In re Toobin

Stephen Griffin

There has been something of a blog argument over the respective merits of the recent books on the Supreme Court by Jeff Toobin and Jan Crawford Greenburg. Despite surface similarities (especially in their treatment of the Bush II nomination and confirmation intrigues), these are different books by good journalists. But the Toobin book is the one I would recommend to my students. It has the greater degree of substance and insight on the Court. For example, compare the last 100 pages of both books. After some efforts, JCG drops case analysis in favor of a lengthy narrative on the Roberts-Miers-Alito nominations. I like to read “insider” talk about who’s on the short list and how President Bush came up with the idea to nominate Harriet just as much as the next law professor, but you also read journalistic accounts of the Court to learn about the interaction between decisions and personality. The most recent opinion JCG discusses is Lawrence v. Texas. More important, JCG’s book reads as if 9/11 never happened (except for a brief mention of the NSA controversy). There is no discussion of executive power, no Hamdi and Rasul. Toobin manages to get to those cases and Hamdan, along with providing a lot more insight into Justice O’Connor and President Bush II himself. Other examples: no discussion of Grutter or affirmative action and no Terri Schiavo and debate on judicial independence in JCG.

There have been some strangely overheated reviews of Toobin’s book, notably by David Garrow in the LAT. This is a work of journalism, not a law review article. If you have been reading Toobin’s work regularly in The New Yorker perhaps there is not much new in the book. But if you haven’t (and my students don’t), then you can learn many useful things. In a Salon review, Garrett Epps writes: “Greenberg got deeper inside the court's bubble, with background interviews with nine justices and extensive on-the-record comment from Justice O'Connor. Toobin is a tireless reporter, but his beat at the New Yorker is much wider than the Supreme Court, and he is at his best covering volatile stories like the O.J. Simpson case or the Florida recount. He has a less sure feel than Greenberg for the constitutional issues that dominate the Supreme Court's agenda.” I respect Epps, but I would reverse all these comments in Toobin’s favor.

Here’s one insight from Toobin that seems intuitively correct, but I haven’t seen emphasized by anyone else. “Bush had a businessman’s contempt for lawyers generally, and he viewed the process of choosing judges with impatience.” (p. 260) “All of the top officials who were considering Miers’s appointment –Bush, Cheney, Card, Rove, and Miers herself—had relatively little idea what Supreme Court justices actually do all day. . . .Everyone in Bush’s inner circle came out of the corporate world, where they believed that good judgment and instincts mattered more than reflective analysis. The same was true for corporate lawyers. Bush would never have dreamed of asking prospective members of his cabinet for writing samples, and he didn’t require them of Miers either. For the president, it was not a problem that Miers had no writing to offer.” (p. 288) Now think about this in relation to executive power and you have a worthwhile insight into what has been going on at the White House.
Posted 2:45 PM by Stephen Griffin [link]