1 00:00:04,920 --> 00:00:08,520 Speaker 1: On this episode of News World. Many remember Justice sentence 2 00:00:08,520 --> 00:00:12,960 Speaker 1: in Scalia for his commitment to the Constitution, his razor 3 00:00:13,039 --> 00:00:17,640 Speaker 1: sharp wit, and his unlikely friendship with Justice Ruth Bader Ginsburg, 4 00:00:18,360 --> 00:00:21,239 Speaker 1: but little has been written about his pre Supreme Court years. 5 00:00:22,120 --> 00:00:26,800 Speaker 1: Award winning reporter James Rosen reveals never before reported information 6 00:00:27,400 --> 00:00:33,720 Speaker 1: in the definitive, masterful biography Scalia Rise to Greatness nineteen 7 00:00:33,840 --> 00:00:38,920 Speaker 1: thirty six nineteen eighty six, a comprehensive and detailed account 8 00:00:38,920 --> 00:00:43,640 Speaker 1: of Scaliah's monumental accomplishments in the fifty years preceding his 9 00:00:43,680 --> 00:00:47,200 Speaker 1: appointment to the Supreme Court in nineteen eighty six. Here 10 00:00:47,240 --> 00:00:49,680 Speaker 1: to talk about his new book, I'm really pleased to 11 00:00:49,720 --> 00:00:53,000 Speaker 1: welcome my guests an old friend, James Rosen. He is 12 00:00:53,040 --> 00:00:57,000 Speaker 1: the chief White House correspondent for Newsmax of veteran Washington 13 00:00:57,040 --> 00:01:00,720 Speaker 1: correspondent and best selling historian. He reported for Fox News 14 00:01:00,760 --> 00:01:15,520 Speaker 1: for nearly two decades. James, welcome and thank you for 15 00:01:15,600 --> 00:01:18,080 Speaker 1: joining me on the the News World. Mister speaker, it's great 16 00:01:18,080 --> 00:01:20,920 Speaker 1: to be with you. I will abandon the honorific hereafter 17 00:01:21,040 --> 00:01:23,000 Speaker 1: in deference to the title of the show. That's what 18 00:01:23,040 --> 00:01:25,160 Speaker 1: an originalist would do. It seems to me so hereafter 19 00:01:25,240 --> 00:01:27,759 Speaker 1: all address he was newt If that's okay, that's great. 20 00:01:27,760 --> 00:01:30,280 Speaker 1: But I appreciate that you got it exactly right. You know, 21 00:01:30,360 --> 00:01:34,720 Speaker 1: you previously wrote two interesting books, The strong Man John 22 00:01:34,760 --> 00:01:38,479 Speaker 1: Mitchell and the Secrets of Watergate, and Cheney One on one, 23 00:01:38,880 --> 00:01:44,200 Speaker 1: a candid conversation with America's most controversial statesman. Build on 24 00:01:44,280 --> 00:01:46,920 Speaker 1: those two, why did you decide to write a book 25 00:01:46,959 --> 00:01:51,000 Speaker 1: on Justice Scalia? So I knew Justice Scalia a little bit. 26 00:01:51,080 --> 00:01:53,560 Speaker 1: One of the first things I did when I arrived 27 00:01:53,560 --> 00:01:56,800 Speaker 1: in Washington to become a Washington correspondent in early nineteen 28 00:01:56,840 --> 00:02:00,240 Speaker 1: ninety nine was right to Justice Scalia to seek an interview. 29 00:02:00,560 --> 00:02:02,760 Speaker 1: This was because I'd been fascinated with him since high 30 00:02:02,800 --> 00:02:05,520 Speaker 1: school in the eighties, when I saw him participate in 31 00:02:05,560 --> 00:02:10,000 Speaker 1: those old PBS television programs The Constitution that delicate balance, 32 00:02:10,040 --> 00:02:12,960 Speaker 1: where a moderator like Fred Friendley, formerly the president of 33 00:02:12,960 --> 00:02:16,600 Speaker 1: CBS News, would convene this group of eminent minds in 34 00:02:16,639 --> 00:02:18,880 Speaker 1: a kind of theater in the round setting. For all 35 00:02:18,919 --> 00:02:21,920 Speaker 1: I know, you did this show and you would have 36 00:02:22,000 --> 00:02:24,520 Speaker 1: someone like Dan Rather sitting next to Sandra Day O'Connor, 37 00:02:24,600 --> 00:02:26,799 Speaker 1: next to Gerald Ford, next antonin Scalia, and they would 38 00:02:26,840 --> 00:02:30,480 Speaker 1: debate hypothetical situations, and it just struck me immediately that 39 00:02:30,520 --> 00:02:33,560 Speaker 1: Scalia was unlike any other performer or participant in these 40 00:02:33,600 --> 00:02:36,239 Speaker 1: fura and writing to him for an interview in nineteen 41 00:02:36,320 --> 00:02:39,079 Speaker 1: ninety nine commenced to kind of very amusing an unusual 42 00:02:39,080 --> 00:02:42,200 Speaker 1: two year correspondence between us, which will be covered in 43 00:02:42,200 --> 00:02:44,400 Speaker 1: the second volume, which will cover the Justice of Supreme 44 00:02:44,400 --> 00:02:46,840 Speaker 1: Court years, as well as a pair of lunches at 45 00:02:46,880 --> 00:02:51,640 Speaker 1: his beloved av Restaurante Italiano, now defunct, his favorite Italian 46 00:02:51,840 --> 00:02:54,200 Speaker 1: restaurant which he had been going to since the nineteen fifties, 47 00:02:54,560 --> 00:02:56,400 Speaker 1: over on New York Avenue and what was then a 48 00:02:56,440 --> 00:02:58,920 Speaker 1: kind of a sketchy neighborhood, and it was just the 49 00:02:58,919 --> 00:03:01,040 Speaker 1: two of us and we drank line and at one 50 00:03:01,080 --> 00:03:03,480 Speaker 1: point he urged me to eat vegetables off of his plate. 51 00:03:03,520 --> 00:03:05,560 Speaker 1: I said, mister Justice could come on, come on, come on, 52 00:03:05,919 --> 00:03:08,120 Speaker 1: So the air I was shoveling vegetables off of Justice 53 00:03:08,120 --> 00:03:10,720 Speaker 1: Scalia's plate. He drove me back to my office in 54 00:03:10,760 --> 00:03:13,519 Speaker 1: his car. I've subsequently had occasion to confirm with a 55 00:03:13,600 --> 00:03:16,680 Speaker 1: number of friends and clerks that that's a scary experience 56 00:03:16,720 --> 00:03:19,960 Speaker 1: for everyone, not just for me, and so I was convinced, 57 00:03:20,000 --> 00:03:22,520 Speaker 1: after those early experiences a quarter century ago, when he 58 00:03:22,520 --> 00:03:24,960 Speaker 1: was very generous to a young reporter, that someday I 59 00:03:24,960 --> 00:03:27,600 Speaker 1: would write about him. What I found, Knut, was that 60 00:03:27,600 --> 00:03:30,240 Speaker 1: the two existing biographies of Justice Scalia, both of which 61 00:03:30,280 --> 00:03:33,840 Speaker 1: were published during his lifetime, one of which he cooperated 62 00:03:33,840 --> 00:03:36,120 Speaker 1: with extensively, the other not at all, both came out 63 00:03:36,280 --> 00:03:38,880 Speaker 1: pretty much the same way, fairly open in their contempt 64 00:03:39,000 --> 00:03:44,560 Speaker 1: for the Justice's jurisprudence, legacy conduct. And so this book 65 00:03:44,640 --> 00:03:47,400 Speaker 1: that came out this week, Scalia Rise to Greatness nineteen 66 00:03:47,440 --> 00:03:50,720 Speaker 1: thirty six to nineteen eighty six, covers the first fifty 67 00:03:50,800 --> 00:03:56,360 Speaker 1: years of Justice Scalia's life, his Catholic upbringing, his Jesuit education, 68 00:03:56,800 --> 00:04:00,000 Speaker 1: the influence of his immigrant father and his mother, both teachers, 69 00:04:00,480 --> 00:04:03,320 Speaker 1: his mother also the child of Italian immigrants, and his 70 00:04:03,480 --> 00:04:06,920 Speaker 1: very consequential work in the Nixon and Ford administrations, which 71 00:04:06,960 --> 00:04:09,800 Speaker 1: I hope we can get into, and his posts in academia, 72 00:04:09,960 --> 00:04:13,000 Speaker 1: all this before becoming a judge and then, of course 73 00:04:13,040 --> 00:04:15,920 Speaker 1: being elevated to the Supreme Court. I found that the 74 00:04:15,960 --> 00:04:20,080 Speaker 1: previous biographies treated just about every episode of Scalia's pre 75 00:04:20,200 --> 00:04:24,000 Speaker 1: Supreme Court life either cursorily or in the most tendentious light. 76 00:04:24,520 --> 00:04:27,520 Speaker 1: So this is the first biography of Anton and Scalia 77 00:04:27,600 --> 00:04:30,160 Speaker 1: published since his death. It is the first to make 78 00:04:30,240 --> 00:04:34,520 Speaker 1: use of a vast wealth of documentary and personal sources 79 00:04:34,560 --> 00:04:37,719 Speaker 1: either overlooked by or unavailable to the previous biographers. And 80 00:04:37,839 --> 00:04:40,360 Speaker 1: it is the first admiring biography of Anton and Scalia. 81 00:04:40,400 --> 00:04:43,120 Speaker 1: And therefore I think it is the first accurate biography 82 00:04:43,160 --> 00:04:45,480 Speaker 1: of Anton and Scalia. And it's the book that Scalia 83 00:04:45,520 --> 00:04:47,359 Speaker 1: fans have been waiting for in all students who are 84 00:04:47,400 --> 00:04:50,440 Speaker 1: interested in an accurate history of American law and society 85 00:04:50,520 --> 00:04:53,240 Speaker 1: during his time. I was very much a fan of 86 00:04:53,279 --> 00:04:56,880 Speaker 1: Scalia and thought that it was remarkable the impact he 87 00:04:56,920 --> 00:05:01,280 Speaker 1: had intellectually. He was likable, he was friendly, he was fun, 88 00:05:01,680 --> 00:05:05,640 Speaker 1: and I'm curious to what extent you found yourself drawn 89 00:05:05,720 --> 00:05:08,680 Speaker 1: to him in part just as a person. That's precisely it. 90 00:05:08,880 --> 00:05:11,440 Speaker 1: From when I saw him on television on PBS in 91 00:05:11,440 --> 00:05:14,680 Speaker 1: the nineteen eighties. He was so unlike the other participants 92 00:05:14,720 --> 00:05:19,120 Speaker 1: in these televised dialogues. He was at once more casual 93 00:05:19,560 --> 00:05:22,720 Speaker 1: and more determined to prevail in the substance at hand. 94 00:05:23,080 --> 00:05:25,640 Speaker 1: He was given to a greater wider range of expression, 95 00:05:26,040 --> 00:05:29,720 Speaker 1: all kinds of rhetorical devices at his command, including sarcasm 96 00:05:30,040 --> 00:05:33,880 Speaker 1: that the others didn't typically employ. And his central legacy, 97 00:05:34,200 --> 00:05:37,039 Speaker 1: which was the way he profoundly shaped the way that 98 00:05:37,400 --> 00:05:41,960 Speaker 1: the law is debated, argued, ruled upon, and even written. 99 00:05:42,040 --> 00:05:44,760 Speaker 1: And this is what makes Scalia not just one of 100 00:05:44,800 --> 00:05:47,919 Speaker 1: the most important justices of the last hundred years, but 101 00:05:48,000 --> 00:05:51,120 Speaker 1: really one of the most important American intellectuals of the 102 00:05:51,160 --> 00:05:54,559 Speaker 1: past hundred years. To explain for the benefit of our audience, 103 00:05:54,600 --> 00:05:56,800 Speaker 1: and I should point out that scalia Rise to Greatness 104 00:05:57,000 --> 00:06:00,440 Speaker 1: is written for non lawyers. Try to bring a kind 105 00:06:00,440 --> 00:06:03,039 Speaker 1: of novelistic sensibility to it, so that even as we 106 00:06:03,120 --> 00:06:06,240 Speaker 1: delve deeply into legal issues on which Scalia made his mark, 107 00:06:06,279 --> 00:06:08,720 Speaker 1: they're readily understandable by the public, which was a hallmark 108 00:06:08,760 --> 00:06:11,400 Speaker 1: of his own career and why he was so successful. 