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Supreme Conflict:

I just finished reading Jan Crawford Greenburg's book Supreme Conflict, and I thought it was great. I really enjoyed the chapters that discuss the earlier rounds of nominations, such as O'Connor, Kennedy, and Souter, and how she uses those stories to provide the narrative backstory for the response to the Miers nomination. I don't know anything at all about Greenburg's personal legal philosophy, but I appreciated in reading the book that she certainly understood conservative legal philosophy in a very sophisticated and sympathetic way, so that she was able to explain the historical narrative in an accurate and compelling way. In this sense, it is much more sophisticated than The Brethren, to which it frequently has been compared. The Brethren is really quite dated by now too.

A few things that stood out to me as especially interesting. First, although Clarence Thomas's independence and intellectual leadership have been long apparent to most anyone except many journalists and law professors, Greenburg's research and rendition of this story is extremely interesting. Second, the the book paints a relatively unflattering image of Justice O'Connor as extremely thin-skinned and as being unable to separate her personal ego from her public obligations as a Justice. Third, I found very ineresting Greenburg's observation that there were ample warnings at the time of Kennedy's nomination that he would turn out to be unreliable by the standards of those who nominated him, so that no one should have been surprised at how matters eventually unfolded. Fourth, her rendition of the Souter nomination reads almost more as a comedy than a tragedy--the process and outcome was so farcical that it would be absurd to think that it would have been anything but random chance that Souter would have turned out to have been a Justice suitable to conservatives, so Greenburg hardly even wastes any ink suggesting that conservatives could have seriously been surprised or disappointed by how Souter has turned out. Overall, Greenburg's tale is how the combination of politics and personalities tled to the nomination of these three Justices, who came to disappoint the Presidents who appointed them.

In the book all of these points seem quite compelling. Of course, all of this depends on Greenburg's accuracy about the underlying facts. I am aware of at least one anecdote in the book that is a touch inaccurate in the details, although right in the basic point (it is also a minor story, so the accuracy of the precise details may not be as essential). But she seems to be very careful and I haven't heard any serious complaints about the accuracy of her story. The book seems really well-done and well-researched.

The book has a great narrative arc too, as Greenburg basically builds to the climactic event, which is the conservative uprising against the Miers nomination, and how decades of disappointing Supreme Court nominations laid the groundwork for that particular event. Greenburg also predicts that Roberts and Alito will succeed where earlier nominations failed in reshaping the Court, in that they have the personalities and intellectual force that prior appointments lacked (O'Connor, Kennedy, and Souter lacking the intellectual force and Scalia and Thomas lacking the personality attributes), a provocative hypothesis. Finally, it is an exceedingly well-written book, a real page-turner that I read in a couple of days. So it is a perfect book for spring break reading if you have yours coming up soon.

Perhaps other readers of the VC are less enthusiastic than I am, but I recommend it highly.

Update:

It occurred to me after I published this that my distinction between comedy and tragedy regarding Souter's nomination may not be correct. Remember--I'm an economist by background, not a literature maven. But as I recall, a comedy typically has a happy ending, which is most certainly not the case here from the perspective of those who backed Souter's nomination. So my use is intended more colloquially, just to characterize the farcical and slapstick nature of the process that generated the nomination. Thus, it doesn't seem to be a tragedy either, in that there was no reason to believe that matter could or should have worked out otherwise.

Please feel free to provide the correct term in the Comments.

Grouchy (mail):

Back in the ancient days of newsgroups I was involved in a heated argument debate with several critics of Justice Thomas. In the course of this rantathon dialog, it came out that not one of these critics, some claiming to be law students, had read a single one of Thomas's opinions. I found that to be par for the course. Maybe that's changed, but somehow I kind of doubt it.
3.10.2007 10:46pm
advisory opinion:
Tragicomedy?
3.10.2007 10:55pm
Thomas Alan (mail):
The only factual error that I could find was a note that it would only take 5 Democrat defections for the Estrada filibuster to fail. That's incorrect because the Democrats had 49 Senators at the time.

Where I have more of a disagreement with Greenburg is with her portrayal of Miers and Gonzales as conservatives. I have the feeling that this came from speaking with insiders at the White House who believe that conservatives gave these two a raw deal and are still in a defensive mode about their suitability for the court.

That said, I really enjoyed the book.
3.10.2007 10:55pm
Tony D'Amato (www):
I thought the lesson had been learned by now that if the president doesn't want to be disappointed, he should pick a nominee from the one group of people who do not ever change their political orientations once they get on the bench.
3.10.2007 11:10pm
Viscus (mail) (www):
I too liked what I have read of the book so far. (Just finished on the Souter nomination.)

