Hatch Marks 25 Years Since Antonin Scalia’s Appointment To The Supreme Court

In a speech on the Senate Floor Thursday, U.S. Senator Orrin Hatch (R-Utah), a current member and former Chairman of the Senate Judiciary Committee, commemorated the 25th anniversary of the appointment of Antonin Scalia to the U.S. Supreme Court. After a unanimous vote in the Senate, Justice Scalia was appointed to the High Court on September 17, 1986.

In his remarks today, Hatch said that “Justice Scalia believes that the only proper way to interpret the Constitution is to find the meaning it already has, the meaning given to the Constitution by the people who alone had authority to establish it.” Hatch also praised Scalia’s “deep love for family and the sacrifice that family makes when someone like him is devoted to public service.”

The full text of the speech is below:

Mr. President, September 17 was an anniversary with double significance for our country.

On September 17, 1787, delegates to the Constitutional Convention in Philadelphia held their final meeting and signed the Constitution they had crafted.

And on September 17, 1986, this body voted unanimously to confirm Justice Antonin Scalia’s appointment to the Supreme Court of the United States. Today, 25 years later, he is the senior member of the Court.

These two events are profoundly related because Justice Scalia is literally helping us re-discover the real Constitution. His approach to doing the work of judges is helping us re-discover the Constitution that America’s founders gave us, the Constitution that is powerful and solid, the Constitution that belongs to the people, protects our rights, limits government, and makes liberty possible.

Antonin Scalia was born in Trenton, New Jersey, on March 11, 1936. After graduating first in his high school class, valedictorian from Georgetown University, and magna cum laude from Harvard Law School, he embarked on a legal career that would include stints in private practice, government service, the legal academy, and finally the judiciary.

President Reagan nominated then-Professor Scalia to the U.S. Court of Appeals for the D.C. Circuit in July 1982. He appeared before the Senate Judiciary Committee on August 4, 1982, another date with constitutional significance. The hearing began just minutes after the Senate voted 69-31 to approve a balanced budget constitutional amendment, the only time that this body has done so – at least so far.

I was an original co-sponsor of that amendment.

I mention that because Justice Scalia’s approach to the Constitution means that the people, and the people alone, have authority to change it through the amendment process outlined in the Constitution. The Senate’s vote on that balanced budget amendment was part of that process.

Professor Scalia told the Judiciary Committee that, if he were appointed to the bench, his days of being able to comment on the wisdom of laws enacted by Congress would be “bygone days.”

The sense that judges are doing something fundamentally different than private citizens, fundamentally different than legislators, defines his judicial philosophy. That same theme dominated his confirmation hearing four years later, when President Reagan nominated Judge Scalia to be an Associate Justice of the Supreme Court.

As that hearing opened, I quoted from the Chicago Tribune that the nominee was determined “to read the law as it has been enacted by the people’s representatives rather than to impose his own preference upon it.” And when Justice Scalia took the oath of judicial office, President Reagan said that the judiciary must be independent and strong, but confined within the boundaries of a written Constitution.

Public officials must swear to uphold and defend this written Constitution. It declares itself to be the supreme law of the land. More than 90 percent of Americans say that it is very important to them. But what exactly is it and what are judges supposed to do with it?

The answer to that question defines Justice Scalia’s career and its lasting impact on all of us.

The Constitution is a document, the oldest written charter of government in the history of the world. Professor Steven Calabresi, who teaches at Northwestern University Law School and once clerked for Justice Scalia, writes that when Americans think of liberty, they think of documents, especially of the Constitution.

Three statements at the turn of the 19 th century tell us what we need to know.

First, the Supreme Court in 1795 literally asked the same question, what is the Constitution? Here is their answer: “The Constitution is fixed and certain; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the legislature, and can be revoked or altered only by the authority that made it.”

Second, President George Washington echoed this theme a year later in his farewell address. He said: “The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.”

Third, the Supreme Court in its 1803 decision Marbury v. Madison wrote that through the Constitution, the people established certain limits for the federal government. “[A]nd that those limits may not be mistaken or forgotten, the Constitution is written.”

There you have it.

The Constitution is the means by which the people express their will and set limits on government. The people alone have authority to change the Constitution and, until they do, it is fixed and certain. One obvious way to alter the Constitution is to change its words. But a more subtle, and even more effective, way to alter the Constitution is to change its meaning.

Words themselves are just the form, but the meaning of those words is the substance. The real Constitution is its words and their meaning together. Whoever controls the meaning of the Constitution controls the Constitution itself.

When we say that only the people may alter the Constitution, that simply must mean that only the people can change the words or their meaning. For the Constitution to be what it is supposed to be, both its words and their meaning must remain fixed and certain until the people choose to change them.

Justice Scalia delivered the 1997 Wriston Lecture at the Manhattan Institute. Its title was simply On Interpreting the Constitution. He described his topic as “what in the world we think we’re doing when we interpret the Constitution of the United States.” This is why it is so important to clarify just what the Constitution is in the first place, so that we know what judges are supposed to do with it.

