Nino and Me

by Bryan A. Garner

  The group was so loud that the speaker stopped, completely flustered, and said, “May I have your attention, please? Please!” But the roar continued anyway, and he plodded on, reading his prepared remarks to an audience that could hear barely a word if they were straining to. A second time he stopped and shook his head, pausing several seconds to no effect. His faux-erudition was captivating to nobody.

  I leaned over to Justice Scalia. “I told you it’s a difficult crowd, Nino. I’m afraid they’re thoroughly inebriated.”

  The bar, inconveniently enough, was behind the speaker, and a steady stream of people were lined up behind him as everyone ignored the man at the microphone. People were talking at their tables in full voice. I dreaded what would happen when Justice Scalia stood up. I felt regret that I’d gotten him into this horrible predicament.

  Finally, at 9:10, I was being introduced as an alumnus of the law review and coauthor with Justice Scalia. Remarkably, the crowd grew quiet. They stayed pretty quiet during my three-minute introduction in which I talked about what it had been like to write with my coauthor. Then, after Justice Scalia took the stage amid perfervid applause, there was absolute silence and stillness—which reigned until he finished his speech 20 minutes later, although it was punctuated with frequent outbursts of energetic laughter.

  His talk that night, on advocacy, was one that he’d given many times before—one that long predated Making Your Case. It was a tongue-in-cheek talk in which he joked about the irony of using the word “brief” for 50-page documents; insisted that it’s impossible to exaggerate the importance of having a brief with the right color on the cover, since the Supreme Court votes on the basis of the color of the briefs; that at least two major points in every brief should be treated exclusively in footnotes; that judges should never be credited with having an ounce of wit; that no good advocate should rest his case on a precedent with a silly title like Newman v. Piggie Park Enterprises, since a case called Piggie Park just can’t be taken seriously; and that if you want to succeed as an advocate, you should take on clients with names like Marbury, McCulloch, Brown, and Miranda.

  The audience relished it, and he received a standing ovation. People rushed to thank him afterward. He called me over to say we must make a quick exit, and I alerted Karolyne and instructed the marshals of his wish. We were out in four minutes.

  Once we were in the marshals’ car, I said, “That was an extraordinary event, wasn’t it, Nino?”

  “I’ve never seen anything like it!” he answered.

  “You had them in the palm of your hand.”

  “Well, so did you, in your intro. But before that point, they were rowdy and raucous,” he said, shaking his head.

  “I thought it was going to be a catastrophic evening.”

  “Actually,” said Karolyne, “that took a lot of charisma and skill to do what you two did in turning the crowd. But listen, are you as hungry as I am?”

  None of us had eaten the banquet food. When Karolyne and I suggested that Austin is famous for Mexican food, one of the local marshals urged us to try Guero’s Taco Bar on South Congress Avenue. The marshals radioed ahead and had an advance team reserve a table for us—no mean feat, as we would learn, since there was a line extending way outside the restaurant. But when we got there 15 minutes later, we walked right in to a corner table that the advance team had staked out, and soon we were ordering the crispiest things we could find for Justice Scalia, who demanded no “mushy” food. “Mexican food is too mushy, I’ve always thought!” he said. We ordered crispy tacos for him, and he liked them.

  Two young blonde women in sundresses came over to our table. “Justice Scalia! We can’t believe you’re here. We’re UT law students, and we’d like your autograph! We’re so excited to see you.”

  A marshal came over to see whether we wanted them escorted away. No, we said, they should stay.

  “You’re law students, are you?” Justice Scalia said.

  “Yes. We’re freshlaws!”

  I said: “That’s the UT slang for first-year law students, Nino. Don’t read anything into ‘fresh.’ ”

  Justice Scalia said to them, “This, by the way, is my coauthor, Bryan Garner, and Karolyne.”

  “It’s good to meet you, sir,” they said, almost in unison.

  “What do you want me to sign?” Justice Scalia said.

  “Would you sign my arm?” one of the young women said. “I don’t have anything else.”

  “You want me to sign your arm?” Justice Scalia asked.

  “If you would. I wouldn’t wash it off for a week!”

  “I can’t do that,” he said. “I don’t sign body parts. Get a piece of paper and I’ll sign it.”

