Balkinization  

Saturday, September 29, 2007

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.

Comments:

Perhaps the professor's students ought to receive a separate grade on whether their bibliographies include The New Yorker and there find Toobin's occasional perspicacious writing. Another contributor at this blog occasionally cites TNY article author Sanger; and Hersh has written at TNY desultorily, as well. Rather than make this post about the new look of TNY, seemingly cyclically less literary, more political, besides registering my appreciation for the reminder that the two books are variously meritworthy, I had intended to type a link to a different president who was notorious for old fashioned social meetings with important cabinet members and even folks on the US Supreme Court, having found a few carefully obscured photographs of that president on the internet, at his leisure, which I will do here; yet, in reviewing some presidential libraries' audio history transcripts of some participants from that other president's informal meetings, I rediscovered several themes which reveal, perhaps embarrassingly, the plainer side of some of our US presidents. President standing at tableside; President seated joining the pasttime with his cohorts, seen by scrolling down to second photograph; and, an interesting retrospect recorded in 1973 with Clark Clifford, who remembered only scant details of the summer whitehouse meetings including a series of questions by the interviewer who sought to discover glosses to the story of the first postwar rejection of Truman's fading politics of war machine control of nextwave international threats: the Youngstown case nadir problem he encountered. Yet, besides finding a trove of archives to examine for developing some more utilitarian and informational reply to the question of what was the white house doing in the nominations, I found some images of our currently over-produced white house tenant's outings in informal settings; all of which reminded that times have changed, and media is still fairly attuned to the sycophantic camera view, but the folks in the white house still seek recreation and the people's business gets done is some fairly bizarre settings, or, in the last photo linked, below, perhaps the environs were exquisite but the business accomplishment quotient nil, in the fog; the forest bicycle ride a president took April 2006, click the resize button, though resolution in this archive copy is much more diminutive than the hardcopy the local paper published on page one.
 

"This is a work of journalism, not a law review article."

But doesn't that make his extended list of factual errors all the more egregious?

It's one thing for a theoretician to botch the facts, but for ostensible-journalist Toobin to screw up so royally leaves me questioning his fundamental abilities as a reporter.
 

It's interesting to me - I mean, you say that you'd reverse various criticisms - that mostly everyone agrees on what's wrong with either Greenburg's book vs. Toobin's - it's too shallow, it's not balanced enough, and so forth. But some level that criticism at Toobin and are astonished that anyone could make such an allegation about Greenburg by comparison - and vice versa. I'm perplexed by how Nina Totenberg can say with a straight face that Supreme Conflict "lacks the balance, substance, and context of Toobin's book." I would reverse all that in favor of Greenburg, and I suppose Stephen would reverse me again in favor of Toobin.
 

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