Ed Whelan, the President of the Ethics and Public Policy Center, joined Dan & Amy to discuss his time as a law clerk for the recently departed U.S. Supreme Court Justice Antonin Scalia, what Scalia would say about the process to replace him, and the enduring importance of Scalia's three decades of jurisprudence on the high court.
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Dan Proft: Dan and Amy. So still a lot of tributes pouring in for Justice Antonin Scalia, appropriately so. The most important constitutional scholar on the bench since John Jay, in my humble opinion. And coming from a lot of quarters and not just colleagues like Ruth Bader Ginsburg who came from a different ideological perspective. Piece in The Atlantic today why Scalia was so great. And so reflections on his importance in the history of our country and the history of jurisprudence in this country. That's number one, and then number two, of course, is importance going forward in terms of the seat that he held and the political fallout from it. Pres. Obama saying yesterday, according to an aid, that he is not going to try and force-feed a recess appointment while the Senate is in recess until February 22nd. So this sets up for whoever the president puts forward as his nominee to be a bit of a political football between now and November. For more on Scalia's life and legacy and impact as well as the dynamic going forward, we're now happy to be joined by Ed Whelan, who clerked for Justice Scalia, and now is the president of the Ethics & Public Policy Center. Ed, thanks so much for joining us. Appreciate it. Ed Whelan: And thank you, Dan. Dan Proft: Well, before we reflect on Scalia and your time with him, I wonder what you think Scalia would say about the back and forth between McConnell and Republican candidate for president and the incumbent president of the United States about his vacancy. Ed Whelan: Well, he would say a number of things. That some of them he did say in the past. He said that the less pollicization of the Constitutional Law has politicized the confirmation process. If justices aren't doing law but instead are doing politics, then people want them to just do politics. Then of course, the confirmation process becomes a huge spectacle. He would say more than that, though, that of course, the confirmation process is inherently political. It's the very means by which we put–the justice is on the court, and it will often involve grand clashes between the two branches. Justice Scalia was a great proponent on the separation of powers and of the clashes that were left to the political realm, and he would understand that of course, the president has the power to nominate and of course, the Senate has the power to confirm or reject a nominee and to do so by any means it should including just sitting on a nomination if it cares to. So none of these would surprise him. He would be–and was of course, saddened by the turn that the court has made into policy making over the last several decades and with this is, in many ways, the natural product of that. Amy Jacobson: What do you think was his biggest victory and possibly his most stinging defeat? Ed Whelan: Well, his biggest victory was the advance of the cause of originalism and texualism. That is the notion that law has an object of meaning that is to be discerned by judges. This is a notion that, believe it or not, had been largely abandoned in the Warren Court or the justices are pretty clear that they were just making it up. So there's always been a general re-embrace of that. Unfortunately, many folks abandoned that when it's inconvenient to adhere to it. And so he was seeing major cases including so-called substantive due process cases. The court's just making it up again rather than leaving matters to the political processes to the side. One great example of that, we can point to a number of loses, but would certainly be Planned Parenthood v. Casey in 1993. I'm sorry, 1992. The Supreme Court had the opportunity to overturn Roe v. Wade. And Justices Kennedy, Suter, and O'Connor blinked and wrote a ridiculous opinion that said that they were going to resolve this issue once and for all, of course that didn't turn out that way. Let me be clear. Justice Scalia, whatever his own personal opinions on abortion were, his constitutional position–was is a matter that's left to the political process used to decide. He wasn't going to entrench his prolife views, assuming those were what they were, into the constitution. He would go, "Leave that where the constitution left it." And I think he sees a lot of the ugliness and divisiveness around the court resulting from the court's failure to abide by that general rule that contentious issues that are left by the Constitution to the Democratic processes should be left there, not seized by the court. Abortion is one example, obviously, there are plenty of others. Dan Proft: Yeah, the constitution clarity is really important. I remember a piece that he wrote for first things about 12 or 13 years ago