tv Book TV After Words CSPAN December 13, 2009 9:00pm-10:00pm EST
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talk about their books: >> after words with joan biskupic and ted olson continues. >> host: joan, tend of the conference, they wrote -- vote, right? they each cast a vote. and someone writes an opinion, whoever is in the -- tell us how opinions? we're talk about the private conference the justices have after the oral arguments, and they take a vote, and the majority side is going to
prepare the opinion for the court, and the most senior justice on that side then assigns the opinion. if it's the chief justice, the chief justice signs the opinion, and back in the 80s, chief justice rhenquist, often the majority, sometimes its would be william brennan, but rhenquist would assign it. early on, when he would assign to antonin scalia, it was with a close vote, justice scalia would lose the fifth vote because you have to write an opinion that will keep all five justices, the majority of the nine, on it, rather than something that really reflect your hard and fast view. >> host: so maybe the vote at conference would be 5-4, and chief justice rhenquist would say, you know, or justice scalia, why don't you write the opinion for the court, and then the senior justice in the minority would decide who would write a dissenting opinion or
maybe more than of them. and so justice scalia would embark on writing an opinion, and you're telling me that because maybe his opinions were so sharp and out there, maybe someone would say, my gosh, i don't think we need go that far and switch? >> guest: that happened on occasion, and -- >> host: how do you ever know this? does someone tell and tell me how you know that. it's a secret, isn't it? >> guest: not anymore, in part because people do tell, and also because we have these treasure troves of justice's papers. several justices, upon retirement, have allowed their papers to become public, upon retirement and death. i made heavy use of the papers of powell, which are at washington. they are wonderful papers. >> host: men mows? >> guest: moment mows, exchanges on cases and notes between justices. justice powell, just hear blackburn's papers, thurgood
marshall's papers, william brennan papers are mostly public at the library of congress. so these justices' documents provided a lot of material for me to see what would happen in the drafting process and that's where i was able to detect when justice scalia might have lost a majority, and from the outside you often don't know that. but in fact it's good to bring this up because i just heard from a lawyer who argued one of the cases that had been 5-4 in the opposite direction until justice scalia lost the majority, and bill brennan switched votes and it went the other way, and that was a lawyer that had been on the case and didn't know it happened. >> host: didn't know he almost lost? >> guest: you wouldn't know unless you went to look it up. and i think in the late -- in the early 1990s, when justice thurgood marshalls papers became available, and it was very big deal to journalists and
observers, people started looking at them but only as a matter of routine people spend a lot of time in those papers. >> host: so they keep at it secret, but then they -- after they move this planet, their papers become available and you can figure out things that happened? >> guest: that's right. some of the justices don't. i had a conversation with justice sandra day o'connor about what she would make available in her papers and said directly do not hold your breath. get on with your life. >> host: and justice souter. >> guest: which was a shame. from his point of view, he thinks it's nobody's business, and some of his fellow justices are happy because when they send a memo to a colleague, they like to keep it quiet, i think. but for journalist, it's great because you know what was going on and it gives you insights into the finished product where all you see is the final law of the land, which obviously is what then survives the court. but it's nice to see the
dynamics that produced i it. >> host: it's a treasure trove when you're a journalist doing books like this. tell me about the fact that once in a while justice scalia's opinions would be sharply critical of his colleagues? somewhat disdainful, perhaps. you mentioned that someone opinioned out, there's sarcasm in there from time to time. tell us about that. >> guest: from time to time, yes. >> host: is that true? and did it alienate his colleagues? >> guest: well, it did some respects but they came to embrace it, that's. >> host: you do it long enough you can get away with it or abuse you smile? >> guest: at justice ruth bader ginsburg said, i love nino, but sometimes i could strangle him, and i think that was the sentiment of most of them. justice john paul stevens, who is certainly his opposite on the law, justice stevens, the senior
liberal on the bench, said he has been a factor, and certainly been destructive is what justice stevens said. but he took it as part of the intellectual debate. now, justice harry blackburn was offended his justice scalia's tone, and i find in his documentses insure fact case you would you be official familiar with, when justice school gentleman first drafted the opinion, justice blackburn was very offended be the tone, and justice sandra day o'connor, who retired in january of 2006, was also offended by some of the tone, but learned to live with it, and i think that he -- people said to me, is it -- was he effective with that tone? because he pushed people away.
