Among the first judicial nominees I ever tracked was Vaughn Walker, when I was working for Congressional Quarterly’s weekly magazine and covering the Judiciary Committees on the Hill. In 1989, key Democratic senators, led by California Sen. Alan Cranston, along with several liberal interest groups, opposed President George H.W. Bush’s nomination of Walker to a U.S. district court in San Francisco. It was primarily because of Walker’s membership in a men-only private club.
An editorial assistant from Farrar, Straus & Giroux wrote last week to say he was clearing out old correspondence and drafts associated with American Original and to ask whether I wanted anything saved. With the Antonin Scalia biography securely in hard-cover and about to be in paperback (September 1), I said don’t bother. But, I said, if you come across the original Herblock cartoon I acquired for the photo insert, save it.
Justice Ruth Bader Ginsburg opened a speech at the American Bar Association in San Francisco this week by observing, “I have lived long enough to see great changes in our profession.”
A question I’ve heard many times in my travels this summer is how much longer Justice Ginsburg, age 77, a cancer survivor and now a widow, will serve. Watching Justice Ginsburg on Monday (see the ABA video here) and following her activities since the death of her husband, Martin, I believe she will not step down in the next two years and is ready for the long haul, eager to see more changes in the law and profession.
Justice Scalia was not on the bench last Thursday, when the Supreme Court, nearing the end of its term, handed down five decisions. When I inquired, I discovered that he had been at Langley High School in McLean, Va., to speak at the graduation of a grandchild. I was curious about his remarks, especially because I had just given the commencement address to graduates of the National Cathedral School in Washington, D.C.
My audience at the all-girl private high school was different from Justice Scalia’s and my approach more personal. I didn’t expect much overlap in the speech themes, yet I was curious about what Justice Scalia had said and the voices of wisdom he drew on.
For years, Supreme Court justices, lower court judges and law professors have argued over the merits of Scalia’s approach to constitutional interpretation. Yet last weekend in a commencement speech at Harvard, retired Justice David Souter offered a powerful counterpoint to “originalism” that might eclipse those arguments by virtue of the setting and timing.
“Even a moment’s thought is good enough to show why it is so unrealistic,” Souter said in his dry, direct manner. “The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches. … But this explanation hardly scratches the surface.”
After I wrote last week about the justices and graduation speeches, a longtime Supreme Court employee reminded me of the late Chief Justice William Rehnquist’s advice for graduates: Stop and smell the roses. “Do not let the law be too jealous a mistress,” he used to say. “You must give yourself time not only to do a variety of things, but to allow yourself time to appreciate and enjoy what you are doing.”
A leader of the Court’s conservative revolution, Rehnquist cut a stern, sometimes cold, figure in the courtroom. Yet he had plenty of friends, liberals among them, outside the marble columned building. He was a man of many interests, travels and recreational pursuits.
When I was doing research some years back in the files of the late U.S. Appeals Court Judge Skelly Wright, of the District of Columbia Circuit, I came across an exchange between Wright and Justice William Brennan in which they shared their apprehension about giving Commencement speeches. These two giants in the law had regular-Joe worries about boring the graduates and having their words fall flat.
I’ve been thinking about their Commencement aversion this season because I am giving two speeches and have found that for those of us down some rungs, the mental burden is much lighter. We can plumb their most intriguing thoughts to make our points.
Since President Obama’s nomination of Elena Kagan last week to succeed retiring Justice John Paul Stevens, there has been a lot of talk about whether she would be a persuasive force in moving Justice Anthony Kennedy to the left. I’ve felt that much of this discussion ignores the limits of a new, junior justice, and I think Monday’s decision in the juvenile sentencing case offers a reminder of Justice Kennedy’s own force.
With only two women among the nine justices, one line of thinking goes, President Obama will pick a woman. No, another argument goes, he would not feel so compelled and, anyway, he should save his strongest woman candidate for when pioneering feminist Justice Ruth Bader Ginsburg, 77, retires.
It has now been two weeks since Justice John Paul Stevens announced his retirement, and from last year’s pattern and what White House aides are saying now, numerous interviews already have been conducted. About ten people are in the mix, with three inside favorites: U.S. Solicitor General Elena Kagan and U.S. Appeals Court Judges Diane Wood, of Chicago, and Merrick Garland, of Washington, D.C. Last year, within about two weeks of Justice David Souter’s May 1 retirement announcement, then-Judge Sonia Sotomayor had been interviewed by a half dozen top administration lawyers. President Obama interviewed her on May 21, offered her the job on May 25, and made his choice public on May 26. Read her dramatic recounting of his call to her here.