[Congressional Record (Bound Edition), Volume 162 (2016), Part 2]
[Senate]
[Pages 2100-2102]
[From the U.S. Government Publishing Office, www.gpo.gov]




   REMEMBERING JUSTICE ANTONIN SCALIA AND FILLING THE SUPREME COURT 
                                VACANCY

  Mr. BLUNT. Mr. President, I wish to talk about Judge Scalia for a few 
minutes, and then I will address the vacancy on the Court.
  There is no question that the Supreme Court has lost a strong and 
thoughtful voice. No matter what issues the Justices on the Court might 
have disagreed with, or even when there was a disagreement on how to 
interpret the Constitution, there is no question that Judge Scalia had 
a unique capacity to get beyond that. He will be missed by the Court 
for both his intellect and his friendship. He was an Associate Justice 
on the Court for almost 30 years. He was a true constitutional scholar, 
both in his work before the Court and on the Court, and he brought a 
lifetime of understanding of the law to the Court.
  He began his legal career in 1961, practicing in private practice. In 
1967, he became part of the faculty of the University of Virginia 
School of Law. In 1972, he joined the Nixon administration as General 
Counsel for the Office of Telecommunications Policy, and from there he 
was appointed Assistant Attorney General for the Office of Legal 
Counsel. He brought a great deal of knowledge to his work and finished 
the first part of his career as a law professor at the University of 
Chicago, and

[[Page 2101]]

