February 14, 2016

"But I hope he sends us someone smart," said Scalia to David Axelrod. "I hope he sends us Elena Kagan."

Writes Axelrod, at CNN.com today.

He's relating a conversation he had with Scalia when they happened to have been seated together at the White House Correspondents Association dinner, right after David Souter had announced his retirement.
I was surprised that a member of the court would so bluntly propose a nominee, and intrigued that it was Kagan.... Later, I learned that Scalia and Kagan were friends.... Each was a graduate of Harvard Law School and had taught at the University of Chicago Law School, though in different eras. They were of different generations, he the son of an Italian immigrant, she a Jew from New York City's left-leaning West Side. But they shared an intellectual rigor and a robust sense of humor. And if Scalia could not have a philosophical ally in the next court appointee, he had hoped, at least, for one with the heft to give him a good, honest fight.
Kagan did not get that nomination, though she got the next one, when Justice John Paul Stevens retired a year later. The Souter seat went to Sonia Sotomayor... and perhaps you remember that before she was nominated, when she was thought to be the top candidate, she was openly attacked in the press as not smart enough. Jeffrey Rosen made "The Case Against Sonia Sotomayor":
Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It's customary, for examples, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn't distinguish between substantive and trivial points, with petty editing suggestions--fixing typos and the like--rather than focusing on the core analytical issues.
ADDED: I assume Axelrod's story is true. He did wait to tell it until the one who could contradict it died, but what advantage is there in this that would make it seem like a lie? To my ear, it hurt Sotomayor, but Axelrod might not have thought about that. So I see an advantage in saying that the honorable conservative wanted a worthy liberal with whom to engage and therefore, perhaps, that it might honor him to be replace by a really smart person of Obama's choice.

28 comments:

Oso Negro said...

Maybe the very notion of "substantive points" is a reflection of systemic racism and only serves to denigrate a wise Latina.

jimbino said...

So this is how we end up with nothing but Jews and Roman Catholics on SCOTUS? They are dinner and drinking buddies who just keep recommending each other for nomination. No atheist, muslim, hindu or buddhist stands a chance.

Michael K said...

Sotomayer has what should have been Miguel Estrada's seat but Senate Democrats filibustered his nomination.

HuffPo is hysterical.

readering said...

Spoken like a man who had spent nearly 3 decades cooped up in rooms with 8 people. We forget how important being able to get along is in such circumstances. I've been impressed by the relative lack of acrimony on the Court over the past 20 years or so, even while the rancor in the larger world over its decisions has intensified. Maybe because so many Ivy League tri-state ethnics.

Char Char Binks said...

I predict Ruth will get a new sister, or should I say sistah.

Rocco said...

...That's why we hope that in healthy families, the younger generations step up and don't let their sick elderly fly, not alone especially.

I just had an image of your grand niece running after you in a crowded airport yelling "Aunt Mary!! Aunt Mary!! You forgot to take your Trilafon!!!

pm317 said...

There is an article on the Dailymail about Scalia and Ginsberg's friendship. So the intellectuals on both sides of the spectrum in the SC get along fine. It is only the crass and idiot political class represented by Obama on the one hand and all the Congress critters on the other that don't talk to each other and have no intellectual way of coming to a consensus that is better for the country.

coupe said...
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coupe said...
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Browndog said...

I have every reason to suspect that Scalia would never say such a thing about Kagan (based off her writings), and that Axlerod would absolutely lie about it (having researched his history, and the possibility it was his grandfather that started a popular communist newspaper in Germany while exiled from Russia).

Jack Wayne said...

I've seen a pretty good analysis that says that the Senate is in recess and Obama can make an appointment. I hope he goes for it. It would be a very clarifying moment for the election.

Steve Uhr said...

If Cruz was president in his final year and the senate was controlled by republicans, would he be saying the nomination should wait for the next president. Unlikely.

MikeR said...

Neat how everyone who _knows_ anything thinks Scalia was amazing, and everyone who doesn't, doesn't? Who should one believe, and what should one conclude about those who opine about things about which they know nothing?

I find this about very many people in public life. President George W. Bush was a pretty good example, where anyone who actually dealt with him, even liberals, was struck by how very smart he was. Those who didn't, didn't. Of course.

coupe said...
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Owen said...

MikeR: great point about knowledge creating an inference about the quality of the opinion being offered.

What is wrong with us, that we need such common sense reminders?

eric said...