109 00:06:11,440 --> 00:06:14,440 Speaker 1: He insisted that his opinions should be readable by ordinary 110 00:06:14,480 --> 00:06:17,160 Speaker 1: individuals who were not even lawyers, and they crackled with 111 00:06:17,200 --> 00:06:20,599 Speaker 1: wit and life. As you say, the revolution that Scalia 112 00:06:20,720 --> 00:06:23,920 Speaker 1: launched in essence was that until he came along on 113 00:06:23,960 --> 00:06:27,680 Speaker 1: the federal bench, there prevailed in legal circles a notion 114 00:06:27,800 --> 00:06:31,520 Speaker 1: that was primarily espoused by liberals called the living Constitution, 115 00:06:32,120 --> 00:06:35,520 Speaker 1: the idea that the Constitution should be a living, expanding, breathing, 116 00:06:35,920 --> 00:06:39,039 Speaker 1: live organism of sorts that could expand as necessary to 117 00:06:39,040 --> 00:06:41,880 Speaker 1: accommodate the modern phenomena that the founding fathers could never 118 00:06:41,920 --> 00:06:45,080 Speaker 1: have envisioned, such as nuclear weapons or the Internet, and 119 00:06:45,120 --> 00:06:48,440 Speaker 1: that in order to achieve that objective of expanding the 120 00:06:48,480 --> 00:06:52,120 Speaker 1: meaning of the Constitution beyond what it meant at the 121 00:06:52,160 --> 00:06:55,320 Speaker 1: time it was adopted, liberal judges would look to things 122 00:06:55,360 --> 00:06:57,839 Speaker 1: beyond the text of the law, such as the legislative intent, 123 00:06:58,240 --> 00:07:01,640 Speaker 1: the legislative history behind a given provision in the Constitution 124 00:07:01,760 --> 00:07:03,960 Speaker 1: or a statute, so that when they were interpreting these 125 00:07:04,040 --> 00:07:06,400 Speaker 1: provisions and statutes, which is the central business of any 126 00:07:06,480 --> 00:07:08,960 Speaker 1: judge to tell us what the law means, they would 127 00:07:08,960 --> 00:07:11,520 Speaker 1: look beyond the text to what was said in floor 128 00:07:11,560 --> 00:07:13,440 Speaker 1: debates on the House and Senate floor, or what was 129 00:07:13,440 --> 00:07:16,000 Speaker 1: said in a committee report as a given law snaked 130 00:07:16,000 --> 00:07:18,800 Speaker 1: its way through the process. Scullius stood athwart all of that. 131 00:07:19,120 --> 00:07:21,600 Speaker 1: When he arrived on the Federal bench. He effectively declared 132 00:07:22,040 --> 00:07:25,840 Speaker 1: that such practice amounted to an imperial judiciary seizing power 133 00:07:25,880 --> 00:07:28,320 Speaker 1: from the people and their elected representatives and the president 134 00:07:28,360 --> 00:07:31,440 Speaker 1: who would sign those measures into law. And he championed 135 00:07:31,480 --> 00:07:33,800 Speaker 1: a different way for judges to do their central business 136 00:07:33,800 --> 00:07:36,280 Speaker 1: of telling us what laws mean. He said that the 137 00:07:36,360 --> 00:07:39,320 Speaker 1: laws mean what they were widely understood to mean at 138 00:07:39,320 --> 00:07:41,440 Speaker 1: the time that they were enacted, and that that should 139 00:07:41,520 --> 00:07:44,240 Speaker 1: never change, which is to say that the Constitution should 140 00:07:44,240 --> 00:07:47,160 Speaker 1: not be expanded in its meaning to accommodate for new phenomena. 141 00:07:47,320 --> 00:07:49,800 Speaker 1: If you want to accommodate new phenomena past new laws, 142 00:07:50,240 --> 00:07:52,680 Speaker 1: the Constitution should be held, as should any statute, to 143 00:07:52,720 --> 00:07:56,200 Speaker 1: its original meaning, what it was widely understood to mean 144 00:07:56,240 --> 00:07:58,600 Speaker 1: at the time, and how could that best be discerned, 145 00:07:58,960 --> 00:08:02,239 Speaker 1: not through resort to legislative history and other things floor 146 00:08:02,240 --> 00:08:05,280 Speaker 1: debates that the lawmakers never actually voted on They voted 147 00:08:05,280 --> 00:08:07,560 Speaker 1: on the text of a law, and the Constitution was 148 00:08:07,600 --> 00:08:10,480 Speaker 1: adopted as a specific text. So the best tool to 149 00:08:10,600 --> 00:08:13,080 Speaker 1: use to find the original meaning, the metal detector to 150 00:08:13,120 --> 00:08:16,440 Speaker 1: find it, if you will, is textualism. When Scalius started, 151 00:08:16,480 --> 00:08:19,640 Speaker 1: all of this was revolutionary and thoroughly resisted in some quarters. 152 00:08:20,000 --> 00:08:21,960 Speaker 1: By the time he died, no less a figure than 153 00:08:22,280 --> 00:08:25,880 Speaker 1: Supreme Court Justice Elena Kagan, herself a liberal with whom Scalia, 154 00:08:26,040 --> 00:08:29,200 Speaker 1: like with Ruth Bader Ginsburg, enjoyed a close friendship. No 155 00:08:29,320 --> 00:08:32,439 Speaker 1: less a figure had declared, we are all originalists. Now, 156 00:08:32,720 --> 00:08:35,480 Speaker 1: Scalia managed this not through being on the winning side 157 00:08:35,480 --> 00:08:37,720 Speaker 1: of a whole lot of Supreme Court cases, but in 158 00:08:37,760 --> 00:08:41,400 Speaker 1: the crackling brilliance of his descents and playing to a 159 00:08:41,440 --> 00:08:44,720 Speaker 1: subsequent generation. And so that is his revolution. It touches 160 00:08:44,760 --> 00:08:48,080 Speaker 1: because it touches the way lawyers argue before the Supreme Court, 161 00:08:48,080 --> 00:08:50,440 Speaker 1: the way Supreme Court justice is right, the way even 162 00:08:50,520 --> 00:08:54,400 Speaker 1: lawmakers now frame bills and frame those texts. It reaches 163 00:08:54,440 --> 00:08:57,400 Speaker 1: into every corner of American life. And so that's why 164 00:08:57,400 --> 00:08:59,960 Speaker 1: Scalia is such an profoundly important American over the last 165 00:09:00,080 --> 00:09:04,320 Speaker 1: hundred years. I found myself on occasion reading his descents, 166 00:09:04,320 --> 00:09:08,760 Speaker 1: and I thought that the dynamic, the excitement, the vividness 167 00:09:08,760 --> 00:09:11,959 Speaker 1: of his arguments, his use of English in many ways, 168 00:09:12,000 --> 00:09:15,640 Speaker 1: he was stunning when he would dissent and you'd read 169 00:09:15,679 --> 00:09:17,400 Speaker 1: it and think, how could the rest of the court 170 00:09:17,480 --> 00:09:21,400 Speaker 1: not get this? And I think that from day one, 171 00:09:21,640 --> 00:09:26,199 Speaker 1: you know, he was interested in creating an intellectual revolution 172 00:09:26,760 --> 00:09:30,720 Speaker 1: by just calmly and methodically saying what he truly believed 173 00:09:30,760 --> 00:09:34,560 Speaker 1: in a way that was very systematic and yet very 174 00:09:34,640 --> 00:09:38,560 Speaker 1: literary and very artful. Absolutely true. And you know, to 175 00:09:38,559 --> 00:09:41,080 Speaker 1: give one example for the benefit of our listeners. As 176 00:09:41,120 --> 00:09:44,280 Speaker 1: a Court of Appeals judge for the District of Columbia Circuit, 177 00:09:44,720 --> 00:09:46,760 Speaker 1: which is one rung below the Supreme Court and often 178 00:09:46,760 --> 00:09:50,280 Speaker 1: describes as the second most powerful court in America, Scalias 179 00:09:50,360 --> 00:09:52,679 Speaker 1: served on that court for four years before President Reagan 180 00:09:52,720 --> 00:09:55,400 Speaker 1: elevated him to the Supreme Court in nineteen eighty six. 181 00:09:55,760 --> 00:09:57,960 Speaker 1: And it was a real murderer's row of legal talent 182 00:09:58,040 --> 00:10:00,600 Speaker 1: who served on that Court of Appeal at that time. 183 00:10:00,640 --> 00:10:03,040 Speaker 1: Not only did you have Antonin Scalia, but someone who 184 00:10:03,040 --> 00:10:05,680 Speaker 1: predated him on the court for two years, Ruth Vader Ginsburg, 185 00:10:06,080 --> 00:10:11,320 Speaker 1: Robert Bourke, Kenneth Starr, and Larry Silberman. And during that 186 00:10:11,360 --> 00:10:13,320 Speaker 1: time when he was a Court of Appeals judges, when 187 00:10:13,440 --> 00:10:16,839 Speaker 1: Scalia really first started to lay down these markers, sometimes 188 00:10:16,840 --> 00:10:20,280 Speaker 1: in majority opinions, sometimes in descents on the Court of Appeals, 189 00:10:20,280 --> 00:10:24,040 Speaker 1: on behalf of original meaning and textualism, and just also, 190 00:10:24,200 --> 00:10:27,200 Speaker 1: as you say, a voice of common sense. Often one 191 00:10:27,240 --> 00:10:28,959 Speaker 1: case in which he dissented but in which he was 192 00:10:29,000 --> 00:10:32,240 Speaker 1: ultimately vindicated by the Supreme Court was where a group 193 00:10:32,280 --> 00:10:37,120 Speaker 1: of condemned death row prisoners scheduled for execution sued because 194 00:10:37,160 --> 00:10:40,439 Speaker 1: they claimed that the Food and Drug Administration the FDA, 195 00:10:40,720 --> 00:10:44,640 Speaker 1: under a relevant nineteen seventy sixth statute, had failed to 196 00:10:44,800 --> 00:10:48,920 Speaker 1: ensure the safety of the drug that was going to 197 00:10:48,920 --> 00:10:52,200 Speaker 1: be used in their lethal injection, and, believe it or not, 198 00:10:52,320 --> 00:10:54,920 Speaker 1: in the liberal atmosphere of that particular court at that time, 199 00:10:55,360 --> 00:10:58,440 Speaker 1: this claim was upheld the idea that the FDA should 200 00:10:58,480 --> 00:11:00,800 Speaker 1: undertake to ensure the safety and had failed to do 201 00:11:00,880 --> 00:11:05,480 Speaker 1: so of drugs being administered for lethal injection by other 202 00:11:05,760 --> 00:11:11,080 Speaker 1: state and federal agencies. And Scalia famously wrote that the 203 00:11:11,160 --> 00:11:13,760 Speaker 1: idea that condemned death row inmates are in the same 204 00:11:14,160 --> 00:11:18,120 Speaker 1: standing as let's say, people who are purchasing everyday objects 205 00:11:18,120 --> 00:11:20,920 Speaker 1: that are like lipstick or over the counter drugs that 206 00:11:20,960 --> 00:11:24,520 Speaker 1: are regulated by the FDA was preposterous, and he said 207 00:11:24,559 --> 00:11:27,360 Speaker 1: the recipient of the lethal injection is no more the 208 00:11:27,360 --> 00:11:31,840 Speaker 1: consumer of that drug than the prisoner executed by firing 209 00:11:31,880 --> 00:11:34,320 Speaker 1: squad can be said to be the consumer of the bullets. 