The former senior adviser to President Obama recalls when Scalia asked for the appointment of a justice who is a stalwart liberal
Scalia knew Obama wouldn't pick a conservative, so he lobbied for a friend, Elena Kagan, Axelrod says
Editor’s Note: David Axelrod is CNN’s senior political commentator and host of the podcast “The Axe Files.” He was senior adviser to President Barack Obama and chief strategist for the 2008 and 2012 Obama campaigns. The opinions expressed in this commentary are his.
CNN
—
When the shocking news of Justice Antonin Scalia’s passing hit Saturday night, my mind raced back to a White House Correspondents Association dinner seven years ago, when we were seated together.
David Axelrod
We bantered about my hometown of Chicago, where he had taught law before ascending to the bench. He opined on wine and music and generally lived up to his reputation as a man who told and enjoyed a good story.
And then our conversation took an unexpected turn.
Justice David Souter, Scalia’s longtime colleague on the court, had just announced his retirement, creating a vacancy for President Obama to fill. Scalia figured that as senior adviser to the new president, I might have some influence on the decision – or at least enough to pass along a message.
Photos: Justice Antonin Scalia's life in photos
Steve Petteway/ZumaPress/Newscom
U.S. Supreme Court Justice Antonin Scalia, who was found dead on Saturday, February 13, was one of the most influential conservative justices in history. He was 79.
Photos: Justice Antonin Scalia's life in photos
Ron Edmonds/AP
President Ronald Reagan announces the nomination of Scalia to the Supreme Court on June 17, 1986, as a result of Chief Justice Warren E. Burger's retirement.
Photos: Justice Antonin Scalia's life in photos
Paul Hosefros/The New York Times/Redux
Scalia works in his office in Washington on July 28, 1986. Scalia, who was appointed in 1986, was the longest-serving justice on the Supreme Court.
Photos: Justice Antonin Scalia's life in photos
Lana Harris/AP
Scalia appears before the Senate Judiciary Committee during his confirmation hearings in Washington on August 6, 1986.
Photos: Justice Antonin Scalia's life in photos
Pamela Price/ZumaPress/Newscom
Scalia, seen in a 1986 photo, was the first justice of Italian-American heritage and passed through confirmation with a unanimous vote.
Photos: Justice Antonin Scalia's life in photos
Charles Tasnadi/AP
Retiring Chief Justice Warren Burger, right, administers the oath to Scalia, as Scalia's wife, Maureen, holds the Bible on September 26, 1986. Scalia was the 103rd person to sit on the court.
Photos: Justice Antonin Scalia's life in photos
JOYCE NALTCHAYAN/AFP/Getty Images
U.S. Supreme Court justices pay their respects in front of the casket of former Chief Justice Warren E. Burger during a prayer ceremony in the Great Hall at the Supreme Court Building in Washington on June 28, 1995.
Photos: Justice Antonin Scalia's life in photos
SUZANNE CARR/THE FREE LANCE-STAR/AP
Scalia speaks to a crowd gathered at the Religious Freedom Monument in Fredericksburg, Virginia, to celebrate Religious Freedom Day on January 12, 2003. Scalia complained that courts have gone overboard in keeping God out of government.
Photos: Justice Antonin Scalia's life in photos
LCPL NATHAN L. BARNES/USMC
Scalia shakes hands with U.S. Marines Corps Maj. Gen. Robert C. Dickerson, commanding general, upon Scalia's arrival at Marine Corps Base Camp Lejeune, North Carolina, for an official visit on March 12, 2004.
Photos: Justice Antonin Scalia's life in photos
Gavin Averill/The Hattiesburg American/AP
Scalia speaks to Presbyterian Christian High School students in Hattiesburg, Mississippi, April 7, 2004.
Photos: Justice Antonin Scalia's life in photos
Pool/Getty Images
The casket of Chief Justice William H. Rehnquist lies in the Great Hall of the U.S. Supreme Court as Scalia and Sandra Day O'Connor, left, walk past on September 6, 2005, in Washington.
Photos: Justice Antonin Scalia's life in photos
Chip Somodevilla/Getty Images
Members of the U.S. Supreme Court, Justice Ruth Bader Ginsburg, Justice Stephen Breyer, Justice Clarence Thomas, Justice David Souter, Justice William Kennedy, Justice Antonin Scalia, Justice Sandra Day O'Connor and Justice John Paul Stevens file out of the U.S. Supreme Court Building to attend funeral services for Chief Justice William Rehnquist on September 7, 2005, in Washington.
Photos: Justice Antonin Scalia's life in photos
Spencer Platt/Getty Images
Surrounded by security, Scalia walks in the annual Columbus Day Parade on October 10, 2005, in New York City.
