“No, they won’t. Lookit, I’m not talking to the guy.”
“Can you at least issue a written statement about the book through the Public Information Office?”
“I’ll do that, but no more.”
Later that day, Justice Scalia had the PIO send this message to Tony Mauro: “The object of the book is to make available, in a compact and (we hope) readable format, what we think to be the best advice on how to argue a case. It covers both brief-writing and oral argument. And it includes both advice from modern sources and advice from ancient sources adapted to modern American circumstances. We hope it will be helpful to the bar; if so, it will benefit the bench as well.”
Tony Mauro’s lead in the Legal Times (26 Nov. 2007) read this way: “While Supreme Court Justice Clarence Thomas has been out publicizing his bestselling memoir, fellow conservative Antonin Scalia has been quietly writing a book of his own. But Scalia’s probably won’t be a chart-topper—except among lawyers.” Then he zeroed in on the nature of the enterprise: “Without fanfare or publicity, Scalia and Bryan Garner, the legal-writing guru, have joined to coauthor a book on the art of persuading judges, both orally and in written briefs.” Mauro quoted me as saying that we had spent 4 of the past 14 days side by side in Justice Scalia’s office to write and rewrite chapters in the book.
The article continued: “Scalia ‘defers on all kinds of points,’ Garner laughs, adding that with all the changes and rewriting, ‘we can’t tell anymore which of us wrote which sentences.’ ” The point about deference caused me some trepidation, given our recent turbulent debates about whether the book had enough Scalian style.
I also announced to the world the identity of “Justice Scalia’s new hero”: Quintilian, the Roman rhetorician who wrote books on oratory nearly 2,000 years ago.
On the Monday when Mauro’s piece appeared, Justice Scalia wrote to me: “The Mauro piece was fine. Whets the appetite.”
Final Editing
On December 26, I traveled with my two daughters, Caroline and Alexandra, to Washington, D.C., for what we thought would be our final joint session on Making Your Case. After our first day, Mrs. Scalia, Caroline, and Alexandra met us for dinner at Tosca. It was a happy occasion. The Scalias had just had a large family gathering, the girls and I were having a good trip, they were excited to be with the Scalias, and we coauthors felt we were on the verge of a literary coup.
On our way out of the restaurant, Justice Scalia called me aside to say, “Your daughters are beautiful and intelligent. Congratulations.” Then he paraphrased the Roman poet Lucan: “But you know that to have children is to give hostages to fate.”
“You should know,” I replied, “since you have 4.5 times as many as I do.”
Our sessions during this trip were largely occupied with considering, and mostly accepting, edits by my old friend John Trimble, whose watchwords as an editor were tighten, sharpen, and brighten. He tried to implement such edits throughout the manuscript. He’d trim sentences and find more stylish phrasings for all sorts of ideas. Some pages were heavily marked, and Justice Scalia was losing patience.
“Now hold on, Nino, just look at this one,” I’d say, trying to get him to see the merits in one of Trimble’s reworkings. After about 50 pages with only a couple of edits rejected, Trimble had earned Justice Scalia’s respect. “Okay, you just make the edits, but be careful. You know what I like and don’t like by now.”
“Yes, I do. I know which kinds of edits to reject.”
“I’m just having to trust you.”
By January 3, I had sent all the final corrections to Justice Scalia. Three days later, he sent me his final revisions to the pro-and-con sections. He noted: “I think I owe you nothing more—and good thing, too, since I will be sitting the next two weeks. I like the book. Regards. Nino.”
Fortunately, I was traveling a good deal to D.C. during this period, and we had another afternoon to work together on January 8, 2008. We also posed for dust-jacket photos that day. The photo shoot had us inside his office, in one of the four rectangular courtyards at the Court, and in front of the Supreme Court building. Justice Scalia was insistent that we mustn’t use any background that recognizably had anything to do with the Supreme Court. A plain marble wall would be acceptable, or a wood-paneled wall—but not, for example, the famous front edifice.
