James Rosen

or moving away from the living constitution expansionist role for judges, would be if they had been judges already on the appellate bench, because they would have a track record, as opposed to mere writings, which could be moved away from, different from a judicial opinion.

So he chose William Rehnquist, who had been an associate justice on the court, nominated by President Nixon, seated since 1972, to elevate him to the chief justiceship.

Rehnquist for many years was the only conservative on the court.

He issued so many lone solo dissents that his clerks once gave him a lone ranger doll.

So it was seen as a kind of a reward for all those lonely years of service in the 70s and 80s.

And then they had to decide who were they gonna try and nominate

for the vacancy created by elevating Rehnquist.

And it came down to Bork and Scalia.

And the first book, Rise to Greatness, really delves deeply into that friendship between these two brilliant men, that friendship effectively destroyed by the competition between them and by Scalia's elevation in 1986.

We know what happened to Bork when he went up a year later.

And you asked, how did Scalia get confirmed 98 to nothing?

Chiefly because of the distracting figure of William Rehnquist.

Having been the lone conservative on the court for so long, the Senate Democrats who claimed control of the Senate in 1986 –

in the fall election, so it was controlled by the Republicans when Rehnquist and Scalia went up.

Nonetheless, they were out for bear with Rehnquist.

They hated his opinions for the last 15 years.

He was ultimately confirmed after a very ugly process, 65 to 33.

And as Justice Alito told me recently, gosh, if a confirmed nominee got 33 votes, you'd call that and it went 65-33.

That'd be a landslide.

That would be bipartisan.