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Supreme Court Justice Antonin Scalia may be thriving in the limelight these days, but he has his limits: He’s not interested in becoming vice president on Sen. John McCain’s ticket. “C’mon, ask my wife. I’m a lousy politician,” Scalia said in an interview with NPR’s Nina Totenberg as part of the publicity tour for his new book. “That’s not my … style.” Said Totenberg, “You’d put your foot in your mouth, you think?” To which Scalia replied, “No, I wouldn’t put my foot in my mouth. I might say what I thought.” Scalia has certainly been doing that in the last few days, first in a lengthy “60 Minutes” segment aired Sunday night and then in the NPR interview that ran Monday morning. The ABA Journal has also interviewed Scalia in its May issue about the book he co-authored with Bryan Garner, called Making Your Case: The Art of Persuading Judges. Book sales have clearly benefited from the avalanche of publicity. By mid-afternoon on Monday, its official publication date, Making Your Case had reached number six on the Amazon.com best-seller list, edging out Hungry Girl, a sort of chick-lit cookbook. A day earlier, Scalia’s book was number 522. By turns funny, combative, charming, and surprisingly personal, Scalia in his “60 Minutes” interview filled in some of the decades-long blanks about his personality for those who don’t know him or see him in action on the bench. For a justice who used to demand that television cameras leave the room before he would speak, the interview represented a remarkable turnaround. “I thought the piece offered viewers a nice, textured portrait of a justice who’s not as well known as, say, Clarence Thomas or Sandra Day O’Connor,” says Joan Biskupic, author of a forthcoming biography of Scalia. Scalia acknowledged in his “60 Minutes” appearance that he has had “down times” on the bench, periods when he felt he was repeating himself in dissents and unable to move Supreme Court doctrine. In one of the more dramatic moments during the segment, CBS correspondent Lesley Stahl read from a 1996 letter to the late Justice Harry Blackmun in which Scalia voiced his melancholy about the term just ended — a term that had produced Romer v. Evans, a victory for gay rights advocates, and United States v. Virginia, which said the state-run Virginia Military Institute could not exclude women. Scalia said he “hadn’t remembered” writing the letter, which can be found in the Blackmun papers at the Library of Congress. But he did say that the final months of a term are “usually a disappointment.” He also said the situation, from his point of view, was “less dire in more recent years.” When he first joined the Court in 1986, Scalia said he planned to leave the Court “as soon as I could” — when he turned 65 and could retire at full pay. But now at 72 and “working for free,” Scalia said he is not thinking about retiring any longer: “I can’t think what I would do for an encore.” Stahl also asked him about his originalist legal philosophy, his religion, and his upbringing in the Elmhurst, Queens, section of New York City. When Stahl noted that he was an only child,” Scalia said, “Come on, lay off. Yes, I was spoiled.” And then, when Stahl asked the justice about the nine children he and his wife have, he laughingly conceded that he and Maureen Scalia had used the “Vatican roulette” form of birth control. His wife, whom he married in 1960, also appeared briefly in the piece. If she had married anyone else, she said, “I would have been bored.” Justice Scalia added, “Whatever my faults are, I’m not wishy-washy.” In their book, Scalia and co-author Garner are also not wishy-washy about telling lawyers a thing or two about how to argue before judges. Even though some of its admonitions are beyond obvious (such as “Know Your Case”), the nuanced how-to book offers page after page of succinct and useful advice for advocates. One example: Don’t use the kitchen sink strategy of throwing at the judge every conceivable argument your legal team can think up. Pick your best three, at most, the book advises. “Arm-wrestle, if necessary, to see whose brainchild gets cut.” They also urge lawyers to research the judge’s background and idiosyncrasies before they argue. “At the very least, these details will humanize the judge before you, so that you will be arguing to a human being instead of a chair.” Some of the advice is downright stuffy. It tells male lawyers with ponytails, “We don’t recommend this coiffure if advocacy before elderly judges is your day job.” With Scalia as one of the authors, it’s no surprise that the book is laced with humor. The book advises, “Never — never — patronize a judge by volunteering, �That’s a very good question.’ Of course it is! All judges’ questions are ex officio brilliant.” The co-authors disagree at times, producing interesting debate. Garner, for example, could not recruit Scalia for his long-running crusade against including case citations in the text of briefs. Garner views it as a distracting interruption of the flow of the prose, but Scalia says that putting all citation details in a footnote “would force the eyes to bounce repeatedly from text to footnote.” And as humorous as he himself can be, Scalia advises advocates to use humor sparingly, if at all. In his interview with the ABA Journal, Scalia said, “You may not be as good a humorist as you think because appropriate humor takes a real sense of what you can get away with.” He added, “And secondly, not every judge has a sense of humor.” But when a judge uses humor from the bench, Scalia’s advice is unimpeachable: “You should laugh at their jokes.”
Tony Mauro can be contacted at [email protected].

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