but what he has done, he has probably cost himself a little bit with the moderate on the court, but he also issued battle cries to people beyond the court, and he has become a hero to some conservatives out there. so he has been effective in the way that other justice haven't been effective beyond the bench. >> host: i'm going to ask you more about his writing. justice blackman, i thought there was an interesting piece in your book where everything had sort of gone wrong for justice scalia, and he apparently appeared like he was kind of the end of the term -- they started october with arguments and they finish in june, and he had lost one case after the other, and i think justice blackman was feeling sorry for him. can you tell me about this? >> guest: this is an interesting anecdote. it was in june of 1996, and justice scalia hat lost and lost and lost, and that's when he said we had got ton a point this is a country i do not recognize.
very upset, and he had been the dissenter in significant gay rights cases, in a case in terms of education. and he is very disappointed, and at this point, president clinton is in office. the country is in a position where justice scalia feels like he is of the minority view. and hear blackman reaches out to him and says, i know you're disappointed but happy after the summer you will get over it. and justice scalia writes back very personal note that says, you know -- acknowledges his disa appointment and says, i feel like it's been for not. and this becomes public when hear blackman's files are open, and justice scalia felt insulted. he felt like, here he was being reached out to by a colleague, he lets down his guard and writes back, and then it all
becomes public, and i think he felt like that was a bit of a sense of betrayal. for me it was great because i was able to see first hand at the moment just how deject -- dejected he was. >> host: do you think he was ready to quits? there was speculation. >> guest: he was having pizza with pals, and he felt sick and tired. he was weary in 1996. also just turned 60. which wasn't that big -- you know, we're all looking at milestones kind of thing, and i actually believe he never would have quit because it is so much part of his life. this is a job he just thrives on. but people close to him thought he might. >> host: well, it's ironic, then, that someone who is on the other side of all those case woos reach out a hand to him. he would respond, and then later
when justice blackman's papers are available, then he felt a little bit -- now, i guess that means we will never see justice scalia's papers or we wouldn't be holding our breath. >> guest: i don't think we should plan on his. he was -- justice scalia couldn't believe how much harry blackman. >> host: he saved everything. >> guest: and justice scale ya doesn't safe like that and doesn't kind of chronicle his life like that. and there was diary that has been useful to historians and journalist, and i don't believe justice scalia did. >> host: i warrant to return to his relationship with justice ginsburg. you would say this. difficult to find two people, two justices that were more different. he is robust, italian, operatic.
justice ginsburg is slight, very cerebral. >> guest: very soft-spoken. >> host: yes, and yet -- tell us about their friendship. >> guest: very long-standing friendship. they first met in the 70s. she heard him give a speech. it was an area of administrative law that was very close to justice scalia was heart, and he gave this emparked speech that only law professors could love, and she disagreed with everything he said, she told me, but she was very taken by his style. she told the senators, during her corn firm nation hearings, he can always make me laugh? >> host: makes her laugh. >> guest: she meets him in the late 70s, and she remembers hearing him giving the speech, differ agreeing on the substance
of the speech and being taken by him. then they both were appointees to the federal court of appeals in washington. and they're both former law professors, and they start exchanging writings between each other, and they're asking each other for advice on legal reasoning, everything from the legal reasoning to punctuation, both picky intellectual types in various ways, and they both share a love of opera, a love of travel, and their friendship starts to deepen, and toward the end of his tenure on the dc circuit, they start to spend new year's eve together, and robert bork was part of this group, and then for lots of reasons, and partly because of his disappointment to not get on the supreme court, but they start to spend the new year's eves together with their spouses, and
it's a nice foursome, although everyone is baffled by it. and she constantly is irked by thinks he does but they're friends. >> host: he says, he admires her -- values her advice. he will share points with her in the drafting process. >> guest: that's right. that's right. one of her favorite pictures is a time they went to india and they're on this elephant together, and he is in the front and she is in the back, and she said it was the weight distribution. the only one who lies about her weight in the opposite direction. so here is the robust figure he is. but they do enjoy each other's company to the bafflement of many. >> host: the new year's eve thing, i understand ginsburg's husband is a chef. what does he cook?