Somehow I think he had to wait for Scalia to be unable to respond in order to try and pass off that lie.

Browndog said...

This thing about a Justice of the Peace pronouncing Scalia dead over the phone without seeing the body, determining it was natural causes, no autopsy necessary, shipped off to be embalmed immediately, and listing the cause of death as a heart attack...is somewhat disturbing.

n.n said...

Axelrod wants another Kagan. Noted.

coupe said...
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Rhythm and Balls said...

I have every reason to suspect that Scalia would never say such a thing about Kagan (based off her writings), and that Axlerod would absolutely lie about it (having researched his history, and the possibility it was his grandfather that started a popular communist newspaper in Germany while exiled from Russia).

You must not know anyone in law then, let alone with connections to Scalia. He was notorious for choosing the best progressive/left-leaning clerks he could find, in order to help him sharpen his own arguments against them. I learned this from law students who did study at some of the best schools on the East coast.

Simon said...

Browndog said...
"I have every reason to suspect that Scalia would never say such a thing about Kagan …, and that Axlerod would absolutely lie about it.

I don't doubt it for a second. No one thought that Obama was going to nominate anyone who wasn't a liberal, so the question is, does he send a liberal who's a querulous barely-competent dimwit, or does he send someone who's terrific, just wrong? Well, of course, he did both. But Elena Kagan is awesome, and I have no doubt that Scalia knew it and was as happy to gain her as a colleague as he could be to gain anyone with whom he disagreed, which was a given in that appointment.

Simon said...

And, by the by, I don't think that it would have disappointed Scalia at all that his last published case saw him clash with Justice Kagan on a technical question of administrative law. Far from the culture warrior of lefty lore, he was a lawyer to the end. He loved the law and put the same care and focus into the small, technical cases that he put into the big, splashy cases.

Gary Rosen said...

I'm sure Axelrod would never lie about a thing like that, or make something up to peddle his own political viewpoint.

Gary Rosen said...

... and I'm sure ritmo wouldn't either.

David said...

Scalia liked Kagan as I understand it. Scalia liked anyone who would go up against him intelligently on the issues and give him a fight. He did not like weak minded bullshit, a trait easy to discern in his law school classes.

Curious George said...

We won't know the truth until Politifact chimes in.

Jupiter said...

Simon says;
"But Elena Kagan is awesome, and I have no doubt that Scalia knew it and was as happy to gain her as a colleague as he could be to gain anyone with whom he disagreed, which was a given in that appointment."

Awesome? She was the fucking Dean of Harvard Law School, which means that she is an enemy of civilization, and would be an ornament any lamp post could be proud of. You lawyers really think this is all just fun and games, don't you? After you finish ruining the country, you'll all go across the street and have a drink together. You can admire each others' intellects by the light of the flames.

Simon said...

Jupiter, the vast, vast majority of what the Supreme Court does falls in the realm that Justice Brandeis described as “it is more important that the applicable rule of law be settled than that it be settled right.” Take Our Hero’s last published case, Federal Energy Regulatory Commission v. Electric Power Supply Association. If you’re hoping that its drab caption masks a firecracker of a case, you’re going to be disappointed: The question before the court was whether FERC acted unreasonably when it concluded that the Federal Power Act of 1920, as amended, 16 U.S.C. 791a et seq., supplies authority for it to regulate participation in wholesale electricity markets by “demand-response resources” where operators recoup through adjustments to wholesale rates? That’s the kind of question in which there’s probably a right answer, or at least a “best” answer, but what really matters is that the court provide a single, clear, straightforward answer, and clear, understandable reasoning that provides clear guidance to the lower courts and the bar for subsequent cases, so that everyone can move forward and order their affairs accordingly. Justice Kagan is a clear thinker and a clear writer; those are essential attributes for a judge. Her understanding of the Constitution is in several important regards defective, but the number of cases in which that makes any difference is a tiny fraction of what the court does.

"You [non-]lawyers really think this is all just fun and games, don't you?" That the court is just sitting there like philosopher-kings deciding an endless stream questions about gay marriage and abortion and whatnot. It doesn't. It's a court. It spends most of its time deciding questions like whether ambiguous evidence regarding two factors of Solem v. Bartlett's three-part test for evaluating whether a surplus land act may have resulted in a diminishment of a federal Indian reservation necessarily forecloses any possibility that diminishment could be found on a de facto basis. I know, it's a hot-button question, and I can't wait to get Trump's take on it.