He Has Own Style of Conservatism : Scalia’s Independent Past Suggests Future Surprises
At a 1972 party at San Clemente, John Gavin, then president of the Screen Actors Guild, complained to President Richard M. Nixon that television reruns were siphoning income away from actors. He asked the President to do something about it.
Nixon’s staff soon asked the Office of Telecommunications Policy, a piece of the White House bureaucracy, to order the Federal Communications Commission to intervene. But a hitch developed: Antonin Scalia, then Telecommunications Policy general counsel, said that such intervention would be illegal.
“You have to remember the times to appreciate what integrity that represented,” a former OTP official said. “We were involved in a difficult Administration with a lot of politics flying around.” The White House ultimately settled for ordering a study of the issue.
Now the same Antonin Scalia is President Reagan’s nominee to the Supreme Court. And those who have worked both with him and against him agree that he remains today what he was in 1972: a staunch conservative with a deep respect for the law, no matter where it leads him.
Jack Fuller, a former colleague of Scalia at the Justice Department and now editorial page editor at the Chicago Tribune, said that Scalia may surprise those who expect a predictably conservative Supreme Court justice. Fuller looks for a continuing display of independence and integrity if, as expected, the Senate confirms Scalia to the Supreme Court.
Intense Devotion to Work
Indeed, Scalia’s personal qualities have held as constant as his conservative views throughout a career as a young lawyer in Cleveland, a high-ranking official of the Nixon and Gerald R. Ford administrations, a University of Chicago law professor and, finally, a federal appeals court judge in Washington.
At all stops, the 50-year-old Scalia has demonstrated an intense devotion to his work, tempered by wit and a gregarious nature. And, despite a family of nine children, he has shown a remarkable disregard for making a lot of money.
The son of a professor of Romance languages at Brooklyn College who had come from Italy, Scalia received his undergraduate education at Georgetown University in Washington and got his law degree from Harvard University, where he was a magna cum laude graduate in 1960 and an editor of the Harvard Law Review.
As such, he drew the attention of some of the nation’s top law firms and chose the blue-chip firm of Jones, Day, Reavis & Pogue in Cleveland, which has since become the country’s second largest.
Richard W. Pogue, its managing partner, recalled in an interview that when Scalia first met other Jones-Day attorneys at a private home, the young Harvard graduate stayed up until 3 a.m. arguing with eight of them in defense of a law review note he had edited in support of blue laws.
‘Loved to Debate’
“It never bothered Nino that everybody else was on the other side,” Pogue said. “He always loved to debate. But even when you disagreed with him, you couldn’t help but like him.”
Scalia worked as an “inside lawyer” at Jones-Day, principally doing legal research to support litigators who were defending electrical equipment clients in civil antitrust suits. Because the firm had so many more experienced lawyers, he never appeared in court during his six years with the firm.
After four years as a law professor at the University of Virginia came Scalia’s first tour in Washington. After stints in the Nixon White House and as chairman of the Administrative Conference of the United States, a federal inter-agency group on legal issues, he became assistant attorney general in charge of the Justice Department’s Office of Legal Counsel in August, 1974. It was days after the Watergate scandal had forced Nixon from office and Ford became President.
Accepted Pay Cut
The new job meant a salary cut of several thousand dollars. But associates said Scalia regarded this post, which is sometimes called “the attorney general’s lawyer,” as so significant and challenging that it was worth the cut in pay.
“He’s never been one who cared a fig about making money,” said Harold R. Tyler Jr., Scalia’s former boss as deputy attorney general in 1975 and 1976. “That’s truly remarkable, because there’s a distressing amount of emphasis on making money in the legal profession today.”
At the Justice Department, Scalia did not have to wait long for a challenge. On his first day, said James A. Wilderotter, a former department colleague, “Nino reported for duty and said, ‘What can I do?’ ”
Deputy Atty. Gen. Laurence H. Silberman, Scalia’s new boss, replied without hesitation: “Tell us who owns the presidential tapes and papers.” The ownership of Nixon’s tapes, which helped establish his involvement in Watergate, was a particularly thorny issue left hanging by Watergate.
Made Tough Decision
Scalia concluded that the papers of previous presidents uniformly had been regarded as their personal property. Wilderotter said the conclusion established Scalia as “a guy who calls the shot as he sees it and refuses to take the easy way out.”
“It was very gutsy,” Wilderotter said. “It would have been much easier to join in kicking Nixon while he was down.” Congress later passed a bill declaring the tapes public property.
As assistant attorney general, Scalia later served as the key drafter of the precedent-setting presidential order that established new restrictions on intelligence agencies.
Tyler recalled that Scalia worked on other difficult issues “on which reasonable men could differ,” including whether Congress could write legislation allowing either the Senate or the House to veto a presidential action. Tyler said that Scalia’s “valiant work on this issue succeeded in mollifying and, in some cases, actually persuading members of Congress” that such veto power would infringe on the constitutional powers of the President.
Views Later Vindicated
As with the issue of presidential papers, Scalia’s arguments opposing one-House veto power were unpopular in Congress, which sought to rein in the presidential excesses disclosed by the Watergate scandal. But Tyler noted that Scalia’s views were later vindicated by the Supreme Court.
“I always admired him for his amiability,” Tyler added. Although Scalia was a tenacious advocate of any position he adopted, Tyler said, he also “listened well” and won the respect of colleagues who disagreed with him.
After the Ford Administration, Scalia taught law for five years at the University of Chicago, where he is remembered as a demanding teacher whose intellectual intensity and Socratic methods scared the wits out of some of his students.
Mary E. Becker, one of 165 students in Scalia’s first-year contracts class, recalled recently that he was “unrelenting on preparation. You had to work hard to keep from being humiliated. He would call on you whether you were ready or not. It was frightening.”
Showed Great Intensity
Now a member of the law faculty herself, Becker recalls vividly Scalia’s “constant interplay with the students. I thought he was a good teacher, and I’ve adopted his style somewhat. But I try never to do it in such a scary way.”
Scalia’s former colleagues on the law school staff recalled that same intensity of purpose, punctuated with a wry sense of humor and a twinkle in his eyes. And Scalia enjoyed the relaxation of monthly poker games with other faculty members.
“He’d always wear a beat-up old fishing hat--as if it were a symbol of his night out with the boys,” said Prof. Geoffrey R. Stone. “They were nickel-and-dime games, so the stakes were not important. And there was no shop talk.”
Scalia told associates that aside from the law school’s reputation for excellence, he had been attracted by the University of Chicago’s generous practice of paying half the private school tuition costs for the children of its faculty members. Scalia then had seven pre-college children in Catholic schools. To accommodate his large family, he and his wife, Maureen, bought and renovated an old fraternity house three blocks from the campus.
Returned to Washington
Although Scalia seemed much at home at the largely conservative law school, his colleagues were not surprised when he returned to Washington in 1982 to accept President Reagan’s appointment to the U.S. Court of Appeals for the District of Columbia.
Richard A. Epstein, a friend on the Chicago faculty, said: “You knew he was not one to wait 25 years for a gold watch. His heart was in public affairs. He always wanted to be a judge.”
On the appellate court, Scalia gained a reputation as a hard-working jurist who pored over the draft opinions of his colleagues and filled the margins with suggested changes. In line with Reagan Administration thinking, he generally has espoused strict limits on the powers of the federal government.
“I’ve often disagreed with Nino, but he’s no ideologue,” said a Scalia colleague on the appellate court who requested anonymity. “He forms his views only after great study. And no one is more congenial to work with.”
Robert L. Jackson reported from Cleveland and Chicago and Ronald J. Ostrow reported from Washington.