New York‘s interview with Justice Scalia is drawing snark from the left (about Scalia’s belief in the devil) and no doubt nods of assent from the talk-radio right (the justice reveals his media-diet staples to be the Washington Times, Wall Street Journal, and Bill Bennett radio show). What caught my eye, however, were Scalia’s references to his Watergate-era experiences. They put me in mind of Barton Gellman’s Cheney book, Angler, which made me aware of how Congress’s reining in of Republican presidents Nixon and Ford shaped Cheney’s view (as well as Donald Rumsfeld’s) of executive power. What Scalia says sounds familiar:
It was a terrible time, not for the Republican Party, but for the presidency. It was such a wounded and enfeebled presidency, and Congress was just eating us alive. … It was a time when people were talking about “the imperial presidency.” I knew very well that the 900-pound gorilla in Washington is not the presidency. It’s Congress. If Congress can get its act together, it can roll over the president. That’s what the framers thought. They said you have to enlist your jealousy against the legislature in a democracy—that will be the source of tyranny.
The Framers, of course, were writing the new Constitution under a system whose existing charter, the Articles of Confederation, had hardly any executive power whatsoever. The critics of their handiwork, the anti-federalists, were greatly concerned about the tyrannical potential of the executive the proposed, but the Framers could see—as a glance at the Articles would show—that America in the 1780s wasn’t suffering from a surplus of power in the offices of a single magistrate. Have things changed at all in the ensuing 230 years? Perhaps not if your perspective is that of the Nixon White House.
Pressed to cite a heroic moment in his career—Scalia, to his credit, isn’t eager to name one—he finally cites his refusal to recuse himself from a case involving Dick Cheney’s claims of executive privilege for his energy task force. (Scalia had gone hunting with Cheney and, as CNN reported, “Scalia and Cheney also had a private dinner with Defense Secretary Donald Rumsfeld on Maryland’s Eastern Shore in November, when the Supreme Court was considering Cheney’s appeal.”)
“Most of my opinions don’t take guts,” Scalia tells New York‘s Jennifer Senior. “They take smarts. But not courage. And I was proud of that. I did the right thing and it let me in for a lot of criticism and it was the right thing to do and I was proud of that. So that’s the only heroic thing I’ve done.”