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Jan Crawford Greenburg's Supreme Conflict:

I recently read Jan Crawford Greenburg's Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court. Like co-blogger Orin Kerr, I agree that it's a "must-read." Indeed, it is probably the best book about the Supreme Court that I have ever read that was written by a journalist. Unlike some members of said profession, Greenburg has a solid understanding of both conservative and liberal legal thought and she uses it to good effect in trying to understand what the Court has done in the era of Rehnquist and Roberts. However, the real focus of the book are the Supreme Court nomination battles from Robert Bork's abortive nomination (1987) to Sam Alito's. There are numerous interesting revelatoins such as:

1. In 1986, Scalia was picked ahead of Bork in part because he was younger (and thus likely to stay on the Court longer), and in part because some of the people in Reagan's Justice Department actually thought that Scalia was more conservative than Bork.

2. Reagan's DOJ staff had correctly predicted in advance that Anthony Kennedy would not be a solid conservative vote on the Court, which is why he was not appointed until after the nominations of Bork and Douglas Ginsburg went down in flames.

3. David Souter was even more "stealthy" than is often believed. He and his backers were apparently able to convince not only President Bush 41, but also such DOJ officials as Federalist society co-founder Lee Liberman (now Lee Liberman Otis), that he was a conservative jurist.

4. Greenburg adds to the growing pile of evidence that Justice Thomas is not merely an acolyte of Justice Scalia's. She even contends that Thomas has influenced Scalia more than the other way around.

5. Sam Alito was Harriet Miers' personal first choice for the nomination that (at first) went to Miers herself. It was President Bush who insisted on choosing a woman as the nominee, which resulted in the decision to nominate Miers.

6. Attorney General Alberto Gonzalez recommended against the Miers nomination, correctly predicting that conservatives would go ballistic.

7. Bush withdrew Miers' nomination in large part because of her poor performance in mock interviews and meetings with GOP senators, not because of the revolt on the right. He believed (wrongly in my view) that conservatives would have come around to supporting Miers.

8. Sixth Circuit Judge Alice Batchelder, in my view possibly the strongest potential conservative female nominee that Bush could have picked, was removed from consideration because of a very minor conflict of interest in one of her cases (she had failed to recuse herself from a case that involved a company in which her husband - unbeknownst to the Judge herself - owned stock through a mutual fund).

I do have a few reservations about the book.

First, Greenburg is convinced that, with the Roberts and Alito nominations, conservatives have won a decisive victory in the struggle for control of the Supreme Court. I am more skeptical. The Court currently has five conservatives and four liberals, with one of the conservatives (Kennedy) often prone to defecting (as Greenburg acknowledges). Conservative control of the Court is therefore quite tenuous (though more solid than before Bush's two appointments). A lot depends on who gets to pick the next few nominees. If a liberal Democrat becomes president in 2008 (especially with a Democratic Senate majority), Bush's handiwork might well be undone.

Second, I think Greenburg sometimes overstates the importance of abortion and other "social issues" relative to other matters at stake in the battle over the judiciary. While it is true that the former are especially prominent to the general public, the conservative and liberal legal elites that she focuses on in the book also care intensely about questions such as federalism, property rights, affirmative action, free speech, and economic regulation. Many of the conservatives and libertarians who opposed Miers' nomination did so in large part because of the opaqueness of her record on these latter questions (myself included). And the anti-Miers backlash was primarily an elite backlash rather than a popular one.

Finally, it is often difficult to evaluate Greenburg's claims because, like Bob Woodward, she usually does not footnote or otherwise identify her sources. While this may be an inevitable aspect of investigative journalism, it does make it difficult for outsiders to assess the book's validity.

Such caveats notwithstanding, this is a great book, and anyone interested in Supreme Court nomination battles should definitely read it!