After a few photos in the office, the photographer took me aside to say there was a problem. I was towering over Justice Scalia in most photos because of our four-inch difference in height. She wanted to know whether we could find a stepstool. “Trust me,” she said, “I’ve taken pictures up here at the Court before. Important men don’t want to appear short in photographs. He’s not going to like any of these. Can you help me do something about it?”
I decided to be direct when I walked back to Justice Scalia. “Nino, there’s a problem with the photos. For dust-jacket purposes, we need our heads to be even . . . on the same level.”
“I agree.”
“Is there a step in the courtyard that we can use?”
“Let’s go see.” We walked down the hall with a retinue of five—Justice Scalia’s assistant Angela, two Public Information Office employees, a lighting assistant, and a makeup assistant.
The step in the courtyard worked perfectly, and for the back of the book we used one of the photos taken there. Many astute observers have noted that although Justice Scalia appears about an inch taller than I in that photo, my torso appears much longer than his. They wondered how this happened—whether he didn’t have preternaturally long legs or I preternaturally short ones. In fact, it was just a five-inch step.
During the session, Chief Justice John Roberts caught sight of us and came out into the courtyard to say hello. “You guys are looking good out here!” We said hello, shook hands, and he was back striding down the walkway almost as soon as I could realize what had just happened.
That afternoon, the question of dedicating the book came up. “Why don’t we dedicate it to our parents?” I asked.
“I’d like to dedicate it to Maureen.”
“Okay. Well, I’ll dedicate it to my parents. I’ve just been divorced, so I’m not in a position to dedicate it to a significant other.”
“It should be parallel. Okay, let’s dedicate it to our parents.”
“Well, my father is alive, but our other three parents are dead. Should we dedicate it to their memory?”
“No. Dedicate it to them directly—all of them,” Justice Scalia said. “Our parents live on in a different life. That’s how I see it.”
Production and Publicity
The book was scheduled to appear in bookstores in mid-April. At the end of January, I still had the index to prepare. On January 25, I wrote to Justice Scalia: “Nino—To celebrate the publication of our book, let’s plan dinner one night from April 21 to April 24. It looks as though that’ll be my only stint in D.C. this spring.”
His response was curt (as he could sometimes be). It read in its entirety: “Bryan: Sorry. I’m out of town that week. Nino.”
By February, things started moving fast. On the first of the month, Justice Scalia wrote to tell me he’d met in chambers with Lesley Stahl of 60 Minutes and her producer, Ruth Streeter, about a segment on the book. Then he added: “I liked Lesley Stahl and her staff people, and I think they liked me. More important, I trust them not to make this a gotcha event. It is a go. They will want to have you on with me—but probably not for the entire segment.” Their approach made sense to me. He said: “As I should have anticipated, they want to speak with me about my general judicial philosophy and biographical stuff. That was probably inevitable; the show would not be much of a draw without it. But the book will be enough of a focus that I’m sure it’s worth the time.” He said he’d send me a copy of the letter agreements that he was entering into with CBS News.
A week later, he wrote to me that he’d returned from England and that 60 Minutes had filmed two speeches he’d given: one at the Inner Temple and one at the O
xford Union. They’d sent only film crews—no Lesley Stahl. He added: “Maureen didn’t come. I had an OK time.” I took that to mean that he’d have had a much better time had she been along. “London is the land of $100 cab rides. Hurry the galleys. Nino.”
On February 11, I sent Justice Scalia a message: “Because we’re preparing the index now, I’m trying to do nothing that will affect pagination. Please confirm that you’re overjoyed with the page design.”
He responded: “I’ve just printed it out. I am overjoyed with the page design. Good work! Nino.”
