Could Justice Scalia Have Been Confirmed Today?

A major new biography charts our hero’s rise to greatness.

AP/Kevin Wolf, file
Justice Antonin Scalia speaks at Washington. November 6, 2014. AP/Kevin Wolf, file

The most striking thing about Antonin Scalia’s ascent is how much rejection he experienced along the way. James Rosen provides the details in the first of a planned two-volume biography of the Supreme Court justice. Groundbreaking and extensively researched, it is titled, “Scalia: Rise to Greatness, 1936-1986.”

The stories may be heartening to anyone getting disappointing news this college-admissions or job-searching season. They also offer some insight into the life trajectory of an influential justice. Scalia died in 2016, but his thinking is to this day shaping the court’s decisions on abortion, affirmative action, religion in schools, and other hotly contested issues.

As a student, Scalia failed the entrance exam to Regis and wound up instead at a less prestigious New York City Catholic high school, St. Francis Xavier. Then he was rejected from Princeton, where he wanted to go to college. He ended up at Georgetown.

In 1979, Scalia, then a law professor at the University of Chicago, was turned down in a bid to become a partner at a San Francisco-based law firm.

In 1981, early in the Reagan administration, the attorney general, William French Smith, interviewed Scalia for the job of solicitor general, the justice department lawyer in charge of the government’s Supreme Court litigation. Smith picked someone else — Rex Lee. 

Then a spot opened up on the Supreme Court. Although Scalia was mentioned in the press as a possibility, Reagan instead chose Sandra Day O’Connor. Then, for a slot on the U.S. Court of Appeals for the District of Columbia Circuit, another job Scalia wanted, Reagan nominated Robert Bork.

“Three times in seven months Scalia had been passed over,” is the way Mr. Rosen puts it.

In 1986, when Chief Justice Warren Burger retired, Reagan considered naming Scalia, who by then had joined the D.C. Circuit, as the chief justice. Instead Reagan decided to promote Justice William Rehnquist. It was only then that Scalia, now  50 years old, was chosen and nominated to fill the associate justice position created by Burger’s retirement and by Rehnquist’s proposed promotion.

For an authoritative account of how all these rejections affected Scalia’s perspective and outlook as a justice, readers may have to wait for Mr. Rosen’s next volume, “Scalia: Supreme Court Years, 1986-2016.” 

Perhaps Scalia’s experience of being repeatedly disappointed but finally succeeding in getting a coveted Supreme Court seat made him more patient or confident in pursuing long-term legal objectives — such as overturning the abortion-rights decision Roe v. Wade — that would only be attained after his death. 

Perhaps it made Scalia worry less about what the fancy crowd would think of his judicial opinions. The Princeton and William French Smith-style elites were always skeptical of Scalia, anyway. Going through life seeking their approval was not a winning proposition. The justice may have figured it was better just to stick to principle, applying the Constitution and the laws as they were written.

As is so often the case with setbacks in life, though, what matters is less the setback and more the response. Scalia didn’t let the disappointments define him. He didn’t give up. He didn’t become embittered. He kept plugging away. Eventually his talents and his work ethic got him where he wanted to be. 

Perhaps Scalia benefited from some good luck in terms of timing, too, to be nominated to the Supreme Court before the Bork and Clarence Thomas and Merrick Garland and Brett Kavanaugh processes that were so raw. Could a contemporary Scalia win confirmation? If rejected by the Senate, a nominee in Scalia’s mold would somehow find a way to make the best of it.

No one is writing — or reading — two-volume biographies of William French Smith, or of the law-firm partners who spurned Scalia’s overtures, or of the admissions officer who decided he wasn’t Princeton material. It’s Scalia’s greatness that is the topic of interest. He didn’t let the rejections prevent his ultimate rise. The Senate’s vote to confirm him to the high court was 98-to-0. Even Joe Biden approved.

The New York Sun

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