Nino and Me

by Bryan A. Garner

  Dear Justice Scalia:

  Of course I can accept your decision not to continue on our book project, but I can’t help thinking there’s been a miscommunication.

  My intention had been to use every word of what you sent to me. It’s just that some of those paragraphs (I thought) were intended for sections later in the book, and I had inserted those paragraphs where I thought they belonged. The drafts on using cases and using statutes are wonderful, and I’ve been working on ranging them suitably through the chapters.

  Perhaps my editing was heavy-handed in some way. But I believed that our intention was to meld our drafts into single, cohesive sections.

  What I had in mind, all along, was a working relationship similar to that of H. L. A. Hart and Tony Honoré—as they composed Causation in the Law. While writing their book, they’d work through their material (mostly independently), each week adding a tad more in new sections and embellishing their earlier work. In the end, they had a classic. I would be Tony Honoré to your H. L. A. Hart.

  I also knew that there would be some sections that I’d have to write (the detailed stuff on syllogisms and enthymemes), and some that you’d inevitably write (such as a few sections on oral argument).

  Also, I’m not indissolubly wedded to the idea about responsive arguments—§ 8, where I quote Aristotle to the effect that a responder must begin by undercutting. I only recently discovered this passage in Aristotle, and I wanted to see what you thought about that idea. I have no problem with totally rethinking a section.

  Mostly, I’m sad about not having the opportunity after all to work with you—and to learn from you.

  Coincidentally, yesterday after we spoke I received an e-mail from West, in Eagan, Minnesota. West has worked hard over the past six weeks to develop a special proposal for us, and when I spoke with Pam Siege Chandler this morning she said that the company has a firm offer for us. It’s unprecedented. The offer has been approved at the very highest levels within the company.

  So there we have it: West stands ready to pay an acquisition fee tomorrow, if we’ll do it, and the royalties would be a whopping 20% (both the fee and the royalties subject to the 66–34% division we originally agreed on).

  I never had the idea for this book until after our interview—so it’s not something I’d otherwise have been working on. I’ve already arranged my 2007 schedule to be in D.C. much more than usual, in hopes of some work sessions with you.

  I know you’re extremely busy (it hardly needs saying), but there’s no rush on the project: we could complete it gradually over the next two years.

  So I humbly beseech you to reconsider. We’d learn from each other, mostly I from you. And I still think we’d thoroughly enjoy it.

  Sincerely,

  Bryan

  Then I waited. Nine days.

  Back in Dallas, the snow having melted, I called his chambers at 11:00 a.m. January 26. Angela Frank answered: “Justice Scalia’s chambers.”

  “Hi, Angela. It’s Bryan Garner. Is Justice Scalia in today?”

  “One moment, please.”

  “Hello, Bryan, how’s the weather down in Texas?”

  “Not like a week ago in Austin. Things have cleared up. The snow has melted. How is it up there?”

  “It’s getting nasty, I’m afraid. Cold and wet.”

  “Did you receive my letter?”

  “Yes, but I’m afraid my answer hasn’t changed. Lookit, you’re not using my work at all!”

  “Justice Scalia, I don’t know how you can say that. I’ve included every single sentence you’ve written! I edited them, but they’re all there.”

  “I’m not seeing any of it. Lookit, I think I know what you’re doing. You want my name on this book just so it’ll sell better. You just want my name. You’re trying to capitalize on my supposed involvement. Well nobody uses me that way.”

  “That’s not so, and it’s not fair of you to say that, Justice Scalia.” I’d been caught totally off-guard. “I’ve used all your work.”

  “Lookit, this book has absolutely no intellectual content. I’d be a laughingstock if I put my name on this. I’d be ashamed within the academy to put my name on this.”

  My head was spinning. “I don’t know how you can say that. We quote Aristotle and Cicero.”

  “I’m not seeing that.” He sounded indignant. “The book has zero intellectual content. It’s as if you expect people to be satisfied with ‘Thought of the Day on Advocacy.’ Nope. I’m out. I’m not doing this. I’m sorry. Goodbye.” Click.