Photos: Justice Antonin Scalia's life in photos
Chip Somodevilla/Getty Images
Scalia calls on people during a question-and-answer period at the American Enterprise Institute on February 21, 2006, in Washington. Scalia delivered the keynote address about foreign law and the debate about how it is used in American Law during the seminar called "Outsourcing Of American Law."
Photos: Justice Antonin Scalia's life in photos
Chip Somodevilla/Getty Images
Heather Myklegard, Scalia, Dirk Kempthorne and U.S. President George W. Bush walk through the Rose Garden before Kempthorne is sworn in as the new interior secretary at White House on June 7, 2006, in Washington.
Photos: Justice Antonin Scalia's life in photos
SAUL LOEB/AFP/Getty Images
Scalia listens as U.S. President George W. Bush speaks at the the Federalist Society's 25th Anniversary Gala Dinner at Union Station in Washington, on November 15, 2007.
Photos: Justice Antonin Scalia's life in photos
JEWEL SAMAD/AFP/Getty Images
Scalia speaks during the American Bar Association's 59th annual antitrust law spring meeting in Washington on March 31, 2011.
Photos: Justice Antonin Scalia's life in photos
Alex Wong/Getty Images
Scalia testifies during a hearing before the Senate Judiciary Committee on October 5, 2011. The justice testified on "Considering the Role of Judges Under the Constitution of the United States."
Photos: Justice Antonin Scalia's life in photos
Brendan Hoffman/Getty Images
Scalia and his wife, Maureen, arrive for a state dinner in honor of British Prime Minister David Cameron at the White House on March 14, 2012, in Washington.
Photos: Justice Antonin Scalia's life in photos
MANDEL NGAN/AFP/Getty Images
Scalia conducts a naturalization ceremony for 16 new U.S. citizens during the commemoration of the 150th anniversary of President Abraham Lincoln's historic Gettysburg Address on November 19, 2013, at Gettysburg National Military Park in Gettysburg, Pennsylvania.
Photos: Justice Antonin Scalia's life in photos
Chris Maddaloni/CQ Roll Call/AP
U.S. President Barack Obama greets Supreme Court Justices Clarence Thomas, Antonin Scalia, Sonia Sotomayor, Anthony Kennedy and John Roberts at Obama's inauguration for his second term of office.
Photos: Justice Antonin Scalia's life in photos
Jim Mone/AP
Scalia speaks at the University of Minnesota as part of the law school's Stein Lecture series on October 20, 2015, in Minneapolis.
“I have no illusions that your man will nominate someone who shares my orientation,” said Scalia, then in his 23rd year as the court’s leading and most provocative conservative voice. “But I hope he sends us someone smart.”
A little taken aback that he was engaging me on the subject, I searched for the right answer, and lamely offered one that signaled my slight discomfort with the topic. “I’m sure he will, Justice Scalia.”
He wasn’t done. Leaning forward, as if to share a confidential thought, he tried again.
“Let me put a finer point on it,” the justice said, in a lower, purposeful tone of voice, his eyes fixed on mine. “I hope he sends us Elena Kagan.”
I was surprised that a member of the court would so bluntly propose a nominee, and intrigued that it was Kagan, the former Harvard Law School dean who was appointed solicitor general by Obama to represent the government before the Supreme Court. Though she had worked on policy in the Clinton administration and had a reputation for pragmatism, Kagan plainly would be a liberal in the context of the court.
Later, I learned that Scalia and Kagan were friends, though I suspect she would have been as surprised as I was at the brazenness of Scalia’s suggestion.
Each was a graduate of Harvard Law School and had taught at the University of Chicago Law School, though in different eras. They were of different generations, he the son of an Italian immigrant, she a Jew from New York City’s left-leaning West Side. But they shared an intellectual rigor and a robust sense of humor. And if Scalia could not have a philosophical ally in the next court appointee, he had hoped, at least, for one with the heft to give him a good, honest fight.
Kagan didn’t get that nomination. The President instead chose Sonia Sotomayor, who would become the first Hispanic member of the Supreme Court.
But when another vacancy arose a year later with the retirement of Justice John Paul Stevens, Obama did nominate Kagan, whose friendship with Scalia would grow in the years to come, even as they differed, sometimes sharply, on issues before them.
During her confirmation meetings with senators, Kagan had vowed to go hunting to allay their concerns about her cultural awareness on the issue of guns. When she joined the court, she asked her friend, Scalia, to take her. The two, who occasionally shot intellectual darts at each other on paper, became regular, if unlikely, hunting partners.
The Supreme Court is a singular institution in our system: lifetime appointees, powerful in their impact but uniquely opaque in their process of arriving at decisions.
We have become inured to the animus that characterizes the relationship between many of our elected officials in these highly partisan times. But members of the court, free from the pressures of running for office, relate to each other in a different way.
So much so that a conservative lion would lobby the President’s adviser for his liberal friend. Thank you, Justice Scalia, for your service to our country.
