A Softer Side

Jewish Light Editorial

The sudden death of U.S. Supreme Court Justice Antonin Scalia of course leaves a massive void on the highest tribunal in the land. But his passing also reminds us of something sorely lacking in today’s polarized climate — namely, that it’s possible for those with the most divergent perspectives to show mutual respect, and indeed friendship, toward one another.

Scalia, who was appointed by President Ronald Reagan, championed what was referred to as the “originalist” or “textualist” school of judicial interpretation. Utilizing that view, Scalia was seen as the intellectual leader of the conservative bloc on the court. And his writing style was often peppered with biting comments, castigating those who would deign to disagree with his views. 

It is sad that even before the American public could process the news of Scalia’s unexpected death, political jockeying over the vacancy his death creates on the Supreme Court began with a vengeance. Senate Majority Leader Mitch McConnell immediately said that if President Barack Obama nominated someone to take Scalia’s place, he would not even schedule hearings on the candidate, let alone allow the nomination to come to the Senate floor for an up or down vote. 

All of the Republican presidential candidates have said that President Obama should not exercise his constitutional responsibility to nominate a replacement for Scalia. What a sad commentary on the depths to which political and civic discourse have sunk. President Obama should go forward with a qualified nominee and the Senate must fulfill its responsibility to hold respectful hearings and bring the matter to the Senate floor for a vote — the way such nominations were handled in less divisive times.

It would seem on the surface that the acrimony on the heels of Scalia’s passing matched the tone of his judicial rhetoric. But a deeper look reveals a more subtle story, one that serves as an exemplar for today’s world of harsh and divisive debate. 

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For in contrast to the disrespectful tone of this campaign season, Justice Scalia forged rather impressive relationships with those with whom he disagreed on constitutional and other legal matters. His personal affinity with Justices Ruth Bader Ginsburg and Elena Kagan demonstrated this important and oft publicly neglected side of Scalia.

Who would have thought that Ginsburg, upon learning of Scalia’s passing, would have commented, “I have lost my best buddy”?

In one interview, Scalia confirmed his deep friendship with Ginsburg, remarking, “Why don’t you just call us the odd couple?” 

A CNN report noted the two justices often vacationed together, including a trip to Europe when Ginsburg went parasailing, leaving Scalia on the ground, admiring her courage, but worrying she might “float away.” Ginsburg said she has a photo in her office of Scalia and herself on another trip, sitting on an elephant in India. 

How remarkable it is that the huge, hulking Antonin Scalia, a devout Catholic with strongly conservative views, would befriend a tiny, almost wispy Jewish justice, who shared his incredible intellect, but whose views on the Constitution were the polar opposite of Scalia’s.

Scalia and Ginsburg bring to mind the relationship that existed 2,000 years ago between the two Talmudic Sages, Hillel and Shammai. The two great Sages would most often be on opposite sides of arguments over Jewish laws and traditions. Shammai, like Scalia, was more of a “strict constructionist,” while Hillel was more moderate in his legal interpretations. But no matter how strongly they argued against each other, they always remained respectful and friendly toward one another.

In addition to his friendship with Ruth Bader Ginsburg, Scalia was also close with Justice Elena Kagan, another Jewish woman serving on the Court. In a CNN blog post, David Axelrod shared a little known anecdote about Scalia: He was pulling for the nomination of the liberal Kagan. Axelrod, who was Obama’s senior adviser at the time, recalled Scalia conversing with him at the 2008 White House Correspondents’ Dinner.

“I have no illusions that your man will nominate someone who shares my orientation,” he recalled Scalia saying. “But I hope he sends us someone smart. Let me put a finer point on it. I hope he sends us Elena Kagan.”

Eventually Obama did name Kagan to the Supreme Court. Scalia noted their shared background, growing up in immigrant families in New York City and attending Harvard Law School.

Following news of Scalia’s death, Kagan reflected on her time with “Nino,” and said he would “go down as one of the most transformational Supreme Court justices of our nation. I admired Nino for his brilliance and erudition, his dedication and energy and his peerless writing. And I treasured Nino’s friendship.”

It is too bad the political bickering in Congress and among presidential candidates, which has become coarse, rude and beyond disrespectful, could not be replaced by the example set by Justices Scalia, Ginsburg and Kagan, who indeed exemplify the nobler qualities of American civic discourse.