Antonin Scalia's Secrets

The late justice once discussed running for vice president and later gave President Obama an unsolicited recommendation for the Supreme Court.

M. Spencer Green / AP

Supreme Court justices seldom publish memoirs. But to judge by the never-before-told stories that have come out about Antonin Scalia in the days since his death, his autobiography would have been as compelling as the justice himself.

Vice President Scalia?

The most surprising tale came from former House Speaker John Boehner, who emerged from his post-resignation hibernation to reveal that in 1996, he met with Scalia about the possibility that Bob Dole would choose him as his vice-presidential running mate. Boehner was then the fourth-ranking member of the House Republican leadership, and as he writes in the Independent Journal Review, Scalia agreed to meet for a “clandestine” lunch with Boehner and his chief of staff, Barry Jackson.

It was there that Jackson and I made our pitch, over a pepperoni and anchovies pizza.

Scalia’s reaction was a mixture of amusement and humility, tempered by an underlying seriousness of purpose that reflected his love of country and sense of obligation to it. He asked very direct questions on both the practicality of running — including how a candidacy would impact his role on the Court, what Dole’s reaction would be if he were to express willingness and, ironically, what the impact on the political process might be of a vacancy appearing on the Court in the months before a presidential election.

Scalia was not a man who harbored any thoughts of seeking elective office, which intensified his appeal. But in spite of his personal misgivings, he also understood what was at stake for the country, and felt compelled to listen, out of a sense of duty.

And it was perhaps out of that same sense of duty that Scalia, while not saying “yes,” also didn’t say “no.”

Scalia was already a conservative favorite in 1996 after 10 years on the court, and he certainly would have been an out-of-the-box pick for Dole, who was facing a difficult fight to unseat President Bill Clinton. But the choice would have been incredibly risky for reasons having little to do with the presidency. The Supreme Court back then was nearly as closely divided as it is now, and if Scalia had stepped down from the Supreme Court to run and Clinton still won, Republicans would have lost not only the presidential election but also a reliably conservative seat on the bench.

An Unsolicited Recommendation

Fast-forward to 2009, when President Obama was faced with a vacancy on the Supreme Court just a few months into his term following the retirement of Justice David Souter. At the annual White House Correspondents Association dinner, Scalia was seated alongside David Axelrod, one of the president’s closest advisers. In a piece published on on Sunday, Axelrod wrote that Scalia took the opportunity to weigh in on the appointment. “I have no illusions that your man will nominate someone who shares my orientation,” the justice told him. “But I hope he sends us someone smart.”

After Axelrod says he replied with a rather bland formality, Scalia pressed on.

“Let me put a finer point on it,” the justice said, in a lower, purposeful tone of voice, his eyes fixed on mine. “I hope he sends us Elena Kagan.”

Obama did send Kagan to the high court, but not in 2009. Having just installed the Harvard Law School dean as his solicitor general, the president nominated Sonia Sotomayor to replace Souter. He made Kagan his pick a year later to succeed the retiring Justice John Paul Stevens. Axelrod didn’t say whether Scalia’s recommendation had any influence on the president.

Scalia’s push for Kagan is more interesting in light of a complaint about the high court’s lack of geographic and religious diversity that he made years later in his dissent on the same-sex marriage case, as highlighted by Adam Liptak in The New York Times. Scalia noted that the court was dominated by people from the east and west coasts and lacked any evangelical Christians or even Protestants. Kagan, whom he recommended, was a Harvard-educated Jewish lawyer who was raised in Manhattan. She differed from the other eight justices only in having never previously served as a judge.

He Could Take a Joke

Scalia may not have been a unifying figure on the court politically, but he was universally lauded for his sense of humor. On The Late Show on Monday night, Stephen Colbert shared a story from the time he headlined the White House Correspondents Association dinner in 2006. Colbert’s sharply biting jokes at the expense of President George W. Bush landed with a thud among many of the luminaries in the room. But as he recalled on Monday, Scalia loved when Colbert made fun of him for getting caught making a rude gesture to photographers the week before. “When it was over, no one was even making eye contact with me. The one exception was Antonin Scalia,” Colbert said. The justice, was seen cackling in C-Span's reaction shots, came up to Colbert after the speech laughing. “Great stuff! Great stuff!” he told him before walking away. “I will forever be grateful for that one brief moment of human contact he gave me,” Colbert said before “saluting” Scalia one last time on Monday.