  Solving the Mystery

  How could this be happening? I was stunned by the accusatory tone and by the idea that the book wasn’t “intellectual” enough. I was hurt on the one hand, and yet calm and clinical on the other because I knew that there was no real basis for what he had said. And I was hungry. So I left the office for an early lunch. I drove to Rafa’s Tex-Mex on Lover’s Lane, asked for a seat in the corner near the kitchen, and ordered two cheese enchiladas. While eating chips and salsa, I replayed the entire conversation in my head. Over and over. “Zero intellectual content.” “Laughingstock.” “Ashamed within the academy.” “You’re using me.”

  How could he say these things? How could he think this? Although I was chagrined, I knew something about this just didn’t add up. He must not be seeing the real manuscript. What could he be looking at? My enchiladas were served, and as I took the first bite, I stared blankly, shaking my head, and thought again: “Thought of the Day on Advocacy.”

  Then it hit me: he must have been looking at the workbook—the binder I’d sent to help him generate handwritten notes for the manuscript, the one with nothing but headings at the tops of the pages. He was taking those headings as “thoughts of the day” blurbs. That had to be it! I could think of no other explanation. Without finishing my lunch, I rushed back to the office, determined to get the true manuscript in front of him. I called his chambers from my car.

  “Justice Scalia’s chambers.”

  “Angela. It’s Bryan Garner again. I think Justice Scalia hasn’t been looking at the real manuscript. If I fax a few pages to you, can you get it before him?”

  “He’s leaving town today, and he’ll be leaving the office in 45 minutes.”

  “I’ll have the fax to you in five.”

  I printed the first 15 pages (single-spaced), which had already gone through about ten drafts, and typed out a cover letter:

  26 Jan. 2007

  Dear Justice Scalia:

  Is the attached manuscript what you’ve been looking at? I’ve marked with S the parts you wrote and with G the parts I wrote. It’s pretty evenly split, isn’t it (apart from § 6)? After we spoke, it occurred to me that you might not have seen this.

  Even if this is what you’ve been looking at, I’ll be working more with might and main on other sections—and perhaps rethinking these.

  As ever,

  Bryan

  The fax machine made its connection, and I watched anxiously as each page fed through.

  I was excited and agitated as I told Jeff and Tiger what I thought had happened. Justice Scalia hadn’t even opened my WordPerfect file that was attached to my e-mail; I had forgotten that he uses Word. He had received my “manuscript-production binder” but hadn’t read the letter, or had misplaced the letter and forgotten about it. That had to be what had happened. Jeff was doubtful; Tiger hoped I was right. They had watched the ups and downs of this seemingly abortive collaboration.

  Soon my cellphone rang. It was Angela: “Mr. Garner, please hold for Justice Scalia.”

  “Bryan, this is wonderful! This is not what I’ve been looking at—not at all. This is just brilliant. I love it.”

  “Gosh,” I sighed. “I’m so glad to hear you say that. My staff loves it. So we’re back on?”

  “Yes, we’re back on. This is first-rate work. I really like the way you’ve blended what I wrote into what you’ve written. It all jibes perfectly.”

  “I’m so relieved,” I said.
“I’m looking at it right now. We could improve on it, perhaps, but I think it’s close to what we want.”

  “Me, too!”

  “Listen,” I said, “I know you’re leaving for a trip, so let’s talk when you get back. I can’t tell you how happy I am.”

  “Thank you, Bryan. I’m glad we’re back on. Glad we’ve cleared up this misunderstanding.”

  “Yes, indeed.”

  “Goodbye, Bryan.”

  It occurred to me that both the unpleasant conversations that month had begun with, “How’s the weather?” Never again did that happen.

  Within minutes of hanging up, I realized that he had said he was on his way to Claremont before visiting Hawaii. So I called him back.

  “Justice Scalia, are you going to speak at Pomona College?”

  “Well, yes, there are three of them, I believe. The Claremont Colleges. Maureen and I will go there for a speech and a faculty luncheon, and then off to Hawaii.”