I did not get where Greenburg paints O'Connor unsympathetically. Perhaps that comes later in the book. If she does so, I think that is unfortunate. Let us not pretend that any of the justices really seperate themselves from their judicial opinions.

Clarence Thomas is merely selectively humble. He believes in judicial restraint, except that you see him writing some very unhumble opinions at times. So if you ask me, it is nothing more than selective humility. Let us not pretend that the personal experiences of Clarence Thomas have nothing at all to do with the judicial opinions of Clarence Thomas. Where is the seperation? Is his selective humility not at all a product of who he is?

Oh, and I suppose that Scalia, with his strong Catholic views and his tendency to take religious texts very seriously has nothing at all to do with his views about Constitutional text. Are we to believe that Scalia likewise lives in a bubble, and that his personal story does not influence his judicial opinions?

Overall, I don't buy the distinction between personal and judicial opinions, at least not when pushed passed a certain point. (Obviously, neutrality with respect to some matters is possible. However, the matters with respect to which we are neutral or leave to the political process are not exactly determined by neutral factors themselves.) The seperation of personal opinion from judicial opinion is a fiction. Thomas is selectively humble. Scalia's views on interpretation are not written into the Constitution. Where did Scalia's views come from then? I will tell you where they came from. They came from Scalia. They may be sensible, or they may not be. But that has nothing at all to do with where they came from. Sometimes I even think that Scalia might have been influenced by Randy Barnett. Who came up with this newfangled "original meaning" originalism anyway? Is that always the sort of originalism that Scalia advocated?

Where in the Constitution does it say not only: (1) Though shalt be not just any type of originalist, though shalt be an orignal meaning originalist?

Are we to believe that Scalia's adoption of originalism is independent of who he is? That the adoption and the evolution of his ideas occurred in a bubble? That is laughable.

The whole distinction to seperate person from judge is rather meaningless, when taken as some sort of requirement from on high. Strictly speaking, it is impossible. Of course who the justices are matters. It always will. Whether they are originalists or something else, it matters.


Clarence Thomas's independence and intellectual leadership have been long apparent to most anyone except many journalists and law professors.


Or, it could be the fact that the man does not ask questions during oral argument. I am not impressed with the intellectual sophistication of his written opinions either. Obviously, if Thomas was so smart, he could do something to demonstrate it, like ask intelligent questions during oral argument. Why would an optimally intelligent individual choose to disregard a particular information source altogether?? Or if it is not disregarded because he relies on others to ask questions, it brings up questions about whether Thomas is smart enough to ask his own questions. Does he not ever have a thought or a point that will be otherwise unaddressed unless he asks a question? Or does he arrogantly suppose that he has nothing to learn from counsel who have spent much more time looking at and thinking about the matter than he would ever have time for himself?

The questions about Thomas's intelligence are completely justified. Because he doesn't demonstrate that he has it. No one worth listening to questions Scalia's intelligence. Because he does demonstrates he has it. No one questions a black conservative intellectuals like Thomas Sowell's intelligence either. Because he demonstrates it. If people have failed to recognize that Clarence Thomas is an intellectual powerhouse, there is one person to blame. That is, Clarence Thomas himself.

But really, this is not a matter of blame. Thomas says that he has no desire to demonstrate to anyone that he has very much going on upstairs. Which is fine. But we shouldn't be suprised that as a result of his indifference, he has not so demonstrated. It shouldn't be suprising that he hasn't done something he has never sought to do. Please, let us not turn Thomas into a victim because he has not obtained what he never sought. That is, recognition for his intelligence.

It is truly sickening, hearing the man whine about the media. I don't see Thomas Sowell cringing away from getting his voice out there because he has an excessive fear that it will be distorted by the media. At the very least, the man has an irrational fear of having his ideas distorted. Such that he fails to use his position at all to advance them, except in judicial opinions which are not likely to be found persuasive on their own in the long run. An advocate like Scalia who puts his opinions out there is much more likely to matter. In fact, I would argue that even someone like Thomas Sowell matters more, even though he is not a Supreme Court justice. Why? Because he puts his opinions out there. Why the fear, despite the obvious cost?? The man is obviously emotionally scarred. But why would he be, if he didn't have doubts about his own intellect??

