Bush v. Gore: Still a Trip

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When I drive directly from my northwest Washington, D.C., home to the Supreme Court, without stopping at the office, I take North Capitol Street south toward the Hill. And when I’m just about a half mile from my turn off of North Capitol, I hit the spot where I first heard on the radio that fateful Saturday, December 9, that the Court had halted the Florida recounts in the presidential election of 2000.

After ten years, I still cannot pass that spot without recalling the shock of the Court’s order. I had been driving in to get the latest filings and never suspected intervention was imminent. The Court’s conservative-controlled 5-4 order stopped Florida ballot recounts – a day after the Florida supreme court had ordered the counting resumed — and set oral arguments in George W. Bush’s appeal. The Court’s order also set the stage for what happened three days later: a 5-4 ruling that fully ended the litigation over the state’s decisive presidential electoral votes and let Bush take the White House over Al Gore. 

Irrespective of the legal merits (and I lay them out in chapters of both biographies), I don’t think I’ll ever – as Justice Antonin Scalia regularly admonishes – “get over it.”

In recent days, I have been even more aware of how much the case remains with us. Justice Stephen Breyer told me Tuesday that in his travels audiences regularly ask him about the ruling, and half the people still think it was wrong. Breyer, who dissented, uses Bush v. Gore in his latest book, Making Our Democracy Work, however, as a positive example of how  people rightly follow Court rulings even then they don’t like them.

I am asked about the case all the time. At a Smithsonian panel on Court trends in November, one of the first audience questions was from a man still angry about it. Also on the panel were acting U.S. solicitor general Neal Katyal, who had worked for Gore, and former U.S. solicitor general Paul Clement, who had worked for Bush, and they jumped in to air the two sides.

There’s something about Bush v. Gore that’s not going away. At least for those of us connected to the Court. New Yorker writer Jeffrey Toobin does observe in an essay this week about the anniversary of the case that former President Bush in his memoir, Decision Points, devotes less than a page to it.

An editorial assistant from Farrar, Straus & Giroux wrote last week to say he was clearing out old correspondence and drafts associated with American Original and to ask whether I wanted anything saved. With the Antonin Scalia biography securely in hard-cover and about to be in paperback (September 1), I said don’t bother. But, I said, if you come across the original Herblock cartoon I acquired for the photo insert, save it.

I worked with the legendary Washington Post cartoonist Herb Block for eight years and was a fan of his work and even greater admirer of the man himself. He died in 2001 at age 91. I used an iconic drawing of his in the Sandra Day O’Connor biography. The cartoon showed Lady Justice lifting her blindfold to see a robed woman ascending the Court steps. “Well, it’s about time,” Lady Justice is saying. The Herblock I used in the Scalia book was drawn in 1996 after the justice appeared at an event sponsored by the Christian Legal Society at a Mississippi law school. Scalia criticized the “worldly wise” who might mock “true believers.” As controversy over Scalia’s speech boiled up, Herb sketched him on the bench reading the Bible and fuming about “worldly wise guys.”

Recalling that cartoon last week nicely coincided with a question from Touro law professor Marty Schwartz, who was a panelist with me at a recent legal conference in New York. Marty, who has an extensive collection of law-related cartoons, asked me about a Jim Morin drawing I had cited in a chapter on Scalia’s views related to affirmative action and other racial policies. The cartoon was published in the Miami Herald in 1988 after a conservative Court majority had voted to reconsider the reach of a longstanding civil rights law. Morin linked the action to President Reagan, who had appointed most of the justices in the majority, and drew a caricature of Reagan sticking his tongue out at Abraham Lincoln in his chair at the memorial. Under the headline “Supreme Court Votes to Reconsider Major Civil Rights Law,” Lincoln looks distressed. (The Court’s action had come in a case of Patterson v. McLean Credit Union. As it turned out, the justices in 1989 did not significantly scale back the civil rights law in question, even as they voted against the African American woman alleging harassment on the job.)

After reading about the cartoon in American Original, Marty tried to find the Morin work in various Internet cartoon-banks. He turned up other Morin cartoons on race and even one related to the Patterson case, yet not the cartoon I mentioned.

I knew it was unlikely that I had personally clipped the 1988 cartoon, but I also knew I wouldn’t have referred to a drawing I hadn’t actually seen. I suspected I had found and copied it from a justice’s files during research.

