Nino and Me

by Bryan A. Garner

  23. See Garner, “War of the Words,” American Lawyer, Feb. 2009, at 56 (acknowledging that from our wrangling over the index, “I learned the true meaning of the word painstaking.”).

  4

  Making Your Case: Part II

  (2009)

  Although it was quite some time before we’d give another joint performance, the invitations to do so were rolling in—always many months in advance of the events. The American Business Trial Lawyers group in Los Angeles asked us to present Making Your Case in March 2009. The Texas Law Review, where I’d served as associate editor during my third year of law school, asked me to enlist Justice Scalia to speak the following month in Austin. He readily accepted both. The president of the State Bar of Texas wrote to both of us asking that we make a joint presentation at the Bar’s annual meeting in late June. This one he accepted only conditionally: “June is always hectic. If you have received an affirmative response from Bryan Garner (I have not spoken with him concerning the invitation), and if you are willing to list Bryan and me on the program with the real possibility that Bryan may have to do it alone, I will be happy to accept. If you require an absolute commitment that I will be there, I must decline.” They accepted.

  My friend David Battaglia of Los Angeles introduced us at the March 2009 meeting of the American Business Trial Lawyers. It was a packed room at the Biltmore Hotel in downtown Los Angeles, and Mrs. Scalia was present on that trip. I think it may have been the only time that she saw us speak together—in fact, perhaps the only time that any Scalia family member ever did. Battaglia introduced us as if we were boxers: “Tonight’s card features, in the left corner, standing five feet nine inches in height, with a 27-inch reach, straight from the District of Columbia, none other than Justice Antonin Scalia. Best known for his ferocious right cross.” He gave some familial and judicial stats, and then noted: “His birthday is at the stroke of midnight tonight, on March 11. We are obviously quite honored to have him here.”

  And then my intro: “In the right corner, standing a healthy six feet one inch tall, with a 29-inch reach, direct from Dallas, Texas, we have . . . Bryan Garner. Best known for his pugnacious prose.”

  Then, with Battaglia’s patented wit, he gave the audience a ten-question quiz on quotations. Who said this? Scalia or Garner? Six examples (don’t look at the footnotes until you’ve taken the quiz yourself):

  1. “The main business of a lawyer is to take the romance, the mystery, the irony, the ambiguity out of everything he touches.”24

  2. “As you might already suspect, I don’t shy away from making judgments. I can’t imagine that most readers would want me to.”25

  3. “Bear in mind that brains and learning, like muscle and physical skill, are articles of commerce. They are bought and sold. You can hire them by the year or by the hour. The only thing in the world not for sale is character.”26

  4. “[Judges] expect meandering, aimless briefs that take seemingly forever to get through. I say that you shouldn’t give judges what they expect; instead, give them a pleasant surprise.”27

  5. “In a big family, the first child is kind of like the first pancake. If it’s not perfect, that’s okay, there are a lot more coming along.”28

  6. “Some people, it must be said, are inherently likable. If you’re not, work on it.”29

  If the audience had fun with this introduction, Justice Scalia and I had fun over the course of the evening, trading points from Making Your Case—and occasional barbs. We were both in good form.

  Afterward, the Scalias and I had drinks with David and Julie Battaglia and a law-school friend and his wife, David and Marty Pendarvis. Upon meeting David Pendarvis, Justice Scalia asked what kind of law he practiced.

  “I’m at ResMed, which is a company that makes C-PAP machines for those suffering from sleep apnea.”

  “Listen, I snore, and it bothers Maureen. My doctor has said I should get tested.”

  “You really should. Sleep apnea can be a dangerous condition. You ought to get tested.”

  At this point, Mrs. Scalia got involved, wanting to know whether a C-PAP could cure her husband’s snoring. This topic dominated our conversation for about 15 minutes. Midway through, Justice Scalia vowed to be tested the very next week.

  A couple of months later, when I was working with him in chambers, I asked him about the sleep-apnea test. He said he now had the C-PAP and loved it. He was sleeping better than ever as a result.