Justice Scalia believes that the only proper way to interpret the Constitution is to find the meaning it already has, the meaning given to the Constitution by the people who alone had authority to establish it. Justice Scalia calls this approach originalism.

In his Wriston Lecture, he said that the Constitution “means what it meant when it was written.” No one is more candid than Justice Scalia that this approach is not easy, but no one is more certain than Justice Scalia that this approach alone is legitimate. This approach alone preserves both the people’s control of the Constitution and the Constitution’s control of judges.

In 2005, Justice Scalia delivered a speech at the Woodrow Wilson International Center for Scholars titled Constitutional Interpretation the Old Fashioned Way. He described originalism as beginning with the text and giving it the meaning that it bore when it was adopted by the people. With all due respect to Justice Scalia, he did not invent that approach but he is helping us return to these principles.

In his service on the Court, in his speeches and writings, Justice Scalia is helping us rediscover what America’s founders told us to do from the start. I have to emphasize that Justice Scalia has for 25 years implemented the very same approach that he described in his hearing before the Judiciary Committee.

Vice President Biden was the Ranking Member at the time, and his very first question was about original meaning as a means of interpreting the Constitution.

Justice Scalia explained later in the hearing that the starting point is “the text of the document and what it meant to the society that adopted it….I am clear on the fact that the original meaning is the starting point and the beginning of wisdom.”

This body knew that Justice Scalia would take this approach when we unanimously confirmed him and he has stayed true to his word throughout his judicial career.

In addition to instructing us about the principles that we should once again follow, Justice Scalia has been sounding the alarm about failing to do so. He condemns as “power-judging” the modern trend of judges substituting their own constitutional meaning for that of the people. This amends the Constitution as surely as changing its very words. Judges continually find creative ways to mask their power judging. They speak of deeply embedded social or cultural values, evolving standard of decency, and what the Constitution should mean in our time.

One of Justice Scalia’s former colleagues even said that the Constitution is “a sparkling vision of the supremacy of the human dignity of every individual.” All of these evolving standards and sparkling visions are different ways of saying the same thing, that judges have taken control of the Constitution by controlling what it means. Justice Scalia will have none of it.

In a 1996 dissent, he rejected this for what it really is, namely, the Court’s Constitution-making process. He wrote: “The Court must be living in another world.  Day by day, case by case, it is busy designing a Constitution for a country I do not recognize.”

One of the many things I like about Justice Scalia is that he applies his principles across the board. He has often pointed out that judges amend the Constitution by changing its meaning in ways that liberals like, but also in ways that conservatives like. All of it, he says, is wrong.Judges have no authority to design a new Constitution no matter what it looks like. Sometimes I wonder how anyone could think otherwise.

How could anyone believe that unelected judges may take a Constitution that opens with the words We the People and turn it into something else? Why would anyone tolerate judges who change the very Constitution that judges are supposed to follow?

Justice Scalia believes that no one should, and he challenges us to live up to the principles that define our system of government and that make our liberty possible. The real Constitution is solid and fixed, it was established and can be changed only by the people. That Constitution, the real Constitution, is strong enough to limit government and protect liberty.

But that Constitution has been replaced by a very different one. Since about the 1930s, the real Constitution controlled by the people has been replaced by a fake Constitution controlled by judges. This Constitution is weak, pliable, and shifting. It morphs and modifies, it shimmers and it shakes. This Constitution is a figment of the judicial imagination, and it is written in disappearing ink.

Thomas Jefferson warned that if judges controlled what the Constitution means, it would become “a mere thing of wax in the hands of judiciary, which they may twist and shape into any form they please.” Doing so, Jefferson said, would make the Constitution nothing but a blank paper.

This is not just an academic exercise. If you think that the latest judicial mood swing is strong enough to limit government, think again. If you think that a lump of wax or a piece of blank paper is firm enough to protect your liberty, think again. A Constitution that can be changed by nothing more than a judge’s imagination is no Constitution at all.

This struggle over what the Constitution really is affects not only what judges do with it, but also how judges are chosen in the first place. If judges can change the Constitution by changing its meaning, then the judicial selection process will inevitably focus on the Constitution that a judicial nominee is likely to create. It will inevitably focus on the form into which a judicial nominee can be expected to shape and twist the Constitution.

Speaking at the State University of New York School of Law in 2002, Justice Scalia warned that if the Constitution’s meaning is determined by judges rather than the people, the selection of those judges becomes “a very political hot potato.  Every time you need to appoint a new Supreme Court justice, you are going to have a mini-plebiscite on what the Constitution means.”

In a 2007 speech at the Jesse Helms Center, Justice Scalia similarly compared the judicial confirmation process to a mini constitutional convention. If judges may write a new Constitution through their rulings, he said, the process will be about finding a nominee who will “write the Constitution that you want.”