In a quick search of the plastic bins stacked in the basement under the ping pong table (the Library of Congress I am not), I found my Patterson files. And there was a cartoon Justice Harry Blackmun had included among his personal conference papers on the case. Blackmun had saved Morin’s cartoon along with newspaper editorials denouncing the conservatives’ vote to review the longstanding law. It endures, even beyond the Internet. I made a copy for Marty and dropped it in the mail.

Justice Scalia was not on the bench last Thursday, when the Supreme Court, nearing the end of its term, handed down five decisions. When I inquired, I discovered that he had been at Langley High School in McLean, Va., to speak at the graduation of a grandchild. I was curious about his remarks, especially because I had just given the commencement address to graduates of the National Cathedral School in Washington, D.C. 

My audience at the all-girl private high school was different from Justice Scalia’s and my approach more personal. I didn’t expect much overlap in the speech themes, yet I was curious about what Justice Scalia had said and the voices of wisdom he drew on. 

Justice Scalia opened with his signature brand of humor: “Giving a commencement address is not as safe an enterprise as it used to be. I am told that the graduating classes in some schools, to while away the time as the speaker drones on, have devised a kind of contest, with an appropriate prize, to see who can write out in advance the greatest number of the platitudes that the speaker will deliver.” He said the exercise has been likened to playing Bingo. 

Justice Scalia then sought to debunk several platitudes, beginning with that students today face “unprecedented challenges.” Not true, he said. Things have always been pretty bad. “Today, to be sure, we have the capacity to destroy the entire world with the bomb. I suppose you can consider that a new problem, but it is really new in degree rather than in kind. If you were a teenager graduating from the Priam Memorial High School, in Troy, about 1500 B.C., with an army of warlike Greeks encamped all around the city walls; and if you knew that losing the war would mean, as it did, that the city would be utterly destroyed, its men killed, its women and children sold into slavery – I doubt that that prospect was any less terrible to you than the prospect of the destruction of the world.” 

My remarks were specifically addressed to young women about to make their way in the adult world. I invoked the experiences of Justices Sandra Day O’Connor and Ruth Bader Ginsburg and other “firsts” I’ve known in law, publishing and academia. While I reminded the graduates of the sex discrimination that still exists even in 2010, there probably was little I said that would have been deemed cynical. (I have to admit that I did find a way to work in one of my favorite New Yorker cartoons, one that captures the zero-sum-game attitude of Washington. In it, one dog says to another, “It’s not enough that we succeed. Cats must also fail.” This, I heard later, amused the lawyer-parents in the audience.) 

Justice Scalia quoted English philosopher Lord Acton and, from the Federalist Papers, James Madison. I gave the most air time to some thoughts from the late lyricist and Broadway producer Oscar Hammerstein, whose essay from the original “This I Believe” series I’d recently heard on the radio. Hammerstein opened his essay this way: 

“I have an unusual statement to make. I am a man who believes he is happy. What makes it unusual is that a man who is happy seldom tells anyone. The unhappy man is more communicative. He is eager to recite what is wrong with the world, and he seems to have a talent for gathering a large audience. It is a modern tragedy that despair has so many spokesmen, and hope so few.”

Having experienced the death of loved ones and much despair about his work, Hammerstein said he could easily present a case to prove he was not happy.

“I could,” he said, “but it would be a false picture, as false as if I were to describe a tree only as it looks in winter. I would be leaving out a list of people I love, who have not died. I would be leaving out an acknowledgement of the many successes that have sprouted among my many failures. … I would be leaving out my faith that the goodness in man will triumph eventually over the evil that causes war.”

Hammerstein earned a law degree from Columbia University. But fortunately the man who went on to produce such shows as South Pacific, Carousel, and Showboat left the law for the theater. He gets the last word.

As Supreme Court justices circulate draft opinions among themselves and respond to each other’s writing, no two justices engage in a tit-for-tat like Antonin Scalia and John Paul Stevens.

These defenders of conservatism and liberalism, respectively, disagree on big issues, of course, but they are also the two most likely to tussle down in the weeds — on the meaning of a statute, interpretation of precedent or nuances of a legal test. It is not unusual for Scalia to make some assertion that sets off Stevens, who then fires back in his opinion, which prompts Scalia to return the volley, which gets Stevens going again.

