Scalia to Axelrod in 2009: Select Kagan To Replace Souter

February 15th, 2016

In May 2009, Justice Souter had already announced his retirement. David Axelrod–close adviser to President Obama–writes about a remarkable interaction he had with Justice Scalia at the 2009 White House Correspondent’s Dinner:

Justice David Souter, Scalia’s longtime colleague on the court, had just announced his retirement, creating a vacancy for President Obama to fill. Scalia figured that as senior adviser to the new president, I might have some influence on the decision — or at least enough to pass along a message.

“I have no illusions that your man will nominate someone who shares my orientation,” said Scalia, then in his 23rd year as the court’s leading and most provocative conservative voice. “But I hope he sends us someone smart.”

A little taken aback that he was engaging me on the subject, I searched for the right answer, and lamely offered one that signaled my slight discomfort with the topic. “I’m sure he will, Justice Scalia.”

He wasn’t done. Leaning forward, as if to share a confidential thought, he tried again.

“Let me put a finer point on it,” the justice said, in a lower, purposeful tone of voice, his eyes fixed on mine. “I hope he sends us Elena Kagan.”

Among the leading candidates to replace him were Sonia Sotomayor, Dianne Wood, and Elena Kagan. I can see this as a sleight against Justice Sotomayor, who received the selection in 2009. Especially since Nino favored Kagan over Sotomayor, saying “I hope he sends us someone smart.”