By Tara Kole
Wednesday, February 17, 2016
When I was in law school, a Supreme Court clerkship was
the Holy Grail. For me, it was clerking for Justice Antonin Scalia. Now that
I’m a partner in a law firm that serves the notoriously progressive
entertainment industry, the fact that I once clerked for Scalia often elicits
looks of surprise from those sitting across from me, who ask if I’m the
functional equivalent of a unicorn — a conservative in Los Angeles — a place
that Scalia had amusingly warned me would “melt my brain.” I tell them, no, I’m
politically liberal, but that my time working for the justice was one of the
defining experiences of my life.
I’d heard all through law school that Scalia always hired
one liberal clerk, though my sense is that this practice had waned in recent
years. In fact, the process of applying for a Supreme Court clerkship entails
applying to all nine justices — the notion being that justices choose clerks
and not the other way around. But Justice Scalia was the person for whom I most
wanted to work, not because we were ideologically aligned, but because we were
not. It had to do with the way he was so deeply vilified — both personally, and
as a jurist — by so many of my classmates. He was discussed in almost
cartoonish fashion, conjuring images of twirled mustaches and barely-concealed
devil horns. It was a time, just after Bush
v. Gore and 9/11, when battle lines had been drawn, and it was politically
correct to reject wholesale any belief that was not your own.
That approach made me uncomfortable, and I found myself
becoming more and more interested in Justice Scalia’s work, eager to understand
how someone so clearly brilliant could see the world so differently than I did.
It’s why I took the job.
And, in some ways, the job is a strange one. To assist in
the writing of opinions, clerks have to get inside a justice’s mind to think as
they do and to write as they would. My role was to facilitate his, and
sometimes that was easier than others. In one case I worked on writing a
dissent — the position held by a minority of the court — with which I
fundamentally disagreed on a moral level, but found, as I wrote, that I was
drawn to Scalia’s reasoning; his emphasis on precedent, strict textual
construction and judicial restraint. While I remain bound not to discuss
details of the cases I worked on, I can say that Scalia’s arguments in that
case conveyed a clarity not found in the majority’s opinion, which relied on
legal and verbal gymnastics in order to reach the desired outcome. His approach
had a logic and simplicity that resonated with me, despite my politics. I found
myself able to get inside his mind in that moment, to sublimate my own views,
and write confidently in his voice. I was proud when my co-clerk told me that
Scalia had called it a “knock out.”
There were other days, though, where I found myself
sitting on Scalia’s worn leather couch, looking up at Leroy — the mounted elk’s
head that dominated the justice’s chambers — wondering how both Leroy and I had
gotten there, as Scalia and my three conservative co-clerks all found common
ground that I simply could not access. “You really think that?” and “That can’t be
right,” were refrains I heard often in response to bench memos I prepared in
advance of oral argument.
I’ll admit that I went back and forth between playing the
part of contrarian and simply trying to give the justice the recommendations he
was looking for. There were times I was pleased when he noted my penchant for
disagreement. Once, when my co-clerk gave him a draft of an important opinion,
Scalia nodded toward me, smiled and said, “Let’s give it to Mikey,” quoting the
old Life cereal commercial, “She doesn’t like anything.” In those moments, I felt I had license to challenge
Justice Scalia, and my arguments were always met with energetic debate and his
eagerness to prove me wrong. At other times I simply wanted his approval, and
for him to tell me that I was finally thinking “right” — which he meant with
its full double-entendre.
I missed the mark a few times when I made assumptions
about what Justice Scalia would think, based on his political leanings. In one
particular criminal case, I tried to anticipate his reaction and gave him the
analysis I thought he wanted. But when I suggested he might want to follow the
more conventionally conservative line of thinking, he looked at me
incredulously and said, “We can’t do that.”
There was another case, where we were tasked with writing the majority opinion,
when I saw him struggle and ultimately change his mind after realizing that the
text of the statute would not support the position he initially wanted to take.
That was the one time the Justice — who was very respectful of personal time
and valued his own — called me on a weekend and asked me to come into chambers.
As we worked through the case together, the power went out in our wing of the
Court. Rather than taking a break, we moved our chairs and books into the
hallway, using the natural light that came through the courtyard. This prompted
Justice David Souter (who was famously averse to using modern technology,
including, seemingly, the light bulb) to poke fun at our inability to read in
dim light.
If there was a true surprise during my year clerking for
Scalia, it was how little reference he made to political outcomes. What he
cared about was the law, and where the words on the page took him. More than
any one opinion, this will be his lasting contribution to legal thought.
Whatever our beliefs, he forced lawyers and scholars to engage on his terms —
textual analysis and original meaning. He forced us all to acknowledge that
words cannot mean anything we want them to mean; that we have to impose a
degree of discipline on our thinking. A discipline I value to this day.
Justice Scalia treated me with enormous respect and
always seemed to value my opinion — a heady experience for someone just a year
out of law school. I never felt as though he looked at me differently than my
conservative counterparts; his trust felt implicit, which is, perhaps, why I
struggled so much between wanting to challenge him and wanting to please. He
was also, hands down, the smartest person I’ve ever known. What would take me
weeks to understand would take him minutes to process. I’ll never forget my
first experience handing him an opinion and watching him, in a matter of
minutes, type a few lines into his typewriter (yes, a typewriter, even in
2004), and instantly cut to the heart of the issue in a way that I’d simply
been unable to do. When I read his new draft, I realized that I’d tried too
hard to bridge the difference between his opinion and that of another justice
in order to hold our majority. His changes strengthened the argument but also,
I feared, risked putting us in the dissent. But Justice Scalia didn’t
compromise his principles, even on the smallest issues.
He knew his own mind, and taught me the importance of
knowing my own.
No comments:
Post a Comment