In a speech to a law school audience in St. Louis seven years ago, Antonin Scalia delivered a biting criticism of affirmative-action programs for minorities and women.
His Italian immigrant father never had benefited from ”the sweat of any black man`s brow,” said Scalia, arguing that race was no legitimate basis for preferential treatment to remedy the effects of discrimination.
”I am, in short, opposed to racial affirmative action for reasons of both principle and practicality,” said Scalia, then a law professor at the University of Chicago. ”Sex-based affirmative action presents somewhat different constitutional issues, but it seems to me an equally poor idea.”
On Tuesday, Scalia, a federal appeals court judge in Washington, will be challenged to defend that position and his conservative judicial philosophy when he goes before the Senate Judiciary Committee for a hearing on his nomination to the U.S. Supreme Court.
Committee liberals plan to question Scalia on what many view as a record that is to the right of the current Supreme Court on civil rights, abortion and restricting the press.
”Certainly civil rights and his 1st Amendment problems will be concerns of the committee,” said Sen. Paul Simon (D., Ill.), who is in charge of screening judicial nominees for the committee.
But unless something unexpected comes out at the hearing, Scalia, 50, is all but certain to join the high court.
”For any senator to come in and try to malign Scalia is tantamount to insanity,” said Sen. Orrin Hatch (R., Utah), a Judiciary Committee member.
”He is a conservative, but he is no extremist.”
Justice Department officials view Scalia`s elevation to the court as a milestone in President Reagan`s attempt to reverse the course of the federal judiciary.
”We are hoping to put on the court a judicial philosopher who shares the President`s philosophy and is young enough to remain on the court for many, many years,” a White House official said.
Once there, critics and supporters alike expect Scalia`s forceful intellect and personal charm to make him a far more powerful figure in the court`s decision-making than Chief Justice Warren Burger, whose resignation made room for Scalia`s nomination.
”There is no doubt that Scalia will shift the balance of the court over the long run, because he is so much more intelligent and powerful and affable that Warren Burger,” said Laurence Tribe, constitutional law professor at Harvard Law School. ”He will be a powerful and persuasive voice.”
Scalia has refined his conservative views over 25 years as a lawyer, teacher, government official and judge.
He emerged as a potential candidate for the Supreme Court soon after Reagan plucked him from the University of Chicago law faculty in 1982 and nominated him to the U.S. Court of Appeals for the District of Columbia, regarded by many as the nation`s second-most important court.
On the court, he distinguished himself as a well-prepared, hard-working jurist whose demand for accuracy and excellence from his staff was symbolized by a plaque from his law clerks that reads: ”It`s hard to get it right.”
Friends and associates describe the pipe-smoking, piano-playing Scalia as friendly and down-to-earth, someone who could accept the challenge of a law clerk to a pepper-eating contest the same week he was nominated to the Supreme Court–and win.
”He likes to excel, to compete, to test himself against others,” said John Coverdale, a Washington lawyer and former Northwestern University history professor who was a law clerk for Scalia in 1985.
Scalia was born on March 11, 1936, in Trenton, N.J., the only child of S. Eugene Scalia and Catherine Panaro Scalia. His father was a literary scholar who taught romance language for 30 years at Brooklyn College. His mother was a first-generation American of Italian heritage who taught elementary school. His parents died within two weeks of each other several months ago.
In 1953, Scalia graduated first in his class at Xavier High School in Manhattan, a Jesuit-run military academy, and went on to another Jesuit institution, Georgetown University in Washington. When he graduated in 1957 with a bachelor`s degree in history, Scalia again ranked first in his class.
Scalia declined to be interviewed for this article, but in an interview last spring on C-SPAN, a public affairs television network based here, Scalia said he decided to become a lawyer while in college.
”I like the intellectual endeavor,” he said. ”I like playing with ideas and words and analyzing the meaning of statutes and contracts.”
From Georgetown, Scalia went to Harvard Law School, where he is remembered by classmates as an eager, able debater and, already, an ardent conservative.
On April 7, 1959, Herbert Wechsler, a law professor at Columbia University, gave a seminal speech at Harvard warning against allowing courts to become ”an ever-open forum for the ventilation of all grievances.”
The position meshed with Scalia`s outlook, and he has developed it into an unswervingly narrow judicial philosophy that is rooted in the separation of powers among the judicial, legislative and executive branches.