That happened in this week’s case of Shady Grove Orthopedic Associates v. Allstate Insurance, a complicated dispute that led to a 5-4 decision letting certain class-action lawsuits barred from state court be heard in federal court. Scalia wrote for a plurality and needed Stevens’s fifth vote for the judgment. Stevens penned a separate concurring opinion. The two feuded over legal reasoning, and by the time Scalia was done answering Stevens’s escalating arguments he had crafted a whole separate section of his opinion that opened with the sentence: “A few words in response to the concurrence.” Several hundred words followed.

As they poked holes in each other’s rationale, Scalia charged Stevens with being “unfaithful” to statute and “greatly exaggerat[ing]” how Scalia had spurned a precedent. Stevens labeled Scalia’s legal test “empty” and said his interpretation of the disputed law was “not much more determinative than mine.” The case had been argued on Nov. 2, and some of this back-and-forth likely led to its being unresolved for nearly four months.

Their dueling rhetoric contributed to the delay in Citizens United v. Federal Election Commission, which came out January 21, after the case had been argued in September and put on a fast-track of sorts. As I noted in an earlier post (Jan. 24), Stevens devoted much of his dissenting opinion in that case to Scalia’s concurrence. (Justice Anthony Kennedy had written the majority opinion.)

Stevens, 89, and Scalia, 74, are two of the more intellectual members of the bench, and they like and respect each other. Scalia revels in this verbal jousting. Stevens finds it more wearying. “He’s got to have the last word,” he once told me of Scalia. “But is it really worth it?”

I think they’ll both miss it when Stevens is gone.

As legal analysts argue over the possible success of constitutional challenges to the U.S. health care overhaul signed today, I am reminded of how even conservative justices have disagreed through the years on how much the federal government should be involved in state activities.

Justice Scalia voted in the 1995 United States v. Lopez to overturn a U.S. law that regulated guns near schools because it encroached on state authority, yet voted in the 2005 Gonzales v. Raich to uphold federal drug law that voided California’s medical-marijuana policy, over protests from dissenters that the law infringed on the states. Scalia opposed the federal government usurping local handgun regulation but let it override state choices about drug laws.

Justice Sandra Day O’Connor, a former Arizona legislator and champion of state power, declared those two positions “irreconcilable” in her 2005 dissenting opinion in Gonzales v. Raich. Justice Clarence Thomas, also dissenting, derided the Court majority’s rationale invalidating California’s medical-marijuana policy: “If Congress can regulate this under the Commerce Clause — then it can regulate virtually anything, and the federal government is no longer one of limited and enumerated powers. … One searches the Court’s opinion in vain for any hint of what aspect of American life is reserved to the states.”

That was five years ago. It’s a whole new bench, with more conservative, yet not necessarily predictable, justices. And by the time challenges to the landmark health care law reach them, there may be more changes in their ranks.

I was reminded twice in the past week of the culture of notes and letters at the Supreme Court. When I spoke to a group of mid-career journalists at the National Press Foundation on Monday, a reporter asked who at the Court I would call or e-mail if I wanted to interview a justice. I said I often wrote a letter to the justice detailing my request. “A letter?” she said with disbelief and a tone of who-does-that-anymore? But this is an old-fashioned bunch and that is how they regularly communicate with each other and the outside world. Many of them e-mail and even text now, but they still write letters — handwritten letters on heavy, engraved stationery.

I was also reminded of the practice when I read Adam Liptak’s story last Tuesday in the New York Times about studies of oral dissents. In my research for the O’Connor biography, I was tipped off to the timing of her first-ever dissent from the bench (in 1991, a decade after being sworn in) by a personal letter she wrote to then-retired Justice Lewis Powell. I found it in his archive at Washington and Lee University. O’Connor had been the lone dissent in the case of Pacific Mutual Life Insurance v. Haslip, upholding a punitive damages award, and she let Powell know she was so disturbed she took the unusual (for her) step of reading portions of her statement from the bench. She lamented what she perceived as a lack of standards for such damages: “Rarely is a jury told anything more specific than ‘do what you think best.’”

To this day, Justice Ruth Bader Ginsburg is a prolific letter writer, as is Chief Justice John Roberts. The late Chief Justice William Rehnquist would often pen whimsical notes to colleagues as he sat on the bench, and earlier when he was an associate justice (1972-1986), he wrote letters to friends when oral arguments bored him.