Related Posts (on one page):

  1. No More Supreme Picks for Bush?
  2. Jan Crawford Greenburg on Clarence Thomas:
  3. Jan Crawford Greenburg's Supreme Conflict:
rothmatisseko (mail) (www):
I read a long excerpt from the book, and in it Greenburg recounts how Rehnquist ordered O'Connor to retire a year earlier than she had planned. It's incredible.
1.26.2007 3:15am
Ragerz (mail):
roth,

I am not sure I would characterize it as an "order" as opposed to an unambigious statement of his plans that she could do with as she pleased.

Mr. Somin, thank you for your very interesting views on this matter. I think that ultimately, while issues less prominent to the public matter to more to elites, it may very well be that public opinion determines the composition of the Supreme Court. So, it might be justified for Greenburg to focus on issues more prominent to the public.

Imagine the backlash if Roe/Casey were overturned. I can't imagine a single thing more likely to ensure a liberal judicial counter-revolution due to public backlash from such a result.
1.26.2007 5:53am
Federal Dog:
"Imagine the backlash if Roe/Casey were overturned."


Yes, some people would turn needlessly hysterical. Since the question would simply be returned to the states, any hysteria would simply be a public temper tantrum, not meaningful, principled dissent.
1.26.2007 7:16am
AppSocRes (mail):
Imagine the backlash if Roe/.Casey were overturned: Since according to every poll taken between Roe v. Wade and now shows that a consistent 3/4 of Americans oppose abortion on demand (proportions slightly higher among women and slightly lower among men!) and only about 1/6 support an unlimited right to abortion, this would turn out to be another feminist/liberal/dimocrat myth. Just like the myths about high death rates from abortion pre-Roe (no evidence in US mortality data).
1.26.2007 8:18am
John (mail):
I'm puzzled why people seem to thing Bush has brought about some conservative takeover of the Court. Roberts replaced Renquist--presumably not changing anything much in terms of votes. Alito replace O'Conner, who, despite her liberal attitudes on a couple of issues was actually pretty conservative--so that's presumably only a little change toward the conservative side, at most. Hardly a major result. For any important change, a conservative is going to have to replace a liberal--and unless one of them is run over by a truck none of them is going to be leaving until Hillary becomes president in 2008.
1.26.2007 9:05am
Steve:
Since the question would simply be returned to the states, any hysteria would simply be a public temper tantrum, not meaningful, principled dissent.

Your blithe conclusion that Congress would not be free to legislate in the abortion area would come as quite a surprise to the actual Congress, which is already doing so.

Oppose Roe or support it as you choose, but the notion that reversal would return the issue to the states is an absolute myth, and I hate to see it spread.
1.26.2007 9:44am
Anono (mail):
David Souter was even more "stealthy" than is often believed. He and his backers were apparently able to convince not only President Bush 41, but also such DOJ officials as Federalist society co-founder Lee Liberman (now Lee Liberman Otis), that he was a conservative jurist.

This is third-hand, so take with a grain of salt, but someone I know asked an insider (maybe Otis or someone else at that level) how Souter was able to convince the Bush administration that he was a conservative, and the answer was: "He just lied."
1.26.2007 10:10am
SimonD (www):
Ilya, I don't entirely agree that "the real focus of the book are the Supreme Court nomination battles from Robert Bork's abortive nomination (1987) to Sam Alito's." I think a better characterization would be that the real focus of the book is how new Justices have changed the court's internal dynamics. Greenburg dispenses with the Thomas hearings, for example, in one terse paragraph, and spends little more time dwelling on Bork's. Indeed, in that sense, while I think this book is really, really, good, one admissable criticism of it might be that someone who isn't already familiar with the events and materials it is discussing might feel a little lost.