A final point. I highly doubt that Roberts or Alito are likely to have much influence, absent ideological compromise or absent more appointments by Republican Presidents. I think that left and right are just too far apart ideologically for personality to trump. The days of John Marshall and nation-building are over. Someone like O'Connor would have turned left anyway, no matter how charming Scalia was (which he most certainly was not) because she simply would not have liked the larger consequences of harder rightwing decisions. Greenburg attributes that change in O'Connor as a reaction to Thomas. But, more likely, it was a reaction to the reality of certain rightwing ideas actually carrying the day without compromise. That Roberts or Alito are more personally charismatic (especially Roberts) may make a difference on the margins, but seems unlikely to matter on the big issues. I don't see Kennedy suddenly becoming rightwing because Roberts is charismatic. One who leans heavily right or left might think that Kennedy is completely mushy and thus infinitely influencible by personality, but that strikes me as implausible. Kennedy is the new O'Connor and that is how matters will remain until there are new appointments that change the balance of the court.
3.10.2007 11:45pm
Jay:
"I am aware of at least one anecdote in the book that is a touch inaccurate in the details, although right in the basic point (it is also a minor story, so the accuracy of the precise details may not be as essential)."

Are you trying to make us beg?
3.11.2007 12:20am
Thomas Alan (mail):
It might be impossible to completely separate the person from the judge. However, it should be a goal one should strive for.

In many cases, O'Connor barely pretended to try.

As for calling Justice Thomas humble. Maybe in personality, but is there anyone who thinks that his judicial opinions are humble? Greenburg's book certainly doesn't make any such case.
3.11.2007 12:21am
CrazyTrain (mail):
I cannot take Greenburg's book seriously after I read in the caption in the pictures portino that Souter soon turned out to be "as liberal as" Justice Brennan. That is so absurd that I laughed out loud at the bookstore. Greenburg is quite obviously a conservative tool, by the way, as anyone can tell from hearing her interviewed.
3.11.2007 12:35am
Viscus (mail) (www):
Thomas Alan,


It might be impossible to completely separate the person from the judge. However, it should be a goal one should strive for. (bold added)


Does it say in the Constitution that this should be something that you strive for? Is your opinion that this is something that you should strive for, independent of who you are personally? Is Scalia's selective invocation of stare decisis a matter of seperating the person from the judge?? Do you think that Scalia's gravitation towards originalism in the first place is independent of the coincidentally conservative results that his particular application of conservativism yields? Could it be, that in those very few instances when his type of originalism seems to yield non-conservative results (i.e. facts that increase sentences must be decided by a jury, not the judge) that this is merely seen as an acceptable price to pay for a philosophy that yields conservative results most of the time, where originalism can give one a false sense of legitimacy? Do you really think that Scalia would be an originalist, if his sort of originalism yielded mostly results that he abhorred??

I think the effort to feign neutrality is deceptive. There has never been a neutral Supreme Court justice worth anything. John Marshall was not neutral. His commitment to a strong national government certainly colored his decisions. This idea that the person can be seperated from the judge is entirely illusory. Scalia chose originalism because he likes where it takes him, most of the time. It is a small price, when the methodology leads to only a few decisions one would rather not make.

For these reasons, I do not believe that one should either deceive others or deceive oneself about the supposed seperation of the individual person from their judicial decisions. They are too intertwined. It is nothing more than an illusion, especially at the appellate level.

Justice Scalia is no more personally seperate from his opinions than was Justice O'Connor. But to think that you are... what a wonderful way to dodge accountability for your decisions. It wasn't me who decided, it was some cosmically imposed formula completely beyond my control.
3.11.2007 12:55am
a bean:

Or, it could be the fact that the man does not ask questions during oral argument. I am not impressed with the intellectual sophistication of his written opinions either.

I had endure quite a bit of this kind of rhetoric in con law. Your point (even if correct) is a rather bad argument. It runs: Given: Thomas doesn't ask questions. Not asking questions does not appear to have a justification. Conclusion: Thomas is an idiot.

I also find fault with your premises. There is a very clear reason for Thomas not to ask questions. His opinions (when writing for himself) tend to advance positions that no petitioner would bother with during oral arguments. Why not? Because those positions hold no appeal for most of the court.

The purpose of oral arguments is not to be right, perfect, etc. The purpose is to align at least five justices in your favor. This means bypassing the types of arguments Thomas likes to put forward in his opinions.

So guess what? If Thomas asked questions, at best he'd steer the people toward an argument without broad traction, at worse they'd explicitly disclaim his line of reasoning.
3.11.2007 12:56am
Viscus (mail) (www):
CrazyTrain,

As a liberal, I don't think your right about Greenburg. Of course, it does irk me that conservatives seem to rave about the book so much. I think perhaps it is largely because she correctly acknowledges that Thomas is not unintelligent (though, it is his fault that he is perceived as such, having made absolutely no effort to disabuse anyone of that notion).