  “We don’t have anything,” one of them said. “We don’t have a seat yet. We’re still standing in line outside. We just followed you in.”

  I handed over my paper menu, and Karolyne handed over hers. I gave Justice Scalia a pen, grinning at him. “Here, Nino. This’ll do.” He signed them both.

  As he was doing his calligraphy, I said to the women, “You’ll have these menus permanently. Now don’t lose them.”

  “Oh, I won’t,” one of them said. “Justice Scalia is my favorite. I’ll always remember this.”

  As they walked away, I said, “Nino, I think those are the most beautiful Scalia groupies I’ve ever seen.”

  “Don’t worry,” he said, grinning. “Maureen knows all about my groupies. She’s never had a thing to worry about, and she knows it.”

  “Bryan’s groupies don’t look anything like that!” Karolyne said.

  “I’m sure they don’t,” Justice Scalia said. The two of them laughed. I saw nothing funny about it—nothing at all.

  The Burton Awards

  In June 2009, we spoke together twice, first at the Burton Awards in D.C. and later at the annual meeting of the State Bar of Texas. Bill Burton, founder of the Burton Awards, said he wanted to present us with the Law Book of the Year award. The Burton Award ceremony was a lavish black-tie event at the Library of Congress, where we were to be interviewed jointly.30

  We spent that day, June 15, working together in chambers. In the afternoon, Karolyne and my daughter Caroline would be coming up to the Court to join me while I presented Justice Ginsburg with the Scribes lifetime-achievement award—the award that Justice Scalia had received the previous year.

  “Ruth’s getting the award this year?” asked Justice Scalia. “That’s wonderful. She’s such a good writer.”

  “Yes. It’s a richly deserved honor,” I said, “just as yours was last year.”

  “Why are you giving it to her here? Isn’t it going to be a big public event, like mine?”

  “She can’t make the trip to Chicago in August. So I’m filming it here in her chambers. The film will be played at the annual meeting. Why don’t you come with us to be a part of it?”

  “I think I will. That’d be great . . . On second thought, maybe not.”

  “Why not?” I asked.

  “I got the award last year. This is Ruth’s year. The focus should be on her.”

  “Oh, I see what you mean,” I said. “Do you know who taught Justice Ginsburg how to write so well?”

  “No, who?” he asked.

  “You’ll never believe it. Vladimir Nabokov.”

  “You’re kidding,” he said. “How do you know that?”

  “It came up in my interview with her. He was her undergraduate literature professor at Cornell.”

  “You’re serious?” he asked.

  “Absolutely. And he taught her a crucial principle: nobody should ever have to read a sentence twice to get its meaning. That’s good, isn’t it?”31

  “That’s awfully good,” he said.

  Soon Karolyne and Caroline arrived and came back to chambers to greet Justice Scalia, who chatted with them briefly and then saw us off to present the award to Justice Ginsburg. After a successful bit of cinematography in her chambers, we were back in his chambers again. J
ustice Scalia and I secluded ourselves in his office to change into our tuxedos. Then Karolyne came in and tied both my black tie and his, which was a chore because his was too tight for him. But she made it work.

  The four of us walked next door to the Library of Congress for the Burton Awards. Red carpets had been rolled out. This was as close as things got in law to the Academy Awards. Once inside, we were shepherded backstage to the greenroom, where we enjoyed lively banter with David E. Kelley, creator of Boston Legal, and his wife, Michelle Pfeiffer, among others. I told David how much Karolyne and I had enjoyed the Boston Legal finale just six months before. In that episode, “Justice Scalia” (Jack Shearer—not a good likeness) ends up performing a same-sex wedding between Denny Crane (William Shatner) and Alan Shore (James Spader) at Nimmo Bay in British Columbia. The Scalia character is coincidentally there on a fishing trip, and he is implausibly (but hilariously) persuaded to administer the vows. David seemed surprised at how good-humored and exceedingly amused Justice Scalia was upon hearing about the episode.

