S938 CONGRESSIONAL RECORD — SENATE February 23, 2016 and reassembled when called to order doggedly to this ideal of the good judge Justice Scalia’s approach to judging by the Presiding Officer (Mr. whose role in our system of govern- not only requires self-restraint by PORTMAN). ment is limited to properly inter- judges, but it also demands rigor and f preting the law and impartially apply- accountability by legislators. The good ing it to decide cases. His approach re- judge takes seriously the language the EXECUTIVE CALENDAR quires self-restraint by judges. Judges, legislators enact, so the people can The PRESIDING OFFICER. The Sen- he often said, must take the law as hold accountable the legislators they ator from Utah. they find it and apply it even when elect. Mr. HATCH. Mr. President, are we they do not like the results. In his own The famed Senator and Supreme still in recess? words, ‘‘If you’re going to be a good Court advocate Daniel Webster once The PRESIDING OFFICER. The Sen- and faithful judge, you have to resign said that ‘‘there are men in all ages ate is now postcloture on the nomina- yourself to the fact that you’re not al- who mean to govern well, but they tion. ways going to like the conclusions you mean to govern. They promise to be The Senator may proceed. reach.’’ good masters, but they mean to be REMEMBERING JUSTICE ANTONIN SCALIA Liberty requires such judicial self-re- masters.’’ Those who object to Justice Mr. HATCH. Mr. President, I rise to straint, whether it is en vogue or not. Scalia’s approach embrace the notion honor the memory of one of our Na- As President Reagan put it when he that judges, rather than the people, tion’s greatest champions of limited witnessed the oath of office adminis- should be the masters of the law. government under the Constitution, tered to Justice Scalia in September Justice Scalia’s impact has been Justice Antonin Scalia. Justice Scalia 1986, America’s Founders intended that enormous. A liberal legal commentator set the standard for the kind of judge the judiciary be independent and may have put it best in his review of upon which liberty depends. He was a strong but also confined within the Justice Scalia’s book, ‘‘A Matter of In- dear friend, and I will miss him great- boundaries of a written Constitution terpretation,’’ with these words: ly. and laws. We are all originalists now. That is to say, The purpose of government, accord- No one believed that principle more most judges and legal scholars who want to ing to the Declaration of Independence deeply and insisted on implementing it remain within the boundaries of respectable and the Constitution, is to secure in- more consistently than our Justice constitutional discourse agree that the origi- alienable rights and the blessings of Scalia. His approach to the law was nal meaning of the Constitution and its liberty. Liberty exists by design and, often called textualism or, in the con- amendment has some degree of pertinence to as Andrew Jackson put it, by eternal stitutional context, originalism—an the question of what the Constitution means today. vigilance. America’s Founders were approach which is nothing more than clear that liberty requires separated determining the original public mean- Justice Scalia brought the bound- and limited government powers, in- ing of the legal text. It leaves the law- aries of respectable constitutional dis- cluding a particular role for unelected making to the lawmakers and the peo- course more in line with the principles judges. Judges who seek to determine ple they represent, rather than to the of liberty than they had been in a gen- what the law is promote liberty; judges judge. eration. For that, our liberty is more who say what they think the law The Senate unanimously confirmed secure, and we should be deeply grate- should be undermine it. Justice Scalia’s nomination on Sep- ful. Put simply, judges must interpret tember 17, 1986, the 199th anniversary Mr. President, I suggest the absence and apply the law impartially; that is, of the Constitution’s ratification. That of a quorum. by setting aside their own opinions, was very appropriate because his ap- The PRESIDING OFFICER. The preferences, or prejudices. Interpreting proach gives the Constitution its real clerk will call the roll. and applying the law impartially par- due, treating it as more than empty The senior assistant legislative clerk ticularly leaves the American people words on a page but as words that al- proceeded to call the roll. and their elected representatives in ready have meaning and substance. Mr. CORNYN. Mr. President, I ask charge of the law. When they