One of my favorite Rehnquist letters was written to Powell when he was recuperating from cancer surgery:

“We have now finished our January argument calendar, of course, and I must say I can’t ever remember a less interesting or stimulating group of cases. If you had to miss one oral argument session, I don’t think you could have picked a better one to miss. Even the conference today got a little bit testy, as it does at times. Some of the Chief [Warren Burger]’s discussion is quite good, when he feels very strongly about something and when he feels he has a majority with him; but some of it can be singularly uninspiring. Sometimes when he runs out of things to say, but he doesn’t want to give up the floor, he gives the impression of a southern Senator conducting a filibuster.

“I sometimes wish that neither the Chief nor Bill Brennan would write out all their remarks beforehand and deliver them verbatim from the written page. Bill is usually thorough, but as often as not he sounds like someone reading aloud a rather long and uninteresting recipe. Then of course Harry Blackmun can usually find two or three sinister aspects of every case which ‘disturb’ him, although they have nothing to do with the merits of the question. And John Stevens, today, as always, felt very strongly about every case, and mirabile dictu had found just the right solution to every one. As you might imagine, my conference discussion was, as always, perfectly suited to the occasion: well researched, cogently presented, and right on target!”

In 1996, Justice Scalia wrote a particularly dispirited note to Harry Blackmun that I and other researchers have used over the years: “ … I am more discouraged this year than I have been at the end of any of my previous nine terms up here. I am beginning to repeat myself, and I don’t see much use in it any more.”

One particularly amusing personal note from Justice Scalia came in 2001, after I had switched from the Washington Post to USA Today. He was not happy with some of my coverage at the Post but said he wouldn’t hold it against me:  “Nursing grudges is a very Sicilian vice, but … not one of mine.”

Justice Scalia has been voicing his disdain for legislative history for a quarter century now. Today we celebrate the latest case in point — and his birthday.

Scalia does not believe federal judges trying to interpret a statute should look to congressional committee reports, floor speeches and other artifacts of the legislative process. He says judges should look solely at the text of the law and related statutes to determine Congress’s intention.

With his usual punch, he reminded his colleagues this week of that view, in the case of   Milavetz, Gallop & Milavetz v. United States, regarding a 2005 bankruptcy law. Scalia joined the majority in a two-part decision that said the law barring certain professionals from advising clients “to incur more debt in contemplation of” filing for bankruptcy applies to attorneys, and that the law can be narrowly construed to avoid a First Amendment violation. But Scalia took exception to footnote 3 of the decision Justice Sonia Sotomayor wrote for the Court.

Sotomayor opened footnote 3 by declaring that, “Although reliance on legislative history is unnecessary in light of the statute’s unambiguous language, we note the support that record provides for the government’s reading.”

In his concurring opinion, Scalia countered, “The Court acknowledges that nothing can be gained by this superfluous citation … But much can be lost. Our cases have said that legislative history is irrelevant when the statutory text is clear. The footnote advises conscientious attorneys that this is not true, and that they must spend time and their clients’ treasure combing the annals of legislative history in all cases: To buttress their case where the statutory text is unambiguously in their favor; and to attack an unambiguous text that is against them. If legislative history is relevant to confirm that a clear text means what it says, it is presumably relevant to show that an apparently clear text does not mean what it seems to say. Even for those who believe in the legal fiction that committee reports reflect congressional intent, footnote 3 is a bridge too far.”

Beginning in the mid-1980s, after he became an appeals court judge yet remained on the academic lecture circuit, Scalia regularly spoke out against legislative history. In one stock speech (a signed copy of which is in the University of Chicago law library), he contended, “The use of legislative history to give meaning to a statute is a relatively new development in our common-law system.”

And in a metaphor tied to the maturation of certain creatures that somehow seems apt as we today celebrate his 74th year, Scalia continued, “Some creatures that seem pleasant and tractable in their infancy – tiger cubs, for example – are better abandoned when they reach their full natural development. Now that legislative history has reached its adulthood, perhaps it is time to reconsider whether we want to live with it.”

Many happy returns, Justice Scalia.

“Have you ever heard a turkey gobble?” Justice Scalia asked me during a visit to his chambers. “It’s a very strange sound, like a wooden rattle. [You] hear that far away and then make sounds like a hen to induce [the turkey] to come closer and closer. Finally, he sticks his head over a log, and you have to take your shot, or else you’ve lost him. Turkeys are very wily creatures. They have superb eye-sight and they’re very cautious. You get one shot. If you miss, the whole day’s ruined.”