that is the point where he became a judge.
  In 1982, President Reagan appointed him to the U.S. Court of Appeals 
for the District of Columbia, a court that gets many of the cases that 
wind up on the Supreme Court. He was on that court for a little more 
than 4 years.
  In 1986, President Reagan nominated him to serve as an Associate 
Justice. He was an unwavering defender of the Constitution, and as a 
member of the Supreme Court, he had the ability to debate as perhaps no 
one had in a long time--and perhaps no one will for a long time. He had 
a sense of what the Constitution was all about and a sense of what the 
Constitution meant, and by that he meant what the Constitution meant to 
the people who wrote it.
  There is a way to change the Constitution. If the country and the 
Congress think that the Constitution is outmoded in the way that it 
would have been looked at by the people who wrote it, there is a 
process to do something about that. That process was immediately used 
when the Bill of Rights was added to the Constitution and can still be 
used if people feel as though the Constitution no longer has the same 
meaning as what the people who wrote it and voted on it thought it 
meant. Justice Scalia had the ability to bring that up in every 
argument and would sometimes argue against his own personal views. He 
argued for what the Constitution meant and what it was intended to 
mean. His opinions were well reasoned, logical, eloquent, and often 
laced with both humor and maybe a little sarcasm, but they were 
grounded with the idea that judges should interpret the Constitution 
the way it was written.
  His contributions to the study of law left a profound mark on the 
legal profession. Lawyers, particularly young lawyers in many cases, 
talk about the law differently than they did before Justice Scalia 
began to argue his view of what the Constitution meant and what the 
Court meant. He had a great legal mind.
  He was fun to be with. I will personally miss the opportunity to talk 
to him about the books we were reading or books the other one should 
read or maybe books that the other one should avoid reading because of 
the time required to read it. He had a broad sense of wanting to 
challenge his own views and was able to challenge other people's views 
not only in a positive way but in a way that he thought advanced the 
Constitution and what the Constitution meant to the country.
  As I stand here today, I am sure many people all over America and the 
people who the Scalias came into contact with are continuing to 
remember his family. Our thoughts and prayers are with his wife 
Maureen, their nine children, and their literally dozens of 
grandchildren. I am not sure if the number is 36 or 39, but it is an 
impressive number.
  Those who had a chance to see, be there, or read his son's eloquent 
handling of the funeral service and the eulogy can clearly see the 
great legacy he and Maureen Scalia left to the country.
  I am not a lawyer, which is often the most popular thing I say, so I 
don't want to pretend to be a lawyer here talking about the law and the 
Constitution, but you don't really need to be a brilliant lawyer to 
understand the Constitution or understand what Justice Scalia was going 
to be.
  I was a history teacher before I came here, and I know the Presiding 
Officer was a university president. I was the first person in my family 
to graduate from college. I had unbelievable opportunities because of 
where we live.
  We have the Constitution, and there is no magic as to the number of 
Justices that should be sitting on the Court at any given time. In 
fact, the Constitution doesn't even suggest what the number should be, 
and there have been different numbers over time. For some years now the 
number has been nine, but there have often not been nine Justices 
sitting. In the event of a recusal or some other reason that a Justice 
has to leave, such as resigning to do something else, there has often 
not been nine Justices. In fact, there have often been eight Justices. 
There has often been a Court that could easily wind up in a 4-to-4 tie. 
In fact, since World War II, the Court has had only 8 Justices 15 
times.
  Right after World War II and about a month after Harry Truman became 
President--when he was a Member of the Senate, he used the desk that I 
now get to use--he asked Justice Robert Jackson to be the chief 
prosecutor at Nuremberg. Justice Jackson then went to Nuremberg, and 
for the better part of a year and a half--from May of 1945 until 
October of 1946--he was not sitting on the Court and wasn't making 
decisions on the Court. He was the chief prosecutor at the Nuremberg 
trials.
  A tie on the Court can do a lot of things. It can uphold a lower 
court decision. A tied Court can decide to rehear a case, which is also 
not unusual in the history of the country. Again, you can be tied even 
if there are nine Justices and one of them, for whatever reason, 
decides not to participate in that case. When that happens, the Court 
can do a number of things and will.
  This is an important decision, and it is a decision in the shadow of 
the next election. We are 9 months and a few days away from people 
getting a chance to vote, and a lifetime appointment on the Court is an 
important thing.
  Justice Scalia was appointed by Ronald Reagan and served for three 
decades. He served for a quarter of a century after Ronald Reagan left 
the White House and for a decade after President Reagan died. This is 
something worth thinking about, and frankly at this moment in history 
and in other moments in history when a vacancy has occurred in an 
election year, it has often been the case that the decision is that the 
American people ought to have a say on who sits in that Supreme Court 
seat. That is what will happen this time, and I think it is the best 
thing to happen this time.
  There is a lot at stake. The Court has had 5-to-4 votes on decision 
after decision. What the Court does on the Second Amendment matters, 
and what the Court does on the First Amendment matters. The first 
freedom in the First Amendment is freedom of religion. No other country 
was ever founded on the principle that the right to pursue your 
conscience and the right to pursue your faith is a principal tenant of 
the founding of this government. It was a principal tenet in the 
Revolution. More importantly, it was immediately added to the 
Constitution when there was some concern that maybe the Constitution 
was not clear enough about this fundamental principle.
  During a time when the Obama administration is suing the Little 
Sisters of the Poor because the Little Sisters of the Poor doesn't want 
their health care plan to be a plan that includes things that are 
different than their faith beliefs, freedom of religion is very 
important.
  That is one of the cases before the Court right now. I don't know how 
the Court will decide to determine it. I do know there is a reason we 
should be concerned about freedom of religion, the right of conscience. 
President Jefferson, in writing to a church that asked him about 
individual freedom, said to that church--I think it might have been 
late in his administration, might have been an 1808 letter--of all the 
rights we have, right of conscience is the one we should hold most 
dear. The American people need to be thinking about that as they 
determine the next President, who is likely to not just fill this 
vacancy but likely to fill more than one vacancy during their time in 
office.
  Mrs. Clinton says if she is elected President, she will not appoint 
anybody to the Supreme Court who will not reverse the freedom of speech 
case in Citizens United. Sounds to me as though the Presidential 
candidates are willing to make the Court a major issue in this 
campaign. Voters should have the right to make the Court a major issue 
in this campaign as well--freedom of religion, freedom of speech, the 
Second Amendment, the Tenth Amendment that says anything the 
Constitution doesn't say the Federal Government is supposed to do is 
left to the States. The closer you are to where a problem is, when 
solving that problem, the more likely you are going to

[[Page 2102]]

get a commonsense solution. That is why that Tenth Amendment is there 
and why it needs to be vigorously adhered to.
  These are important times. Anytime we have an election in the 
country, there is always a sense that this may be the most important 
election we have ever had. They all are and particularly an election 
where the constitutional principles of government, where Executive 
overreach, where regulators who are unaccountable and out of control 
are one of the big concerns in America today. It is an important time 
to be thinking about the Supreme Court and an important time to be 
thinking about the responsibilities of citizens and the 
responsibilities of the next President of the United States. This 
President has every constitutional right and obligation to nominate 
somebody to a vacancy on the Supreme Court, but there is a second 
obligation in the Constitution; that is, the obligation of the Senate 
to confirm that nomination. I have a view that the answer to that 
question is not this person, not right now because we are too close to 
making a big decision about the future of the country to not include 
this process of what happens to the Supreme Court in that process.
  I wish the process of democracy well, the American people well as 
they think about these things, and the Senate well as we do the other 
work that the Constitution requires us to do.
  I yield the floor.
  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. MERKLEY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Perdue). Without objection, it is so 
ordered.

                          ____________________