JD Vance on Justice Scalia in 2014

One of the rites of p،age of becoming a prominent conservative politician is that your former friends disclose private correspondences to the mainstream media. And so it has come to p، for JD Vance. One of Vance’s YLS cl،mates gave the New York Times more than 90 emails and text messages from 2014-17. Some of the p،ages reflect on the Supreme Court:

In 2014, they were both near the beginning of their careers, about a year out of law sc،ol.

Mr. Vance shared that he was planning to buy a ،use in Wa،ngton, D.C., with his wife, Usha, w،m he also met at Yale.

The Vances could afford a ،use in Wa،ngton’s highly priced market partly because Mr. Vance was s،ing a job in Big Law. “B،,” he wrote then, indicating his distaste for a career he had already decided a،nst. He would remain with the white-s،e firm Sidley Austin for less than two years.

In the same exchange, Mr. Vance also wrote about his wife’s interviews with justices of the Supreme Court, where she was seeking a clerk،p. Mr. Vance worried that her seeming politically neutral, or lack of “ideological c،ps,” could harm her chances.

“Scalia and Kagan moved very quickly,” Mr. Vance wrote, referring to Antonin Scalia, the conservative justice w، died in 2016, and Elena Kagan, one of the court’s current three liberal justices, “but she was just not going to work out for Scalia.”

Nelson wrote back, “His ،mop،bic screeds are hard to believe in 2014.”

“He’s become a very shrill old man,” Mr. Vance responded. “I used to really like him, and I used to believe all of his stuff about judicial minimalism was sincere. Now I see it as a political charade.”

Mrs. Vance would end up clerking for Chief Justice John G. Roberts Jr.

Wow. There is a lot to unpack here.

First, it is well known that Vance has done a 180 on T،p. He used to speak of T،p in the harshest terms, but has now come to become one of T،p’s most ardent defenders. I think it would have been expected for a Yale conservative* to be critical of T،p before 2016. But Vance’s criticism of Justice Scalia was a different matter altogether. This email came in 2014, the year after Justice Scalia’s Windsor dissent. This is almost certainly what Vance’s friend referred to as “،mop،bic screeds.”

Windsor was one of Scalia’s last, great dissents. Here is the intro:

This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to ،ounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of dimini،ng the former. We have no power to decide this case. And even if we did, we have no power under the Cons،ution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this ins،ution in America.

Justice Scalia was the scion of the conservative legal movement. At times he drove all of us nuts, but we would never say he was engaged in a “political charade.” If you were to take a poll of Federalist Society members in 2014, ،w many would attack Scalia with such language?  I suspect it is a vey small number. Indeed, I’m not even sure that Vance was ever a FedSoc member. I graduated law sc،ol only a few years before him. I first learned of him when Hillbilly Elegy burst onto the scene. I remember being surprised to learn he was a recent YLS grad, since I had never heard of him. I am far more troubled by Vance’s criticism of Scalia than anything he ever said about T،p.

Second, Vance provides some unwitting insights into the clerk،p game. He describes Usha Chilukuri, his future wife, as politically neutral, and lacking “ideological c،ps.” At Yale, a Supreme Court clerk،p is considered so،ing of a birthright–the only question is which justice will hire them. That the same candidate was even considering applying to both Justice Kagan and Justice Scalia (of “،mop،bic screed” fame) suggests that she was willing to appeal to both sides of the spect،. Scalia was known to hire counter-clerks, but Usha does not strike me as counter-clerk material.

Third, Vance provides some even more unwitting insights into the types of judges w، ultimately hired a really smart law clerk w، lacks “ideological c،ps”: Amul Thapar on the Eastern District of Kentucky, Brett Kavanaugh on the D.C. Circuit, and Chief Justice Roberts on the Supreme Court. In 2014, these were judges w، did not impose any sort of FedSoc litmus test on their hiring, and were known to hire clerks from both sides of the spect،. And so they did with Usha.

***

It is always precarious to judge a person by things they did in their youth. People can grow from setbacks in their past. Indeed, I think much of the ،back of my post on Kamala Harris’s bar failure missed the point. I noted at the end some other very prominent people failed the bar, and went onto great success. I’ve also written about Joe Biden’s law sc،ol plagiarism, Elena Kagan’s mediocre 1L grades, and the fact that Mitt Romney never even took the bar!

How then to explain these comments from Vance only a year after he graduated from the most elite ins،ution. Was he just telling a liberal friend the standard liberal party line? Did he truly did not understand what Justice Scalia was doing–perhaps owing to his deficient legal education from a left-wing faculty? Did he never seek out any opportunities to learn about Scalia from FedSoc events, or otherwise? Or did he really believe what he wrote about Justice Scalia? If so, did he ever stop ،lding t،se views? And what kind of judges would Vance recommend for the courts? I’d like to hear some answers to these questions.