The Rise of Antonin Scalia - The American Spectator | USA News and Politics
The Rise of Antonin Scalia

Scalia: Rise to Greatness, 1936 to 1986
By James Rosen
(Regnery Publishing, 500 pages, $40)

Antonin “Nino” Scalia’s rise to a seat on the U.S. Supreme Court almost seemed predestined. Throughout his educational and professional career, he combined scholarly and legal brilliance with superb writing, penetrating logic, and personal affability and charm. Timing and politics, of course, were also important. But there was another aspect of Scalia’s life that set him apart and — in the words of his latest biographer, James Rosen — completed his greatness: “the caliber of his moral character.” And Scalia’s moral character was shaped by his family upbringing and his devout Catholic faith.

Rosen’s first volume of Justice Scalia’s life and career is subtitled “Rise to Greatness” and covers the years from Scalia’s birth and childhood to his confirmation as an associate justice of the Supreme Court in 1986. (A second volume, Scalia: Supreme Court Years, 1986 to 2016, will complete the biography.) Rosen, formerly a reporter for Fox News and now with Newsmax, clearly admired Scalia as both a person and a judge. While Scalia was on the Supreme Court, Rosen corresponded with him and twice had one-on-one lunches with him at Scalia’s favorite A.V. Ristorante. And Rosen interviewed Scalia’s widow, four of Scalia’s children, a number of Scalia’s colleagues on the D.C. Circuit Court and Supreme Court, former law clerks and law students of Scalia, and the justice’s former classmates and friends. Rosen’s biography fills in gaps left by Scalia’s earlier, less ideologically admiring biographers, Joan Biskupic and Bruce Allen Murphy.

Perhaps the most remarkable aspect of Scalia’s life is that virtually everyone who interacted with him liked him. “Nino was almost unanimously well-liked in Washington,” Rosen writes. That, to say the least, is unusual, especially for a philosophical conservative who worked for Richard Nixon and was appointed to the bench by Ronald Reagan. At a time when Washington liberals sought political refuge in the Supreme Court, Scalia, the most consequential conservative jurist of the time, won Senate confirmation to the court by a vote of 98–0. The same Senate that so overwhelmingly confirmed Scalia had just confirmed Associate Justice William Rehnquist as chief justice by a vote of 65–33.

Scalia was the only child of his very demanding and strict Italian immigrant father, Salvatore, and his mother, Catherine, whose parents emigrated from Italy. Both parents were devout, observant Catholics who instilled in Nino a deep faith that stayed with him throughout his life. One of Scalia’s oldest friends and classmates described him to Rosen as “an archconservative Catholic [who] could have been a member of the Curia.” Scalia thought seriously about becoming a priest (and one of his sons is now a priest). The future justice was also politically conservative even as a teenager.

Scalia graduated magna cum laude from Harvard Law School and, while at Harvard, met his wife, Maureen, who was attending Radcliffe College. Maureen shared Nino’s strong religious faith and his political conservatism. Scalia’s friends, including Brian Lamb of later C-SPAN fame, told Rosen that Maureen was even more conservative than Nino. They married in 1960 and went on to have nine children. Justice Scalia gave his wife full credit for shaping the lives of their children. And, according to a lifelong friend, it was at Harvard that Scalia first predicted that someday he would be on the Supreme Court.

Scalia was “a profile in courage,” determined to “preserve the powers of the presidency for the long term.”

Rosen describes Scalia’s years in private practice at Jones Day in Cleveland, Ohio, and his burgeoning political conservatism — subscribing to National Review, supporting Barry Goldwater for president, decrying the reforms of Vatican II. Scalia left the practice of law to teach at the University of Virginia School of Law, where his students described him as “a dynamic and exceptional teacher.” Though he enjoyed teaching, he abhorred the counterculture of the 1960s, including the Left’s contempt for our soldiers serving in Vietnam.