210 00:11:35,200 --> 00:11:39,000 Speaker 1: That's wild. This first volume really takes us up through 211 00:11:39,400 --> 00:11:41,920 Speaker 1: how he grew up and what he's doing. Part of 212 00:11:41,920 --> 00:11:43,960 Speaker 1: what shaped him and that is his effort to go 213 00:11:44,040 --> 00:11:47,839 Speaker 1: to Princeton and his sense of what had happened that 214 00:11:48,000 --> 00:11:51,120 Speaker 1: blocked him from going to Princeton. It's interesting Scalia was 215 00:11:51,320 --> 00:11:54,520 Speaker 1: a brilliant student from the beginning. He was a devout 216 00:11:54,559 --> 00:11:57,240 Speaker 1: Catholic from the beginning, and his Catholic faith, which I 217 00:11:57,240 --> 00:11:59,920 Speaker 1: think is explored in this book Scalia Rise to Greatness 218 00:12:00,400 --> 00:12:02,680 Speaker 1: more than it is anywhere else in the printed literature 219 00:12:02,679 --> 00:12:06,640 Speaker 1: on Antonin Scalia, really fueled his rise, and he was 220 00:12:06,679 --> 00:12:09,640 Speaker 1: the valedictorian. He got almost straight a's forty out of 221 00:12:09,679 --> 00:12:12,880 Speaker 1: forty five straight a's in grade school. He was the 222 00:12:12,960 --> 00:12:15,680 Speaker 1: valedictorian in his high school, which was a Jesuit run 223 00:12:15,800 --> 00:12:19,000 Speaker 1: military academy, a rare hybrid called Xavier High School in Manhattan. 224 00:12:19,480 --> 00:12:23,959 Speaker 1: And he was valedictorian at Georgetown University, also a Jesuit institution, 225 00:12:24,280 --> 00:12:27,679 Speaker 1: when he graduated from there. His first choice for college 226 00:12:27,679 --> 00:12:31,960 Speaker 1: had been Princeton, and as valedictorian, as somebody who was 227 00:12:32,120 --> 00:12:35,520 Speaker 1: a participant and excellent at a variety of extracurricular pursuits, 228 00:12:35,760 --> 00:12:38,920 Speaker 1: there was just really no way that any college university 229 00:12:38,960 --> 00:12:41,600 Speaker 1: could turn down a student like Antonin Scalia, And yet 230 00:12:41,640 --> 00:12:44,600 Speaker 1: Princeton did and he later said the Justice that he 231 00:12:44,720 --> 00:12:48,199 Speaker 1: felt that amongst the Princeton alumni who interviewed him for 232 00:12:48,320 --> 00:12:51,560 Speaker 1: candidacy for admission to the school, he could sense some 233 00:12:51,640 --> 00:12:54,640 Speaker 1: kind of anti Italian prejudice, as he put it, that 234 00:12:54,679 --> 00:12:57,360 Speaker 1: they felt that he wasn't the Princeton's sort. One of 235 00:12:57,360 --> 00:13:00,160 Speaker 1: the documents this book, Scalia Rise to Greatness makes use 236 00:13:00,160 --> 00:13:02,760 Speaker 1: of that's never appeared anywhere else is a secret oral 237 00:13:02,880 --> 00:13:05,600 Speaker 1: history of his life that Justice Scalia conducted in his 238 00:13:05,640 --> 00:13:08,240 Speaker 1: Supreme Court chambers in nineteen ninety two and which was 239 00:13:08,280 --> 00:13:11,760 Speaker 1: only recently unsealed, and he describes this moment with Princeton 240 00:13:11,760 --> 00:13:14,160 Speaker 1: and when he told his interviewer that he got the 241 00:13:14,200 --> 00:13:16,440 Speaker 1: sense that the Princeton alumni had deemed him not the 242 00:13:16,480 --> 00:13:20,080 Speaker 1: Princeton sort, And he was asked what that meant it specifically, 243 00:13:20,520 --> 00:13:23,760 Speaker 1: he said not waspy enough, not country club enough, in essence, 244 00:13:24,120 --> 00:13:26,679 Speaker 1: And it was one of the rare moments where Antonin 245 00:13:26,720 --> 00:13:31,160 Speaker 1: Scalia confessed to feeling any kind of ethnic prejudice against 246 00:13:31,240 --> 00:13:34,040 Speaker 1: him being an Italian American. The fact is, he of 247 00:13:34,080 --> 00:13:38,040 Speaker 1: course had no use for identity politics or Nord's legal spawn, 248 00:13:38,559 --> 00:13:40,719 Speaker 1: and he was never going to portray himself as a 249 00:13:40,800 --> 00:13:43,120 Speaker 1: victim of any kind. But the truth is, and my 250 00:13:43,200 --> 00:13:45,760 Speaker 1: research shows, and we show this in the book, that 251 00:13:45,840 --> 00:13:49,800 Speaker 1: he was subject to more frequent prejudice on the basis 252 00:13:49,840 --> 00:13:52,240 Speaker 1: of his ethnic heritage than he has ever cared to 253 00:13:52,280 --> 00:13:56,120 Speaker 1: discuss or acknowledge, including instances previously unreported where he was 254 00:13:56,240 --> 00:13:59,400 Speaker 1: insulted directly to his face on that basis, and even 255 00:13:59,400 --> 00:14:02,400 Speaker 1: eminent orders of the time like David Broder, made comments 256 00:14:02,400 --> 00:14:05,720 Speaker 1: in print that would be considered offensive today. He experienced 257 00:14:05,760 --> 00:14:08,120 Speaker 1: rejection at different points in his life. In the early 258 00:14:08,160 --> 00:14:10,760 Speaker 1: part of the Reagan administration, he was passed over three 259 00:14:10,760 --> 00:14:13,480 Speaker 1: times in seven months for the kinds of positions he 260 00:14:13,520 --> 00:14:17,160 Speaker 1: was seeking. He persevered. But as a fellow fan of music, 261 00:14:17,160 --> 00:14:18,960 Speaker 1: as I know you to be nude, that gave me 262 00:14:19,000 --> 00:14:22,600 Speaker 1: the opportunity for that relevant chapter and Scully arise to greatness. 263 00:14:22,880 --> 00:14:25,560 Speaker 1: To quote Tom Petty, the waiting is the hardest part. 264 00:14:27,240 --> 00:14:30,840 Speaker 1: But when you talk about waiting, he graduates from Georgetown. 265 00:14:31,280 --> 00:14:35,800 Speaker 1: He then goes to Harvard, and he graduates from Harvard Law, 266 00:14:36,360 --> 00:14:39,200 Speaker 1: and he gets so I didn't know this existed until 267 00:14:39,280 --> 00:14:41,880 Speaker 1: I was looking at your book, and he gets a 268 00:14:42,040 --> 00:14:46,560 Speaker 1: very unusual fellowship described the Sheldon Fellowship and what it meant. 269 00:14:47,400 --> 00:14:51,400 Speaker 1: So Unlike most of his contemporaries in the top five 270 00:14:51,560 --> 00:14:54,760 Speaker 1: of Harvard Law School, where he graduated magna cum laude, 271 00:14:55,200 --> 00:14:58,680 Speaker 1: or the broad swath of graduating colleagues of his at 272 00:14:58,680 --> 00:15:01,960 Speaker 1: Harvard Law, Leah did not take a clerkship. He did 273 00:15:02,000 --> 00:15:04,880 Speaker 1: not immediately head for some Whiteshoe law firm and take 274 00:15:04,920 --> 00:15:08,720 Speaker 1: a very lucrative position. He accepted what was called the 275 00:15:08,760 --> 00:15:13,000 Speaker 1: Sheldon Fellowship, which essentially allowed him to travel through Europe 276 00:15:13,640 --> 00:15:16,800 Speaker 1: for a better part of a year, all expenses paid, 277 00:15:17,400 --> 00:15:20,880 Speaker 1: with nothing expected from him in terms of producing any 278 00:15:20,960 --> 00:15:24,960 Speaker 1: kind of academic output whatsoever, as long as he didn't 279 00:15:25,000 --> 00:15:27,640 Speaker 1: stay in any one particular country beyond a certain length 280 00:15:27,640 --> 00:15:30,440 Speaker 1: of time, and traveled widely and sent the Dean of 281 00:15:30,480 --> 00:15:32,920 Speaker 1: Harvard periodic postcard saying whish you were here. That was 282 00:15:32,920 --> 00:15:35,080 Speaker 1: really the only requirements for it, and it was, of 283 00:15:35,080 --> 00:15:38,360 Speaker 1: course because of his sterling academic record. It wound up 284 00:15:38,400 --> 00:15:41,200 Speaker 1: that around that time he met the woman who had 285 00:15:41,200 --> 00:15:44,080 Speaker 1: become his wife and the mother of his nine children, 286 00:15:44,440 --> 00:15:48,200 Speaker 1: the incredible Maureen McCarthy Scalia, through a blind date that 287 00:15:48,280 --> 00:15:50,200 Speaker 1: they were set up on when he was at Harvard 288 00:15:50,280 --> 00:15:53,680 Speaker 1: Law and Maureen was at Radcliffe, and he wound up 289 00:15:53,680 --> 00:15:56,800 Speaker 1: asking her to marry him in a scene that missus 290 00:15:56,800 --> 00:15:59,440 Speaker 1: Scalia described directly for me him, which has also never 291 00:15:59,480 --> 00:16:02,440 Speaker 1: appeared any or else. His actual proposal to Maureen, and 292 00:16:02,480 --> 00:16:05,480 Speaker 1: then they went on the Sheldon Fellowship together as a 293 00:16:05,560 --> 00:16:09,160 Speaker 1: kind of extended honeymoon. Thereafter he took a position with 294 00:16:09,240 --> 00:16:13,320 Speaker 1: Jones Day, based in Cleveland, and began his extraordinary rise 295 00:16:13,360 --> 00:16:16,760 Speaker 1: to greatness. That's really amazing. It's almost like the old 296 00:16:16,960 --> 00:16:20,880 Speaker 1: Grand Tour that wealthy aristocrats used to take to just 297 00:16:20,960 --> 00:16:24,240 Speaker 1: sort of broaden themselves. Part of their experience included traveling 298 00:16:24,280 --> 00:16:26,880 Speaker 1: behind the Iron Curtain at the time into what was 299 00:16:26,920 --> 00:16:29,720 Speaker 1: considered the countries that made up the Soviet Union. So 300 00:16:29,800 --> 00:16:33,600 Speaker 1: it broadened him. It acquainted him with other systems of law. 301 00:16:34,080 --> 00:16:37,520 Speaker 1: He did give serious thought to learning German law and 302 00:16:37,600 --> 00:16:40,440 Speaker 1: becoming licensed in the practice of German law. But I 303 00:16:40,480 --> 00:17:00,440 Speaker 1: guess cooler heads, which is to say, maureens prevail. He 304 00:17:00,520 --> 00:17:02,960 Speaker 1: ends up working with a very top much firm, one 305 00:17:02,960 --> 00:17:05,320 Speaker 1: which is really based in Cleveland. What do you think 306 00:17:05,320 --> 00:17:08,919 Speaker 1: attracted him to Jones' Day? He understood, and one of 307 00:17:08,920 --> 00:17:12,000 Speaker 1: his sons has attested to this, that were he to 308 00:17:12,080 --> 00:17:14,880 Speaker 1: have taken a more traditional first year out of law 309 00:17:14,880 --> 00:17:18,240 Speaker 1: school job, let's say, at a powerhouse firm in Manhattan, 310 00:17:18,840 --> 00:17:22,400 Speaker 1: that he really wouldn't have time to raise a family. 311 00:17:22,880 --> 00:17:26,760 Speaker 1: Scaliah was an only child, and amongst his parents and 312 00:17:26,880 --> 00:17:29,800 Speaker 1: their brothers and sisters were looking at nine families, the 313 00:17:29,840 --> 00:17:32,560 Speaker 1: only one of which was Scaliah's parents to produce a child. 