The most shocking pre-Miers revelation is that the Reagan administration fully understood what kind of Justice Kennedy would turn out to be, yet appointed him anyway. Reading about the Miers nomination is nothing short of chilling. I feel very much that I didn't just live through those events, I was involved in them (albeit from the far flank of the sidelines); at the time, I think the dissenters thought that the White House had lost its mind. If Greenburg's version of events holds up, it was far, far worse than any of us could have imagined; the colossal stupidity, the sheer wrong-headedness of everything about the approach is enough to make one seriously reconsider whether Bush getting another vacancy is desirable. Most galling of all is that when Laura Bush went on television to tell those of us who opposed Miers that we were doing so out of sexism, her husband had settled on Miers primarily because he demanded an all-women shortlist. The hypocrisy is appalling.

This is a really, really great book. I can't say that enough. As Ilya notes, Greenburg demonstrates a clear understanding of both sides, but more surprisingly for someone in her industry, chooses to pitch straight down the middle, sympathetically (and more-or-less accurately) explaining debates over originalism and legislative history. This evenhandedness would, on its own, qualify Greenburg as the best Supreme Court reporter in the country.
1.26.2007 10:11am
K Parker (mail):
Steve,

The fact that Congress engages in legislation far beyond any Constitional warrant is neither news, nor any reason to stop caring that abominable decisions get overturned.
1.26.2007 10:11am
SimonD (www):
Anono -
I'm sorry, but I flat out just don't believe that. Nobody can watch the Souter hearings and say that Souter mislead Senators, or that he didn't make clear what kind of Justice he'd be. So if what Souter said to the President was at variance with what he told the Judiciary Committee, don't you think that would very loudly ring alarm bells in the administration? I don't think Souter lied to anyone; I think there was just a complete failure in the Bush administration to ask the right questions, and to appreciate the significance that Souter would be dealing with most federal questions for the first time on the Supreme Court.

I wonder if, in retrospect, Luttig feels responsible for Souter? According to Greenburg's version of events, he ought to. If Luttig hadn't torpedoed Starr, Souter would never have been under consideration for the seat.
1.26.2007 10:18am
Eugene Volokh (www):
AppSocRes: Any chance you might point us to some of the polls, and in particular to the questions they ask? The polls I've seen generally show 40-60% support for the view that abortion should be limited to cases of rape, incest, or danger to a woman's life (or, in the view of a few respondents, banned altogether), and 40-60% support for the contrary view. See generally http://pollingreport.com/abortion.htm.
1.26.2007 10:18am
SimonD (www):
I read a long excerpt from the book, and in it Greenburg recounts how Rehnquist ordered O'Connor to retire a year earlier than she had planned. It's incredible.
That's a misrepresentation. Neither the book nor the excerpt recount any such thing; Rehnquist told O'Connor that he didn't think there should be two vacancies at the same time, and since he planned to retire at the end of the next term, O'Connor should either retire at the end of this term, or in two years.
1.26.2007 10:22am
alkali (mail) (www):
...some of the people in Reagan's Justice Department actually thought that Scalia was more conservative than Bork.

This might have been true at the time. It's fair to suppose that Bork's more recent public statements reflect a change in his temperament after his nomination failed.
1.26.2007 10:33am
Hans Bader (mail):
If people in the Bush (the elder) White House had actually bothered to read Justice Souter's opinions on the New Hampshire Supreme Court, they would have realized that he was not a conservative.

His New Hampshire opinions were basically moderate (although not as liberal as his U.S. Supreme Court opinions).

His public speeches were liberal on some things, and moderately-conservative on others.

If they had done their due diligence, they might still have thought he was a moderate (rather than the liberal he has become), but they would not have had the delusion that he was a conservative.

That they thought he was a conservative was a sign of negligence on their part.
1.26.2007 10:49am
Hans Bader (mail):
A story is often told that Justice Souter, at a meeting with Bush's judge pickers, cleverly displayed what appeared to be a Federalist-Society coffee-mug (despite the fact that it is said that the Federalist Society did not in fact produce such coffee mugs at the time).

It is said that the gullible Bush judge pickers were taken in by this, reading into his possession of the (faux) Federalist Society mug that he was a conservative.