interpret Justice Scalia knew that the Constitu- unanimous consent that the order for written law impartially, they discern tion cannot limit government’s power the quorum call be rescinded. what the original public meaning of if government actors—including The PRESIDING OFFICER. Without the law is. When judges apply the law judges—define the Constitution. objection, it is so ordered. impartially, they pay no regard to the Justice Scalia rejected judicial activ- REMEMBERING JUSTICE ANTONIN SCALIA AND identity of the parties or the political ism—what he called power-judging— FILLING THE SUPREME COURT VACANCY effects of their decision. Judges can that treats the law as shape-shifting. Mr. CORNYN. Mr. President, this neither make nor change the law they For activists, the laws and the Con- past Saturday I was honored to attend use to decide cases. That is the kind of stitution have no fixed meaning but the funeral mass for Justice Scalia. I judge liberty requires. That is the kind can rather be contorted and manipu- couldn’t help but recall back when of judge Antonin Scalia was. lated to fit the judge’s own policy pref- President Reagan nominated him for When President Ronald Reagan first erence. Such an approach puts the the Supreme Court of the United appointed Antonin Scalia to the U.S. unelected judge, not the American peo- States. At that time Judge Scalia said Court of Appeals for the DC Circuit in ple in their elected representatives, in that ‘‘[his] only [agenda] was to be a 1982, the future Justice said to those of the position of supreme lawmaker. good judge.’’ us on the Judiciary Committee that if Thomas Jefferson warned that if Today, 30 years later, it is clear that confirmed the time for him to opine on judges controlled the Constitution’s Justice Scalia, who until his death the wisdom of laws would be ‘‘bygone meaning, it would be ‘‘a mere thing of served longer than any of the current days.’’ When he again came before the wax in the hands of the judiciary, members of the Supreme Court of the committee a few years later as a Su- which they may twist and shape into United States, was more than a good preme Court nominee, he repeated that any form they please.’’ That is exactly judge. In fact, he was a great judge. He setting aside personal views is ‘‘one of what activist judges do, treating the was a giant of American jurisprudence. the primary qualifications for a judge.’’ law like clay that they can mold in As I got to know him even better He described a ‘‘good judge’’ as one who their own image. during the course of the more recent starts from the law itself and not Rather than reinterpreting the law in years, thanks to a mutual acquaint- ‘‘where I would like to come out in [a] his own image, the good judge con- ance, I can tell you he was also a good particular case.’’ forms his decisions to the fixed mean- man. My first encounter with Justice Justice Scalia’s brilliance and wit ing of the law. By insisting that even Scalia was back in 1991 when I won an were certainly impressive, but they judges must be the servants rather election to be on the Texas Supreme were powerfully connected to this deep- than the masters of the law, Justice Court and the court invited Justice ly considered and deliberately framed Scalia was simply following the lead of Scalia to come to Austin, TX, and ad- judicial philosophy rooted in the prin- America’s Founders and empowering minister the oath of office. At that ciples of the Constitution. He stuck the American people. time I already admired his intellect VerDate Sep 11 2014 23:31 Feb 23, 2016 Jkt 059060 PO 00000 Frm 00014 Fmt 4624 Sfmt 0634 E:\CR\FM\G23FE6.021 S23FEPT1 smartinez on DSK4TPTVN1PROD with SENATE February 23, 2016 CONGRESSIONAL RECORD — SENATE S939 and commitment to the Constitution value judgments on how our country tial and unique role to play as well. and the rule of law, and believe me, he ought to be governed under our Con- The founding generation regarded the was an inspiration to young judges like stitution, then the people may well feel Senate’s role in the appointment proc- me who were inspired to do the same. that their values were equally as valid ess as ‘‘a critical protection against He has been an inspiration to so many as those of the ‘‘high nine’’ on the Po- ‘despotism.’ ’’ Nothing less. That means judges, lawyers, and law students for tomac given life tenure and a seat on that the U.S. Senate has a unique and decades. the Supreme Court. It was his strict separate role to play, and certainly a I admired and respected Justice adherence to the text of the Constitu- coequal role with that of the President, Scalia.