314 00:17:32,640 --> 00:17:35,399 Speaker 1: So his birth itself was something of a miracle, and 315 00:17:35,520 --> 00:17:38,600 Speaker 1: his onliness certainly contributed to the way he later behaved 316 00:17:38,600 --> 00:17:40,800 Speaker 1: on the Supreme Court. He wanted, I think, to have 317 00:17:40,840 --> 00:17:42,919 Speaker 1: a large family. His aunt, who was very close to 318 00:17:42,960 --> 00:17:44,920 Speaker 1: him and helped raise him, once said that he always 319 00:17:44,960 --> 00:17:47,239 Speaker 1: wanted a baseball team, and of course the Scalis had 320 00:17:47,320 --> 00:17:50,440 Speaker 1: nine children, and so I think his choice of Jones 321 00:17:50,560 --> 00:17:53,920 Speaker 1: Day and a Midwestern locale for his first year's practicing 322 00:17:54,000 --> 00:17:56,720 Speaker 1: law were deliberate and was designed to give him more 323 00:17:56,720 --> 00:17:58,920 Speaker 1: time to raise a family. I always had the sense 324 00:17:58,960 --> 00:18:01,800 Speaker 1: that his family he was as important as his career, 325 00:18:02,440 --> 00:18:06,360 Speaker 1: that he took great joy and his family he did. 326 00:18:06,480 --> 00:18:08,960 Speaker 1: But this is explored extensively and for the first time, 327 00:18:09,000 --> 00:18:12,160 Speaker 1: I think in this depth and intimacy in Scalia. Rise 328 00:18:12,280 --> 00:18:15,479 Speaker 1: to Greatness was the sort of division of labor in 329 00:18:15,520 --> 00:18:18,480 Speaker 1: the Scalia household between him and Maureen. He was never 330 00:18:18,520 --> 00:18:21,399 Speaker 1: shy about saying that she raised all nine children with 331 00:18:21,440 --> 00:18:23,760 Speaker 1: not a lot of assistance from me, And he used 332 00:18:23,800 --> 00:18:26,359 Speaker 1: to joke, there's not a dullard in the bunch, and 333 00:18:26,600 --> 00:18:29,800 Speaker 1: when people would pursue with him, what it meant exactly 334 00:18:29,960 --> 00:18:32,480 Speaker 1: very little assistance from me. He made it clear that 335 00:18:32,520 --> 00:18:34,879 Speaker 1: he was home for dinner every night, regardless of what 336 00:18:34,960 --> 00:18:36,760 Speaker 1: job he held at the time, including as a Supreme 337 00:18:36,800 --> 00:18:39,240 Speaker 1: Court justice, so that his kids knew that he was 338 00:18:39,240 --> 00:18:41,800 Speaker 1: a presence in their lives. I interviewed four of the 339 00:18:41,840 --> 00:18:46,080 Speaker 1: Scalia's children, including father Paul Scalia, and they told me 340 00:18:46,119 --> 00:18:48,160 Speaker 1: he was by no means a non person at home, 341 00:18:48,520 --> 00:18:52,000 Speaker 1: but it was really their mom, Maureen Scalia, who was 342 00:18:52,080 --> 00:18:55,000 Speaker 1: more intimately involved in the children's lives in terms of 343 00:18:55,280 --> 00:18:57,600 Speaker 1: knowing who their teachers were, making sure they were associating 344 00:18:57,600 --> 00:19:01,200 Speaker 1: with the right kinds of kids, their clothes, extracurricular activities, 345 00:19:01,600 --> 00:19:04,959 Speaker 1: and we explore in Scalia Rise to Greatness what this 346 00:19:05,000 --> 00:19:08,240 Speaker 1: meant for Maureen Scalia. So, for example, in nineteen seventy six, 347 00:19:08,240 --> 00:19:11,159 Speaker 1: when Scalia was serving as Assistants Attorney General for the 348 00:19:11,200 --> 00:19:14,199 Speaker 1: Office of Legal counselor the Department of Justice, which was 349 00:19:14,240 --> 00:19:16,880 Speaker 1: the very same job that William Rehnquist had held when 350 00:19:16,880 --> 00:19:19,119 Speaker 1: he was nominated to the Supreme Court. This was a 351 00:19:19,160 --> 00:19:21,600 Speaker 1: position in which you are the president's lawyer's lawyer. You 352 00:19:21,640 --> 00:19:24,600 Speaker 1: are issuing written legal opinions for anyone in the executive 353 00:19:24,600 --> 00:19:27,600 Speaker 1: branch who seeks it about the lawfulness or unlawfulness of 354 00:19:27,600 --> 00:19:30,600 Speaker 1: any administration initiative that you might want to try, either 355 00:19:30,640 --> 00:19:32,960 Speaker 1: as a policy or a piece of legislation, or what 356 00:19:33,040 --> 00:19:35,919 Speaker 1: have you. So he was tremendously important official in the 357 00:19:35,920 --> 00:19:38,840 Speaker 1: Ford administration at that time, and his schedule started to 358 00:19:38,840 --> 00:19:42,280 Speaker 1: reflect greater absences from home and near In nineteen seventy six, 359 00:19:42,320 --> 00:19:46,199 Speaker 1: he traveled to several ABA conventions that were oversees, a 360 00:19:46,200 --> 00:19:50,919 Speaker 1: couple of trips to Italy, Germany, UK, sometimes with absences 361 00:19:50,920 --> 00:19:54,080 Speaker 1: from home that lasted six or eight days. And this 362 00:19:54,160 --> 00:19:56,600 Speaker 1: was at a time when the Scalia's only had eight 363 00:19:56,680 --> 00:19:58,960 Speaker 1: of their nine children, but who ranged in age from 364 00:19:59,119 --> 00:20:03,360 Speaker 1: under twelve months to teenage years. So, as I say 365 00:20:03,400 --> 00:20:06,000 Speaker 1: in the book, these were the hardest days for Maureene 366 00:20:06,080 --> 00:20:10,720 Speaker 1: Scalia raising all those children, with her husband flying abroad 367 00:20:11,240 --> 00:20:13,720 Speaker 1: for the purposes of his career. The sacrifices she made 368 00:20:13,760 --> 00:20:18,040 Speaker 1: her extraordinary. The success of her efforts is extraordinary. And 369 00:20:18,119 --> 00:20:21,080 Speaker 1: as Jane Scalia, the president's oldest son, prominent attorney in 370 00:20:21,119 --> 00:20:23,680 Speaker 1: his own right, and former Trump cabin an official, told 371 00:20:23,680 --> 00:20:26,600 Speaker 1: me you're writing a book about my dad. I can 372 00:20:26,680 --> 00:20:29,600 Speaker 1: name a number of important Supreme Court justices, but I 373 00:20:29,600 --> 00:20:32,239 Speaker 1: don't think I can name for you anyone else who 374 00:20:32,280 --> 00:20:35,399 Speaker 1: accomplish what my mom did. And as one of Justice 375 00:20:35,400 --> 00:20:39,159 Speaker 1: Scalia's daughters noted after his death, my mom was equally 376 00:20:39,200 --> 00:20:41,840 Speaker 1: as smart, and dare I say it's smarter than my dad. 377 00:20:42,040 --> 00:20:44,639 Speaker 1: It wasn't too Justice Scalia that the kids went for 378 00:20:44,720 --> 00:20:47,800 Speaker 1: help with their math homework. That's a great story and 379 00:20:47,920 --> 00:20:51,240 Speaker 1: a real insight into how the family operated back in 380 00:20:51,280 --> 00:20:56,200 Speaker 1: this period. Walk us through the complexity where Scalia gets 381 00:20:56,240 --> 00:21:01,160 Speaker 1: nominated by Nixon, Nixon then has to resign, and there's 382 00:21:01,160 --> 00:21:06,280 Speaker 1: a certain trickiness to how Ford does what he needs 383 00:21:06,320 --> 00:21:10,800 Speaker 1: to do to keep Scalia. Technically, Ford did not nominated Scalia, 384 00:21:10,840 --> 00:21:13,560 Speaker 1: and I will confess I don't fully understand all because 385 00:21:13,560 --> 00:21:15,960 Speaker 1: I'm not a lawyer. I don't understand exactly the dance 386 00:21:16,000 --> 00:21:18,480 Speaker 1: they were doing at this point. His first job in 387 00:21:18,520 --> 00:21:21,639 Speaker 1: government was in the Nixon administration. He was tapped at 388 00:21:21,680 --> 00:21:24,840 Speaker 1: the age of thirty five to serve as General counsel 389 00:21:25,400 --> 00:21:28,400 Speaker 1: to a newly created agency created by the Nixon administration 390 00:21:28,440 --> 00:21:32,879 Speaker 1: called the White House Office of Telecommunications Policy. And it 391 00:21:32,920 --> 00:21:35,120 Speaker 1: was an early effort led by a visionary of the time, 392 00:21:35,160 --> 00:21:38,680 Speaker 1: someone who deserves his own biography, Clay Tom Whitehead. Tom 393 00:21:38,720 --> 00:21:41,800 Speaker 1: Whitehead was someone who held several degrees from places like 394 00:21:41,960 --> 00:21:44,760 Speaker 1: MIT and who worked at the Rand Corporation. Was a 395 00:21:44,800 --> 00:21:47,639 Speaker 1: genius and an honest to god visionary who gave Scalia 396 00:21:47,760 --> 00:21:50,240 Speaker 1: his first job in government was around the same age 397 00:21:50,280 --> 00:21:52,399 Speaker 1: as him, and who saw the need for the federal 398 00:21:52,440 --> 00:21:56,240 Speaker 1: government to start to undertake, to control with greater precision 399 00:21:56,760 --> 00:22:02,119 Speaker 1: and outcome and greater effect, the sprawling business of telecommunications 400 00:22:02,160 --> 00:22:05,679 Speaker 1: policy across the different branches and the different agencies and 401 00:22:05,720 --> 00:22:08,920 Speaker 1: so on, and to consolidate all of that under administrative control. 402 00:22:09,119 --> 00:22:12,000 Speaker 1: And thus was born the White House Office of Telecommunications Policy. 403 00:22:12,320 --> 00:22:14,320 Speaker 1: I'm the first researcher to get a hold of Antonin 404 00:22:14,400 --> 00:22:16,919 Speaker 1: Scalia's papers from when he was the General counsel to 405 00:22:16,960 --> 00:22:20,000 Speaker 1: that agency, and they include his handwritten notes, his memos, 406 00:22:20,040 --> 00:22:23,480 Speaker 1: his drafts, his correspondence sometimes with famous figures of the error. 407 00:22:23,520 --> 00:22:27,960 Speaker 1: Like Chuck Coulson, and Scalia predicted the rise of the Internet. 408 00:22:28,280 --> 00:22:31,359 Speaker 1: He talked about how there would be remote users using 409 00:22:31,359 --> 00:22:33,719 Speaker 1: their TV screens to do their banking and other remote 410 00:22:33,720 --> 00:22:38,160 Speaker 1: things and retrieve information. He predicted the attendant privacy concerns 411 00:22:38,680 --> 00:22:41,240 Speaker 1: that would ensue as a result of this development. He 412 00:22:41,320 --> 00:22:44,280 Speaker 1: and his colleagues used terms that wouldn't escape the lips 413 00:22:44,280 --> 00:22:46,879 Speaker 1: of ordinary Americans from another twenty five years, like shared 414 00:22:46,920 --> 00:22:50,240 Speaker 1: computer system. Here's an extraordinary document published here for the 415 00:22:50,280 --> 00:22:53,240 Speaker 1: first time where Scalia, as General Counsel to this White 416 00:22:53,240 --> 00:22:57,200 Speaker 1: House Office of Telecommunications Policy, is presiding over a mission 417 00:22:57,280 --> 00:23:03,240 Speaker 1: to achieve interoperability between two different Pentagon information systems, And 418 00:23:03,320 --> 00:23:06,000 Speaker 1: at the precise moment where the two Auto DIN and 419 00:23:06,080 --> 00:23:10,440 Speaker 1: this other ancient relic of a Pentagon information system were 420 00:23:10,560 --> 00:23:13,679 Speaker 1: made interoperable, you can see Scalia exult in writing about it. 421 00:23:14,040 --> 00:23:16,280 Speaker 1: Then he served a couple of years as the chairman 422 00:23:16,320 --> 00:23:18,680 Speaker 1: of something called the Administrative Conference of the United States 423 00:23:18,800 --> 00:23:21,560 Speaker 1: is a kind of quasi public think tank that helps 424 00:23:21,880 --> 00:23:25,880 Speaker 1: federal agencies like the FDA, like FCC, like Federal Election Commission, 425 00:23:25,920 --> 00:23:28,960 Speaker 1: all the alphabet soup of federal agencies improve their practices. 