But she was hardly the first to mention this. Consider Edward Lazarus, a former liberal Supreme Court clerk who wrote much the same here, long before Greenburg's book was published. Conservatives are acting like it is some sort of new discovery that Thomas is independent of Scalia.

Maybe she bashes on O'Connor later in the book. But I really didn't get that sense when I read it. O'Connor didn't drink the dogmatic Kool-Aid that Scalia and Thomas and to a much lesser extent Rehnquist drank. So what? Good for her.

Overall, from what I have read so far, I recommend the book. In fact, I recommend the book even if it does bash on O'Connor later on, which I have seen no evidence for so far. There are a lot of interesting facts in there.
3.11.2007 1:06am
Viscus (mail) (www):
a bean,

The point is not that Clarence Thomas is in fact unintelligent. The point is that people are justified in thinking that he is, based on his decision to do nothing to demonstrate otherwise. He doesn't ask questions, either because (1) he can't think of any questions not already being asked or (2) he arrogantly assumes that there would be no possibility of useful insight forthcoming (for his own opinions, not the courts) if he did ask a question from a person who has had much more time to study the question at issue than he ever could possibly have or (3) as you suggest, he lacks the social intelligence to ask questions without alienating his colleagues(!??) when asking questions, and recognizes that fact.

Not asking questions is not dispositive evidence of lack of intelligence. However, it is largely consistent with such a hypothesis. It should also be remembered that, even if you thought that Clarence Thomas's opinions showed great intellect (which I do not think they do), you, as an outsider are not going to be able to tell exactly what comes from him and what comes from his highly credentialed clerks. Finally, the man has an irrational fear of the media, thus his voice does not get heard, unfiltered by his highly intelligent clerks.

The bottom line. It is Thomas's fault that outsiders suspect he lacks intelligence. Why? Because he has failed to demonstrate intelligence. If he had behaved more like Scalia or more like Thomas Sowell and made his voice heard, there would be no doubts. That there are doubts are entirely a result of the choices that Thomas has made.
3.11.2007 1:20am
a bean:
Viscus,

(4) He recognizes that the questions would derail oral argument

The proper version of (3) is that his analysis doesn't play by the rules and consequently tends to infuriate the other members of the court whenever they feel he is wasting their time with it (yet again).

You seem to feel that oral argument is quite 'important'. It is not, except in a qualitative sense of allowing the judges to explore by proxy what sort of battles they might face in conference. Again, if you read a Thomas opinion you'll grasp quickly why he has no need for this. He is quite dogmatic in his analytic style--certainly I would agree that the extent to which he has no interest in the court as an institution is a flaw, but I do not fault him his convictions.

Many people including Thomas have expressed that Oral Arguments are vestigial.

The evidence of his intelligence is this: Despite the constant turnover of clerks, he nonetheless manages to produce opinions that tend to be very consistent with respect to each other--year after year.

I simply cannot agree that it is his fault that outsiders draw unsubstantiated conclusions with excessive certainty.
3.11.2007 1:39am
Anonymous Reader:
Viscus,

I think your argument is ridiculous. Just because a man doesn't ask questions he's obviously unintelligent? Since when does anyone have to prove whether or not their intelligent? It's not like you can't look at his writings, see what schools he's attended, etc, etc and make a judgement based on that. Using your rationale, someone who talks a lot and asks good questions must OBVIOUSLY be very smart because he demonstrates his knowledge.

I wish you'd base your "logic" on indisputable facts not questions. Hell, if he asked one good, well thoughtout question, does that prove anything? What is the "Good question = intelligence scale"? Is Stephen Hawking unintelligent because he can't ask a verbal question?

Anonymous Reader
3.11.2007 1:51am
Zoe1 (mail):
Justice Brennan never asked questions at argument, either. And he never hired a black clerk. Does anyone know what that means?
3.11.2007 4:34am
Viscus (mail) (www):
Anonymous Reader,

First, your comparison of Justice Thomas, who can speak to Hawkins is clearly inapt.

Second, like his failure to ask questions, Thomas's credentials are relevant, but not dispositive evidence concerning his intelligence.

Third, his failure to ask questions does not establish that he is unintelligent. I have said this several times in this very thread already. That you are attributing this view to me shows that you have not been paying attention to what I have already written.