(They should have instead studied his rulings on the New Hampshire Supreme Court, which were moderate, or his public utterances in his years as a state judge, which were increasingly liberal in tone, foreshadowing his very liberal jurisprudence on the U.S. Supreme Court. Instead, they seem to have focused on his relatively conservative record years earlier as New Hampshire's state attorney general).
1.26.2007 10:56am
Steve:
The fact that Congress engages in legislation far beyond any Constitional warrant is neither news, nor any reason to stop caring that abominable decisions get overturned.

Nor is it an excuse to falsely claim that reversing Roe would return the abortion issue to the states. Perhaps in your fantasy constitutional regime the issue would not be a permissible subject of federal legislation, but one should not make blanket statements without disclosing that they only hold true in one's own fantasy world.
1.26.2007 10:59am
MnZ (mail):

Imagine the backlash if Roe/Casey were overturned. I can't imagine a single thing more likely to ensure a liberal judicial counter-revolution due to public backlash from such a result.


I have to back up the point that others have made. While there might be a temporary and false backlash, they would not need a "liberal judicial counter-revolution" to correct the problem. Rather, they would simply need to vote for political candidates that won't ban abortion.

It is hard to see how the Liberals will get any more mileage out of this issue than they currently do. Futhermore, as several have noted on this site before, it is not clear that the Left-Liberals should really like Roe vs. Wade as much as it does. It is based on some legal theories that Left-Liberals would not exactly endorse.
1.26.2007 11:02am
Spartacus (www):
"Since according to every poll taken between Roe v. Wade and now shows that a consistent 3/4 of Americans oppose abortion on demand (proportions slightly higher among women and slightly lower among men!) and only about 1/6 support an unlimited right to abortion"

True, but last I heard, a majority of American's also oppose overturning Roe. That many may not realize the irony of their positions does not make citing them any less useful.
1.26.2007 11:06am
Spartacus (www):
I mean useless. Or any more useful. POll's on abortion frequently seem to reveal contradictory attitudes.
1.26.2007 11:07am
Mark Field (mail):

If a liberal Democrat becomes president in 2008 (especially with a Democratic Senate majority), Bush's handiwork might well be undone.


You say this like it's a bad thing.
1.26.2007 11:13am
Houston Lawyer:
That alleged conflict of interest noted is pure BS. The vast majority of the public doesn't know or care about the individual stocks held by mutual funds. You invest in mutual funds to avoid making decisions about individual stocks to invest in.
1.26.2007 11:18am
Anono (mail):
Other interesting revelations:

1) Miers was initially suspicious of Roberts because he had not been outspoken on conservative issues;

2) Bush's reason for choosing Miers was precisely so as to do the opposite of his father in picking Souter. I.e., his father picked someone that he didn't know anything about, and then Souter veered left. Bush wanted to pick someone who was both (a) a confirmable female (misjudged on that part), and (b) extremely well-known to him, such that he could be confident that she would never veer left.
1.26.2007 11:20am
Q the Enchanter (mail) (www):
Wasn't the official story that Miers had asked Bush to withdraw her nomination?
1.26.2007 11:24am
Steve:
That alleged conflict of interest noted is pure BS.

This seems clearly correct, but just to add to it, Justice Alito had such a "conflict of interest" as well. His issue was similarly trivial in the big picture, but at least there was a little substance to it because he had promised during his prior confirmation process to recuse himself from any cases involving the company in question (although recusal was not actually mandated under the relevant judicial guidelines). So color me unconvinced that Judge Batchelder was really rejected for that reason, or even primarily for that reason.
1.26.2007 11:29am
margate (mail):

The Court currently has five conservatives and four liberals, with one of the conservatives (Kennedy) often prone to defecting (as Greenburg acknowledges). Conservative control of the Court is therefore quite tenuous (though more solid than before Bush's two appointments). A lot depends on who gets to pick the next few nominees. If a liberal Democrat becomes president in 2008 (especially with a Democratic Senate majority), Bush's handiwork might well be undone.