In anticipation of  tomorrow’s arguments in the Supreme Court’s new Second Amendment case, it seems fitting to recall how Scalia, author of the Court’s 2008 Second Amendment case, explains his love of hunting: “It gets me outside of the Beltway, gets me into the woods, far away from all this stuff… [Hunting] gives you an objective for … getting there in darkness and watching the woods gradually lighten up, or being knee deep in cold water in the marshes and watching the rosy sunrise. It’s wonderful.”

Justice Scalia took a leading role in District of Columbia v. Heller, which established for the first time an individual right to bear arms. Yet, another piece of Scalia’s writing has also drawn attention on this second round of the Second Amendment. In his commentary in the 1997 book A Matter of Interpretation, edited by Amy Gutmann, Scalia included in a footnote about the Second Amendment: “Of course, properly understood, it is no limitation upon arms control by the states.”

And, of course, that goes right to the question in the case to be argued Tuesday, McDonald v. City of Chicago: whether the new right to keep guns in the home for self-defense extends to states, or applies only to regulation by the U.S. government and its enclaves, such as Washington, D.C., whose handgun ban was struck down in 2008. (For an overview of the new case, see my preview story here. For an article highlighting Scalia’s 1997 comment about whether the Second Amendment is incorporated against the states, see this story by Jess Bravin in the Wall Street Journal.)

In Scalia’s commentary of more than a decade ago, his references to the Second Amendment rested on where lower U.S. courts were at the time. Judges largely considered the right to bear arms to cover state militia, such as the National Guard, not individuals. So Scalia also wrote in his 1997 commentary, “[W]e value the right to bear arms less than did the Founders (who thought the right to self-defense to be absolutely fundamental), and there will be few tears shed if and when the Second Amendment is held to guarantee nothing more than the state National Guard.”

But that never happened. Five conservative justices, led by Scalia, held that the Second Amendment right covered individuals seeking to protect themselves in their homes. Because of that ruling in Heller, I believe that it is now unlikely that Justice Scalia will hew to the view that the Second Amendment is “no limitation” on the states. Scalia is only becoming more influential on this Court. I doubt he would pass up – with this new guns case — another good shot.

When I asked Justice Scalia in an interview last year about his combative style during oral arguments, he defended himself by making comparisons with other justices. “I don’t think it’s true that I am the most talkative,” he said, adding that such distinction would go to Justice Breyer, who asks long hypothetical questions. Then Scalia became more animated and said, “You ever hear Ruth excoriate somebody who is arguing a … case? She can be really tough.”

I was reminded of that assessment this week as Justice Ginsburg forcefully questioned lawyers at the lectern and would not let up on a line of attack in several cases. She was, as usual, deep into the nooks and crannies of the disputes. At one point during arguments over a City of Chicago test for firefighters that hurt African American applicants, she told Deputy U.S. Solicitor General Neal Katyal, siding with challengers to the city, “I think you had a footnote in your reply brief that said if your position prevails here …” A few minutes later, when city lawyer Benna Ruth Solomon took the lectern, Ginsburg asked seven questions in a row, probing flaws in the city’s case.

The next day, Justice Ginsburg challenged Georgetown University law professor David Cole as he defended the Humanitarian Law Project’s desire to support nonviolent activities of the Kurdistan Workers’ Party. The PKK, as it is called, is a militant separatist group in Turkey that the U.S. Secretary of State has designated a “foreign terrorist organization.”

“There are a lot of groups on the (foreign terrorist organization) list,” Ginsburg noted. “I think the Al-Qaeda was one instance that was mentioned and, at least according to the briefs, you conceded that if you wanted to do just what you describe with respect to the Kurdish group or the Tamil group, the (U.S. government’s) ban (on any support of the organization) would be permissible.”

Cole responded, “We didn’t actually concede that, your honor.” Cole then tried to explain the difference between humanitarian support for Al-Qaeda or the Taliban, as opposed to the PKK. Before he could clarify, other justices raised questions.

Then Cole, seeing the white light at the lectern and knowing he had less than five minutes left, said to Chief Justice Roberts, “If I could reserve the rest of my time” for rebuttal.

