Ex-Solicitor General Clement, Who Clerked For Scalia, On Judge's Legacy
RACHEL MARTIN, HOST:
We are remembering Supreme Court Justice Antonin Scalia today. He died this weekend in Texas. He was 79 years old and had been on the high court, where he was a huge and influential presence for nearly 30 years. Paul Clement clerked for Scalia on the Supreme Court and went on to argue dozens of cases before the court and Scalia as Solicitor General. He joins us now. Thanks so much for being with us.
PAUL CLEMENT: No, my pleasure. It's a difficult day but I'm happy to be with you.
MARTIN: Our condolences. What are you reflecting on this morning? What images or moments are coming to mind as you remember Justice Scalia?
CLEMENT: Well, obviously, personally, you know, I think back to both the time clerking for him and the privilege I've had to argue cases in front of them - of him. And, you know, in both cases, I mean, he was just such a towering figure and he's been so influential in the law and the lives of his law clerks and so many others. So it really is, you know, amazing sense of loss for the legal profession generally and the Supreme Court Bar in particular. But, you know, I will also say that having seen some clips of the justice on television and the like over the last few hours, I mean, it can't help but bring a smile to your face as well because, you know, he was so dedicated to engaging a broader audience about important principles of constitutional law and did it in a way that was, you know, frankly entertaining. And he could be provocative, he could be funny. You know, he really, I think, was incredibly important to him to not just make his opinions stand the test of time but also to get out beyond the court and really engage with the broader public about constitutional law and the issues that he thought were so important to the Constitution and really to the whole nation.
MARTIN: His imprint is so large on our own legal history, but is there one case that you think is most definitive?
CLEMENT: Well, there's a number you could point to. I think if, you know, the justice were going to identify a case that really encapsulated his judicial philosophy, it might well be one called Crawford about the confrontation clause. And that's not maybe the one that - you know, others are hearing about certainly decisions like Heller or, you know, his vote in the the flag burning case or his dissent in Morrison v. Olson were important decisions. But that one really embodied the way that he thought the Constitution should be interpreted. And it was a case about when a criminal defendant has a right to confront witnesses against him. And the court's earlier precedents had really gotten away from the text of the Constitution and said that as long as the evidence was reliable, that was good enough, even if the criminal defendant didn't have an opportunity to confront the witness. And Justice Scalia, writing for, I think, six other justices in that case, really went back to the text of the Constitution, the history of the Constitution, its original public meeting and, you know, held for the court that confrontation means confrontation. So just because the evidence might be reliable, that's not enough. The criminal defendant has the right to actually confront the witnesses against him or against her.
MARTIN: Obviously, the justice's passing leaves a vacancy on the court. You just argued a case in front of the Supreme Court last month and you're currently waiting, I understand, for two opinions from the justices. What happens to those cases now?
CLEMENT: Well, I think the justices will try to decide those cases if at all possible. I mean, I think, you know, the court's dealt with an eight-member court in, you know, different circumstances obviously but after the passing of Chief Justice Rehnquist. And I think there was a real effort there to minimize the number of cases that were decided four to four and either had to be affirmed by an evenly divided court or re-argued. So I'm, you know, I'm expecting that there certainly will be some cases where the court is evenly divided and they can't issue a decision on the merits. But I do think they will work hard to try to find common ground so they don't leave, you know, multiple, multiple cases effectively undecided, even though they've already been argued to the court or will be argued to the court the rest of this term.
MARTIN: You figure into lists of possible Republican Supreme Court appointees, so the process of naming and confirming new justices is familiar to you. What do you make of this argument that because it's an election year, President Obama shouldn't move ahead with an appointment?
CLEMENT: You know, I leave that to others. I mean, you know, honestly I really think that today - I mean, I understand why other folks are talking about that. But I really think, you know, today is a day to really think about the legacy of Justice Scalia, what he meant to the law. I mean, you know, obviously every justice leaves their imprint on the court's cases. But with Justice Scalia, I think he fundamentally changed the way that the court looked at interpreting statutes. I think he fundamentally changed the way the court looked at interpreting the Constitution. And maybe lesser known, he really fundamentally changed the way the court heard oral arguments. You know, before the justice came on the court, oral arguments in the Supreme Court could be kind of a sleepy affair where the advocate might get one or two questions and that's it. I mean, if you go back to the archives and listen to arguments from the '70s and the early '80s before Justice Scalia arrived, you know, there are very few questions for the advocates. And he really changed all that.
MARTIN: He enjoyed the process.
CLEMENT: He certainly did.
MARTIN: Paul Clement, former clerk for Sumpreme Justice Antonin Scalia. Thanks so much.
CLEMENT: No, my pleasure.
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