Ilya:

This remark strikes me as awfully sloppy. What exactly do you mean by "four liberals"? What's the benchmark? Are you saying that four Frank Murphy's are on the court, marching in lockstep as identical 1968 versions of Wm Douglass?

And I'm especially curious given your turn of phrase, "[i]f a liberal Democrat becomes president . . . " [My emphasis.] Again, what exactly is a "liberal" Democrat[ ] president as compared to, say, "four liberals" on the Supreme Court? And if you need to use the word "liberal" before Democrat, you must be suggesting that the "four liberals" on SCOTUS are more liberal than all Democrats except those whom you'd call a "liberal Democrat".
1.26.2007 11:38am
Hattio (mail):
Color me unconvinced on the Alice Batchelder recusal taking her out of the running too. But, if it's true, I may have to re-think my theory that Bush just plays stupid.

As to their being four liberals on the court. I'm also unconvinced. I am probably more casual in my Supreme Court watching than most other working lawyers, but the fact is a lot of the "liberal" decisions that conservatives have decried over the years have been written by conservatives who were appointed by a Republican president. Let's face it, the right has won the Supreme Court appointment game, and still can't get the decisions it wants. Which just goes to show you how well our founding fathers built in their checks and balances.
1.26.2007 11:53am
Bill Poser (mail) (www):
I'm curious about the phrase "what the court has done in the era of Rehnquist and Roberts". Roberts was only appointed a short time ago, surely after the book went to press. It can't really have anything to say about the Court under Roberts. Is this just a slip or you getting at something I've missed?
1.26.2007 12:03pm
Carolina:

As to their being four liberals on the court. I'm also unconvinced. I am probably more casual in my Supreme Court watching than most other working lawyers, but the fact is a lot of the "liberal" decisions that conservatives have decried over the years have been written by conservatives who were appointed by a Republican president.


I suppose definitions such as "liberal" and "conservative" are relative, but I think most lawyers would accept that Breyer, Ginsburg, Souter, and Stevens vote and write opinions on the left/liberal side of the ledger.

The fact that Stevens was appointed by Ford and Souter by Bush 41 hardly makes them conservatives.

If you seriously claim that Souter and Stevens are "conservatives", as you seem to do, how do you define the term?
1.26.2007 12:58pm
Steve:
If you seriously claim that Souter and Stevens are "conservatives", as you seem to do, how do you define the term?

I consider Stevens a conservative in the same way I consider Gerald Ford a conservative. Both the Court and the country have changed around him. I wouldn't disagree with labeling Souter as a liberal, as long as we're all clear he's a million miles from being William Brennan.
1.26.2007 1:43pm
Jitterbob:
Both the Court and the country have changed around him.

Well, if everyone except you have changed, and you find yourself at the liberal end of the spectrum of everyone, can you still call yourself a conservative?
1.26.2007 3:13pm
SimonD (www):
Steve - which of Justice Souter's opinions last term do you think Justice Brennan would not have joined? Which opinions did Justice Souter join that Justice Brennan would not?
1.26.2007 3:36pm
rothmatisseko (mail) (www):
SimonD, misrepresentation is a weighty term and implies an intent to deceive. If my reading is off, that's one thing, but I have no axe to grind here and certainly didn't misrepresent anything.

Also, you could have paraphrased the rest of the relevant section from the book, which does support my reading and cuts against yours:

[N]ow Rehnquist, ravaged by cancer and desperately ill, was unilaterally deciding both of their fates. He would stay, and she should either step down now or be prepared to serve longer than she wanted.

The seventy-five-year-old O'Connor had been willing to remain another year, but because of her husband's illness, that would be it....

The face of retirement had changed. John was battling Alzheimer's, the same debilitating disease that crippled and killed the president who had nominated O'Connor as an associate justice two decades earlier. It was her turn to support her husband, before the disease stole him from her for good.

