In this excerpt from the upcoming CQ Roll Call e-book, Supreme Showdowns: Inside The Senate Battles Over The High Court And What Awaits Obama's Nominee , Todd Ruger looks at what informed high court choices. Many of these presidential library documents remained secret until recently. The story these letters and memos tell is not the most comprehensive view of each confirmation battle, but rather highlights what the president and his advisers at the time were seeing, reading and thinking.
“Scalia is an extremely personable man, although potentially prone to an occasional outburst of temper, and is an extremely articulate and persuasive advocate, either in court or less formal fora.”
– A Department of Justice briefing memo Antonin Scalia had more than enough conservative judicial credentials — and at 50 years old, despite a noted liking for drinking and smoking, was in good enough health for a long career — that President Ronald Reagan pondered whether to nominate him for chief justice of the United States in 1986.
Scalia would live up to the assessment made by the Reagan administration three decades ago as the president sought to put an influential conservative on the Supreme Court who could preside for decades.
Aides vetting potential Supreme Court nominees described Scalia as an appeals court judge who was forceful, extroverted, personable, vigorous and dynamic, a life-long conservative, a first-rate legal mind, extremely articulate and good at oral argument and writing. Even Scalia’s admirers and ideological allies, however, questioned whether the aides were right to see him as a consensus builder who would blunt disagreement. Scalia himself denied that role long after his confirmation.
The White House documents shed light on Reagan’s deliberations as well as the extreme administration scrutiny of potential Supreme Court nominees, including their judicial philosophy, personality and even health.
“Scalia just turned 50 years old and exercises regularly,” Reagan’s advisers wrote in a 1986 memo as the president was deciding how to replace retiring Chief Justice Warren Burger. “Although he smokes heavily, and drinks, he should have a lengthy career on the court.”
Still, Scalia’s appointment to the court in 1986 was the last of a different era of judicial confirmations, and the aides expressed assurance that the Senate would confirm their picks without the vehement political opposition that would start after Reagan’s next pick, Robert Bork. The Senate would vote to reject Bork’s nomination, although Reagan aides had concluded that “Scalia’s judicial philosophy almost precisely mirrors that of Bork.”
Reagan had appointed Scalia to the U.S. Court of Appeals for the D.C. Circuit in 1982. Four years later, the president’s advisers put him on the short list of candidates to replace Burger, according to a White House memo in the Ronald Reagan Presidential Library in Simi Valley, Calif. By June 11, the list was down to three: Scalia, 61-year-old Supreme Court Justice William Rehnquist, and Bork, another leading conservative judge on the D.C. Circuit.
White House Counsel Peter Wallison, in a memo to Reagan, said Scalia is “regarded as a forceful individual capable of personal as well as intellectual leadership.” And White House Associate Counsel Alan Raul sent Wallison a description that read: “It is noted that Scalia is nine years younger than Bork, and perhaps more conservative.”
“He [Reagan] seemed intrigued by Judge Scalia, who was young enough to serve on the court for an extended period of time, and be the first Italian-American appointee to the Supreme Court,” Wallison wrote.
Reagan, however, after a briefing, decided to first speak to Rehnquist for the chief justice spot. As the two met, Reagan offered to elevate the associate justice to chief justice, and Rehnquist accepted immediately, Wallison wrote.
Reagan met with Scalia on June 16 and offered him the associate justice spot, and Scalia accepted immediately, Wallison said. Raul’s summary of Scalia’s judicial temperament in 1986 remained true right up to Scalia’s death.
Scalia was a lifelong conservative, talented at oral arguments and writing opinions, Raul wrote. He was an independent thinker who did not bend his principles, a first-rate legal scholar, and politically savvy enough to have not made any enemies during his career. He was “vigorous and dynamic,” and “a consensus-builder who blunts disagreement.”
Scalia noted that expectation in a 2012 PBS interview and dispelled it because of his legal philosophy to strictly adhere to the text of a law. “I can’t be a consensus builder, because I can’t trade,” Scalia said. “If I’m doing the text, what can I say, halfway between what the text really means and what you’d like it to mean, is that the deal I’m going to cut? You can’t do it.”
But consensus-building aside, Raul’s 1986 assessment was one that largely endured until the justice’s death.
“Scalia is an extremely personable man, although potentially prone to an occasional outburst of temper, and is an extremely articulate and persuasive advocate, either in court or less formal fora,” Raul wrote.
“While he received only a ‘qualified’ rating from the American Bar Association for the D.C. Circuit, this can only be described as slanderous nonsense.”
Scalia supposedly chided Harvard Law School classmates about favoring excessive government regulation, Raul wrote. He was a hardcore supporter of Arizona Sen. Barry Goldwater, the Republicans’ unsuccessful candidate for president in 1964, who was seen by many conservatives as an early torchbearer in a cause that came to fruition with Reagan. Scalia was a fan of William F. Buckley, who founded National Review magazine to provide intellectual underpinning to the cause.