  Austin City Limits

  For the Texas Law Review banquet in April 2009, three events were scheduled: a faculty luncheon in which Justice Scalia would speak, a brief presentation in which he would speak to the local chapter of the Federalist Society, and then a book-signing together with his keynote address for a group of 300 or so law-review members and alumni. I was to introduce him for the keynote.

  Karolyne and I met Justice Scalia in the lobby of the Four Seasons Hotel about 11:00 a.m., an hour before the luncheon was to begin. He was cheerful and eager to get underway. Accompanied by marshals, he, Karolyne, and I went to his room to chart the day’s program: faculty lunch (noon–1:30), Federalist Society (5:00–6:00 p.m.), law-review banquet (7:00–9:00 p.m.). When Karolyne realized we had a three-hour gap from 2 to 5 o’clock, she suggested that we should go to the spa and get a massage.

  “Do you like massages?” she asked Justice Scalia.

  “I think I do,” he said. “I haven’t had one in decades. In fact, I think I’ve had only one in my entire life.”

  “You’ll love it, Nino,” I said. “Lyne and I have them all the time.”

  Karolyne said, “Why don’t I see if I can schedule one for each of you?”

  “I think I could use that,” said Justice Scalia. “I’m awfully tight, and Maureen has been talking about getting me either a massage therapist or a certified stretcher.”

  “Is that a form of torture?” I asked, grinning.

  The head marshal, who was also in the room, interjected: “We’ll need to sweep the entire spa. We’ll have the canine unit come by.”

  “Is that really necessary?” asked Justice Scalia.

  “Yes, sir. We’d feel more comfortable in such a space if the canines checked it out. Also, we’ll run background checks on the therapists.”

  “They’re always very professional,” I said.

  “Nevertheless . . . ,” said the marshal.

  “Lyne,” I said, “why don’t you get a massage, too? You and I can get a room together.”

  “No, it’s going to be hard enough to get two massage therapists at the same time. The Four Seasons spa usually stays pretty well booked. Let me schedule it for both of you. I’ll go down now.”

  “Can I send a marshal along with you?” asked the head marshal.

  “Sure,” she said.

  Soon Justice Scalia and I went downstairs to the ground-floor banquet room reserved for the event with the UT law faculty. Staff organizers had stacked copies of Making Your Case in piles on a reception table. They asked whether we’d be willing to autograph them.

  “Of course!” said Justice Scalia. “We like signing books.”

  We managed to sign all 50 books before the faculty members started to arrive.

  It was a warm event for us both. He was seeing old friends—people like Lino Graglia, a conservative constitutional-law professor who, like Justice Scalia, had grown up in New York, and Larry Sager, the dean, a liberal constitutional-law professor who had spent many years in New York. And I was seeing old teachers and colleagues—Sandy Levinson, the prolific constitutional-law professor whose teaching assistant I had been back in 1983–1984; David Sokolow, the effusively friendly expert in business associations; and Stanley Johanson, the legendary teacher of wills and trusts.

  Only one junior faculty member made things unpleasant—a young man I’d never met. He was an anti-originalist who was keen to show up Justice Scalia by trying to point out contradictions in his jurisprudence. He hadn’t been slated to sit at the head table, but he forc
ed a clinical professor to give up his seat there. When I asked the clinical professor, my friend, why he wasn’t sitting with me, he said that the new constitutional-law prof had pulled rank and insisted on switching. This in itself was annoying, given that I’d carefully arranged the seating. Then I noticed, when we were seated, that the new professor was nervous; his eyes were darting around erratically. So I remained aware of him.

  Once the salads were served, he caught Justice Scalia’s eye and blurted out, “Isn’t it true that in A v. B, you said this, but in C v. D you said that, and in E v. F, you voted with a majority opinion that said something else entirely?”

  Accustomed to counteracting people eager for a “gotcha” moment, Justice Scalia was particularly adept at deflecting here: “These are obscure cases you mention, and I imagine I’m not the only one at this table who has no idea what you’re talking about.”

