A Time for Choosing: Part II

On February 15, investigative journalist and progressive radio host Brad Friedman noted that the United States Senate voted unanimously to confirm radical-right Supreme Court Justice Antonin Scalia in 1986. Thirty years later, it shocks the conscience that this extremist could have received such a grand welcome to the Court. How, exactly, did that happen?

Joan Biskupic’s 2009 biography of Scalia, American Original, goes into detail about the dark path the then-as-now-Republican-controlled US Senate took three decades ago. Biskupic noted that Scalia’s confirmation hearings took place just one week after the contentious hearings that led to the elevation of another wingnut, then-Associate Justice William Rehnquist, to the position of Chief Justice. Democrats on the Senate Judiciary Committee hammered away at Rehnquist, citing his history of intimidating black and Latino voters, opposing school desegregation, and supporting illegal wiretapping. However, Republican Senators stuck by their man, and Rehnquist received an undeserved promotion to Chief Justice.

After the arduous Rehnquist hearings, the Senate Judiciary Committee was inclined to let things slide:

Even the scene in the ornate hearing room as Scalia took his chair revealed how this nominee would not be scrutinized as Rehnquist was. There were fewer news reporters and photographers. The rows of spectators had thinned. Senators were exhausted.

According to Biskupic, Scalia—at the time, a Reagan-appointed judge on the United States Court of Appeals for the District of Columbia Circuit—had been handpicked by then-Attorney General Ed Meese and then-Assistant Attorney General for Civil Rights William Bradford Reynolds in 1985 as an ideal candidate for a future SCOTUS opening, along with fellow appellate court judges Robert Bork and Anthony Kennedy. That opening came in May 1986, when then-Chief Justice Warren Burger decided to retire from the court. Reagan’s chief of staff, Donald Regan, seized the chance to shove the court rightward:

Foremost in the minds of Meese [and Regan] was this opportunity to shift the Court’s direction. A lifetime appointment could help project components of the Reagan revolution far into the future. Reagan’s appointment of O’Connor had fulfilled a campaign promise to place a woman on the Court. This new nomination could be more of a reflection of Reagan’s quest for a remade judiciary.

Reagan decided to nominate Rehnquist to replace Burger as Chief Justice and nominate Scalia for Rehnquist’s former seat. Biskupic noted that one of Scalia’s White House champions, then-communications director Pat Buchanan, wrote a memo to Reagan explicitly citing Scalia’s ethnicity as a reason to select him:

Buchanan’s stance also reflected the political and strategic dimension of what Meese was seeking in the legal realm: “While Bork is [an] ex-Marine and a brilliant judge, I would lean to Scalia for the first seat [of Reagan’s second term]. He is an Italian-American, a Roman Catholic, who would be the first Italian ever nominated—a tremendous achievement for what is America’s largest ethnic minority, not yet fully assimilated into the melting pot—a minority which provides the GOP its crucial margins of victory in New Jersey, Connecticut and New York.” Buchanan closed his memo by referring to “the cruciality of the Supreme Court to the Right-to-Life Movement, to the School Prayer Movement, the anti-pornography people etc.—all of whom provide the Republicans with the decisive Presidential margins.”

Biskupic further noted:

Letters from Italian Americans had been flowing into the White House on behalf of Scalia for months. Unlike Buchanan or Meese, Italian American leaders were not looking at ideology. They sought ethnic representation. Many Roman Catholics outside the Italian American community also were supportive of Scalia…Scalia’s dynamic conservatism, Italian American story, and comparatively good health [relative to future nominee Robert Bork] made this his moment.

Biskupic observed that Democrats on the Senate Judiciary Committee largely gave Scalia a pass, “[responding] positively to the nominee’s youthful dynamism and Italian heritage.” Senate Judiciary Committee chairman Strom Thurmond, “age eighty-three and a loyal Reagan team player,” treated him with the proverbial kid gloves. Democratic Senator Edward Kennedy pressed Scalia on his previously stated anti-abortion views, but Scalia gave extremely evasive answers:

Kennedy pressed Scalia on how much weight Scalia would give to Roe v. Wade as a precedent. Scalia declined, saying, “It can only be answered in the context of a particular case, and I do not think that I should answer anything [outside of] the context of a particular case.” To try to set Kennedy’s mind at rest, the nominee added, “I assure you, I have no agenda. I am not going onto the Court with a list of things that I want to do. My only agenda is to be a good judge.”