“Scalia is said to be ‘phenomenally well prepared’ at oral argument — he reads all the briefs himself, rather than relying on clerks’ summaries,” Raul wrote. “He also writes his own opinion, sometimes without using clerks’ drafts. Scalia writes well and is accessible to the non-lawyer.” Scalia showed independence as a thinker in the Nixon White House, where he opposed a plan to control certain programming on public television, Raul wrote.
Once as a judge on the D.C. Circuit, he struck down part of a deregulatory scheme adopted by the Federal Energy Regulatory Commission to loosen government controls over natural gas prices. He also decided that Washington’s transit authority acted unconstitutionally in refusing to rent subway advertising space to someone who wanted to post an anti-Reagan photomontage.
“Like Bork, Scalia is uniformly considered a first-rate legal scholar. Even liberal Democrats concede this. The confirmation process, consequently, should be relatively easy, especially in light of the fact that a conservative justice is being replaced,” Raul wrote. “Also enhancing Scalia’s confirmation prospects, I would imagine, is the fact that he is an Italian-American — he would be the first appointed to the Supreme Court. Another significant point is that he does not seem to have antagonized any particular groups or powerful individuals in his rise to prominence.” No press accounts raised the issue of Scalia’s health, Raul wrote. “He is described as extroverted, hail-fellow well-met-type person. According to a feature story in American Lawyer on Judge Scalia, his personality has imbued the previously fractious D.C. Circuit with a general feeling of good will and collegiality.”
Roger Clegg, a Justice Department lawyer in the Reagan administration, wrote a memo during the selection process that described 10 ideals for a Supreme Court pick. The choice should be conservative, intelligent, likely to exercise strong leadership on the court, said to have predictable well-formed views, easily confirmable, a politically popular choice, a good speaker and leader outside the court, young and in good health, unlikely to quit and a good administrator.
The most important qualities were to be young and in good health and unlikely to quit, Clegg wrote. “We would like our appointees to be around for as long as possible.”
Clegg’s view on what makes a justice “easily confirmable”—in which he means an absence of downsides—looks quaint in the context of modern confirmation politics on Capitol Hill. One issue was an ill-tempered candidate.
“Other downsides that will make confirmation more difficult or even impossible include past personal scandals (particularly regarding finances, sex, and drinking); identification with racist or other unpopular groups (including clubs); a reputation as being stupid, a political hack or a crony of some Administration official, especially the president; and a poor ABA rating,” Clegg wrote.
When it came time for Reagan to pick, Wallison prepared questions for the president to ask Scalia. They targeted at getting a feeling for how he would rule if appointed.
“In which direction do you see the court moving on the issue of federalism?” the memo’s question 3 said. “Given the current composition of the court, how would you establish a consensus among the justices for your views?” asked question 6. “Are there any personal or health reasons why you would not be able to make a full commitment to this position?” said question 7.
Scalia’s approach stressed judicial restraint, appealing to Reagan’s desire for a response to what he saw as “judicial activism” in cases where judges stretched their authority too far. “Scalia couples his appreciation for the limited role of the courts with respect for coordinate branches and has written several very significant opinions dealing with the deference due to the executive, particularly in foreign affairs and the enforcement of laws,” a White House memo on his qualifications states.
Scalia, whose pipe-smoking in his Senate confirmation hearings marks another contrast to 2016, was easily confirmed in a 98-0 vote, thanks in part to cover from the concurrent and more contentious Rehnquist nomination that occupied Democratic lawmakers.
An assessment of Scalia also points to another reason his confirmation did not garner the same opposition as Bork did a year later. While Scalia wrote probably the most important opinions of any appellate court judge in the prior four years, he stayed clear of the bigger civil rights and voting rights issues that led women’s rights groups to oppose Bork.
“While [Scalia] has not focused on the ‘big picture’ jurisprudential questions to quite the same extent as Bork, his writings on separation of powers and jurisdictional questions reflect a fundamental, well-developed theory of jurisprudence in an area that had received all too little attention,” a Justice Department assessment states.
The full Senate confirmed Scalia and Rehnquist on Sept. 17, 1986. Reagan, after the confirmation votes, took a shot at the politics of the Senate confirmation that targeted Rehnquist but left Scalia alone.
“This vote in the full Senate is a bipartisan rejection of the political posturing that marred the confirmation hearings,” Reagan said in the statement. “It’s clear to all now that the extraordinary controversy surrounding the hearings had little to do with Justice Rehnquist’s record or character — both are unassailable and unimpeachable. The attacks came from those whose ideology runs contrary to his profound and unshakable belief in the proper constitutional role of the judiciary in this country.”
Ten months later, White House aides would be drafting memos about the extraordinary way Senate Democrats were holding up the next nominee, Bork. A major difference: Bork was replacing Justice Lewis Powell, more of a swing vote on the court.