The first time I saw Justice Antonin Scalia in the flesh was in college. He came to speak at my school, which was a broadly apolitical place. There were no protests. He gave a brief talk on the idea of originalism—easily the most engaging lecture of my four years—and then he took questions. For close to two hours he stood onstage and answered myriad queries from a collection of professors, community members, and students. It was like watching Ted Williams take batting practice. Except that in addition to possessing an intellect that was truly intimidating, Scalia was also jovial and good natured.
At one point, one of the few student radicals on campus rose to ask Scalia a question. I don’t remember the specifics of it; I think it was about slavery. Scalia’s answer reduced her—literally—to tears. She started crying and ran up the aisle and out of the theater. This was before the “safe space” era, when people who conducted themselves as such were not taken seriously. What made the biggest impression on me that night was Scalia’s genuine compassion. He called after her and asked her to come back to the microphone so they could talk some more. She didn’t.
But I was struck that a justice of the Supreme Court would be willing to extend a conversation, in public, with a hysterical 20 year old, on a subject about which she knew next to nothing. Then, it seemed to me the most intellectually generous act I’d ever seen. It still does.
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The next time I saw Scalia in person—the only other time—was in 2009, when he came to have lunch with the editorial staff at THE WEEKLY STANDARD. The lunch was off the record, but with his passing, it’s probably fair to relate some of the content of the discussion. None of this is earth-shattering; all of it is probably known somewhat widely.
I asked him about the Kelo decision, because I’d spent a lot of time reporting on post-Kelo eminent domain abuse. Scalia said that the justices were blindsided by how significant a decision Kelo turned out to be. He said the closest historical parallel he could think of was Roe, where the Court similarly had no idea it was deciding a landmark case that would reverberate across the Republic.
* When he was asked about what sort of justices Barack Obama might nominate, someone asked Scalia if he thought Elena Kagan would be the new president’s pick. His response was, “We should be so lucky. It would be too much to hope for.” In general, Scalia seemed to believe that Obama would nominate someone less intellectual and more reliable. And he seemed to have the highest respect both for Kagan’s legal mind and personal character.
* What I will never forget from that lunch was the genuine affection Scalia had for Ruth Bader Ginsburg. He called her “Ruthie” and spoke of her not the way you describe a close work colleague—not even the way you talk about a good friend—but the way a man talks about a beloved sister. I sat that afternoon trying to think of a figure on the left who speaks that way about an ideological foe and couldn’t come up with one. I still can’t.
All of which is to say that, to me, at least, Antonin Scalia was one of the few D.C. characters who, in person, was larger than life—in the best ways.
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Where do we go from here? If any of the GOP candidates running for president were looking for a way to concentrate the minds of voters on how risky a Trump nomination would really be, this would seem to be an optimal moment. They could argue that:
1.) Scalia’s death reminds you how supremely important the White House is, because the president nominates justices to the Supreme Court—the nine people who decide the fate of our civilization.
2.) No one really knows what Trump thinks about political ideology, let alone legal theory. And while this campaign has revealed that the average GOP primary voter is less interested in donor priorities and political orthodoxy on a host of matters—EX-IM, capital gains taxes, Dodd Frank—I’d be willing to bet that these voters care a lot about the type of practicalities that the Supreme Court decides: abortion; the imposition of gay marriage on churches, bakeries, and schools; the abuse of eminent domain; or the kind of runaway executive authority that gave us the Obama amnesty.
No one has any idea what Trump really thinks about any of this stuff—or even if he has thought about any of this stuff. And you’d be crazy to trust the authority to appoint to a guy who, at best, changes his mind every five minutes—and at worst is secretly on the other side.
3.) Even if you believe Trump is on the side of the angels when it comes to wanting conservative Supreme Court nominees, there is no reason to have any confidence that he’d be able to identify another Scalia. The two Bushes gave us David Souter and John Roberts. Finding an actual conservative—and then getting him onto the court—is incredibly hard even if it’s what you’re really trying to do. None of Trump’s skills suggest any capabilities on this front. A SCOTUS nomination is not a negotiation. It’s a war.