  Taking the cue, Professor Graglia then turned to Justice Scalia and said, “How’s Maureen? And how are the kids? You have nine of them, right?” With that line of conversation, our table of eight was rescued from the obtusely disputatious professor, who seemed to be looking for another opportunity to interject a new contention.

  Which he did. As soon as there was a lull in the Scalia–Graglia reminiscences of their salad days in New York, the bumptious young intellectual, short on social graces, said: “Isn’t it true that in Heller you essentially read the preamble out of the Second Amendment?”

  “Not at all,” said Justice Scalia without a hint of irascibility. “My opinion takes account of the preamble, which grammatically, as Bryan would tell you, is a nominative absolute having no grammatical relation to the rest of the sentence.”

  “Fifteen legal historians, all with Ph.D.s in history, disagreed with your conclusion,” the young man asserted.

  “But others agreed,” I said, as Dean Sager stood to introduce the guest of honor.

  It’s anyone’s guess whether the purpose of the truculent junior professor was to rankle Justice Scalia, to provoke him to some intemperate rejoinder, or to engage in what he thought would be a scintillating dialectic. In any event, a senior faculty member had a word with him, and after that he was effectively squelched.

  Justice Scalia’s short talk was about the most important thing that goes on in law school: teaching. It was a quintessential example of his “teaching against the class”: staking out a position that a large element of his audience would be likely to disagree with. He posited that U.S. law schools had long ago strayed from their core mission of training students to become lawyers—focusing instead on scholarship at the expense of teaching. When they do teach, he said, they teach skills that aren’t peculiarly legal. He criticized the upper-division legal curriculum that had become preoccupied with “law-and” courses: law and feminism, law and literature, law and poverty, law and economics, and so on. He argued that faculty members should be better gatekeepers and that untrained students should never be allowed to determine what they should study.

  Then he broadsided the law reviews, which, he said, publish professorial esoterica that is out of touch with anything related to real-world lawyering. He spoke of legal scholars’ “self-indulgent posturing,” “useless blather,” and “abstruse writing.” He noted—with disapproval lost on nobody—that 40% of the Harvard law faculty have no experience in practicing law and that only 25% have as much as five years of experience in practice. Several Harvard faculty members don’t even have a law degree.

  In the end, he made a strong pitch for a renewed appreciation, within legal academia, for the value of effective pedagogy. He said it wasn’t too late for law schools to rededicate themselves to teaching law students to become good lawyers.

  Toward the end of the talk, Karolyne texted me that she’d made our massage appointments: shiatsu for him, deep-tissue for me. Justice Scalia and I lingered only briefly to say goodbye to the faculty members, all of whom (as far as I could tell) were genuinely appreciative and enthusiastic. I’m excepting, of course, the argumentative con-law prof, who seemed to just disappear.

  After changing clothes, I went by his room. “I’m looking forward to this,” he said, smiling, as he stepped into the hall in his white robe and slippers. We matched. When we got off the elevator in the lobby, Karolyne was waiting for us. She escorted us to the spa, one floor down, where a marshal was leaving with a dog just as we walked up. Two marshals stayed behind, one at the main entrance and one at the door to Justice Scalia’s treatment room. Karolyne went for a run along the river.

  As it happened, we were the only customers in sight during our visit. We checked in, confirmed the massages we’d be getting, met our therapists, and walked down the hall to our side-by-side rooms. “Knock on the wall if you need anything, Nino,” I said.

  “Don’t worry about me,” he said. “You’re the one getting deep-tissue. It’s going to make you sore.”

  “We’ll see,” I said.

  The time passed quickly. When it was over, we met up again in the hallway.

  “That was great, wasn’t it?” I said.

  “There’s nothing like it in the world,” he said.

  “Glad you liked it.”

  “Oh, yeah. So glad Lyne thought of it.”

  “Me, too. We can take a shower now, or go into the sauna or whirlpool.”

  He said, “Let’s just take a shower and rest up a little.”

  “Do you want to shave?” I asked.

  “I tend to get a 5 o’clock shadow,” he said.