Kennedy, first elected to the Senate in 1962 and now fifty-four years old, was among the chamber’s most liberal members. At the time of the Scalia hearings, he was worn out from the Rehnquist hearings. What’s more, his home state of Massachusetts had a sizable Italian American and Roman Catholic population. Kennedy decided not to back Scalia against a wall.

Scalia was similarly evasive on the issue of affirmative action, at one point suggesting that because he was Italian-American, and his wife was Irish-American, he was sensitive to issues of discrimination against people of color:

Then Scalia referred to his Italian roots as giving him the status of a racial minority: ”[H]aving any animosity toward racial minorities in my case would be a form of self-hate. I am a member of a racial minority myself, [and I have experienced] some minor discrimination in my years; nothing compared to what other racial groups have suffered. But it does not take a whole lot to make you know that it is bad stuff.”

Scalia noted that his Irish mother-in-law “remembers the days when there were signs in Boston that said ‘No Irish need apply.’ I find all of that terribly offensive…I have absolutely no racial prejudices, and I think I am probably at least as antagonistic as the average American, and probably much more so, toward racial discrimination.”

His evasiveness on the issue of his judicial philosophy frustrated Senators Joseph Biden and Arlen Specter in particular. Biskupic writes that the Senate Judiciary Committee just didn’t have the stomach for a fight:

The questioning was soft. In the few prickly areas raised, there were virtually no follow-up questions. No senators had asked him about his connection to the founding of the Federalist Society, which by 1986 had members throughout the [Reagan] administration and had become an influential partner in the screening of judicial candidates. His tenure with the Nixon and Ford administrations was barely touched upon. Stirring up another hornet’s nest of controversy after the Rehnquist hearings was not worth it to senators politically.

On September 17, 1986, Scalia was confirmed 98-0. It was a day that would live in infamy for Biden, Biskupic writes:

Some Democrats, including Biden, would say they wished they could have their votes back, and not in small measure because of the conservative force Scalia would become. In 1993, during the Senate Judiciary Committee hearings for Ruth Bader Ginsburg…Biden said, “The vote I most regret casting out of all the ones I ever cast was voting for [Scalia]—because he was so effective.”

Yet when senators were going through the constitutionally mandated confirmation process in 1986, there was faint will to truly probe [Scalia]…His Italian American heritage created a strong motive to support him. The Democratic opponents of Rehnquist had just failed. As a result, although Scalia’s record was, for all intents and purposes, in plain sight, he barely had to defend or explain it. Scalia took his seat with hardly a glance at the substance of his views.

In his 2009 book The Age of Reagan: The Conservative Counterrevolution, 1980-1989, conservative author Steven Hayward also observed:

Political observers suggested that liberals didn’t want to cast votes against the first Italian American nominee to the Court (even Mario Cuomo publicly supported Scalia’s confirmation), but it is also likely that, having spent their fury attacking Rehnquist, they had little left to make a fight over Scalia, who would go on to become a demonized figure for the Left.

Were I an Italian-American, I’d be embarrassed that this extremist was the first person of my ethnicity to make it to the Supreme Court. I’d be embarrassed by his efforts to roll back civil rights protections for others with a history of discrimination on our shores. I’d be embarrassed his narrow-minded ideology and his proud embrace of his Archie-Bunker-with-a-law-degree image. Most of all, I’d be embarrassed by the 2010 revelation that Scalia (along with Clarence Thomas) had aligned himself with GOP kingpin David Koch.

Were I an Italian-American, I’d ask President Obama to consider nominating a proudly progressive daughter or son of Italian immigrants, someone who would actually honor my heritage and make me proud…and I would view Scalia the exact same way my progressive black brothers and sisters view Thomas.

UPDATE: More from Brad Friedman and Ian Millhiser.

D.R. Tucker

D. R. Tucker is a Massachusetts-based journalist who has served as the weekend contributor for the Washington Monthly since May 2014. He has also written for the Huffington Post, the Washington Spectator, the Metrowest Daily News, investigative journalist Brad Friedman's Brad Blog and environmental journalist Peter Sinclair's Climate Crocks.