A couple of days later, we had a two-hour phone call in which he gave me edits orally. He had caught some typos, he wanted to move around the shaded boxes (with great meticulousness about precisely what lines of text they would appear beside), and he wanted to replace a few paragraphs with new paragraphs of his own. He faxed these to me within the hour after we hung up. Many of the rewordings we negotiated during the phone call. They were all definite improvements. Often he streamlined. For example, our draft contained this passage on oral argument:
A noted barrister, F. E. Smith, had argued at some length in an English court when the judge leaned over the bench and said: “I have read your case, Mr. Smith, and I am no wiser than I was when I started.” To which the barrister replied: “Possibly not, My Lord, but far better informed.” Smith, who later became a famous judge as the Earl of Birkenhead, could spontaneously carry off such statements with aplomb and, reportedly, without prejudice. Anyone else who tries this sort of thing is likely to maim the client’s case.
Justice Scalia thought everything after the name Birkenhead wasn’t quite right, and he replaced it with this: “could reportedly carry off such snappy rejoinders with impunity. We doubt that, but in any case we don’t recommend that you emulate him.” The contraction don’t, of course, had to be negotiated.
By the end of the day, Jeff sent a new draft reflecting these corrections to both Justice Scalia and me.
Two days later, Justice Scalia asked to see the index. After pressing my staff, I sent him the 26th revision of the index four days later. He wrote back an hour later: “Just so you know: I think the index needs lots of work. It’s about 5 times too long, and many of the entries are not at all helpful. . . . Needs a lotta work. Nino.”
That same day he called LawProse to speak with me, but I was on the road teaching. So he spoke to Jeff. In a 45-minute call, he dictated a whole series of new edits. His level of assiduity and attention to detail astonished us all. And again, he wanted to tinker with the precise placement of boxes.
Tussles with Indexing
On February 21 and 22, Justice Scalia wrote two long e-mails complaining about the draft index. I was away from the office that whole week and couldn’t respond until late midday on the 22nd. I said, “Please give me your proxy. We must submit pages next week, and a major reworking of the index could be disastrous.” I asked him to trust me.
“Can’t trust you on this,” he responded by e-mail. “Not if you think that the current version is ‘on the whole’ a good job. I think it is godawful. . . . I have put in too much work on this to see it spoiled at the last minute.” He added: “If need be, I will take some time this weekend to prevent that. Send me a copy of your revision and I will attend to it at once.”
His final words, just after this, were most worrisome, given that the book was ready to go apart from the index: “Who would have thought that this is the point which would bring our happy collaboration to an end?!?! Just kidding. But I do want to see the damn thing before it goes.”
He kept me on tenterhooks. We had a long, testy telephone conversation in which we debated the purpose of an index.
“Who would want to look up Aristotle in the index?” Justice Scalia wanted to know. “It’s preposterous to have individual authors listed, as opposed to a subject index.”
“I would for one. Nino, believe me, there are rhetoric teachers throughout the country who will want to know how many times we cite Aristotle, and for what purpose.”
“You really think so?”
“I’m sure of it. And if we’re citing current lawyers or rhetoricians, it appeals to them. They’re more likely to assign the book if they can point to an index entry listing their name.”
“That makes sense. I can see that.”
“But quite apart from that, most books today are inadequately indexed. We need a comprehensive index as part of our scholarly impedimenta.” (Yes, I actually used that word in conversation.)
“Impedimenta? What’s that?”
“The traveling appurtenances, more or less. The equipage, you know.”
“I want a two-page index—no more!”
“Nino, you can’t do that. If I have any fame as a legal writer, it’s partly because of my indexes. People can find what they want. I pride myself on thinking about how someone might look something up, and providing the apparatus for doing that easily.”
He then started picking holes in my 30-page index, suggesting cuts throughout. I made notes. Occasionally I argued. Often I relented immediately. But he was making many exacting points about subentries.
“Never did I dream, Nino, that you’d be so perfectionist about minute points in the index!”
“Well, I’m teaching the so-called perfectionist a thing or two about perfectionism.”
“Indeed you are,” I said.23
In the end, we wound up with a 26-page index. Together we pruned out 4 pages or so. On Tuesday, February 26, he wrote to me: “I feel good about the index—and about the whole book.”
