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LAMB: But, the real issue here is though, how often have you hired a clerk that doesn’t think like you do?

SCALIA: Infrequently, but not never. The problem is, I don’t care what the policy preferences of the clerk are. In fact, other things being equal, I would prefer a clerk whose instincts, whose policy instincts are the opposite of mine.

But, I find it very hard to find a liberal clerk who is hard minded and not wishey washey who applies rules of law rather than speculating about what the best result would be and so forth and so on. That’s – that’s not what I do and I don’t want my clerks to do that.

When I have been able to find a – what should I say, a flint-minded liberal, as in the law clerk you just saw, they have been invaluable because, you know, they come at the problem from maybe at the opposite social perspective that I do.

And, they’re a check upon what a judge always has to worry most about and that is that instead of applying the law he’s really just applying his own wishes. That’s bad – bad judging.

When asked about Bush v. Gore or Gonzales v. Raich–but never Roe v. Wade and, I’m sure, NFIB v. Sebelleius–Justice Scalia is fond of saying “get over it.” Get over it. There were 5 votes. Your side lost. So get over it.

But is this so? Eric Claeys writes that with respect to NFIB v. Sebelius, we should not get over it. Of course, the GOP will continue to attack ACA on policy grounds. But Eric insists that the GOP should continue to attack it on constitutional grounds–even though 5 Justices (on flimsy reasoning) said it was constitutional.

Eric cites things like the Virginia and Kentucky resolutions as examples that the Court’s decisions about constitutionality are not final, and to support the proposition that ultimately, the sovereignty of constitutionality remains with the people. This argument screams of nullification, even if I agree with the constitutional position.

Now, Michael Grieve is correct to note that the left often does not get over it with 5 votes. Michael made a similar point that I made in tonight’s JoshLive about Citizens United and the liberal reaction. After Citizens United, the President–in front of 5 Justices–assailed the court for being wrong about the Constitution. To this day, many liberals continue to assert that the 4 dissenting justices were correct. Hell, Justice Stevens says it every chance he gets! This type of argument does not seem to be that much different from the position espoused by Claeys. Liberals seek to pass laws (Disclose Act) and Amendments (that will go nowhere) to “overturn” Citizens United–which they reject as constitutionally wrong.

So, maybe on this front, Claeys is on to something. For what’s worth, Eric made a very similar point last year in National Affairs.

Update: Mike Rappaport adds:

I don’t think it would be legitimate or effective to argue that the Supreme Court decision should be ignored or disobeyed.  But it is perfectly legitimate in my view for the political branches to say that they disagree with the Court and to act on that view in a way that does not conflict with the Supreme Court’s judgment.  Repealing the Act on the ground that they believe it is unconstitutional would not conflict with the Court’s decision.

Winning! While clerking in district court, I once had this extremely realistic nightmare that the Assistant U.S. Attorney had indicted me for honest services fraud for listening to and streaming Pandora while at work. This was around the time when the honest services cases were argued at the Supreme Court. The dream was so realistic. I remember telling Judge Gibson that I had to resign my position, and he recused himself from the case and transferred it to another court (there was only one judge in Johnstown–where the indictment was found). I remember trying to negotiate a plea bargain, through counsel, but the AUSA wasn’t interested, and wanted to take this to trial to make an example of me or something. The dream ended before the trial–though that would have been a fun thing to dream about. I wonder if the Rules of Evidence apply in dreams. Oh, the things that keep me up at night.

But yeah, 7 years. I started as an employee of the Federal Government in summer 2005, when I was a GS-5 intern earning $17/hour with the Department of Defense, Defense Information Systems Agency. In January of 2006, after I graduated from college, I took a full-time position with the DoD as a computer scientist focusing on network security. I started law school in August 2006 at Mason as an evening student, and continued working as a computer scientist until May 2007.

During my 1L summer (May-August 2007), I transferred to the General Counsel Office at my Agency. When school resumed in August 2007, I continued my employment with the GC until after I took the bar in 2009 (other than a brief leave of absence I took while summering at a D.C. firm). I finished that job on a Friday, and to avoid any break in service (a big deal), I started working as a law clerk for Judge Gibson in Johnstown the following Monday in August of 2009. I spent two years with Judge Gibson, and finished up on a Friday in August 2011. To avoid a break in service (again) I started with Judge Boggs on the following Monday in August of 2011. I worked with Judge Boggs straight through July 20, 2012. And, with that, my seven consecutive years of federal service came to an end.

I am often asked how I, a person with a quite proscribed view of the federal government, worked for the courts for so long. A few responses. First, I do not consider the federal courts part of the federal government. Lifetime tenure and guaranteed salary. Different branch. In Washington, alas, Articles I, II, and III are blended together. Strictly speaking, the federal government should refer to executive branch agencies, but for reasons I do not really understand–largely for purposes of pooling benefits and the like–one can transfer from Article I to II to III without any break. In fact, my salary from my DoD position (where I had been working for years) gave me a higher salary when I started in U.S. District Court.

Second, and more importantly, I–and most libertarians–would agree that courts are an important, and indeed indispensable, attribute of any government. I am honored of the work I did for the courts. Likewise, national defense (the province of the DoD) is an important public good–though we may disagree with the particular policies of the current (and recent) Secretary of Defense.

Anyway, for the first time in my career, I am working for a private-sector employer, the South Texas College of Law. Really, I have attended public schools my entire life. K-12 in New York City Public Schools. College at Penn State. Law School at George Mason (a state school in Virginia). I taught at Penn State Law School. This is a first for me.

Onward and upward.

You can join the conversation now here via Google Hangout or watch it via YouTube.

At 10:00 p.m. EDT tonight, I will launch the first ever #JoshLive group video chat. You can participate via Google Hangout, or watch it live (or later) on YouTube. See you all in an hour.