[Congressional Record (Bound Edition), Volume 162 (2016), Part 2]
[Senate]
[Pages 1919-1920]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          REMEMBERING JUSTICE
                             ANTONIN SCALIA

  Mr. McCONNELL. Madam President, I wish to say a few words about a 
towering figure of the Supreme Court who will be missed by many. 
Antonin Scalia was literally one of a kind. In the evenings, he loved 
nothing more than a night at the opera house. During the day, he often 
starred in an opus of his own.
  For most watchers of the Court, even many of Scalia's most ardent 
critics, the work he produced was brilliant, entertaining, and 
unmissable. Words had meaning to him. He used them to dissect and 
refute, to amuse and beguile,

[[Page 1920]]

to challenge and persuade. And even when his arguments didn't carry the 
day, his dissents often gathered the most attention anyway.
  President Obama said that Justice Scalia will be ``remembered as one 
of the most consequential judges and thinkers to serve on the Supreme 
Court.'' I certainly agree. It is amazing that someone who never served 
as Chief Justice could make such an indelible impact on our country. He 
is, in my view, in league with Oliver Wendell Holmes, Louis Brandeis, 
and John Marshall Harlan as perhaps the most significant Associate 
Justices ever.
  I first met him when we both served in the Ford administration's 
Justice Department. I was fortunate, as a young man, to be invited to 
staff meetings that featured some of the most influential conservative 
judicial minds of the time. Robert Bork was there. He was the Solicitor 
General. Larry Silverman was there. He was the Deputy Attorney General. 
Everyone in the Department agreed on two things: One, Antonin Scalia 
was the funniest lawyer on the staff; and, two, he was the brightest.
  Scalia was usually the smartest guy in whatever room he chose to walk 
into. Of course, he didn't need to tell you he was the smartest. You 
just knew it.
  I came back to Washington a few years later as a Senator on the 
Judiciary Committee, serving there when Scalia was nominated to the 
Supreme Court. His views on the Court were strong, and they were clear. 
Some tried to caricature his judicial conservatism as something it was 
not. It was not political conservatism.
  Scalia's aim was to follow the Constitution wherever it took him, 
even if he disagreed politically with the outcome. We saw that when he 
voted to uphold the constitutional right of protesters to burn the 
American flag. He upheld their right to do that. This is what he said: 
``If it was up to me, I would have thrown this bearded, scandal-wearing 
flag burner into jail, but it was not up to me.''
  It was up to the Constitution.
  ``If you had to pick . . . one freedom . . . that is the most 
essential to the functioning of a democracy, it has to be freedom of 
speech,'' Scalia once said. He went on:

       Because democracy means persuading one another. And then, 
     ultimately, voting. . . . You can't run such a system if 
     there is a muzzling of one point of view. So it's a 
     fundamental freedom in a democracy, much more necessary in a 
     democracy than in any other system of government. I guess you 
     can run an effective monarchy without freedom of speech. I 
     don't think you can run an effective democracy without it.

  Justice Scalia defended the First Amendment rights of those who would 
express themselves by burning our flag just as he defended the First 
Amendment rights of Americans who wished to express themselves by 
participating in the changemaking process of our democracy: the right 
to speak one's mind, the right to associate freely, the rights of 
citizens, groups, and candidates to participate in the political 
process.
  Numerous cases involving these kinds of essential First Amendment 
principles came before the Court during his tenure. I filed nearly a 
dozen amicus curiae briefs in related Supreme Court cases in recent 
years, and I was the lead plaintiff in a case that challenged the 
campaign-finance laws back in 2002.
  These core First Amendment freedoms may not always be popular with 
some politicians who would rather control the amount, nature, and 
timing of speech that is critical of them, but Scalia recognized that 
protecting the citizenry from efforts by the government to control 
their speech about issues of public concern was the very purpose of the 
First Amendment. He knew that such speech--political speech--lay at its 
very core.
  It is a constitutional outlook shared by many, including the members 
of an organization such as the Federalist Society. You could always 
count on him attending the Society's annual dinner. One of his five 
sons, Paul, is a priest, and he always gave an opening prayer. This is 
what Scalia said about that.

       If in an old-fashioned Catholic family with five sons you 
     don't get one priest out of it, we're in big trouble. The 
     other four were very happy when Paul announced that he was 
     going to take one for the team.

  That is the thing about Antonin Scalia. His opinions could bite. His 
wit could be cutting. But his good humor was always in abundant supply. 
One study from 2005 concluded decisively--or as decisively as one can--
that Scalia was the funniest Justice on the Court.
  He was also careful not to confuse the philosophical with the 
personal.

       I attack ideas. I don't attack people. If you can't 
     separate the two, you gotta get another day job.

  These qualities endeared him to many who thought very differently 
than he did--most famously, his philosophical opposite on the Court, 
Ruth Bader Ginsburg. Their friendship began after Ginsburg heard him 
speak at a law conference. Here is what she said: ``I disagreed with 
most of what he said,'' she recalled, ``but I loved the way he said 
it.''
  Scalia put it this way:

       She likes opera, and she's a very nice person. What's not 
     to like?

  Well, he continued, ``except her views on the law.''
  Ginsburg called him Nino. Scalia referred to the pair as ``the Odd 
Couple.'' They actually vacationed together. They rode elephants. They 
parasailed. And just a few months ago, their relationship was captured 
in the perfect medium: opera, their shared love.
  ``Scalia/Ginsburg: A (Gentle) Parody of Operatic Proportions'' 
premiered last summer. In it, a jurist named Scalia is imprisoned for 
``excessive dissenting,'' and it is none other than Ginsburg, or an 
actress faintly resembling her, who comes crashing through the ceiling 
to save him. It is the kind of show that is larger than life, and so 
was Nino Scalia.
  He leaves behind nine children and a wife who loved him dearly, 
Maureen. Maureen would sometimes tease her husband that she had her 
pick of suitors and could just as well have married any of them. But 
she didn't, he would remind her, because they were wishy-washy, and she 
would have been bored.
  ``Whatever my faults are,'' Scalia once said, ``I am not wishy-
washy.''
  Far from wishy-washy and anything but boring, Justice Scalia was an 
articulate champion of the Constitution. He was a personality unto 
himself, and his passing is a significant loss for the Court and for 
our country. We remember him today. We express our sympathies to the 
large and loving family he leaves behind. We know our country will not 
soon forget him.

                          ____________________