She hadn't thought she'd be retiring at the end of the term, but it soon started to sink in."Well, okay,"O'Connor said, deferring to her old friend and chief. "I'll retire then."


We can just agree to disagree on whether her husband's cancer was a good reason for her decision.
1.26.2007 3:43pm
rothmatisseko (mail) (www):
sorry, Alzheimers, not cancer.
1.26.2007 3:43pm
SimonD (www):
rothmatisseko -
How does the text you quote "support [your] reading and cuts against" mine? Your reading, per your comment above, is that "Rehnquist ordered O'Connor to retire a year earlier than she had planned," emphasis added. The text that you quote -- even thus lifted out of context -- says no such thing: Rehnquist "would stay [another year], and she should either step down now or be prepared to serve longer than she wanted," emphasis added. What you suggest is my "reading" ("Rehnquist told O'Connor that he didn't think there should be two vacancies at the same time, and since he planned to retire at the end of the next term, O'Connor should either retire at the end of this term, or in two years") seems to me to do little more than paraphrase precisely that text! ;)
1.26.2007 4:14pm
Steve:
Steve - which of Justice Souter's opinions last term do you think Justice Brennan would not have joined? Which opinions did Justice Souter join that Justice Brennan would not?

This is not an exercise in which I care to engage without a client/matter number. I'll just note my utter amazement at the suggestion that Souter could possibly be as liberal as Brennan.
1.26.2007 4:15pm
SimonD (www):
That is to say, the only thing Rehnquist can really be said to have "ordered" O'Connor to do -- although "exhorted" would be closer to the mark -- is to not step down at the end of OT '05. Whether she wanted to step down at the end of OT '04 or the end of OT '06 (or sometime thereafter) was a choice he left to her, so far as Greenburg's recounting of events will support.
1.26.2007 4:19pm
SimonD (www):
Steve,
When lawyers arguing before the Supreme Court would make a point that seemed to reach a little, the late Chief Justice sometimes used to ask lawyers "what's your best case for that?" ;) Well, if you don't have a best case for that proposition, if couldn't put your finger on any particular examples, then I guess I've got to ask what your basis for saying that Souter isn't as liberal as Brennan? Surely you must have in mind some paradigmatic example of a Brennan ruling that Souter would never have joined, or vice versa? It seems to me that Souter sung Brennan's praises at his confirmation hearings, and has been aspiring to live up to and expand Brennan's legacy ever since.
1.26.2007 4:24pm
Steve:
It seems to me that Souter sung Brennan's praises at his confirmation hearings, and has been aspiring to live up to and expand Brennan's legacy ever since.

Souter was replacing Brennan, of course he said nice things about him! Try and be a little honest here.
1.26.2007 4:41pm
SimonD (www):
Steve, so far, the case you've made for Souter being less liberal than Brennan is that you think Brennan was really liberal, and you just can't imagine "that Souter could possibly be as liberal as Brennan," which is far less persuasive than you might think. And even on your response's own terms, I think it's clear that Souter went above and beyond the call; I don't remember Clarence Thomas, Ruth Ginsburg or Steven Breyer reciting such heartfelt and strongly-worded pæans to their predecessors at their hearings.
1.26.2007 4:47pm
David M. Nieporent (www):
While I certainly think Souter is a liberal, the claim that he's as liberal as Brennan requires one to forget how far left the Brennan-Marshall-Douglas wing of the court was.