  “Are you going to meet David Foster Wallace—the man who coined the word snoot?”

  “Oh, is he there?”

  “Yes, he’s the Disney Professor of Writing there. Why don’t you ask the administration to invite him and his wife to your luncheon?”

  “Good idea! I’ll have Angela call them.”

  “Excellent. I’ll say a word to David so that he might expect an invitation.”

  “Okay. Gotta go. Thank you, Bryan. I’m glad we’ll be working together. I’m excited.”

  “So am I.”

  Back on Track

  I sent him a quick handwritten note by fax, hoping that it might reach him before he left the courthouse:

  Dear Justice Scalia,

  Here are the materials for starting on oral argument. Each section begins with a blank page for your jottings, etc., or full paragraphs if they come to mind. Then there are research materials for that section—some of which will doubtless trigger good thoughts, and some of which may actually be quotable.

  I’m so glad we cleared up our miscommunication. West will be sending us a contract next week, I’m told. My editor was relieved to hear that the project is on after all.

  Have a great trip to the West Coast and Hawaii. All best wishes to you and Mrs. Scalia.

  Sincerely,

  Bryan

  Having rescued a project that had gone awry through a gross misunderstanding, I felt enormous relief. Just hours before, he had accused me of some pretty severe misbehavior and bad intentions, but now we were collaborators again. Despite this roller-coaster ride, I felt pretty certain that I could see the book through to success, especially given his ardor for the sample sections—once he had the real ones.

  By the way, my plan for having Justice Scalia handwrite a few paragraphs under this or that heading never materialized. He just didn’t work that way. Instead, he liked to type passages on his computer and then, when I confirmed that I had received them, delete them from his machine. I never quite understood why he was so keen to delete things, but he was. Often, there would be only one extant draft of a passage he had typed—the one cut out and taped into my master copy for insertion at a particular point in the book. Whenever I had such a draft in my briefcase—it happened many dozens of times—I’d feel nervous until the edits had been entered and verified back in Dallas.

  Shortly after our contretemps, I was having dinner with one of Justice Scalia’s former clerks near the West Coast. When I recounted what had happened, he told me this story: Justice Scalia had once lost his temper and excoriated the clerk mercilessly, making him think he’d lost his job. Just an hour later, the Justice summoned him back and said: “I once had an uncle, Antonino. I knew him as Uncle Nino—in fact, my nickname came from him. He would sometimes lose his temper. He had a tempestuous nature, and he’d sometimes get furious. But then he’d get over it quickly. We never doubted that Uncle Nino loved us. He really loved us. Now get back to work.”

  Justice Scalia and I never spoke again about our misunderstanding and his vow to withdraw. I came to understand, however, that I might need to show a heightened sense of fortitude, tenacity, and understanding in this particular relationship. I might occasionally feel visceral shocks coming my way. Only time would tell.

  David Foster Wallace

  As promised, I called David Foster Wallace on January 19 to alert him to the Scalias’ visit to Claremont. He knew about the event but hadn’t expected to be included. I told David that Justice Scalia would particularly like to meet him and that the president of the university might well be calling with a request that David and his wife, Karen, attend. I said I hoped he’d enjoy the experience. David replied, “We have very little in common politically.”

  “It was your idea that I meet with him in the first place,” I reminded him. “You’re both snoots,” I said. “Avoid politics and discuss language!”

  Apparently that’s just what they did. A few days later I received a voicemail message from David saying just how much he and Karen had enjoyed the luncheon. They were seated directly with the Scalias and found the conversation scintillating. So did Justice Scalia. In an interview with the Wall Street Journal, Justice Scalia would later be quoted as saying, “He was a very personable fellow. As co-snoots, we got along very well.”17

  David told me that he felt a little baffled by just how drawn he was to Justice Scalia—how disarmingly likable the man was. I could understand that.

  Hitting Our Stride

  Justice Scalia and I needed to get into a working groove. “Just tell me what you want me to work on,” he said in a February 2007 phone call.