  Onstage at the Burton Awards, Justice Scalia and I were interviewed by the journalist Bill Press. He began with the very question I’d posed to Justice Scalia 14 months before, when taping in his chambers for the Dallas Bar Association: Why did we write the book? His answer here was very different from the one he’d given me privately (though on film [see p. 90]), but doubtless both were true and accurate. On this evening, before the crowd of lawyers and judges in formal dress, he said: “Anyone who has been a judge for any amount of time becomes more or less exasperated at the errors that lawyers make in their presentations to the court, both written and oral. I thought it was worthwhile—not only a boon to the practice, but also a boon to the bench—to try to eliminate some of those errors.”

  I added my own motivation: “My thought was there is a lot of literature on how to improve advocacy—a lot of articles—but that the really good advice is scattered. Nobody had ever pulled it together in a very brief and cohesive way, as I thought Justice Scalia and I could do. At first we thought it was simply going to be a restatement of advocacy, but it ended up having a lot of original ideas.”

  Justice Scalia said he was a bit surprised at the originality himself: “It’s hard to believe that there are any new thoughts. Ever since Aristotle, there have been judges and other people giving advice about how to persuade judges. Literally it goes back to Aristotle, or Hammurabi, for all that I know. It’s hard to believe that there was anything new to be said. But as it turns out, at least in our distinctive American system of law, there are some new things.”

  We continued for some 20 minutes in this vein. Toward the end, Justice Scalia was asked to pay homage to Justice David Souter, who had just left the Court, and he spoke touchingly of their friendship.

  Bill also brought up the subject of the confirmation of Supreme Court Justices, saying: “In 1986, Justice, you were confirmed by the United States Senate by a vote of 98 to nothing.”

  “Right,” said Justice Scalia.

  “Any advice for Sonia Sotomayor?” Bill asked, referring to President Barack Obama’s then-pending nominee.

  Justice Scalia laughed, and then said: “What was the year?”

  “Nineteen eighty-six,” Bill said.

  “My advice would be go back to 1986.” There was lively laughter from both the crowd and the stage.

  “Things have changed,” Justice Scalia added, “and I think the reason things have changed has to do with the ‘evolving Constitution.’ What has happened is that the people between then and now have figured out that, under the new theory that the Court has been using since the Warren Court [of the 1950s], the Constitution does not have a fixed meaning, but it changes to comport with the times. When it changes and how it changes is up to the Court. Once you have that theory, who you pick as a judge should not depend mostly on who is a good lawyer or who has judicial temperament. I mean, all that stuff is good. But the main thing you want to know is what kind of a Constitution is this person going to write. That’s what’s happened since 1986. So I think I was a good lawyer in the days when that mattered a whole lot. And I think it matters less now—and it’s unfortunate.”

  The State Bar of Texas

  Justice Scalia flew to Dallas on June 28, 2009—the first time we’d gotten together in my hometown. I had arranged a book-signing event at the LawProse office for a select group of Dallas lawyers and judges, as well as 60 international lawyers from all parts of the globe. They were attending the annual academy of the Center for American and International Law in Plano—where I teach every summer—and they, along with my law students from Southern Methodist University, were excited to meet and speak with Justice Scalia. My father flew in from Amarillo to participate in the festivities. The SMU law dean arranged a dinner for ten at a local steakhouse.

  Over dinner, when the subject of a forthcoming second book came up, the dean proclaimed that he wanted SMU Law to host the “world premiere” of our inevitable teaching engagements about the new book. Justice Scalia and I agreed that it would certainly be an early gig, if not the first.

  The next day, our State Bar of Texas event was scheduled for 9:00 to 10:00 a.m., and this time we suffered from Karolyne’s absence. Because she had to be in Boston that day, she couldn’t do any advance work with the event planners. They didn’t have the PowerPoint presentation in advance, and the traffic in Dallas made us ten minutes late. In any event, Justice Scalia didn’t want to arrive earlier than absolutely necessary. My father and I had met him in the lobby of his North Dallas hotel, and the plan was for the marshals to get us to the downtown Hyatt convention center by 8:45 a.m. Instead, we drove up at 9:05, were taken directly onstage before 800 lawyers in attendance, and I made the peremptory decision that we’d speak without visual aids. Justice Scalia was unfazed by this adjustment in plans, since he normally spoke without PowerPoint slides anyway. But he did normally like giving credit to my daughter Caroline for making our slides, and occasionally he’d rib her (mostly in absentia) about some of the clever visual associations she had made to illustrate our lectures.

