Review: The Nine: Inside the Secret World of the Supreme Court by Jeffrey Toobin

Toobin does a great job in detailing the personalities of the justices and how they shape the court. Thomas is the most interesting, perhaps. A man obviously bitter about the cards he has been dealt, he holds grudges seemingly forever, even disdaining Yale Law School, his alma mater; yet, he is very well liked and has lots of friends on and off the court. (Scalia, asked once for the difference between himself and Thomas, replied, "I am an originalist; he's a nut.)  Thomas would overturn piles of precedent on principle -- he's a huge fan of Ayn Rand -- and a proponent of limiting the power of federal law, but contradictorily sponsoring law clerks who went on to provide legal justification for presidential power expansion under Bush. Go figure.

One concern I had about Thomas was the large number of gifts he accepted from very conservative organizations and people. He got the largest book deal of any justice, 1.5 million from book he wrote from Rupert Murdoch and he makes huge amounts of money in speaking engagements before conservative audiences (he refuses to speak to any audience that might be remotely unfriendly.)  Breyer, on the other hand, accepts no gifts or travel from anyone. You can't tell me that getting all that money and travel from a particular political spectrum has no effect.

One of my favorite anecdotes was the inside look at the nomination of Harriet Miers in 2005 for the O'Connor seat.  Bush had laid down the law against any kind of leaks. Unfortunately, as Toobin points out, leaks can often serve as a very useful  way to flush out any likely problems that might arise from a decision before a commitment is made to that decision. Bush and his primary advisors, Rove, Cheney, and Card, had little idea what a Supreme Court Justice does every day.  (Steven Breyer once told his son that justices spend their days reading and writing.  "If you like and are good at doing homework, you'll enjoy the Supreme Cour because you'll be doing homework the rest of your life." [paraphrased quote, listened to this as an audiobook:] So they didn't expect nor look for  any kind of written trail from Meiers. (Rove can be excused if he seemed a little distracted as there was a very real possibility he might be indicted in the Valerie Plume case.) Rove's first call to get approval was to James Dobson since they knew that mainstream media approval was irrelevant.  It was the evangelical constituency that might make troub le.  Ironically, it had been Harry Reid who had suggested Meiers and noted that her nomination would breeze through with little chance of a filibuster.  Meiers had been a long friend of Bush as well as his personal attorney, she was a strong evangelical, and in any case the Bush team was looking for  someone with good judgment and instincts;  analysis was less important.

So they were all totally taken by surprise when the vicious attacks from the right began as soon as she had finished her acceptance of the nomination. "The president has made perhaps the most unqualified choice since Abe Fortas," was the response of one conservative.  She was dismissed as a "taut, anxious, personality," wrote David Frumm. She had no judicial experience. Despite pressure from the right-wing "pro-family" groups arguing her conservative bona fides and that she would overturn Roe v Wade,  and her ex-boyfriend Judge Heck's rambling denials of anything more than friendship, it soon became clear she had no ideas at all with regard to constitutional law. Her total experience had been as personal lawyers to Bush and others.  Bush assumed that the Senate would fall into line behind his nomination, not realizing that by 2005 Katrina and Iraq had crippled his influence. "Trust me," was no longer enough.  Conservatives wanted appellate judges with a proven written agenda.  White, Powell, Warren, and Rehnquist, to name but a few, ad little judicial experience, so her lack thereof should not have been a disqualifier.  As with the torrent of abuse against Gonzales a few months earlier, facts became irrelevant and some conservatives even charged she and Gonzales were closet liberals despite all evidence to the contrary.  The Democrats loved every minute of it.

Meiers seemed to be on the way to confirmation even as conservative antipathy grew, when Charles Krauthammer came up with a "breathtakingly cynical" mechanism to have her exit. The Senate should demand to see privileged documents from her White House tenure. The Senate could refuse to begin confirmation hearings until they received them; the White House could refuse to produce the documents based on its privilege and Meiers could withdraw claiming she did not want to cause a violation of either the White House or Senate's privileges. Meiers, putting her client's (the president) interests first as any good lawyer would, withdrew claiming precisely what Krauthammer had suggested, that she could not afford to let Senators ask her about her work at the White House which might have viollated executive privilege. The seat went to Alito, who, ironically, had been Meiers first choice to replace O'Connor.  (O'Connor herself considered the Alito choice as a direct affront.)

Fascinating.