  “I’ve been thinking about our plan to write the same sections simultaneously. We have a good draft of the first several sections. Let’s jump to the middle of the book, on oral argument, and work from there to the end.”

  “Why would we do that?”

  “Lots of books get very lopsided because writers run out of steam at the end. Lots of these oral-argument sections will be short, and they’ll be relatively easy to write. Let’s do them first and then circle back around to general principles.”

  “If you say so,” he said.

  “This will help get us into a working pattern. Can we stick to two sections a week until the book is done? Keep with the Friday-afternoon deadline?”

  “Sure. That’s a plan,” he said. “And you’ll adhere to the same deadline?”

  “Yes. Each weekend I’ll spend time melding what you’ve written with what I’ve written, just as you’ve seen in the first seven sections.”

  “Sounds good. Which sections for this week?”

  “How about 61 and 62—toward the beginning of the oral-argument section?”

  “Okay,” he said.

  “One point. If you’re working on a given section, please type out a few words of the blackletter heading just above your paragraphs. Our sections will probably shift some, and I must know precisely which sections you’re writing about.”

  “Why must I do that? I’ll just put the number of the section before what I type. Don’t make me retype the blackletter!”

  “My experience with writing books of this type tells me that the section numbers will shift as we go. We’ll consolidate sections and develop still more sections, and the numbers will shift from week to week. If you type a bit of the blackletter, it’ll be unmistakable where your paragraphs are intended to go.”

  “That makes sense. Okay.”

  “We’re getting into a routine, and there’ll be lots of drafts going back and forth. I want to keep this all orderly so as not to waste one minute of your time.”

  “I appreciate that.”

  “This’ll be fun.”

  “I think so, too.”

  Friday afternoon, precisely on schedule, an e-mail popped up on my screen. The cover memo said, “I hope you likee.” In 30 minutes, I wrote back, “I likee very much. Next week, 63 and 64.” I thought he was using likee as some sort of jocular expression. It turns out it was only a typo that I mimicked, as I would l
ater discover over a laugh during dinner.

  Both of us remained assiduous in completing our weekly allotment of sections, and I’d combine his writing with mine each weekend. In May 2007, when we next worked alongside each other in chambers, we had assembled drafts of most sections on oral argument.

  During that session on May 10, we tackled a few underdeveloped sections for which I suggested that he write an extra passage. We also reviewed the redesigned table of contents so that he would see how I’d reorganized things; he made further changes, all excellent. It was a full, productive day. We had lunch in chambers and dinner that night at Tosca.

  “When are you going to be back?” Justice Scalia asked.

  “June 19.”

  “Let me call Maureen and see whether we can have you out to the house. Is Caroline in town?”

  “Yes, she’ll be working this summer at a law firm in D.C.”

  “We’ll have the two of you over for macaroni. But let me just check with her.” He was dialing. “Maureen? Can we have Bryan and his daughter Caroline over for macaroni on June 19? Are we already committed to anything that evening? Oh, good. Let’s have dinner, just the four of us.” He hung up. “Can we work here that day?”

  “I’m afraid I’ll be teaching a seminar until 4 o’clock.”

  “Okay. Then just meet us at the house at 5:30. How does that sound?”

  “Great.”

  “You’re going to love Maureen’s macaroni. She’s a wonderful cook.”

  “You mean mac and cheese?”

  “No,” he said matter-of-factly. “In the Scalia family, when we say ‘macaroni,’ we just mean pasta of any kind. It could be spaghetti; it could be tagliatelle. Our generic term is ‘macaroni.’ I don’t know what she’ll be making.”

  Macaroni with the Scalias

  When the day came, Caroline and I met at my hotel to take a cab to the Scalias’ home, an impressive Georgian revival. When Mrs. Scalia opened the door, it was our first meeting, and she greeted us warmly. She’s a diminutive woman, soft-spoken with a winning smile. She led us back to the kitchen, saying, “Where’s Nino? Nino? Nino?” Her crescendo would go only so high. “Oh, I know, you’ll find him out on the back porch. You can go see him there. Caroline, why don’t you stay here and help me?”