Perhaps Antonin Scalia has met his match.
It is all well and good that the high court’s most conservative justice probably disagrees with Elena Kagan on nearly everything involving Constitutional interpretation.
But Scalia and Kagan may find far more common ground when it comes to cracking each other up.
If you were watching Kagan’s Senate confirmation hearings – and you can be forgiven if you didn’t have 10 or 20 hours to spare – you may have noticed a remarkable amount of lightheartedness in the room.
Moreover, the humorous moments came from the one person in the room who had the most reason to be tense – Kagan herself.
At one point, she advised Democrat Sen. Arlen Specter that she favored having cameras in the Supreme Court chambers, but then shared her chagrin that this would require that she get her hair done more often.
Later, when Republican Lindsey Graham asked her where she was on Christmas day when a man was arrested plotting to blow up an airliner, she said cheekily: “You know, like all Jews, I was probably at a Chinese restaurant.”
The laughter in the hearing room burst out like a summer thunderstorm. Who knew the former Harvard law school dean could play the Catskills?
But she is likely to meet her match in Scalia. As USA Today’s Joan Biskupic chronicled in her excellent biography “American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia,” the 74-year old New Jersey native may not share her politics, but he surely shares her comic timing.
On the bench, Biskupic writes, Scalia’s “questions were challenging, sometimes audacious. He played to the audience with jokes and put-downs. He could be a showman, a streetwise guy, and a pulverizer.”
“Why does the argument have to be dull, for God’s sake?” Scalia told Biskupic.
Scalia is by no means dull. According to Biskupic, a Boston University law professor in 2005 scoured the transcripts of oral arguments for every reference to laughter in response to any justice’s remarks. Scalia scored 77 references; the next most comical justice was Stephen Breyer at 49 incidents.
The New York Times headline about the study? “So, A Guy Walks Up to a Bar, and Scalia Says…”
If Kagan is, as expected, confirmed by the Senate, it’s beginning to look like Breyer’s runner-up status will be threatened. NPR’s Nina Totenberg reports that Kagan – a lifetime Democrat — once began her remarks to a meeting of the Federalist Society, a conservative legal group, by declaring with a smile: “You are not my people.” Everyone laughed.
In the six cases Kagan has argued before the high court as Solicitor General since last September, she has frequently offered witty asides to the court.
On one occasion, when she mistakenly referred to Justice Scalia as “Chief Justice” — a job that, of course, belongs to John Roberts — she quickly apologized, and added “I didn’t mean to promote you so quickly.” Roberts interjected: “Thanks for thinking it was a promotion.” To which Scalia replied “And I’m sure you didn’t.” (Everyone apparently laughed, but I’m guessing you had to be there.)
Scalia and Kagan, in fact, do seem to enjoy each other. In May, one of his funny interjections—delivered during a House subcommittee discussion about the Administrative Conference of the United States—quickly zipped around Capitol Hill as evidence of Scalia’s affection for the Democratic President’s court nominee.
It came when committee chairman John Conyers wondered whether a question he was about to ask would be considered out of bounds.
Scalia, who was seated next to Justice Stephen Breyer, replied “Mr. Chairman, we’re both friends of Elena Kagan, and I don’t think we’re willing to go beyond that.”
Naturally, everybody laughed.
This entry is cross-posted on the Washington Week website. Tune in on Friday for more on the confirmation hearings, a compromise on financial reform, and the fate of immigration and climate-change legislation.