426 00:23:29,520 --> 00:23:31,840 Speaker 1: And then we come to the moment you described nut 427 00:23:32,200 --> 00:23:34,680 Speaker 1: where President Nixon, in the waning days of his term, 428 00:23:34,760 --> 00:23:38,439 Speaker 1: nominates Anton and Scalia to serve as Assistant Attorney General 429 00:23:38,520 --> 00:23:40,600 Speaker 1: for the Office of Legal Counsel, the same position that 430 00:23:40,600 --> 00:23:43,000 Speaker 1: Bill Renquist had held when Nixon nominated him to the 431 00:23:43,000 --> 00:23:46,840 Speaker 1: Supreme Court. Nixon is forced by Watergate to resign. Gerald 432 00:23:46,880 --> 00:23:51,160 Speaker 1: Ford takes office the country's only unelected president and who 433 00:23:51,160 --> 00:23:54,199 Speaker 1: had never been elected president or vice president, and the 434 00:23:54,280 --> 00:23:57,439 Speaker 1: official paperwork that is associated with a federal nomination like 435 00:23:57,520 --> 00:24:00,359 Speaker 1: this for a Senate confirmed position like assistant Attorney General 436 00:24:00,920 --> 00:24:04,480 Speaker 1: states that the president has appointed and does hereby nominate 437 00:24:05,119 --> 00:24:09,120 Speaker 1: the individual who's being promoted, And of course Ford has 438 00:24:09,280 --> 00:24:12,400 Speaker 1: not appointed him, he did nominate him. So Scalia, as 439 00:24:12,440 --> 00:24:14,880 Speaker 1: Justice in later years, liked to boast that his commission 440 00:24:14,960 --> 00:24:17,359 Speaker 1: papers from this period of the summer of nineteen seventy 441 00:24:17,359 --> 00:24:20,600 Speaker 1: four were something of a collector's item, because the language 442 00:24:20,720 --> 00:24:23,680 Speaker 1: on his commission, his official commission in trusting him with 443 00:24:23,720 --> 00:24:27,480 Speaker 1: federal office, was tailored specifically for him to meet this 444 00:24:27,560 --> 00:24:30,439 Speaker 1: unusual situation of his having been appointed by Nixon but 445 00:24:30,760 --> 00:24:34,240 Speaker 1: nominated by Ford. There are new documents on this in 446 00:24:34,320 --> 00:24:37,320 Speaker 1: Scalia rise to greatness that have never been published before 447 00:24:37,400 --> 00:24:39,560 Speaker 1: that show the kind of work he was doing as 448 00:24:39,600 --> 00:24:42,480 Speaker 1: Assistant Attorney General for the Office of Legal Counsel in 449 00:24:42,480 --> 00:24:45,720 Speaker 1: the post Watergate era, and it had two central thrust 450 00:24:45,760 --> 00:24:47,840 Speaker 1: to it, And again it's never been studied in this 451 00:24:47,960 --> 00:24:51,960 Speaker 1: detail with so much revelation from CIA archives and other sources. 452 00:24:52,000 --> 00:24:55,360 Speaker 1: On the one hand, Scalia joined forces with other conscientious 453 00:24:55,359 --> 00:24:58,200 Speaker 1: conservatives of the era, such as Dick Cheney and Don 454 00:24:58,240 --> 00:25:03,160 Speaker 1: Rumsfeld to preserve the powers of the presidency against what 455 00:25:03,200 --> 00:25:06,440 Speaker 1: they considered in this post Watergate era to be an 456 00:25:06,440 --> 00:25:09,960 Speaker 1: onslaught from Democrats in Congress and from the news media 457 00:25:10,040 --> 00:25:12,800 Speaker 1: to curtail the powers of the presidency. And while this 458 00:25:12,960 --> 00:25:16,840 Speaker 1: cadre of conscientious conservatives, which also included most notably Larry Silverman, 459 00:25:17,080 --> 00:25:19,800 Speaker 1: held no affinity for the lost cause of Richard Nixon, 460 00:25:20,520 --> 00:25:23,560 Speaker 1: they knew that even after the Watergate and its subsidiary 461 00:25:23,600 --> 00:25:25,800 Speaker 1: scandals faded from the headlines, the country would need a 462 00:25:25,800 --> 00:25:30,480 Speaker 1: strong executive and so Scalia was instrumental in preserving those powers. 463 00:25:30,920 --> 00:25:33,720 Speaker 1: The other end of it is that he participated in 464 00:25:33,720 --> 00:25:38,000 Speaker 1: what was, after Watergate and its attendant revelations, the complete 465 00:25:38,040 --> 00:25:41,720 Speaker 1: Reformation of the intelligence community in the United States, the 466 00:25:41,800 --> 00:25:44,200 Speaker 1: real first attempt at setting down rules of the road 467 00:25:44,280 --> 00:25:47,119 Speaker 1: for the intelligence community after all the revelations of Watergate 468 00:25:47,200 --> 00:25:51,359 Speaker 1: and the Kennedy administration's efforts to assassinate Fidel Castro using 469 00:25:51,400 --> 00:25:54,359 Speaker 1: the intelligence community in the mafia and so on, and 470 00:25:54,400 --> 00:25:57,440 Speaker 1: Scalia helped write those rules of the road. He also 471 00:25:57,480 --> 00:26:00,680 Speaker 1: worked on a lot of classified matters which remained classified, 472 00:26:01,080 --> 00:26:03,840 Speaker 1: but as an example of the kind of influence he had, 473 00:26:03,960 --> 00:26:06,760 Speaker 1: it got to the point where the Ford administration was 474 00:26:06,840 --> 00:26:11,080 Speaker 1: running just about every covert operation passed Anton and Scalia 475 00:26:11,160 --> 00:26:13,840 Speaker 1: for his legal approval, and it was a position that 476 00:26:13,880 --> 00:26:16,560 Speaker 1: the kid from Queens never imagined that he would occupy 477 00:26:16,680 --> 00:26:20,719 Speaker 1: standing astride the American intelligence apparatus. And as one example 478 00:26:20,760 --> 00:26:23,000 Speaker 1: of it, and it's not been published before, on the 479 00:26:23,040 --> 00:26:25,919 Speaker 1: afternoon of April thirty, nineteen seventy five, Scalia received a 480 00:26:25,920 --> 00:26:27,639 Speaker 1: call from the White House basically telling him that they 481 00:26:27,680 --> 00:26:30,320 Speaker 1: needed his legal opinion within a few hours time as 482 00:26:30,320 --> 00:26:32,680 Speaker 1: to whether it would be lawful under the War Powers 483 00:26:32,720 --> 00:26:36,720 Speaker 1: Act for American helicopters to evacuate embassy personnel from the 484 00:26:36,760 --> 00:26:39,840 Speaker 1: roof of the American Embassy on the day that Saigon 485 00:26:39,960 --> 00:26:43,000 Speaker 1: fell April thirty, nineteen seventy five. He provided the legal 486 00:26:43,000 --> 00:26:47,480 Speaker 1: opinion that found that it was lawful for US helicopters 487 00:26:47,480 --> 00:26:49,560 Speaker 1: to do that, and they did. But he later said 488 00:26:49,600 --> 00:26:52,520 Speaker 1: again in a previously unpublished account, I thought to myself, 489 00:26:52,760 --> 00:26:56,560 Speaker 1: would they really not conduct the operation because of the 490 00:26:56,600 --> 00:26:58,639 Speaker 1: word of legal counsel? What is the world coming to? 491 00:26:59,720 --> 00:27:02,479 Speaker 1: His work in the Ford administration is really fascinating and 492 00:27:02,560 --> 00:27:05,600 Speaker 1: covered again here in greater detail than ever before, including 493 00:27:05,600 --> 00:27:08,720 Speaker 1: a previously unpublished photograph of him meeting with President Ford 494 00:27:08,720 --> 00:27:12,720 Speaker 1: in nineteen seventy six. He also had an extraordinary important 495 00:27:12,800 --> 00:27:17,240 Speaker 1: ruling on whether or not presidential papers belonged to the president. 496 00:27:17,880 --> 00:27:20,919 Speaker 1: That's right. His first assignment at the Department of Justice 497 00:27:21,000 --> 00:27:24,040 Speaker 1: was to pronounce on who owns the Nixon tapes. And 498 00:27:24,240 --> 00:27:27,280 Speaker 1: I interviewed the young lawyer who worked alongside incident Scalia 499 00:27:27,320 --> 00:27:29,320 Speaker 1: back at that time in nineteen seventy four, now a 500 00:27:29,359 --> 00:27:33,080 Speaker 1: law professor named Bill Funk, who remembered staying up with Scalia, 501 00:27:33,240 --> 00:27:35,600 Speaker 1: pulling all nighters in the White House situation room to 502 00:27:35,640 --> 00:27:38,680 Speaker 1: review documents ahead of their testimony before the Pipe Committee, 503 00:27:39,040 --> 00:27:42,120 Speaker 1: and who was present for Scalia's immersion in so much 504 00:27:42,119 --> 00:27:45,760 Speaker 1: of this classified material and remembered Scalia vividly saying, why 505 00:27:45,760 --> 00:27:48,000 Speaker 1: am I being invested with this knowledge of the name 506 00:27:48,000 --> 00:27:51,119 Speaker 1: of a covert asset in some foreign country? This is crazy. 507 00:27:51,280 --> 00:27:54,120 Speaker 1: One of the lessons Scalia took away from his service 508 00:27:54,480 --> 00:27:57,479 Speaker 1: in that time period, as he later joked, his justice 509 00:27:57,560 --> 00:28:00,359 Speaker 1: was that the army that hits the beaches with their 510 00:28:00,440 --> 00:28:04,159 Speaker 1: lawyers in tow is asking for trouble. And he was 511 00:28:04,200 --> 00:28:06,880 Speaker 1: inclined after nine to eleven to draw a direct line 512 00:28:06,920 --> 00:28:10,240 Speaker 1: between the attempted emasculation of the intelligence community in the 513 00:28:10,280 --> 00:28:14,479 Speaker 1: Postwartergate era and the attacks of September eleven. So, in 514 00:28:14,520 --> 00:28:19,520 Speaker 1: a sense, Scalia, much like George Washington, believed that a 515 00:28:19,680 --> 00:28:24,480 Speaker 1: strong executive was essential in a dangerous world, an inviolable 516 00:28:24,520 --> 00:28:28,280 Speaker 1: element of the separation of powers. So in that context, 517 00:28:29,280 --> 00:28:32,080 Speaker 1: the critics of Scalia really try to create a story 518 00:28:32,720 --> 00:28:36,399 Speaker 1: that there was a combination of doing what powerful people 519 00:28:36,440 --> 00:28:39,880 Speaker 1: wanted him to do, an authoritarianism growing out of his 520 00:28:40,560 --> 00:28:44,480 Speaker 1: Catholic upbringing, which strikes me as part of the classic 521 00:28:44,600 --> 00:28:50,320 Speaker 1: left's hostility to Catholicism and their belief that strong executives 522 00:28:50,360 --> 00:28:53,640 Speaker 1: are inherently dangerous, unless, of course, it's their strong executive. 523 00:28:54,560 --> 00:28:57,240 Speaker 1: I suppose we're obligated to note that there is a 524 00:28:57,400 --> 00:29:01,240 Speaker 1: Catholic left and always has been, one point exemplified perhaps 525 00:29:01,280 --> 00:29:05,600 Speaker 1: by the Barragan brothers. But you're correct that Scalia's career 526 00:29:06,120 --> 00:29:10,240 Speaker 1: and his motivations were subject, certainly in the previous biographies, 527 00:29:10,280 --> 00:29:13,480 Speaker 1: but even at points in real time along the way 528 00:29:13,640 --> 00:29:17,600 Speaker 1: to a kind of cynical view, a tendentious construction that 529 00:29:17,800 --> 00:29:20,920 Speaker 1: is utterly rejected in this present volume scali Arise to Greatness. 