Declaring the death penalty unconstitutional, upholding explicit racial quotas, holding that a state couldn't regulate its own school districts, trying to enjoin the Vietnam War (okay, that one was just Douglas). The list goes on.
1.26.2007 5:22pm
Linda Greenhouse (mail):
To all those who are interested in the Rehnquist-O'Connor retirement exchange - it was first reported in the New York Times on Sept. 5, 2005, shortly after Rehnquist's death, in an on-the-record interview with Justice O'Connor: "Justice O'Connor said that as the last term proceeded, she had expected the chief justice to arrive at a decision to retire. Hoping to retire herself, she awaited word from him because she did not want to create a second vacancy. Finally, she said, 'I asked him, and he told me he really wanted to go another year and thought he'd be O.K. ' " (Maybe I remember this particularly well because I wrote it.) / Linda Greenhouse
1.26.2007 5:54pm
rothmatisseko (mail) (www):
Simon, this really isn't that big a deal. My only point, which shouldn't really need further clarification, is that O'Connor retired at Rehnquist's behest. That in itself is interesting and may not have been caught by readers who didn't read the long excerpt (which is linked to on this blog).

I'll leave it to other readers to decide whether I misrepresented the account by my choice of words and excerpt selections.
1.26.2007 6:04pm
Ilya Somin:
Roberts was only appointed a short time ago, surely after the book went to press. It can't really have anything to say about the Court under Roberts. Is this just a slip or you getting at something I've missed?

There is indeed some discussion in the book of what the Court has done since Roberts became Chief Justice.
1.26.2007 6:48pm
Ilya Somin:
This remark strikes me as awfully sloppy. What exactly do you mean by "four liberals"? What's the benchmark? Are you saying that four Frank Murphy's are on the court, marching in lockstep as identical 1968 versions of Wm Douglass?

The benchmark is that they vote with the left on most issues that come before the Court, particularly the controversial and important ones. The current liberal bloc on the Court actually votes further to the left than William Douglas on many issues, including abortion, affirmative action, free speech, and others (though not on criminal justice issues).
1.26.2007 6:50pm
SimonD (www):
David - doesn't Justice Souter's dissent in Kansas v. Marsh suggest where he's heading on the death penalty? I'm not sure that Souter has slammed the door on explicit quotas, except as a matter of stare decisis (and we have seen how much regard Justice Souter has for stare decisis when it suits his preferred result; compare Casey with Lawrence). Souter wrote in GratzThe very nature of a college’s permissible practice of awarding value to racial diversity means that race must be considered in a way that increases some applicants’ chances for admission ... [I]t is hard to see what is inappropriate in assigning some stated value to a relevant characteristic, whether it be reasoning ability, writing style, running speed, or minority race." I cannot understand the mindset that says that minority race should be a criterion for admission to law school (still less the mindset that cannot distinguish the probative value of race vs. "reasoning ability [and] writing style" as criteria for determining which of two students should get the nod), but it does seem to me that this is the mindset towards which the idea of quotas appeal. I suppose this term may shed some light on this thought process.

A question for Linda (that bears on my and rothmatisseko's disagreement about whether Rehnquist intended to coerce O'Connor's retirement): do you get the sense that Rehnquist really believed that he was in sufficient health to serve another term? At that point, did he believe that he was getting better (or at least, that his condition had stabalized)?
1.26.2007 7:08pm
Linda Greenhouse (mail):
In answer to Simon D's question on what was Rehnquist thinking -- I can't pretend to know, but all the evidence is that he actually thought he could make it for another term. Maybe he was in denial. On the other hand, his doctors had told him in the late spring that he was defying predictions and doing better than would be expected given his dire diagnosis - in fact, one of his doctors presented his case at the major thyroid cancer meeting in the spring of 2005 (as reported by my colleague Larry Altman.) Metastatic cancer can turn very suddenly, and I think he went downhill drastically in the last month. Let me weigh in here on some of the earlier posts suggesting that David Souter was deceptive at the time of his nomination and confirmation. I think that is complete baloney. He was a protege of Warren Rudman, obviously no right winger. I covered his confirmation hearing. The David Souter of today was all there. Read the transcripts. Senator Grassley was practically jumping out of his skin when Souter embraced a muscular role for Congress in legislating under the power of Section 5 of the 14th Amendment. The only people who really believed at the time that Souter was a committed conservative were some of the pro-choice groups who went around slapping stickers on light pols: "Stop Souter or women will die" - a fear for which there was absolutely no basis.
1.26.2007 9:22pm
rothmatisseko (mail) (www):
Thanks for your insight, Linda.