where he made the point explicit–if there was a move to ban abortion at the federal level, I would also hold that to be unconstitutional because the constitution is silent on it so it's a matter for the states. So to your point about not imposing his personal view and kind of bootstrapping where he would like the country to be into the constitution. Ed Whelan: Right. You see, likewise on issues of same-sex marriage, the death penalty, and so on where his supposed arch conservative position was simply that this is a matter that's left to Democratic processes. Not one I in which he or other justice’s kind of pose their own moral or policy preferences. Dan Proft: In his epilogue in his book, Dissents, from about a decade ago, he writes about what Scalia's America would look like. And I thought this was an interesting few pages of Scalia's kind of vision for, if you could wave a wand and what this would be like. And even in that kind of hypothetical world of Scalia's America, he's still more to the constitution which is pretty interesting. He writes, “In Scalia's America, the expansions of freedom, democracy, and diversity would be ably protected by, among other institutions, courts, that respect the rule of law. Judges charge with interpreting laws would give words their ordinary meaning, they would moor their solutions of constitutional disputes of the text of the charter and the meaning of its framers. America would be reborn as a nation of loss and not of men.” It seems to me despite Scalia's best efforts, we're a bit unmoored and we look more today like a nation of men and not law than we did when he was confirmed in '86. Ed Whelan: Well, things will get far, far worse if Pres. Obama has the ability to entrench a liberal majority on the court for the next generation. At that point, any pretenses and moderation are part of the liberal justices will disappear. They'll be, "Anything goes." You'll see a severe restriction of First Amendment Free Speech Rights in the name of so-called hate speech which turns out out to be any speech the leftist disagrees with. You'll see a repeal of Second Amendment Rights, you'll see property rights severely diminished, and the constitution, as we know it, we will–it becomes something very, very different. So that's why this battle over the coming months is so important. And those who respect Scalia's legacy ought to do their best to fight, to make sure that his seat isn’t handed over to someone who rejects it. More importantly, I suppose, the American people can decide how things are crystalized, they can decide in November. If they want to take this anti-constitutional route, well, at least give them the opportunity to vote that in by selecting the president who'll do that in November with the issue clearly before them rather than claiming that somehow, this is a result of their votes in 2008 and 2012, ignoring of course the senate votes in 2014. So I hope very much that this seat remains vacant for the next president and that would be one way of honoring Justice Scalia's legacy. Amy Jacobson: Now, during your time when you were clerking for Justice Scalia, what value did he instill in you? Or bring out in you as a man? Ed Whelan: Well, he deeply saved my legal thinking and the need for rigor. Always trying to test one's own views against policy preferences. Lawyers should be trained to do this. But this was his way, if you advance a principle is change the fact and see if you still adhere to the principle. If not, you're just advancing your own policy position. So he loved vigorous and rigorous debate. He, of course, is a brilliant writer. It was just wonderful to see how he would take what we all thought were good clerk-written drafts and make them so much better and make them distinctively his own. So it was just a wonderful experience. Dan Proft: Some of the scuttlebutt on Scalia is that clerks, his secretaries, anybody that was under his employ or even colleagues, even if they disagreed with them, they really enjoyed being around him. He was an affable, entertaining, fun guy to be around. Was that your experience? Is that a fair characterization? Ed Whelan: Absolutely. Of course, work was work. So I'm not going to say he was the singing showtunes. Dan Proft: Right. [cross-talk] Ed Whelan: Though he would occasionally break into a Diddy. But no, he had a wonderful laugh, great story-teller, really enjoyed the company of people. Again, you could see how his friendships crossed ideological lines. He could see the good qualities in people with whom he disagreed vigorously on legal, moral issues. So he was a great man and someone he respects. Dan Proft: Did you ever get to go hunting with him? Ed Whelan: I never did go hunting with him. No, no, I missed out on that. Dan Proft: All right. All right. Ed Whelan, he was a former clerk for Justice Antonin Scalia, as we've been discussing. And he is the current president of the Ethics & Public Policy Center. Ed, thanks so much for joining us. Appreciate it. Ed Whelan: Thank you, Dan and Amy.