  By now we had our Click-and-Clack routine down pretty well, and we invariably injected extemporaneous humor into our presentations. I began: “You want me to warm them up, you say?”

  “Go ahead. Get ’em warmed up.”

  Things as simple as that would make people laugh, and we in turn drew energy from the audience. We gave what had come to be our standard short presentation of Making Your Case. We traded points, occasionally commenting on each other’s ideas.

  Among his best moments was telling the audience: “Treasure simplicity. You don’t get any extra credit for eloquence. Just make it simple and tell us your point. Your job is to make a complex case simple, not a simple case complex.” He strongly endorsed the effective writer’s stylistic habit of starting a fair number of sentences with a snappy But (no comma after) rather than a plodding However (which, as a contrasting word, requires a comma). He warned that briefs shouldn’t be overloaded with italics, which can make them read like “a high-school girl’s diary.” His sternest admonition that morning, though, was about using case law carefully. He stressed that statements about precedents must be accurate: “When a judge sees you playing fast and loose with a citation, he is not going to believe the rest of your brief.”

  We debated footnoted citations for several minutes. Once we’d had equal time, I asked the audience for a show of hands. The numbers were about equal, just as they had been at the Kennedy Center. He barely concealed his momentary consternation. It was all I could do to suppress my pleasure in the vote, as I felt obliged to do. The other three votes I lost, as I had at the Kennedy Center.

  We stayed for 45 minutes to sign books. Then, joined by my father, we had lunch at Fearing’s restaurant in the Ritz-Carlton. Because my father is heavily interested in politics and likes to engage people in conversation, I felt almost like an interloper in an interview he was conducting with Justice Scalia. Perhaps the mos
t interesting question was whether Justice Scalia thought it possible for anyone today to rise to high political office and still maintain a high degree of integrity.

  “Including judicial office?” asked Justice Scalia.

  “Yes,” said my father.

  “Of course it’s possible, even if the press impugns you mercilessly.”

  “What about excluding judges? Just politicians: can they rise to high office and still keep a high degree of integrity?”

  “I think Ronald Reagan had integrity. Lincoln certainly had integrity.”

  “Bryan once had a colleague,” my father said, “who worked with and admired Reagan, but his answer was no—politicians cannot under the current system achieve great heights while preserving their integrity.”

  “I suppose that might be right,” Justice Scalia conceded, but seemingly on a theoretical basis, not that of personal knowledge.

  As soon as we had finished our lunch, Justice Scalia was headed for the airport. The marshals had planned and timed his route, they said, and he was leaving just in time to make his flight. We said a quick but warm goodbye.

  Upon returning to D.C., Justice Scalia wrote: “Enjoyed the visit with you, your daughter, your father, and your staff at LawProse. And I thought that the program went over very well.”

  The Book on Tape

  Our work on Making Your Case wasn’t fully complete until we made the audiobook, which took two full days in October 2009. A sound engineer set up equipment just off the Court’s main conference room. It didn’t take long for us to decide that we’d read separate sections sequentially. We’d listen closely to each other and occasionally stop each other to correct the other’s pronunciation or emphasis. In fact, we had so many disputes over pronunciation that we soon had to send out for Webster’s Second New International Dictionary, Garner’s Modern American Usage, The American Heritage Dictionary, and my Dictionary of Modern Legal Usage. For example, at first Justice Scalia pronounced gravamen /GRAH-vuh-muhn/, when the traditional pronunciation is /gruh-VAY-muhn/. I persuaded him to do a second take with a corrected pronunciation. He also pronounced appellee with the accent on the second rather than the third syllable. We skirmished over that: he analogized it to appellant, which stresses the second syllable; I analogized it to mortgagee and obligee, with the third-syllable stress. The dictionaries bore out my preference, so he re-recorded the passage. On the other hand, his Latin pronunciations of the legal phrases inclusio unius est exclusio alterius and noscitur a sociis and ejusdem generis prevailed over mine: my knowledge of Latin couldn’t hold a candle to his. Soon we were keeping score on who prevailed more often on the dozen or so matters of contested pronunciation.