  “Well, I don’t. I’m blond. But let’s shave.” And so we did, using the spa’s shaving cream and razors. As we stood side by side in front of the mirrors, removing the shaving cream one stroke at a time, I said, “I think the faculty really liked that speech.”

  “Think so? I’ve given it before. Seems like an impressive faculty.”

  “They are, except for that one guy. You handled him with equanimity.”

  “Ah. I’ve seen worse. Just a junior guy trying to play gotcha,” he said, finishing up. “Piece of cake.”

  A minute or so into my shower, I heard him singing what sounded like snippets of an opera, perhaps Verdi or Puccini. In between the lyrics, which I couldn’t make out, there would be a loud “Oooh,” or “Aaah,” as he ran his face under the showerhead and blew air, horselike, between his lips.

  It was quite a long shower for me, perhaps ten minutes, but when I finished he showed no signs of drawing to a close. I got out, dried off, and glanced to see him running the shower over his head, singing all the while. He seemed utterly uninhibited.

  I had delayed so long that I couldn’t find any excuse to wait longer. So I went near his shower stall, interrupted his singing, and said, “Nino . . . Nino, I’m all finished, so I think I’ll go on up to the room.”

  “This is a great shower!” he said.

  “Yes. Wonderful.”

  “I’ll be finished soon.”

  “I’ll come by your room at ten to 5 for the Federalists.”

  “I’ll be ready. What time is it now?”

  “It’s 4:35.”

  “Okay. See you then. Oh-soh-luh-mee-yoh!” He was singing again, the tones muffled somewhat by the stream of water pouring onto his face.

  My Law Review’s Banquet

  If the Federalist Society event was quick and uneventful, the law-review banquet was something else entirely. Usually held at the Four Seasons, where we were staying, the event was held this time at the UT Stadium, in one of the public spaces that would fit 300 seated guests (though awkwardly arranged: in fingers jutting out from the speaker’s position). I had warned Justice Scalia that the crowd was notoriously unruly, with an open bar that contributed to mass inattention to the speakers. I had seen many a circuit judge simply ignored as tables continued to talk over speakers. This year would be no exception. The din in the room grew long before I began to introduce Justice Scalia—but that moment didn’t arrive until well after the night was supposed to be over.

  The eve
ning was badly planned. There were long pep talks for the incoming board members about how much hard work would be involved in editing the review. It was full of inside jokes that no one but the current staffers could understand. The parts that were comprehensible were just embarrassing: “You’re going to have to work hard. Really hard. There may be all-nighters. There may be several all-nighters. That’s what it means to be a member of this board—because we care about the high quality of the Review.” Etc. Etc.

  Justice Scalia and I were seated precisely 15 feet in front of the lectern, which wasn’t raised. The speakers were essentially looking directly at the Justice.

  “Is this for real?” Justice Scalia asked, leaning over to me. Not even whispering.

  “No, it isn’t,” I said. “This is a joint nightmare.”

  Then came student awards, and they dragged on for a long time. The food consisted of three “mystery meats.” We couldn’t discern what was fish or fowl; it all seemed to be pork. So we fasted. And it was getting late.

  “This is very inconsiderate,” Justice Scalia said to me. “They ask me to come down here to sit through two hours of this.”

  He was exaggerating only slightly about the time.

  “I know, I know,” I said. “I’m sorry. I can’t imagine how this is happening. There’s just one more award, and then you’re on.”

  It was now 8:45, and a quick award was to be given in the name of a famous expert on torts. Then it would be Scalia Time. I had expected the award recipient, a noted trial lawyer who was sitting at our table near Justice Scalia, to take the stage, say a quick thank-you, and sit down for the main event, but that’s not what happened. He proceeded to try to deliver a learned discursus on two theories of causation in tort law—the minority view having been espoused by the person for whom the award was named. All the while, the crowd was growing rowdier and rowdier, completely ignoring him. Justice Scalia and I had our arms folded, at once bemused and further annoyed by the surreality of it all. He leaned over and said to me, aloud, “This guy is a trial lawyer? Are you kidding me? He can’t read people at all!”