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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Wednesday, May 07, 2008 ::
    Scalia's C-SPAN interview with Brian Lamb

    On smart young people choosing the legal profession rather than science or the humanities:
    [I]t is the fact that we devote, in my view, too many of our best and brightest minds to the law. I wouldn’t like to do anything else. I mean, it’s really what I’m sort of cut out for, but I do think that overall the talent that comes into the law in this country is really an excessive proportion of the talent out there, which says something about the legal system, I suppose, that it’s gotten very complex, it’s gotten – it’s worth paying a lot of money to get the best and the brightest minds.

    I’m not sure the system ought to be that way. It ought to be simpler, and we ought to be able to devote a lot of our best minds to like – to teaching, to engineering, to something useful.

    Well, you know, lawyers are facilitators. We enable the work of the world to proceed smoothly, and in an atmosphere of freedom, and that’s all very important, but at the end of the day, we don’t have a product. We facilitate actions and activities by other people.


    I am often wrongly praised as, you know, being son of an immigrant as though I’ve lifted myself up by my own bootstraps. My father was indeed an immigrant, but he was an intellectual, much more intellectual man than I am, actually.

    He was a professor of romance languages at Brooklyn College. Always had a book in front of his face, in French or Spanish or Italian. He taught all three of those languages.


    I didn’t decide to be a lawyer until I, you know, was in my last year of college and had to decide what I was going to do next year, and I ended up really not being able to make up my mind. I had an uncle, uncle Vince, who was a lawyer and seemed to have a good life and to enjoy what he did, so I said, ”I’ll go to law school.” But I can’t say I set my cap on being even a lawyer, much less a judge.
    How not to bomb in an oral argument:
    [T]he worst thing is a lawyer that does not have clearly in mind the theory of the lawyer’s case, and therefore when the lawyer gets questions, it’s as though, you know, wow, I never thought of that. If you don’t have your theory clearly in mind, every question is, you know, comes out of nowhere, and you’re scrambling for some answer.
    On Bush v. Gore and "get over it":
    [I]t would have come out the same way had the court not intervened because the press did an extensive study of each of the counties in Florida and had the votes, didn’t count the dimpled chads and the hanging chads and all of that. Had they been counted the way Mr. Gore wanted, he would still have lost.

    And lastly, we – no, not lastly, penultimately, we didn’t go looking for trouble. The court didn’t uninvited leap into this electoral dispute. It was before the courts because Mr. Gore had brought it before the courts. He wanted the courts to decide the election, and when the matter came to us, it was simply a question whether the last word was going to be the Florida Supreme Court or the United States Supreme Court as to who would win the Presidential election.

    When one of the parties to the cases said the Florida Supreme Court violated the federal Constitution, what were we supposed to do, turn the case down as being not important enough? Hardly.

    And the ultimate point is that to refer to just so-called conservative majority, I don’t think conservative-liberal makes any sense in the context of the Supreme Court, but the vote as to whether the federal government would intervene in this dispute was not even close. It was seven to two. People forget that. By a vote of seven to two, the Supreme Court held that the Florida Supreme Court had violated the Constitution.

    So, you know. Get over it, Brian.
    On the subjunctive:
    We used to have a formulary conclusion of all of our opinions on the D.C. Circuit. It would go for the foregoing reasons, the judgment of the – it is ordered that, solid caps, ordered that the judgment of the District Court is affirmed.

    That used to drive my father up the wall. I mean, he would say, ”Son, you can’t say it is ordered that it is affirmed. You have to use a subjunctive. It is ordered that it be affirmed.”

    So I ended up being the only judge on the D.C. circuit who would have his opinions ordered that it be affirmed. Made my father happy.
    On what good law professors do:
    [T]he professors teach themselves rather than the law. The law is just like chewing gum. It’s what they use to develop your mental jaws, and you spit it out because the law will probably change by the time you’re in practice for 20 years. It’s important to have good teachers.

    Now some law schools are better teaching law schools than others, and the best thing to get is a school that both has very intelligent professors and professors who place a premium on teaching.

    You know, I’ve been in academia, so I know the game, and unfortunately the incentives are all long. You get to be a prominent academic by publishing, not by teaching. You become attractive to other law schools if you want to move up the ladder by your publications, not by your teaching. That’s sort of unfortunate.
    On his recently ramped-up availability to the media:
    I’ve sort of come to the conclusion that the old common law tradition of judges not making public spectacles of themselves and hiding in the grass has just broken down. It’s no use, I’m going to be a public spectacle whether I come out of the closet or not, beyond T-shirts and bobblehead dolls and what-not.

    So if, you know, if I am going to be a public figure, I guess the public may as well get their notion of me firsthand rather than filtered through people such as Brian Lamb, you know....
    Scalia T-shirts, get your Scalia T-shirts....

    :: David M. Wagner 5:38 PM [+] ::

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