On March 4, I sent the book to West for printing—one day after getting Justice Scalia’s final corrections to the index. In the publishing business, this kind of schedule is remarkable: only six weeks from the release date, the book went into production.
60 Minutes arranged to film the dust jackets being put onto the hardcover books as they were rolling off the presses, and the producers used that film clip in the segment that aired.
60 Minutes
Just before sending off proofs, I happened to be flying from New York to Dallas on a flight with my old friend Merrie Spaeth, a media consultant, and told her of the forthcoming 60 Minutes segment. She was aghast. “They’ll make mincemeat of him! Bryan, you have real cause for concern.” He was to be interviewed in Queens in March, and then he and I were to be jointly interviewed later that month for an airing in April.
I asked whether she’d help prep him for the interviews. Of course she would. I called Justice Scalia about it, and he agreed that he could use some preparatory work. He marked off a few hours through lunch on March 6, and I arranged to spend the day in the Ulysses S. Grant Suite at the Willard Hotel. Like all the presidential suites at the Willard, it’s a magnificent room, with an oval office.
That morning, Merrie and I flew up and met Justice Scalia in the lobby of the Willard Hotel. The preparation consisted mostly of asking Justice Scalia difficult “gotcha” questions and seeing how he’d respond. When he was defensive, we suggested better body language and a more positive message. When he denied a negative, we suggested reframing the answer as a positive assertion that didn’t repeat the negative idea. Merrie and I filmed him, and Merrie played back his responses to show what a difference it could make to recast the question before answering. He was impressed. He seemed to have learned some valuable lessons (and so did I). Merrie and I both stressed the importance of having the interviewer like him. But Merrie emphasized that it’s not the interviewer so much as the producer who must like him. That was a lesson for me as well. When we finished up an hour early, Justice Scalia thanked Merrie for her help, assured her that he’d benefited from the session, and vowed to remember her lessons.
The 60 Minutes interviews were done in two parts: one in early March, when Lesley Stahl did a series of interviews with him in his boyhood neighborhood in Queens; and one on March 28, filmed in the Lawyers’ Lounge at the Supreme Court. I participated in the final part of this last interview. Never have
I seen so many cords strewn over a floor—all for lighting and cameras.
Stahl began interviewing Justice Scalia at 2:00 p.m., and the plan was for me to join the interview at 3:00. But at 3:35, she was still going at him, lights glaring in his now-sweaty face. She was beginning to ask him probing questions about abortion, the Ten Commandments, and gay rights. He had been sitting more than 90 minutes, and I could tell that his energy was flagging just as she was asking these “gotcha” questions. One of 30 or so observers from the perimeter of the room, I walked over to Kathy Arberg and suggested that the Justice might need a break and that she cut off the questions. She agreed, and did so within five minutes. He had said nothing intemperate or ill-considered.
Ruth Streeter, the producer, announced that we’d be resuming with Justice Scalia and me together at 3:55. She told me privately that Justice Scalia had really won over everybody on the 60 Minutes team.
Back in chambers, I told Justice Scalia that what I’d seen had gone really well. He had done just what we had talked about with Merrie.
“She kept me under those hot lights so long.”
“I know. That’s all, though, and you did really well. Now we’ll be talking about the book.”
That’s just what we did, for 30 minutes or so. It went really well, and I had the opportunity to say how disarmingly deferential Justice Scalia had been on certain points, such as contractions. Then they took a group photo with producers, staffers, and court personnel, followed by video clips of Justice Scalia, Lesley Stahl, and me in front of the Supreme Court. They wanted shots of Justice Scalia and Lesley Stahl walking along the sidewalk in front of the Court. As the sun was setting, they also got a shot of me walking around one of the fountains.
That night we went to the restaurant Bebo in Crystal City to celebrate what seemed like a successful encounter with a major news organization—a venture that Justice Scalia had rightly seen from the beginning as fraught with danger. Afterward, he had the marshals drop me off at the airport for my late-night return to Dallas.
Nino and Me Page 11