530 00:29:20,920 --> 00:29:24,680 Speaker 1: I call it the careerist authoritarian narrative, where no matter 531 00:29:24,680 --> 00:29:28,280 Speaker 1: what opinion he delivered, his biographers and other critics have 532 00:29:28,440 --> 00:29:32,160 Speaker 1: always said that he was in essence advertising his eagerness 533 00:29:32,240 --> 00:29:35,840 Speaker 1: for promotion with various powerful people, which suggests a kind 534 00:29:35,840 --> 00:29:39,200 Speaker 1: of cynical abandonment of any particular set of ideals he 535 00:29:39,280 --> 00:29:42,320 Speaker 1: held in order just to gain more power. And at 536 00:29:42,360 --> 00:29:45,320 Speaker 1: the same time, these same critics have suggested that his 537 00:29:45,480 --> 00:29:49,400 Speaker 1: various rulings and opinions that he offered actually reflected some 538 00:29:49,480 --> 00:29:53,360 Speaker 1: deep and dark authoritarian impulses in Scalia, perhaps the result 539 00:29:53,400 --> 00:29:56,720 Speaker 1: of his Catholicism, his rules oriented father, and so forth, 540 00:29:57,040 --> 00:29:59,000 Speaker 1: And of course both can't be true. At the same time, 541 00:29:59,320 --> 00:30:03,040 Speaker 1: he can't be nakedly flashing his authoritarianism at the same 542 00:30:03,080 --> 00:30:06,840 Speaker 1: time that he's cynically tailoring his views to suit powerful men. 543 00:30:07,400 --> 00:30:09,959 Speaker 1: And I spoke with people who work closely with Scalia 544 00:30:10,040 --> 00:30:12,760 Speaker 1: at all points of his career, and they all used 545 00:30:12,800 --> 00:30:16,560 Speaker 1: a Barnyard epithet for that whole careerist authoritarian narrative. He 546 00:30:16,600 --> 00:30:19,520 Speaker 1: was actually quite courageous in the opinions he delivered, including 547 00:30:19,520 --> 00:30:22,680 Speaker 1: the one that President Nixon former President Nixon owned the 548 00:30:22,800 --> 00:30:26,760 Speaker 1: Nixon tapes, as Jim Wilderotter, an attorney who worked alongside 549 00:30:27,120 --> 00:30:29,440 Speaker 1: Scalia at dij in the Ford White House, told me 550 00:30:29,800 --> 00:30:32,200 Speaker 1: they knew and coming to the conclusion that Nixon owned 551 00:30:32,200 --> 00:30:35,560 Speaker 1: his own tapes, that would be a very unpopular opinion 552 00:30:35,640 --> 00:30:38,720 Speaker 1: with and finding with the members of the Congress and 553 00:30:38,720 --> 00:30:41,160 Speaker 1: the news media and so on. But he issued it 554 00:30:41,200 --> 00:30:44,400 Speaker 1: anyway because it was justified on the basis of past 555 00:30:44,440 --> 00:30:48,280 Speaker 1: practice and the law, and Scalia considered it a vindication 556 00:30:48,280 --> 00:30:51,160 Speaker 1: of sorts. When many years later, in two thousand, after 557 00:30:51,360 --> 00:30:54,400 Speaker 1: former President Nixon had died and the legal suits were 558 00:30:54,440 --> 00:30:57,440 Speaker 1: resolved between his estate and the National Archives, the US 559 00:30:57,520 --> 00:31:01,200 Speaker 1: government agreed to pay the Nixon estate eight million dollars 560 00:31:01,240 --> 00:31:03,840 Speaker 1: in compensation for the seizure of the tapes, which were 561 00:31:03,840 --> 00:31:07,040 Speaker 1: his personal property. So Scolia was ultimately vindicated in that 562 00:31:07,280 --> 00:31:10,360 Speaker 1: But time and again he was a profile encourage. As 563 00:31:10,400 --> 00:31:13,440 Speaker 1: he famously put it when he was testifying in nineteen 564 00:31:13,480 --> 00:31:16,920 Speaker 1: seventy three on behalf of executive privilege, he understood that 565 00:31:17,120 --> 00:31:19,360 Speaker 1: coming to the halls of Congress to preach the benefits 566 00:31:19,400 --> 00:31:22,240 Speaker 1: of executive privilege at that time in the watergate era 567 00:31:22,360 --> 00:31:25,040 Speaker 1: was akin to preaching the benefits of water after the 568 00:31:25,120 --> 00:31:29,120 Speaker 1: Johnstown flood. But he understood what the country needed and 569 00:31:29,160 --> 00:31:48,320 Speaker 1: what separation of powers requiring. At the end of the 570 00:31:48,360 --> 00:31:53,160 Speaker 1: Ford administration, Scalia leaves government and he decides to go 571 00:31:53,200 --> 00:31:56,080 Speaker 1: and teach. Why did he decide that he would teach 572 00:31:56,240 --> 00:31:58,280 Speaker 1: rather than go to a law firm than two When 573 00:31:58,320 --> 00:32:00,400 Speaker 1: he did decide to teach, why does he go to 574 00:32:00,720 --> 00:32:03,440 Speaker 1: the University of Chicago, which, of course an amazing and 575 00:32:03,480 --> 00:32:07,120 Speaker 1: great institution. But I think the Scalia decision is unique 576 00:32:07,120 --> 00:32:11,000 Speaker 1: and kind of remarkable. So again, in Scalia Rise to Greatness, 577 00:32:11,000 --> 00:32:14,080 Speaker 1: we present in greater detail than in any previous biography 578 00:32:14,080 --> 00:32:17,760 Speaker 1: of the man his two stints in academia, first at 579 00:32:17,760 --> 00:32:21,080 Speaker 1: the University of Virginia, law School from nineteen sixty seven 580 00:32:21,120 --> 00:32:23,960 Speaker 1: to nineteen seventy and then at the University of Chicago 581 00:32:24,360 --> 00:32:27,280 Speaker 1: Law School from nineteen seventy seven to nineteen eighty two, 582 00:32:27,320 --> 00:32:29,800 Speaker 1: when President Reagan nominates him to the Court of Appeals 583 00:32:29,800 --> 00:32:32,239 Speaker 1: as the federal Bench. These episodes have been treated only 584 00:32:32,320 --> 00:32:35,240 Speaker 1: for sorely in the previous literature. I tracked down former 585 00:32:35,280 --> 00:32:38,520 Speaker 1: students of Scalias and colleagues of his from both academic 586 00:32:38,560 --> 00:32:42,680 Speaker 1: institutions and UVA in Charlottesville in the late sixties was 587 00:32:42,720 --> 00:32:47,280 Speaker 1: hardly immune from the campus radicalism that swept through the 588 00:32:47,320 --> 00:32:50,120 Speaker 1: United States in that time. There was violence, there was 589 00:32:50,200 --> 00:32:53,200 Speaker 1: clashes with student protesters and so forth that Scalia was 590 00:32:53,240 --> 00:32:56,360 Speaker 1: there for, and in fact, one student recalled for me 591 00:32:56,720 --> 00:33:00,520 Speaker 1: a previously unpublished account of what Professor Scalia told his 592 00:33:00,640 --> 00:33:03,520 Speaker 1: students the day they had to take an exam the 593 00:33:03,640 --> 00:33:07,560 Speaker 1: morning after the assassination of Bobby Kennedy, which was fascinating 594 00:33:07,560 --> 00:33:10,480 Speaker 1: insight into Scalia at that time. His students told me 595 00:33:10,520 --> 00:33:13,719 Speaker 1: that Scalia used to when teaching contracts class at UVA 596 00:33:13,800 --> 00:33:16,880 Speaker 1: in the early seventies, literally run from one end of 597 00:33:16,880 --> 00:33:19,040 Speaker 1: the stage to the other to act out the part 598 00:33:19,480 --> 00:33:22,600 Speaker 1: of the disputing parties. Over a contract dispute, drawing on 599 00:33:22,680 --> 00:33:24,760 Speaker 1: his theater experience that he had as a young man 600 00:33:24,800 --> 00:33:27,720 Speaker 1: at Xavier High School, and by all accounts he was 601 00:33:27,760 --> 00:33:30,240 Speaker 1: always rated highly by the students as one of their favorites. 602 00:33:30,600 --> 00:33:33,200 Speaker 1: The years at UVA turned out to be more enjoyable 603 00:33:33,240 --> 00:33:36,080 Speaker 1: for the Scalias than did his later stint at the 604 00:33:36,160 --> 00:33:39,800 Speaker 1: University of Chicago Law School, simply because living I think 605 00:33:39,920 --> 00:33:43,280 Speaker 1: in northern Virginia, where near Charlottesville, I should say, was 606 00:33:43,440 --> 00:33:46,680 Speaker 1: more pleasant for the Scalia family than Chicago turned out 607 00:33:46,720 --> 00:33:49,160 Speaker 1: to be. But the reason he chose the University of 608 00:33:49,240 --> 00:33:51,840 Speaker 1: Chicago Law School, to get to your question, was because 609 00:33:52,040 --> 00:33:55,360 Speaker 1: that has always been considered not just one of the 610 00:33:55,440 --> 00:33:58,920 Speaker 1: premier academic institutions in the United States, but a kind 611 00:33:58,960 --> 00:34:04,080 Speaker 1: of conservative question within academia. And he wrote and lectured 612 00:34:04,120 --> 00:34:07,240 Speaker 1: widely during that stint at University of Chicago, appeared on 613 00:34:07,280 --> 00:34:09,520 Speaker 1: television a lot, and it was during those times when 614 00:34:09,520 --> 00:34:11,839 Speaker 1: he was a period also as a scholar for AI, 615 00:34:12,000 --> 00:34:15,040 Speaker 1: appearing on debate programs with other eminent minds at the time, 616 00:34:15,239 --> 00:34:19,160 Speaker 1: where he made his first comments on abortion as a subject, 617 00:34:19,520 --> 00:34:22,080 Speaker 1: and where he wrote a law review paper that was 618 00:34:22,080 --> 00:34:24,880 Speaker 1: truly remarkable for its time. Called the Disease as Cure, 619 00:34:25,360 --> 00:34:28,360 Speaker 1: in which he used swifty and satire unheard of in 620 00:34:28,440 --> 00:34:32,200 Speaker 1: law review writing to attack affirmative action and declare it 621 00:34:32,200 --> 00:34:34,919 Speaker 1: as reverse racism and effect. So he made his mark 622 00:34:35,239 --> 00:34:38,600 Speaker 1: in those academic institutions. And again this is presented in 623 00:34:38,640 --> 00:34:41,160 Speaker 1: greater detail than ever before in scalia Rise to Greatness. 624 00:34:41,320 --> 00:34:45,200 Speaker 1: Scalier goes a little bit of frustration at the beginning 625 00:34:45,200 --> 00:34:48,759 Speaker 1: of the Reagan administration. He really wanted the job of 626 00:34:48,800 --> 00:34:51,760 Speaker 1: Solicitor General of the United States, which is the lawyer 627 00:34:51,800 --> 00:34:55,359 Speaker 1: who works for the federal government and represents the US 628 00:34:55,480 --> 00:34:58,160 Speaker 1: government in disputes at the Supreme Court and often argues 629 00:34:58,200 --> 00:35:01,200 Speaker 1: those cases at the Supreme Court the government. This was 630 00:35:01,239 --> 00:35:03,959 Speaker 1: the job that Robert Borke had held under the Nixon administration. 631 00:35:04,320 --> 00:35:06,279 Speaker 1: It's often been seen as a stepping stone to the 632 00:35:06,280 --> 00:35:08,719 Speaker 1: Supreme Court. Scalia turned out to be one of three 633 00:35:08,760 --> 00:35:11,000 Speaker 1: candidates for the job, one of whom was Bork. But 634 00:35:11,120 --> 00:35:14,560 Speaker 1: ultimately the Reagan administration shows Rex Lee, the father of 635 00:35:14,600 --> 00:35:17,160 Speaker 1: the current Utah Senator Mike Lee, and this was a 636 00:35:17,200 --> 00:35:20,759 Speaker 1: bitter disappointment for Scalia, and I think for him it 637 00:35:20,840 --> 00:35:24,560 Speaker 1: conjured those memories of being rejected at Princeton because the 638 00:35:24,600 --> 00:35:27,719 Speaker 1: Attorney General who made the decision, President Reagan's first Attorney General, 639 00:35:27,800 --> 00:35:32,520 Speaker 1: William French Smith, was himself a patrician cool Ivy League 640 00:35:32,560 --> 00:35:36,920 Speaker 1: type of character. As it happened, the declassified documents obtained 641 00:35:36,960 --> 00:35:39,840 Speaker 1: from the Reagan Library show that Sculius should never have 642 00:35:39,880 --> 00:35:43,760 Speaker 1: worried because from the earliest moments right after Reagan's election 643 00:35:43,800 --> 00:35:47,960 Speaker 1: in nineteen eighty, powerful individuals and groups, including Italian American groups, 644 00:35:47,960 --> 00:35:50,000 Speaker 1: were lobbying on his behalf to receive some kind of 645 00:35:50,040 --> 00:35:53,799 Speaker 1: important appointment in the executive or judicial branches, and the 646 00:35:53,880 --> 00:35:56,440 Speaker 1: record shows the White House Counsel at the time, Fred Field, 647 00:35:56,680 --> 00:36:00,480 Speaker 1: telling these individuals and organizations were trying in essence to 648 00:36:00,520 --> 00:36:02,720 Speaker 1: find the right spot for him. But in the meantime, 649 00:36:02,760 --> 00:36:05,120 Speaker 1: not only did he not get the SG job, he 650 00:36:05,239 --> 00:36:07,520 Speaker 1: was passed over for the first vacancy on the Court. 