As a judge, he has consistently applied strict technical legal doctrines to limit access to the courts and deferred to the authority of the executive branch.
In explaining his philosophy in the television interview, Scalia stressed the need for the courts to remain behind the scenes.
”Necessarily, if you believe we have a democratic system, the role of that branch of government is intended to be a subsidiary, background role to assure, when necessary, the propriety of behavior of the other two, but certainly not to lead society forward,” he said.
Unlike other top-ranking law school graduates, Scalia did not take a clerkship with a judge. He signed on with Jones, Day, Reavis & Pogue, a large law firm in Cleveland, and from 1961 to 1967, practiced general law. He was on the way to becoming a partner at Jones, Day when he left to become a professor at the University of Virginia law school.
”It gave him far more time for the type of intellectual challenge he enjoyed,” one of his former law partners said.
The job also gave Scalia a foothold in Washington. In 1971, he landed his first government job as general counsel to the Office of Telecommunications Policy under President Richard Nixon.
Scalia left the position in 1972 to become chairman of the Administrative Conference of the U.S., a federal agency that issues reports on legal and management issues for the executive branch.
In 1974, Nixon nominated him head of the Justice Department`s office of legal counsel, which prepares opinions on the legality of executive branch decisions and acts, in effect, as the president`s law firm.
By the time Scalia took the job, Nixon had resigned after investigation of the Watergate break-in. One of Scalia`s first tasks was to decide whether the presidential tapes and papers in the White House belonged to Nixon or to the government. He decided in favor of Nixon.
In January, 1977, after Jimmy Carter became president, Scalia became scholar in residence at the American Enterprise Institute, a conservative think tank in Washington. Although he left seven months later for the University of Chicago, he has retained ties with the institute.
Scalia and his wife, Maureen, moved to Chicago in July, 1977, with their nine children.
”The joke at the law school was that he came here for the tuition credits for his kids,” said Richard Epstein, a U. of C. law school colleague. Scalia also found a welcome home for his conservative legal thought. His specialty at Chicago was administrative law, but he is not remembered as a scholarly innovator.
”He was a fine academic, a fine writer, a good teacher, but he was never going to get a gold watch here,” Epstein said. ”He liked being on the cutting edge of politics, and his heart was always in Washington.”
Scalia`s 1982 confirmation hearing to the U.S. Court of Appeals was perfunctory, dealing with a controversial article he had written criticizing the Freedom of Information Act as too expensive and too intrusive in judicial ethics.
Liberals have expressed deep concerns over Scalia`s judicial record on civil rights.
”There is room in the courts for conservatives and moderates,” said Ralph Neas, executive director of the influential Leadership Conference on Civil Rights. ”But this man is not within the parameters of acceptability. He has shown a remarkable insensitivity to victims of discrimination.”
In one case, a black woman employed at a furniture showroom complained that she had received lower pay than the company`s white workers, that her desk was hidden in a back room and she was barred from staff meetings.
A majority of the appeals court panel agreed that she had a valid claim of racial discrimination, but Scalia dissented, arguing that ”differential treatment” does not prove discrimination. The majority criticized Scalia`s opinion, saying it would ”effectively eviscerate” a major discrimination law.
In the case of a Navy enlisted man dismissed for homosexuality, Scalia and two other judges upheld a Navy regulation forbidding homosexuality in the service. The judges said, ”Private, consenting homosexual conduct is not constitutionally protected.”
The 1984 ruling was a broad repudiation of the view that laws penalizing homosexual conduct are unconstitutional. The Supreme Court came to a similar conclusion last month in upholding a Georgia sodomy law.
Although he has not ruled on an abortion case, his speeches and articles have convinced pro-choice organizations that Scalia would rule that abortions are not protected by the Constitution.
Scalia has used the same restrictive view of the Constitution to give the president broad latitude in conducting foreign affairs and military operations and to grant state rights supremacy over individual liberties.
But Washington lawyer Daniel Mayers, a liberal and a former Carter administration official, thinks Scalia`s conservative approach may work to the advantage of liberals.
”The big constitutional issues are on the side of the liberals now and, because of his philosophy of judicial restraint, Scalia is likely to be reluctant to reverse them,” said Mayers, a classmate of Scalia`s at Harvard and usher at his wedding in 1960. ”It seems to me that the book is open on someone like Nino.”