Justice Scalia is also affecting how we do things here in the legislative branch. The more that judges are willing to do our work for us, the less of it we are likely to do ourselves. On the other hand, if judges insist that we legislators say what we mean and mean what we say, then we are likely to draft laws differently.

The law that we enact, after all, is the text of our statutes and not the speeches, reports, comments, thoughts, or other things that consume the legislative process. Knowing that the judges who have to interpret and apply our statutes will look only at the law is an incentive for us to make sure that if it is to be the law, it must be in the statute.

That approach is more transparent, more accountable, and more reliable and we have Justice Scalia to thank for pushing us in that direction. Justice Scalia seems to be the Justice that liberals love to hate. If this were a Harry Potter movie, liberals would put Justice Scalia on a wanted poster as Undesirable No.1. And yet they just can’t seem to look away.

The principles on which he stands are so compelling, and his way of wielding them so powerful, that whether you love him or hate him, you simply must deal with him. Those who think judges may just make it up as they go along have a hard time figuring Justice Scalia out because he does not follow their game plan.

Only a few months into his first term on the Supreme Court, the Washington Post reported that though Justice Scalia was expected to be a hard-charging conservative, he was voting with liberal Justice William Brennan almost two-thirds of the time.

Several weeks later, another Post headline read: Newest Reagan Appointee Joins Liberals and the percentage of agreement with Justice Brennan seemed to be going up. Conservative George Will’s column at the end of the 1986-87 Supreme Court term bore the title Good Grief, Scalia! Not to worry, though, because a Post headline just one year later read Scalia May Be Successor as Conservatives’ Chief Advocate.

The real way to know Justice Scalia, you see, is to know his principles. They are principles drawn directly from America’s founding, from the nature of limited government under a written Constitution. No one works harder to articulate and apply those principles, day in and day out, than Justice Scalia. Research in the last several years has demonstrated that he is the funniest Justice in oral argument and the most cited in law reviews and journals.

His lectures around the country are consistently standing-room-only. His interview on the University of California’s Legally Speaking television program has been viewed at least six times as often as any other guest. No doubt some of this popularity, this buzz, comes from his engaging personality, his wit, and his sense of humor. People just enjoy being with a person like him.

But it also comes from the substance, the sheer magnitude, of the message that he delivers in that unique way. People like a witty, engaging person but they also respect powerful principles and a message that weighs more than a passing intellectual fad.

I have so far spoken today about Justice Scalia the jurist. I cannot close this tribute, however, without a few comments about Antonin Scalia the man. The hearing on his Supreme Court nomination 25 years ago took place in the Judiciary Committee’s regular hearing room, which is much smaller than where we hold such hearings today. His hearing lasted just two days, including testimony by witnesses.

I can still remember that Justice Scalia’s family occupied more than one row in the audience. As Justice Scalia introduced them, including all nine of his children, he said that “I think we have a full committee.” Media cameras went crazy every time his youngest daughter Meg would lean her head on her mother’s shoulder. Meg was just six years old then, but as I remember she held up very well as we lawyers talked about all sorts of jurisprudential minutiae.That sight impressed on me Justice Scalia’s deep love for family and the sacrifice that family makes when someone like him is devoted to public service. He is also a man of deep faith and love for our country and the values on which it is founded.

Five years ago, I marked Justice Scalia’s 20 th anniversary in a speech here on the Senate floor. At that time, I put into the record letters from some of his former law clerks, and I want to do the same today. I ask consent to place in the record after my remarks letters from the following former law clerks:

Edward Whelan, who clerked during the October 1991 term and later served as my counsel when I was Ranking Member of the Judiciary Committee, is now President of the Ethics and Public Policy Center.

Paul Clement, who clerked during the October 1993 term and later served as Solicitor General of the United States, is now a partner in the Bancroft law firm.

Mark Filip, who also clerked during the October 1993 term and later served as a U.S. District Judge, is now a partner at Kirkland & Ellis in Chicago.

Brian Fitzpatrick, who clerked during the October 2001 term, is now an Associate Professor at Vanderbilt Law School.

And Bryan Killian, who clerked during the October 2007 term, is now an Associate at the Bingham McCutchen law firm here in Washington.

In closing, I want to say that all Americans owe Justice Antonin Scalia a deep debt of gratitude. Every day he serves on the Supreme Court, Justice Scalia gives a gift to all of us. He is reintroducing us to the principles and to the document that make our liberty possible. He invites us, in the words of the Kellogg’s Corn Flakes commercial, to try it again for the first time.

I return to that scene of his first judicial confirmation hearing in 1982. The constitutional amendment process was underway that day, but it was rightly happening on the Senate floor rather than in the confirmation of a federal judge.Keeping clear the principle that only the people have authority to change the Constitution will give us, as Justice Scalia often puts it, an enduring rather than an evolving Constitution.

We must step up and govern ourselves rather than look to judges to do it for us. I hope that we see this opportunity for what it is, following Justice Scalia’s lead, grasping again the principles of liberty and resolving never to let them go. I yield the floor.

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