sometimes what justice scalia has shot. bus ---because he loves to hunt. here's this clean, new york-reared boy who loves to go quail hunting, duck hunting, elk hunting, and sometimes he brings back something that marty ginsburg can cook. >> host: so nino kills it, and martinezy cooks it. >> guest: right. and he loves wine, loves food. >> host: del me about miss writing style. we talk about that earlier. but i'm taken with it. i fine it absolutely fascinating. what have you found? >> guest: well, it's just rich with illusions. we he will quote everything from shakes spears to leonard bernstein's thugs in west side story. he is constantly invoking all sorts of literature, song
lyrics. his father also collected italian lyrics, and the justice him has always been quite musical, and he will invoke song in his opinions. they're lively and punchy. he often, as you said -- and even though you sort of hedged, when you used the word sarcasm -- they can be very, very sarcastic. >> host: i wouldn't say that. >> guest: i know. but they are sarcastic. he can't get away with it in majority opinions, but i asked him a couple times about comments in his opinions, and he will say, i know, i know, that might have been a little sarcastic, but got people's attention. he wants to get attention, and wants to be read, wants his message out. >> host: i think he thinks that from what i gather from what i know himself that he knows if he writes it in a way that people want to read it, people will
remember and it people will be persuaded by it, is that because it's fun or more persuasive. >> guest: i think he really does enjoy -- i asked him about the writing process, and he said, i enjoy having written, because it's work. it's work to write. and he enjoys having written. but he is energized during the process. about what he wants to do is persuade, and he loves it when his opinions are devaried, and we know many, many liberals, who even though they disaggrieve with everything he says, turn first to his writing because it is so engaging, and he likes that. he wants his opinions to make the casebook. he wants young law students, future solicitors general, future attorneys general to be reading him. >> host: he has a colorful way of expressing himself. one case he talk about 60,000
people dancing nude in the hoosier dome, and it was a nude dancing case or something like that. there's always something like that. or not always but often there's something like that that makes his point. >> guest: he is very visual, and i asked justice stevens once, if you were doing this book, what would you want to know about justice scalia's life? he said, where does he get that sense of storytelling,. >> host: a great question. >> guest: so i started asking his relatives, and they were like, he did it. but his grandfather pascal was quite the story telar and he first person on new year's eve to start banging the pans, and also not only did he get that sense of timing, but his father being so interested in words and language, he certainly was --
has a first rate use of the language. >> host: justice scalia has always been very reticent about the press, and a little bit suspicious about the press, and you talked to him and got him to cooperate with your book. i mean, tell us that story. >> guest: well, he was initially reluctant to be the subject, and he and i have quite a history together. as i said to him once, you liked me when i was with the congressional magazine. you like me when i was at the washington post-and now i'm with u.s.a. today. and he said, even though i am sicilian, i have not held a grudge. so we have had our ups and downs, especially when i was with the was post, and when i told him i signed the contract -- >> host: you did that before you knew you were going to get any help from him? i. >> guest: i did, and that's
because i knew his story and i knew i could get to people mitchell first -- my first sit-down interview with him was in 1990, and when you feel like you have this type of access. so i was confident, and frankly my publisher and editor were confident i would be able to tell his story without having a guarantee from him. and he wrote back saying -- once i told him i signed the contract he said, feel free to talk to cool explosions friends and my family but i don't talk to you. i said, just keep an open mind. and i began my research in earnest and spent time in trenton, where he was born, spent time in queens, went to presidential libraries of nixon and ford, the judicial archives, and i found out lot of things he didn't know about his family and his own story, and we ran into each other at a southern occasion, and i was telling him about things i found out, and he got interested. and i think what he decided --