Simon, I think you're right that what Rehnquist thought about his health prospects is relevant to what the proper reading is of the Greenburg passage -- I think I took the book at its word. I'd also add to that whether he knew O'Connor's husband was going downhill with Alzheimer's, and whether he knew that because of that she planned on retiring in one year rather than two (or none).

It's too bad O'Connor had to retire to be with her husband. I didn't always agree with her, but she is a great jurist who's still in her prime -- she's still sitting in circuit courts and issuing opinions! And overall she helped move the law in a positive direction.
1.26.2007 11:04pm
SimonD (www):
rothmatisseko - agreed; I mean, if Rehnquist knew that she wanted to go next year, and didn't expect to recover, then I guess I could buy the idea that he tried to push her. But even then, I confess to remaining skeptical - with what motive? What would he hope to gain by doing so? The areas Rehnquist was most committed to were, in the main, issues where he'd had O'Connor's vote all along, and the issues where he lacked her vote that he might have wanted to prevail on before leaving (overruling Roe, perhaps) couldn't be fixed just by pushing her out -- unless Rehnquist took Kennedy's dissent in Stenberg to amount to an announcement that he was done with Casey.

I take a much dimmer view of O'Connor than do you, and that opinion is reinforced repeated in this book. O'Connor comes off badly - she seems far more concerned with being at the center of the court than she is with where that determination ends up placing here; she takes umbrage at more junior colleagues taking direct stances, at not being more deferential to their seniors; "in many ways," she "remained the former state legislator she had been before her nomination" to the judiciary; she "lacked a defined legal philosophy" and had no "clear legal framework for deciding cases, ... [so] turned to instinct." The only bad thing about her departure, as far as I can tell, is that it puts Kennedy in effective control of the court on several vital issues -- and he's even worse than she was! ;)
1.27.2007 7:07pm
Respondent (mail):
Simon D- I don't believe in a million years that Justice Douglas would have joined Atwater or the case in which Souter gave a government a presumptive 48 hours in which to hold someone without taking him to a judge
1.27.2007 8:30pm
Alex 2005 (mail):
I finished this book over the weekend and would like to join the chorus in praising it as a cleanly and interesting written piece of journalism on the politics of Supreme Court nominations and appointments. I appreciated that Ms. Greenburg did not really stake out a position on the "rightness" or "wrongness" of how the Reagan, Clinton and two Bush White Houses evaluated and decided on candidates. But rather she focuses on telling a story, which makes for a very quick and enjoyable read. And therefore I must disagree strongly with Ilya comment that: "Greenburg is convinced that, with the Roberts and Alito nominations, conservatives have won a decisive victory in the struggle for control of the Supreme Court." I don't think that's her point at all. I think her point is to illustrate that Bush II (with the 'exception' Miers) was much more disciplined in selecting a Supreme Court nominee who would be a reliable "conservative." And that point she aptly makes. What the book suffers from - as do most pieces that discuss judicial activism/philosophy/outlook - is that Greenburg fails to distinguish between justices (or persons) who are social conservatives and those who are judicially conservative. This point comes out only in a limited fashion when she notes that Federalist Society members and social conservatives, while in agreement that Roe ought to be reverse - are miles apart on the reasons why. This book - since it is geared toward a larger audience than any law review article (or essay) - would have been the ideal vehicle for better distinguishing between these different facets of conservativsm. (Though I am sure there are arguably many more finer distinctions - I am thinking mostly along the lines of social conservatives versus judicial conservatives - the latter tending to favor both a "limited" role for the judiciary and greater limits on congressional power).
1.29.2007 12:39pm