651 00:36:07,560 --> 00:36:10,120 Speaker 1: He wanted the Court of Appeals for the DC Circuit 652 00:36:10,400 --> 00:36:12,760 Speaker 1: that went to Robert Bourke, and then the first Supreme 653 00:36:12,800 --> 00:36:16,800 Speaker 1: Court vacancy under President Reagan to fulfill his campaign pledge 654 00:36:16,800 --> 00:36:19,439 Speaker 1: went to a woman, Sandra da O'Connor. By this point, 655 00:36:19,560 --> 00:36:21,759 Speaker 1: Scalia had been on shortlists for the Supreme Court for 656 00:36:21,800 --> 00:36:24,400 Speaker 1: a number of years, and so, as I mentioned, this 657 00:36:24,440 --> 00:36:26,279 Speaker 1: is where we quote Tom Petty in the book, the 658 00:36:26,320 --> 00:36:29,440 Speaker 1: waiting is the hardest part. He was then offered a 659 00:36:29,480 --> 00:36:31,880 Speaker 1: seat on the Seventh Circuit Court of Appeals, based in 660 00:36:31,920 --> 00:36:34,839 Speaker 1: the Midwest, and he ultimately decided to turn that down, 661 00:36:34,880 --> 00:36:37,360 Speaker 1: which was a gamble of sorts because being appointed to 662 00:36:37,360 --> 00:36:40,160 Speaker 1: the Court of Appeals, whatever the circuit is, is the 663 00:36:40,200 --> 00:36:42,520 Speaker 1: capstone to many legal careers, and there would be no 664 00:36:42,760 --> 00:36:46,200 Speaker 1: guarantee that he would see a vacancy anytime soon on 665 00:36:46,239 --> 00:36:49,000 Speaker 1: the court. He wanted the DC Circuit, but Scalia was 666 00:36:49,040 --> 00:36:52,440 Speaker 1: a veteran poker player. He gambled, and he ultimately prevailed 667 00:36:52,440 --> 00:36:55,000 Speaker 1: because just a few months later a vacancy arose on 668 00:36:55,040 --> 00:36:58,080 Speaker 1: the DC Circuit and President Reagan placed him on that court. 669 00:36:58,280 --> 00:37:01,239 Speaker 1: He gets to be on the court, and then he 670 00:37:01,280 --> 00:37:05,120 Speaker 1: gets nominated for the Supreme Court. So this is all 671 00:37:05,160 --> 00:37:07,880 Speaker 1: covered in the book. The book ends with Scalia literally 672 00:37:07,920 --> 00:37:10,120 Speaker 1: taking his seat on the Supreme Court the day he's 673 00:37:10,160 --> 00:37:13,640 Speaker 1: sworn in. But those four years on the Appellate Court 674 00:37:13,880 --> 00:37:17,360 Speaker 1: established his legal philosophy in writing in his descents and 675 00:37:17,440 --> 00:37:21,160 Speaker 1: his opinions, but they also served to introduce him to 676 00:37:21,200 --> 00:37:22,920 Speaker 1: the person who had become his best friend for the 677 00:37:22,920 --> 00:37:26,120 Speaker 1: rest of his life. Ruth Bader Ginsberg, she was on 678 00:37:26,120 --> 00:37:28,480 Speaker 1: that court for two years, appointed by President Carter, when 679 00:37:29,080 --> 00:37:31,640 Speaker 1: Nino Scalia joined her on the Court of Appeals in 680 00:37:31,719 --> 00:37:34,960 Speaker 1: nineteen eighty two. Scalia Rise to Greatness is the first 681 00:37:34,960 --> 00:37:39,160 Speaker 1: book to publish the documents that flew between their chambers 682 00:37:39,200 --> 00:37:42,040 Speaker 1: on that court from nineteen eighty two to nineteen eighty six. 683 00:37:42,120 --> 00:37:45,640 Speaker 1: Using Ruth Bader Ginsberg's papers from the Library of Congress, 684 00:37:46,000 --> 00:37:48,480 Speaker 1: and the handwritten notes and the memos and the letters, 685 00:37:48,520 --> 00:37:51,480 Speaker 1: and the correspondence and the draft opinions that flew back 686 00:37:51,520 --> 00:37:54,120 Speaker 1: and forth between the Scalia and Ginsburg chambers in those years, 687 00:37:54,520 --> 00:37:58,120 Speaker 1: really chronicled the birth and the blossoming of this famous, 688 00:37:58,160 --> 00:38:02,560 Speaker 1: celebrated friendship. Do you think brought them together so much? Well, 689 00:38:02,600 --> 00:38:06,399 Speaker 1: it's a great question, and too often overlooked in examining this, 690 00:38:06,640 --> 00:38:09,080 Speaker 1: it seems to me is the fact that it began 691 00:38:09,320 --> 00:38:12,839 Speaker 1: at work. Their relationship was born of work, and they 692 00:38:12,880 --> 00:38:15,640 Speaker 1: both took their work very seriously, and that's reflected in 693 00:38:15,680 --> 00:38:19,239 Speaker 1: this previously unpublished correspondence. From the earliest you can see 694 00:38:19,280 --> 00:38:22,880 Speaker 1: Ruth Bader Ginsburgh taking an almost maternal tone towards Scalia, 695 00:38:22,960 --> 00:38:25,520 Speaker 1: offering to lighten his burdens if his workload is too much. 696 00:38:25,920 --> 00:38:28,640 Speaker 1: In these memos, where they're debating fine points of the 697 00:38:28,719 --> 00:38:31,439 Speaker 1: law with the minds of legal geniuses and the wit 698 00:38:31,880 --> 00:38:34,359 Speaker 1: that we all know they both exhibited, you see her 699 00:38:34,400 --> 00:38:39,759 Speaker 1: alternately challenging Scalia, needling Scalia, flattering him, cajoling him, pressuring him, 700 00:38:39,760 --> 00:38:42,799 Speaker 1: provoking him on the First Amendment and other issues. And 701 00:38:42,920 --> 00:38:44,920 Speaker 1: for his part, you see Scalia in these documents I 702 00:38:44,920 --> 00:38:49,040 Speaker 1: called them the RBG Nino papers, responding with superlative praise 703 00:38:49,080 --> 00:38:51,960 Speaker 1: for her opinions that was probably unknown even to Scalia, 704 00:38:51,960 --> 00:38:54,360 Speaker 1: as bright as students and clerks, possibly to his children. 705 00:38:54,719 --> 00:38:56,960 Speaker 1: You see him letting his hair down, admitting error at 706 00:38:56,960 --> 00:38:59,960 Speaker 1: different times, and one time apologizing to her for producing 707 00:39:00,040 --> 00:39:03,520 Speaker 1: an opinion late quote sloth that I am. They really 708 00:39:03,560 --> 00:39:06,880 Speaker 1: capture a friendship in Embryo, and I dare say, not 709 00:39:07,000 --> 00:39:10,080 Speaker 1: only was their correspondence on that court unlike the correspondence 710 00:39:10,080 --> 00:39:12,080 Speaker 1: of any other two judges on that court, having examined 711 00:39:12,080 --> 00:39:15,000 Speaker 1: all those papers, her papers, Borks papers, others, but it 712 00:39:15,040 --> 00:39:17,719 Speaker 1: was probably unlike the correspondence of any two judges on 713 00:39:17,840 --> 00:39:20,640 Speaker 1: any court at any time. It's one of the things 714 00:39:20,680 --> 00:39:22,799 Speaker 1: I'm proudest of in terms of research, and there's a 715 00:39:22,800 --> 00:39:25,399 Speaker 1: lot of new material in this book, but looking at 716 00:39:25,400 --> 00:39:28,719 Speaker 1: the RBG Nino relationship and its origins is one of 717 00:39:28,719 --> 00:39:30,680 Speaker 1: the things I think readers will find most rewarding in 718 00:39:30,719 --> 00:39:33,759 Speaker 1: Scalia Rise to Greatness. No, the other thing you cover, 719 00:39:33,880 --> 00:39:40,080 Speaker 1: which is frankly almost unbelievable, is John Bolton, who at 720 00:39:40,080 --> 00:39:44,440 Speaker 1: that time was in the Office of Legislative Affairs tracking 721 00:39:44,840 --> 00:39:48,759 Speaker 1: Scalia down and Scalia has finally approved. Given how controversial 722 00:39:48,880 --> 00:39:52,200 Speaker 1: Scalia became later, the fact that he's approved ninety eight 723 00:39:52,200 --> 00:39:55,440 Speaker 1: to zero's kind of amazing, isn't it. It speaks to 724 00:39:55,520 --> 00:39:57,640 Speaker 1: a time that is certainly by gone. He was not 725 00:39:57,680 --> 00:40:01,719 Speaker 1: the last Supreme Court justice to prove unanimously, but a 726 00:40:01,840 --> 00:40:04,360 Speaker 1: new era was dawning, and that was visible from the 727 00:40:04,400 --> 00:40:07,839 Speaker 1: fact that his nomination was paired with the nomination of 728 00:40:07,880 --> 00:40:10,880 Speaker 1: Associate Justice William Rehnquist to become the Chief Justice due 729 00:40:10,880 --> 00:40:14,160 Speaker 1: to the retirement of the outgoing Chief Justice Warren Berger, 730 00:40:14,640 --> 00:40:18,320 Speaker 1: and Rnquist's original confirmation hearings to be an associate Justice 731 00:40:18,320 --> 00:40:21,680 Speaker 1: back in nineteen seventy one had been very contentious, and 732 00:40:21,719 --> 00:40:24,120 Speaker 1: then in eighty six, when he's nominated to be chief. 733 00:40:24,600 --> 00:40:27,879 Speaker 1: They called it the Ranquisition because the opposition from Senate 734 00:40:27,920 --> 00:40:31,680 Speaker 1: Democrats was so fierce and so personal, and ultimately Ranquist 735 00:40:31,680 --> 00:40:34,680 Speaker 1: was approved sixty five to thirty three, which in nineteen 736 00:40:34,680 --> 00:40:38,120 Speaker 1: eighty six was the largest opposition tally ever sustained by 737 00:40:38,120 --> 00:40:40,759 Speaker 1: a confirmed nominee for the Court. Now, it's routine to 738 00:40:40,800 --> 00:40:42,880 Speaker 1: see fifty two forty eight and that sort of vote, 739 00:40:43,239 --> 00:40:46,320 Speaker 1: but in the light of the Renquisition, and given Scalia's 740 00:40:46,360 --> 00:40:49,080 Speaker 1: status as the first Italian American ever appointed to the Court, 741 00:40:49,560 --> 00:40:52,040 Speaker 1: something that touched off a true explosion of joy in 742 00:40:52,040 --> 00:40:55,040 Speaker 1: the Italian American community, which we explore in this book. 743 00:40:55,480 --> 00:40:58,759 Speaker 1: Most senators, all the Senators, took the view that he 744 00:40:58,880 --> 00:41:01,960 Speaker 1: was well qualified, the ABA had rated him well qualified, 745 00:41:02,320 --> 00:41:05,320 Speaker 1: and that they wanted to be seen as bipartisan, something 746 00:41:05,320 --> 00:41:08,440 Speaker 1: that isn't present in today's Congress. And so Scalia was 747 00:41:08,480 --> 00:41:11,400 Speaker 1: approved ninety eight to nothing. On the night of the vote. 748 00:41:12,000 --> 00:41:14,160 Speaker 1: What the White House in the Justice Department want for 749 00:41:14,160 --> 00:41:16,320 Speaker 1: such a nominee to be doing is twiddling his thumbs 750 00:41:16,320 --> 00:41:19,520 Speaker 1: in some hotel room or some ceremonial office, waiting for 751 00:41:19,560 --> 00:41:23,560 Speaker 1: the call. Scalia blew that off. Scalia was a social animal. 