[Congressional Record (Bound Edition), Volume 162 (2016), Part 2]
[House]
[Pages 2023-2026]
[From the U.S. 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 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

[[Page 2024]]

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 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

[[Page 2025]]

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 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

[[Page 2026]]

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.

                          ____________________