified the Constitution. Those were the words with which the American 
people chose to govern themselves. For decades he tried to give those 
words force and fought against an attempt to say that we really don't 
have a written Constitution; we have a living Constitution that should 
be reinterpreted based on the times when, indeed, the text had not 
changed one bit.
  His originalist interpretation of the Constitution meant that he 
viewed the Court as a place to vindicate the law and what it meant, not 
express the preferences of five Justices. Justice Scalia was one of the 
most fervent advocates for the rule of law and a written Constitution. 
On many instances, he made the important point that if the Supreme 
Court was viewed merely as a group of nine individuals making value 
judgments on how our country ought to be governed under our 
Constitution, then the people may well feel that their values were 
equally as valid as those of the ``high nine'' on the Potomac given 
life tenure and a seat on the Supreme Court. It was his strict 
adherence to the text of the Constitution, and not evolving value 
judgments over time, that gave protection to our democracy.
  Justice Scalia was strongly committed to the separation of powers. 
This is so fundamental to the Constitution that, until the first 
Congress, James Madison didn't even think that we needed a Bill of 
Rights because he felt that the separation of powers and the division 
of responsibilities would be protection enough because they viewed the 
concentration of powers, the opposite of separation of powers, as a 
threat to our very liberty. I think he said that the very definition of 
tyranny was the concentration of powers. So he saw the separation of 
powers as nothing less than the most important guarantor of our liberty 
and the most important shield against tyranny.
  In one dissent Justice Scalia wrote ``without a secure structure of 
separated powers, our Bill of Rights would be worthless.'' I guess you 
would have to say he is a Madisonian and not a Federalist by 
temperament and view. This recognition of the importance of separation 
of powers could not be any more important at this point in our history 
because scarcely a month goes by when this administration has chosen to 
undermine this basic constitutional precept by exerting itself and 
claiming authorities which the Constitution does not give the 
President.
  Justice Scalia understood what was at stake. He believed that every 
blow to the separation of powers would harm our Republic and liberty 
itself.
  As Justice Scalia wrote in a case in which the Court unanimously 
struck down the President's violations of the constitutional doctrine 
of separation of powers, he said: ``We should therefore take every 
opportunity to affirm the primacy of the Constitution's enduring 
principles over the politics of the moment.'' He continued, warning 
against ``aggrandizing the Presidency beyond its constitutional 
bounds.'' That is what Justice Scalia did time and again, and that is 
what he reminded all of us about--the importance of doctrines of 
separation of powers, adherence to the text of the Constitution, and 
not making it up as you are going along or expressing value judgments 
that can't be related to the actual text and original understanding of 
the Constitution.
  The question arises: When the President makes a nomination to fill 
the vacancy left by Justice Scalia's death, what is the constitutional 
responsibility of the U.S. Senate? It is true that under our 
Constitution, the President of the United States has a unique role and 
the authority to make a nomination to fill this vacancy, but it is also 
true that the Senate has an essential and unique role to play as well. 
The founding generation regarded the Senate's role in the appointment 
process as ``a critical protection against `despotism.' '' Nothing 
less. That means that the U.S. Senate has a unique and separate role to 
play, and certainly a coequal role with that of the President, in the 
process of filling vacancies on the Court. We are not, and the 
Constitution never intended us to be, a rubber stamp for the President 
of the United States.
  I know that President Obama would love to nominate somebody in the 
waning months of his last term of office as he is heading out the door 
and perhaps fill this vacancy, which in the case of Justice Scalia was 
filled for 30 years, far extending President Obama's term of office. 
That is not what the U.S. Senate is about. We are a coequal branch of 
government, and we have an independent and separate responsibility from 
that of the President. He can nominate anybody he wants, but it is up 
to the Senate, in its collective wisdom, on whether or not to grant 
advice and consent. When we say that, we mean that if the Senate did 
not play its unique role, liberty itself would be weakened and 
despotism strengthened.
  As I said before, the American people can and should have a voice in 
the selection of the next Supreme Court Justice. In the waning days of 
this Presidential election year after voters have already cast their 
ballots in primaries for Republican and Democratic candidates--even as 
I speak, there is a caucus convening today in Nevada--I believe giving 
the American people a choice in who selects the next Justice of the 
Supreme Court is very important. I think it elevates what is at stake 
in this next election this November, and that means simply that this 
vacancy should not be filled at this time by this President.

  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Lankford). The Senator from California.