But Ginsburg wasn’t going to let him sit down just yet: “Do you want to give an answer to the Taliban and the Al-Qaeda?”

“Oh, I’m sorry. I’m sorry, Justice Ginsburg,” Cole said. “The answer would be we are in a military conflict with the Al-Qaeda and the Taliban. … Therefore treason law might be applicable. … Number two, it is not clear that Al-Qaeda engages in any lawful activities … .”

When Solicitor General Elena Kagan stepped up to defend the disputed prohibition on not only financial support but training and advice to designated organizations, Ginsburg poked holes in her claim that the government was not targeting speech.

“How about what’s involved here?” Ginsburg asked. “I think they (Humanitarian Law Project members) said that they want to train them (the Kurds) how to … pursue their goals in a lawful, rather than a terrorist, way. And that is speech. It is not conduct. They want to engage in advocacy of peaceful means … .”

When other justices joined the fray with hypothetical questions about assistance for arguably lawful activities, including (as Justice Sotomayor suggested) teaching the harmonica, Scalia scoffed and asked Kagan:

“Why do these hypotheticals make any difference? Clearly the broad scope of this statute is constitutional, and whatever aspects of speech it may run afoul of are minimal. That being the case, of what relevance are these hypotheticals? It’s a lot of fun and it’s very interesting, but we can deal with all of that when the situations arise, can’t we?”

Kagan responded, “I do think that the answer to that is ‘yes,’ Justice Scalia.”

But then Ginsburg interjected, reminding her old friend Scalia that not all justices were as supportive of the government’s position: “The answer on the other side is, all we want to do is speak about lawful activity.”

When I once asked Ginsburg about Scalia, she said, “I love him. But sometimes I’d like to strangle him.”

A professor at Gettysburg College last week said she had heard that the Justice Scalia had never hired a single female law clerk.  On several radio shows, I’ve been asked about Scalia and Opus Dei. Then there’s the assertion I hear constantly that Justices Scalia and Clarence Thomas vote in lockstep.

On many controversies (duck-hunting with Dick Cheney, for example), Justice Scalia is guilty as charged. But not on those above:

1. Justice Scalia has, in fact, hired several women clerks over the years, some of whom have gone on to prominent positions in academia, such as Joan Larsen at the University of Michigan. It is true, however, that clerks for a majority of the justices, including Scalia, have been overwhelmingly male (and white) through the years.

2. Justice Scalia is a conservative Roman Catholic who told me the Second Vatican Council (which excised Latin and liberalized the Catholic liturgy) was not on his “hit parade.” He was always looking around for the right place to worship. When his nine children were young, he hauled the clan from their suburban Virginia home to downtown Washington, D.C., for a remaining Latin mass at St. Matthew’s Cathedral and, when living other places, drove miles each Sunday to a just-right church. His visiting mother-in-law once said, “Why don’t you people ever seem to live near churches?”
 Yet, Scalia  is not a member of the secretive Opus Dei. As far as I know, none of the Catholic justices is, although those rumors – accelerated by Dan Brown’s portrayal of Opus Dei in The Da Vinci Code — constantly swirl.

3. Scalia and Thomas are indeed together on many cases (see their joint concurring opinion today in Wilkins v. Gaddy on what constitutes cruel and unusual punishment), but Thomas is more conservative than Scalia and often writes solo dissenting opinions. That happened in the recent case of  Citizens United v. Federal Election Commission (on the disclosure requirements of the disputed law) and in last term’s Voting Rights Act case, Northwest Austin Municipal Utility District No. 1 v. Holder.
 The two justices say they have an easy friendship, and Scalia told me that when they are aligned in dissent, it can have a psychic benefit: “There are times when I think I’ve been a comfort to him and he’s been a comfort to me. Nobody else seemed to see things our way. It’s nice to have a least one other person who you can sympathize with.”

And about Scalia’s relationship with Dick Cheney? The Scalia-Cheney bond – which put the justice in hot water in 2004 when Cheney had a case at the Court and the pair went hunting — traces to the mid-1970s when they both worked in the Ford Administration. Scalia was an assistant attorney general, and Cheney became White House chief of staff. Scalia told me they have remained friendly over the years but not close personal friends, as Scalia has, say, with then-deputy attorney general Laurence Silberman (now D.C. Circuit appeals court judge). Of Cheney, Scalia said, “He knew who I was. He knew my qualifications. He knew I was on the right team.”