September 22, 2007

Which Justices talked to Toobin? O’Connor, Breyer and Kennedy.

So speculates David Margolick. Jeffrey Toobin doesn't say, in his book "The Nine: Inside the Secret World of the Supreme Court," but Margolick finds the clues in the text:
First there’s Stephen Breyer, with what Toobin calls his “gregarious good nature.” Odds are he spoke, a fair amount. Then Ruth Bader Ginsburg, “frail” and “shy” and, Toobin says, with only marginal influence on her colleagues. Maybe, but she’d have said precious little. Clarence Thomas, we learn, had gotten old and fat since his famously bloody confirmation battle. No way. David Souter “detested Washington” and “cared little what others thought of him.” Probably not, but he’s quirky enough to have tossed off a tidbit or two. Then Anthony Kennedy, far more worldly and influential than the “conventional, even boring” burgher he first appeared to be. Almost certainly yes.

Antonin Scalia looked “lost and lonely” that day: absolutely not. Then Sandra Day O’Connor, about to entrust her seat to President George W. Bush, whom she considered “arrogant, lawless, incompetent and extreme.” Her fingerprints — or voice prints — practically leap off the page: how else could Toobin write something so incendiary so confidently? And finally there’s John Paul Stevens, “respected by his colleagues, if not really known to them.” Highly unlikely.

Reading Toobin’s smart and entertaining book, these hunches quickly solidify. Sprinkled throughout are quotes, facts, anecdotes, insights and interior monologues that could only have come from particular justices — most conspicuously, O’Connor, Breyer and Kennedy — along with flattering adjectives about each. Toobin, of course, never names names.
It must be irritating to the nontalkers that some talk and get good press out of it. Except it didn't work for Kennedy. Maybe there are some "flattering adjectives" about him in there, but the overall picture is quite negative. He comes across as grandiose and vain.


hdhouse said...

If this is the case then I wish things were not done piecemeal although they have to be. My question is how did Toobin go about this?

Did he ask each justice for an interview, noting that he was going to ask each one for an interview, and would it not have been prudent to cc: each in the obligatory letter so that there was a good chance that, for instance, Scalia would know that Souter might well talk til the cows come home and if he wanted to balance the scales he might do that as well?

Would any have been less or more candid if they were certain that the interview process were out in the open? It seems a bit like the US v. xxx in federal court process where the witnesses can't come in and hear what other witnesses are saying.

Just curious.

Cyrus Pinkerton said...

Then Sandra Day O’Connor, about to entrust her seat to President George W. Bush, whom she considered “arrogant, lawless, incompetent and extreme.”

O'Connor sure has Dubya pegged.

Gedaliya said...

Fascinating piece in today's Times on Stevens.

It looks like Jeffrey Rosen scooped Toobin regarding Stevens and my guess is this piece will rob Toobin of some attention in the coming days.

Ralph L said...

Bob Woodward has successfully used the carrot & stick with sources for decades. Don't know how much it helps his accuracy.

rcocean said...


Thanks for posting the link. What an incredible puff piece on Stevens. 8 online pages of praise, I don't think Rosen wrote one word of criticism or quoted one person who didn't like him.

These quotes had me shaking my head:

Stevens told me he was troubled by the fact that Yamamoto, a highly intelligent officer who had lived in the United States and become friends with American officers, was shot down with so little apparent deliberation or humanitarian consideration. The experience, he said, raised questions in his mind about
the fairness of the death penalty.

Yeah, good ol' Yamamato, what a guy! Of course, there's that little incident at Pearl Harbor where a sneak attack killed 2,000 Americans. But hey, we should have cut him some slack, because he was highly intelligent.

”There’s a tremendous difference in using affirmative action when you get a group to build a highway and affirmative action in the educational context,” he told me. “I think my rhetoric was probably a little strong,” he continued, but the federal law authorizing racial preferences for highway contracts was a “slapdash statute” that was based on pork-barrel politics, benefiting one group of contractors rather than citizens as a whole. In schools and universities, by contrast, “the whole student body profits from having diversity in the classes. So I really don’t think I’ve changed my views about this.”

Talk about having views "untethered to the constitution"! I guess when race is involved Stevens is for the powerful and the government and against the individual. Some Liberal.

Trooper York said...

It's just your jive talkin'
you're telling me lies, yeah
Jive talkin'
you wear a disguise
Jive talkin'
so misunderstood, yeah
Jive talkin'
You really no good

(Bee Gees)

rcocean said...

-The fact that Toobin doesn't know much Alito or Roberts robes the book of any real interest except to court historians.

-I also disagree with the reviewer that Toobin is Highly intelligent and the book is well-written.

Gary Carson said...

I don't think he talked to any of them.

I don't base that on the book but on the way he responds when asked about it.

I think he talked to law clerks. There is no reason at all for a justice to want to talk only under a cloak of secrecy, none. His explanations about that make no sense at all.

It does make sense about law clerks, for whom openly gossiping could be career killer.

Ralph L said...

robes the book
in luscious black silk taffeta.

Eli Blake said...

Interesting that he waited until now to publish, since the new court has already been in session for a full term.

And the level of interest seems to reflect the age of the material too, since this is the tenth comment on this post (far fewer than usual on your posts regarding the Supreme Court.)

I guess the posters here would rather comment on the blueness of the model's dress (sigh.)

blake said...


I'm not even going to try to make sense out of Stevens equating the wartime killing of Yamamoto to the death penalty, but...

Yamamoto, by all accounts I have read, was a great man, opposed to the whole Tokyo-Berlin-Rome alliance in the first place, and very much against war with the US. He seemed to understand exactly how the war would play out.

It's a shame we had to kill him, but it's hard to imagine that not killing him (trial or no) wouldn't have resulted in quite a few more American casualties.

Ralph L said...

I was about to say it helped our morale and hurt theirs, but at what point did the general American public know he was dead?
I started to read the article, but Stevens sounds so delusional.

Simon said...

3 quick thoughts -
1) Cf. this earlier post of Ann's, noting a Stevens interview with JCG;

2) I think it's healthy that Stevens is candid enough to admit - to doubt to Rosen's and Toobin's slight frustration - that if the chief's project to create more unaminity on the court, that project will fail because the liberal bloc won't go along with robets as much as vice versa.

3) Rosen seems lost (and a little clueless, to tell you the truth) in this passage:

Abortion rights supporters may take solace in the fact that Stevens indicated that Kennedy seemed to view the regulation of so-called partial-birth abortions as consistent with Planned Parenthood v. Casey, which upheld the central holding of Roe v. Wade. “I don’t think he thinks this” — the recent abortion opinion — “requires him to change his views at all,” Stevens said. “We’ll have to wait and see. I suppose there are a lot of people out there praying I get out of the way.”

Anyone who read Kennedy's Stenberg dissent and his opinion for the court last term in Carhart knows that Kennedy believes that Carhart preserves rather than repudiates Casey.

Simon said...

Sory, thecoment above was re the Stevens piece Gedaliya posted, rather than the post itself.