Beginning in 1970, politics started its role in Scalia’s rise. He worked as general counsel for Nixon’s Office of Telecommunications Policy (OTP), which Rosen describes as a leading government agency promoting the “technological revolution” and the birth of the “digital age.” It was at OTP that Scalia met and befriended Lamb, who told Rosen: “We knew in 1971, ’72 that [Scalia] would end up on the Supreme Court. There was no doubt in our mind.” In 1972, Scalia became chairman of the Administrative Conference of the United States, and it was there that he had his first interaction with Rehnquist and “rub[b]ed elbows with power players from across the executive branch, Congress, and the courts.” Powerful people in Washington were taking notice of Scalia’s brilliance and being won over by his charm.

After Nixon appointed William Rehnquist to the Supreme Court, Scalia took Rehnquist’s job as assistant attorney general for the Office of Legal Counsel, a position in which he reviewed and drafted opinions on “the lawfulness of executive branch initiatives, [p]olicy proposals, draft legislation, court filings [and] covert operations.” Then Watergate laid siege to the Nixon administration. Nixon resigned. Gerald Ford became president. And Congress began chipping away at the powers of the presidency. For Scalia, this was an assault on the constitutional separation of powers that he deemed essential for ordered liberty and the nation’s national security. Rosen writes that during this congressional assault on executive power, Scalia was “a profile in courage,” determined to “preserve the powers of the presidency for the long term.” This Watergate and post-Watergate experience would shape Scalia’s future separation-of-powers rulings as a judge and justice.

It was during this time that Scalia became friends with Robert Bork, who served as solicitor general and who Scalia described as “a rare combination of integrity and intellectual brilliance.” The Scalia and Bork families grew close, and Scalia would later join Bork on the D.C. Court of Appeals. Rosen notes, however, that their friendship would suffer from intellectual differences and competition for a seat on the Supreme Court. Rosen only hints at this development in this volume, which suggests that it will be explored in more detail in volume two.

Meanwhile, inspired in part by Bork, Scalia’s legal-judicial philosophy was taking shape as he returned to teaching law at the University of Chicago (and, for a brief time, at Stanford University), became a scholar at the American Enterprise Institute, and began his association with the Federalist Society. He revered the Federalist Papers, which shed light on the thinking of the founders. Rosen explains Scalia’s legal-judicial philosophy as “originalism, as practiced through textualism.… The meaning of a law … should not evolve and change over time; rather, the interpretation should adhere to what the law meant, what it was widely understood to mean, at the time it was enacted. And this was best discerned from the law’s text, not its legislative history.”

Timing and politics once again aligned for Scalia in the late 1970s and early 1980s. In legal and Republican political circles, Scalia was already considered a potential Supreme Court nominee. So was Bork. The failed Carter presidency gave way to the Reagan presidency, and Reagan’s top legal team was well acquainted with Scalia’s brilliance and philosophy. Scalia was on the shortlist for Reagan’s first Supreme Court appointment, but instead Reagan made history by appointing the first woman to the court, Sandra Day O’Connor. Scalia and Bork were appointed to the D.C. Circuit Court. Rosen writes that Scalia soon became that court’s “driving force.” The other judges on the court, even liberals like Ruth Bader Ginsburg, “followed Nino’s lead.” The Scalia–Ginsburg friendship blossomed there, while Bork watched as the younger Scalia outshone his philosophical mentor.

Rosen concludes the book with an insider account of Scalia’s ascension to the Supreme Court. Chief Justice Warren Burger announced his retirement. Reagan decided to elevate Rehnquist to chief justice and filled Rehnquist’s seat with Scalia. “Nino had risen,” writes Rosen. Scalia’s first thought after meeting with President Reagan was to thank God, then to inform his wife and children about his nomination. Always God and family first for Antonin Scalia.

Rosen reveals that Reagan’s selection of Scalia over Bork was the result of Scalia’s relative youth and his Italian ancestry. He would be the first Italian American on the court. And, at the age of 50, he would likely be there for a long time, using his brilliant intellect to inform and shape our nation’s fundamental law.

Judge Scalia sailed through Senate confirmation principally because none of his Democratic political and philosophical opponents on the Judiciary Committee could match his intellectual powers. But it also had something to do with “the caliber of his moral character.” There were no scandals, no embarrassing moments, no personal animosities — nothing in Nino’s past that could harm the nominee.

The wisdom of Reagan’s selection of Scalia would be evident during his 30 years on the court. But that, alas, is for Rosen’s next volume.


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