well, he did said, you're spending so much time trying to figure out my life, maybe i ought to cut you some slack. so he started calling me, and how often are we sitting out our desk and i would be like, will he call today? will he call today? asked questions about his father's story, and he started -- >> host: a little advance thing in the book. >> guest: he wanted information. it was interesting. i don't know how much anybody in his family has done on genealogy, but i was doing research in the new jersey archives, and so finally i went in to see him, and we started talking, and i would tape-record everything, and halfway through he said, i don't know if this should all be then roared -- be on the record. and i was very frank about my mission. i was not trying to hold him up as a hero in any way. i just wanted to really tell his story as thoroughly as possible. finally he said, all right, all
right. and it was all on the record. toward the end when i told him about the chapters on catholicism and race, and i let him have a response, and i said, this is -- you have been good about being generous with your time, and the tradeoff is you will know what is in here, and i will let you respond to your critics, and this is a book that is written for a mainstream audience, so i wanted people to see him in his fullest. i wanted to give his life story and i also wanted to give his sense of the law also. >> host: you obviously gained his respect and his trust. he is not going to agree with everything in here, i'm sure. no one is happy with what someone else writes about them. but it's really well done, and it's so well written by you, but it's also so much of him. you can see that you got his
respect anded admiration and cooperation because you were an honest person doing your job i wanted to ask you. you messengered catholicism. there are nine -- six justice that are catholic. nothing like that has happened. what did you learn -- he is a strong catholic, a passionate one. how does that affect his opinions and the same question about the other justice? >> host: that's a -- >> guest: that's a good question because it's historic. there are six. thomas, schoola, kennedy, thomas, and alito, and sonia sotomayor, and they all have different approaches to catholicism, but everybody would agree that justice scalia is most known as a catholic. he talks about it most.
his friends say he believes it's the one true church. he likes the high mass. he likes the idea that everybody should observe all the holy days and say the rosary. so he is a committed catholic. so one of the chapters about his catholicism, and this views on abortion, and the way i described it is a parallel passion. a real passion for catholicism and passion for the repudiation of roe v. wade that made abortion legal, and he said, i read text. i'm an originalist. my catholic beliefs doesn't affect my thoughts roe v. wade, and i let him say, it is not something that influences my rulings, and i let critics such as the university of chicago's
jeff stone counter that, and then readers can take away from that. but at it an historic time for catholics on the court, and he embodies the idea that catholicism can influence a person of the law. >> he says the fact that i'm a catholic didn't lead to my jurisprudence on abortion, and the he cites -- he supports decisions in involving capital punishment. so he has a point there. >> guest: and he -- look, his approach to -- i think that anybody who understands his approach to originallallism would say, of course, you can not not find in the framers' original idea of the constitution a right to abortion. he has a good argument on that. but some people have certainly objected to it. he says that certainly is not influenced by my catholicism.
and you're right. on the death penalty, he says that is informed by any originalist point of view. >> host: it's in the constitution. >> guest: that's right. >> host: the idea that originalism -- i mean, say a few words about that and what's the antithesis of originalism on the court? tell us what that means to him and what he is opposed to on the other side. >> guest: his idea is you go back to 18th century and look what the drafters of the constitution wanted as the law and what shape -- what was going on in society. so it's not just the text but it's largely the text. the counterpart, and liberals constantly talk about the counterpart. they definitely do not subscribe to justice scalia's view, but they want to more vigorously be a player in the intellectual debate on this. it's hard because it's a much more practicing mat tick approach though discussion.
justice steven breyer has embody it that not what he has written in his book. you don't go back though 18th 18th century stay there, what should be the law. you look at what is important now, how the laws and the text of the constitution have evolved to fit the needs of society. for our viewers, it's really embodied in the thinking of justice brennan, the living ickes involving constitution fit societial demands, and justice breyer fits that, and he says, let's be real about what america needs, and let's look at it in a broader sense than just what was happening in the 18th century. what justice scalia says is, well, if i just look at it in terms of the text and what the framers had in mind, i won't let me personal views influence me. i won't let my catholicism, any