Axelrod says Scalia once lobbied to get Kagan on Supreme Court

Commentary — Granted, Scalia may have become friends outside the courtroom with his liberal rivals, but the notion that he “lobbied” for Elana Kagan’s appointment because she is just so brilliant sounds like just too self-serving. Axelrod and Kagan are members of the Jewish mutual admiration tribe, and now that Scalia is not around to say otherwise, what would stop Axelrod from putting any words he wants into the dead man’s mouth.

Scalia once lobbied Obama adviser to get Kagan on Supreme Court (according to David Axelrod)

Senior editor
February 15, 2016

Republican lawmakers are vowing to block anyone President Obama nominates to replace Supreme Court Justice Antonin Scalia, who died unexpectedly on Saturday.

“We’re not going to give up the Supreme Court for a generation by allowing Barack Obama to make one more liberal appointee,” Texas Sen. Ted Cruz said during the GOP debate in South Carolina on Saturday night.

But according to David Axelrod, former senior adviser to the president, it was Scalia who once lobbied for a liberal justice to fill a vacant seat on the Supreme Court.

Axelrod, now a CNN political commentator, recalled a conversation he had with the conservative firebrand at the 2009 White House Correspondents’ Association Dinner in Washington.

“We were seated together,” Axelrod writes on CNN.com. “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.”

Scalia asked Axelrod to relay a message to Obama:

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.

“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.”

Axelrod was surprised by the overture because Kagan, Obama’s solicitor general, would be seen “plainly” as “a liberal in the context of the court.”

Obama didn’t nominate Kagan, instead choosing Sonia Sotomayor, who became the first Hispanic member of the Supreme Court when she was confirmed by the Senate in 2009.

But when another vacancy opened up with the retirement of Justice John Paul Stevens, Obama did nominate Kagan, who joined Scalia on the bench in 2010.

“We have become inured to the animus that characterizes the relationship between many of our elected officials in these highly partisan times,” Axelrod concludes. “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.”

Scalia, though, was fond of conflicting opinions.

“He made it a point of telling me that I was his token liberal,” E. Joshua Rosenkranz, who served as a law clerk for Judge Scalia in 1986, told the New York Times. “To his credit, I’m sure it was largely because he wanted to be sure he always heard the arguments against the positions he was taking.”

To find evidence that Scalia embraced opposing views, look no further than his unlikely friendship with fellow Supreme Court Justice Ruth Bader Ginsburg.

“From our years together at the D.C. Circuit, we were best buddies,” Ginsburg said in a statement on Saturday after Scalia’s death was announced. “We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation.”

“Justice Scalia nailed all the weak spots,” she continued, “and gave me just what I needed to strengthen the majority opinion. He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh.”

Ginsburg added: “He was, indeed, a magnificent performer. It was my great good fortune to have known him as working colleague and treasured friend.”

(Cover tile photo: Rogelio V. Solis/AP)