752 00:41:23,920 --> 00:41:26,960 Speaker 1: He was given on a whim to commandeer a piano 753 00:41:27,000 --> 00:41:29,160 Speaker 1: in someone's house and start belting out show tunes and 754 00:41:29,280 --> 00:41:33,120 Speaker 1: Christmas carols for the assembled with shameless but endearing grandeur. 755 00:41:33,560 --> 00:41:36,160 Speaker 1: And on this particular night of his Senate vote, he 756 00:41:36,280 --> 00:41:38,279 Speaker 1: was out on the rubber Chicken circuit in a black 757 00:41:38,280 --> 00:41:40,440 Speaker 1: tie dinner and had to be tracked down at the 758 00:41:40,440 --> 00:41:43,560 Speaker 1: Willard for which thirty seven year old John Bolton, who 759 00:41:43,560 --> 00:41:45,839 Speaker 1: still had his mustache at that time, I should point out, 760 00:41:46,280 --> 00:41:49,440 Speaker 1: devised the ingenious plan of dedicating a phone line at 761 00:41:49,480 --> 00:41:52,160 Speaker 1: the Willard Hotel where this event was, in the kitchen 762 00:41:52,680 --> 00:41:55,840 Speaker 1: and corralling an employee who would bring Scalia to the 763 00:41:55,880 --> 00:41:59,640 Speaker 1: phone at the appointed hour. That's exactly what happened, and 764 00:42:00,160 --> 00:42:03,600 Speaker 1: never been reported before. Bolton told me that when he 765 00:42:03,719 --> 00:42:06,280 Speaker 1: finally got Skuli on the phone at the Willard Hotel 766 00:42:06,520 --> 00:42:10,359 Speaker 1: kitchen foone, he said, Nino, congratulations. They knew each other. 767 00:42:10,400 --> 00:42:13,360 Speaker 1: They had been at Ai together. John Bolton had attended 768 00:42:13,360 --> 00:42:15,760 Speaker 1: Scalia a so called murder board sessions as a nominee, 769 00:42:15,760 --> 00:42:17,680 Speaker 1: where you have a kind of a mock hearing and 770 00:42:17,719 --> 00:42:21,120 Speaker 1: they throw nasty questions at you, and he says, Nino, congratulations, 771 00:42:21,360 --> 00:42:24,880 Speaker 1: you've been confirmed ninety eight to nothing. Isn't that incredible? 772 00:42:25,200 --> 00:42:27,400 Speaker 1: And Bolton is caught up in the reverie before he 773 00:42:27,440 --> 00:42:29,680 Speaker 1: realizes that the other end of the line has fallen silent, 774 00:42:30,520 --> 00:42:34,160 Speaker 1: and Scalia finally can be heard saying, ninety eight to nothing. 775 00:42:34,680 --> 00:42:38,360 Speaker 1: Who didn't vote? And Zoe, it was Barry Goldwater in 776 00:42:38,440 --> 00:42:41,000 Speaker 1: Jake Garn But you know, isn't this incredible? Ninety eight 777 00:42:41,040 --> 00:42:44,239 Speaker 1: to nothing? And again there's silence, and Scalia finally says, 778 00:42:44,520 --> 00:42:47,000 Speaker 1: with a hint of rebuke in his voice, you mean 779 00:42:47,040 --> 00:42:50,840 Speaker 1: to tell me we couldn't get Goldwater and Garn, which 780 00:42:50,920 --> 00:42:53,880 Speaker 1: by all rights should have been reliable votes for his nomination. 781 00:42:54,719 --> 00:42:57,320 Speaker 1: And at this point, as Bolton told me, he was 782 00:42:57,360 --> 00:43:00,759 Speaker 1: growing a bit irritated, particularly after the rigors of the requisition, 783 00:43:01,239 --> 00:43:04,120 Speaker 1: and he said to him, look, Barry Goldwater, we couldn't 784 00:43:04,160 --> 00:43:06,879 Speaker 1: find And it later turned out that Goldwater had gone 785 00:43:06,880 --> 00:43:09,320 Speaker 1: home sick when the vote was delayed into the evening, 786 00:43:09,719 --> 00:43:12,680 Speaker 1: and Jake Garne, the senator from Utah, was in the 787 00:43:12,719 --> 00:43:15,520 Speaker 1: hospital at that moment, donating his kidney to his daughter. 788 00:43:16,719 --> 00:43:19,920 Speaker 1: So he said to him, concentrate, Nino, You've just been 789 00:43:19,960 --> 00:43:23,160 Speaker 1: confirmed ninety eight to nothing. And I begin the whole 790 00:43:23,160 --> 00:43:27,120 Speaker 1: book with this anecdote because it's so reflective of Scalia's 791 00:43:27,120 --> 00:43:30,480 Speaker 1: commitment to perfection in all things, which he largely achieved 792 00:43:30,520 --> 00:43:32,960 Speaker 1: as an adult and as a public servant. And he 793 00:43:33,040 --> 00:43:36,279 Speaker 1: finally said, you're right, that's great. But the fact is 794 00:43:36,719 --> 00:43:39,200 Speaker 1: it bothered him into the twenty first century, and as 795 00:43:39,280 --> 00:43:41,680 Speaker 1: late as two thousand and five on c SPAN you 796 00:43:41,719 --> 00:43:44,560 Speaker 1: can find Justice Scalia saying it was ninety eight to nothing, 797 00:43:44,800 --> 00:43:47,440 Speaker 1: let's call it a hundred. I was very intrigued with 798 00:43:47,480 --> 00:43:50,799 Speaker 1: your comments about the Federalist Papers because I just did 799 00:43:50,840 --> 00:43:54,760 Speaker 1: a podcast talking about the importance of the Federalist Papers 800 00:43:54,800 --> 00:43:58,040 Speaker 1: and the lessons they still have for us today. From 801 00:43:58,080 --> 00:44:02,080 Speaker 1: your perspective, you see Scalia as having very deep reverence 802 00:44:02,719 --> 00:44:06,560 Speaker 1: for the Federalist Papers. Absolutely, And one of the minor 803 00:44:06,600 --> 00:44:09,440 Speaker 1: revelations of the book is when that really originated for him. 804 00:44:09,480 --> 00:44:12,040 Speaker 1: It wasn't in law school. It was when he was 805 00:44:12,200 --> 00:44:14,640 Speaker 1: serving under President Ford in the post Watergate era. That's 806 00:44:14,680 --> 00:44:17,240 Speaker 1: when he really had to become familiar with it. Scalia 807 00:44:17,320 --> 00:44:21,919 Speaker 1: would teach law courses to lawyers and students every year, 808 00:44:22,320 --> 00:44:25,280 Speaker 1: sometimes twice and three times a year as a justice 809 00:44:25,560 --> 00:44:28,400 Speaker 1: in the summertime, when the justices are off for the season, 810 00:44:28,760 --> 00:44:31,080 Speaker 1: you could usually be found in some beautiful and far 811 00:44:31,160 --> 00:44:35,439 Speaker 1: flung locale teaching continuing legal education courses and so on, 812 00:44:35,800 --> 00:44:39,560 Speaker 1: and he would invariably ask those who were his students 813 00:44:39,560 --> 00:44:42,800 Speaker 1: in attendance, raise your hand if you've read the Federalist papers, 814 00:44:43,239 --> 00:44:44,800 Speaker 1: and a large number of hands would go up, and 815 00:44:44,840 --> 00:44:46,560 Speaker 1: he said, no, no no, no, I don't mean just the 816 00:44:46,600 --> 00:44:49,520 Speaker 1: famous ones like seventy six or whatever. How many of 817 00:44:49,560 --> 00:44:52,680 Speaker 1: you have read the Federalist papers in their entirety And 818 00:44:52,760 --> 00:44:54,760 Speaker 1: the hands would drop, and maybe one or two people 819 00:44:55,080 --> 00:44:57,440 Speaker 1: would raise their hands at that point. And this always 820 00:44:57,440 --> 00:45:00,560 Speaker 1: dismayed him, because he felt you could not truly understand 821 00:45:00,680 --> 00:45:03,759 Speaker 1: the separation of powers and therefore the way the law 822 00:45:03,800 --> 00:45:07,320 Speaker 1: should be applied if you weren't conversant with the Federalist papers. 823 00:45:07,600 --> 00:45:09,799 Speaker 1: I've happen to agree with him on that, James, I 824 00:45:09,840 --> 00:45:12,160 Speaker 1: want to thank you for joining me. It's frankly remarkable 825 00:45:12,560 --> 00:45:15,160 Speaker 1: that given your job as the chief White House correspondent 826 00:45:15,200 --> 00:45:20,040 Speaker 1: for Newsmax, you were able to invest yourself and dive 827 00:45:20,080 --> 00:45:24,040 Speaker 1: in and pull together section after section which had never 828 00:45:24,080 --> 00:45:28,239 Speaker 1: before been published and gives a dramatically clearer vision of 829 00:45:28,320 --> 00:45:31,359 Speaker 1: Scalia on his way to the Supreme Court. And I 830 00:45:31,400 --> 00:45:34,440 Speaker 1: look forward very much to your next book about Scalia 831 00:45:34,640 --> 00:45:37,719 Speaker 1: as a Supreme Court justice, because he is I think, 832 00:45:37,760 --> 00:45:41,800 Speaker 1: probably the most consequential Supreme Court justice of our lifetime 833 00:45:42,160 --> 00:45:45,520 Speaker 1: and fundamentally shifting the way in which the Court has 834 00:45:45,560 --> 00:45:49,800 Speaker 1: interpreted the Constitution. Your new book, Scalia Rise to Greatness 835 00:45:50,320 --> 00:45:54,040 Speaker 1: is going to reward readers, lawyers and non lawyers, as 836 00:45:54,080 --> 00:45:57,400 Speaker 1: a book both for Scalia's admirers, but for all Americans 837 00:45:57,400 --> 00:46:00,439 Speaker 1: who want to understand history and how the law has 838 00:46:00,480 --> 00:46:02,719 Speaker 1: been evolving. And I think they will truly enjoy it. 839 00:46:02,760 --> 00:46:05,640 Speaker 1: And it's remarkable the amount of work you've done. So 840 00:46:05,880 --> 00:46:08,200 Speaker 1: I want to thank you for joining me on Newtsworld. 841 00:46:08,360 --> 00:46:11,240 Speaker 1: Mister speaker, once again, we can revert to the honorific. 842 00:46:11,480 --> 00:46:14,319 Speaker 1: It's been a real honor to have this opportunity with you, 843 00:46:14,400 --> 00:46:17,280 Speaker 1: and I'm honored further that you have read the book, 844 00:46:17,320 --> 00:46:19,279 Speaker 1: and I still want to hear your Scalia stories for 845 00:46:19,360 --> 00:46:26,279 Speaker 1: volume two. Thank you to my guests. James Rosen. You 846 00:46:26,320 --> 00:46:28,960 Speaker 1: can get a link to buy his new book, Scalia 847 00:46:29,120 --> 00:46:32,319 Speaker 1: Rise to Greatness nineteen thirty six to nineteen eighty six 848 00:46:32,640 --> 00:46:36,200 Speaker 1: on our show page at Newtsworld dot com. News World 849 00:46:36,239 --> 00:46:40,680 Speaker 1: is produced by Gingwishtree sixty and iHeartMedia. Our executive producer 850 00:46:40,960 --> 00:46:44,799 Speaker 1: is Garnsey Sloan, our producer is Rebecca Howe, and our 851 00:46:44,880 --> 00:46:48,920 Speaker 1: researcher is Rachel Peterson. The artwork for the show was 852 00:46:48,960 --> 00:46:52,120 Speaker 1: created by Steve Pendla special thanks to the team at 853 00:46:52,120 --> 00:46:55,839 Speaker 1: Gingwishtree sixty. If you've been enjoying Newtsworld, I hope you'll 854 00:46:55,880 --> 00:46:58,720 Speaker 1: go to Apple Podcast and both rate us with five 855 00:46:58,760 --> 00:47:02,000 Speaker 1: stars and give it's a review so others can learn 856 00:47:02,040 --> 00:47:05,120 Speaker 1: what it's all about. Right now, listeners of news World 857 00:47:05,160 --> 00:47:08,600 Speaker 1: can sign up from my three free weekly columns at 858 00:47:08,640 --> 00:47:12,840 Speaker 1: Gingrich sixty dot com slash newsletter. I'm newt Gingrich. This 859 00:47:13,080 --> 00:47:13,840 Speaker 1: is news World.