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Former Scalia clerk: Justice was ‘merciless’ with bad ideas, ‘gracious’ with people

Mike Mosedale//February 15, 2016

Former Scalia clerk: Justice was ‘merciless’ with bad ideas, ‘gracious’ with people

Mike Mosedale//February 15, 2016

The death of Supreme Court Justice Antonin Scalia this weekend sent shockwaves across the nation’s political and legal establishment, producing torrents of commentary about his legacy and igniting a fierce debate over the selection of a successor.

For Minneapolis attorney Aaron Van Oort, the demise of the court’s most prominent conservative was a little more personal.

Now a partner at Faegre Baker Daniels, Van Oort clerked for Scalia during the fall term of 2000 — when the court decided Bush v. Gore – and, over the years, he remained in touch with his former boss.

Politics in Minnesota spoke with Van Oort on Monday about his memories of Scalia. This interview has been lightly edited for clarity and length.

Aaron Van Oort clerked for Scalia during the fall term of 2000. He shared this signed photo with Politics in Minnesota.
Aaron Van Oort clerked for Scalia during the fall term of 2000. He shared this signed photo with Politics in Minnesota.

Politics in Minnesota: So what was Scalia like?

Van Oort: He’s so well known for his writing, for his quick wit and sharp pen, and of course, for his towering intellect. But when you were with him in person, you could feel how much he cared about people. He went of his way to make everyone in the room feel comfortable. He was a wonderful, warm, engaging person.

PIM: That warmth doesn’t exactly come through in his opinions, does it?

Van Oort: When it came to ideas, he was merciless. A bad idea got called a bad idea. A stupid idea got called a stupid idea. He did not pull punches on ideas because he thought it was so important to get them right. And that the way you get them right is you beat on them and you see if they can stand up.

With people, it was different. About two and a half years ago, my family visited D.C. Justice Scalia had a standing rule: if you ever were in Washington, you come in and meet him. I brought my four boys — the oldest at the time was 12 or 13 — and he was so kind to them. He talked to each of them as a level they could understand. I had seen him do the same thing, time after time, for others. He was just so gracious. He told great stories and great jokes.

PIM: The humor does come across in his opinions.

Van Oort: At SCOTUSblog, they keep statistics on everything, including who gets the most laughs at oral arguments. And Scalia runs away with it. Man, did he have a zest for life.

PIM: You also clerked for [Seventh Circuit Appeals Court Judge Richard] Posner, who described Scalia as the most influential justice of the last quarter century. Do you agree with that assessment?

Van Oort: It’s hard to disagree with Posner, isn’t it?

PIM: Publically, at least.

Van Oort: [laughs] That’s a good point. I think one of the reasons Judge Posner hired me is because I was willing to tell him when I thought he was wrong. But I don’t think he’s wrong on this one. Scalia had extraordinary influence.

It’s not so much for his votes because, of course, the people in the middle tend to have more influence with votes. But Scalia brought a whole system of interpretation to the court and to the legal community — the concept that a law means what it was understood to mean at the time it was passed and that there a set of principles that you can follow to reliably figure out what that understanding was. His approach produced clarity and predictability.

PIM: What are his most important opinions?

Van Oort: It’s hard to say. In some ways, his opinions that had the greatest effect on every day law cut counter to how people usually characterize him, which is as a conservative. But his Fourth Amendment search and seizure cases and his Sixth Amendment confrontation clause decisions – both of which protected rights for criminal defendants — have had a tremendous influence. The series of opinions he wrote in recent years enforcing arbitration agreements and then clarifying how Rule 23 is applied to class actions probably had the greatest influence on the civil side.

PIM: When did you see him last?

Van Oort: He was here in in October to give the Stein lecture at the University of Minnesota. I was fortunate enough to be able to have breakfast with him the next morning with a small number of people. Every year, he used to hold a reunion for all his former clerks. There are more than 130 of us now. The sad irony is that on Saturday morning, hours before we learned of his death, the ‘save-the-date’ email went out for the next reunion.

PIM: Are there any other Minnesotans in the fraternity of ex-clerks?

Van Oort: The only other one is [U.S. District Court] Judge Patrick Schiltz. When Judge Schiltz was invested as a federal judge, Justice Scalia came here for the investiture.

PIM: What do you make of the looming fight over his successor?

Van Oort: Given how pugnacious he was, it seems fitting that, even by passing away, he could disrupt an entire presidential election. I think he might appreciate that. But he said many times that judges – and particularly the justices on the Supreme Court – are doing too much, that they are reaching out and creating new rights and injecting them in places where they have no constitutional authority to do so.

He thought that one of the consequences is that it makes judges more important than they ought to be, which is what leads to these sorts of confirmation fights. I have no doubt that this one is going to be brutal because of the stakes. I refer back to Justice Scalia as to the reason the stakes are so high.

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