I wrote:

I think perhaps it is largely because she correctly acknowledges that Thomas is not unintelligent (though, it is his fault that he is perceived as such, having made absolutely no effort to disabuse anyone of that notion).


I also wrote:

The point is not that Clarence Thomas is in fact unintelligent.
3.11.2007 4:41am
Viscus (mail) (www):
a bean,

I think there are some tensions in your argument.

First, you suggest that Thomas did not want to "derail" oral argument and "infuriate" other members.

Then you suggest that oral argument is unimportant, merely a chance for the justices to start the battles they will have soon enough in conference.

If this is true, why would anyone be "furious" about Thomas "derailing" a largely meaningless exercise? Would it be reasonable for Thomas to think that other justices would be furious at him for derailing this useless thing that the Supreme Court insists on wasting its time with?

I think the better view concerning oral argument is that it is an opportunity to ask questions of someone who has researched the issue in question to a much greater extent than you could yourself. I also think that the argument that originalism is ignored by this Supreme Court and thus no lawyers will have anything to say with respect to what Justice Thomas is interested in is clearly incorrect, at least in many cases. At the very least, Thomas could not reasonably think he knows that asking questions would be useless a priori with respect to any particular lawyer without asking such questions.

The adoption of such unjustified a priori beliefs is a non-decisive indication of a lack of intelligence. Likewise, the belief that the "derailing" of unimportant proceedings will "infuriate" other justices (who also see them as unimportant) is also a non-decisive indication of a lack of intelligence. Finally, a belief that proceedings are unimportant and useless, (despite the beliefs of your colleagues who think otherwise) when in fact they are potentially useful is yet another non-decisive indiciation of lack of intelligence. Obviously, some of these indications are in fact mutually exclusive. However, they all potentially triggered by Justice Thomas's failure to ask intelligent questions at oral argument.

Overall, I think that questions about Thomas's intelligence are justified. For most people, such questions would lead one to take actions to dispel them. Thomas chose not to do anything.

Thomas's unusual actions of (1) not asking questions at oral argument,(2) not communicating through the media, and (3) taking no actions to dispel questions about his intelligence all lead to a justifiable questions (not conclusions, but questions) about his intelligence.

The consistency of his opinions can be explained by (1) his tendency to hire fanatical members of the Federalist Society as clerks, (2) and being able to communicate his stylistic preferences, (3) being able to recognize ideological outliers among his clerks, even if he lacks the ability to communicate or articulate a judicial philosophy as well as they do.

Overall, the consistency of his judicial opinions could be explained by something other than the fact that Thomas is intelligent.

Finally, with respect to his written opinions, I, for one, remain unimpressed. But perhaps this can't be seperated from my tendency to disagree with them.

I do agree with your conclusion, however:

I simply cannot agree that it is his fault that outsiders draw unsubstantiated conclusions with excessive certainty. (bold added)


I agree. There never was justification for excessive certainty. However, that there were questions, as opposed to excessive certainy, is Thomas's fault. If he had behaved as Thomas Sowell has, there would have been no questions.

He should not play the victim here. He could have easily dispelled any questions about his intelligence, but chose not to.
3.11.2007 5:13am
Viscus (mail) (www):
One last point about Justice Thomas.

The most powerful point justifying questions (not conclusions) about Thomas due to his failure to ask questions is the consistency of that failure with intellectual problems. Someone who was intellectually deficient may not ask questions in order to avoid being revealed as such.

At the same time, conclusion are obviously not justified. The failure to ask questions could be explained by something as simple as being an introvert or other personality traits.
3.11.2007 5:20am
Thomas Alan (mail):

Does it say in the Constitution that this should be something that you strive for? Is your opinion that this is something that you should strive for, independent of who you are personally?


Semantic games.
3.11.2007 5:36am
Viscus (mail) (www):
Thomas Alan writes:


Semantic games.


So, I take it you don't actually have a substantive response. Is this supposed to be some sort of substitute??
3.11.2007 6:00am
JonC:

Thomas's unusual actions of ... not communicating through the media...


I have a lot of problems with Viscus's claims, but just to air the most obvious criticism: is it really the case that Thomas does not "communicat[e] through the media"? I have seen him speaking at events televised on C-SPAN more than once, and he just recently gave a lengthy interview to Business Week. Furthermore, to what extent do other Justices "communicate through the media" more than Thomas, and why should that have any bearing on perceptions of their intelligence? Justice Souter, just to pick one example, is notoriously media-averse: would you argue that this justifies questions about his intelligence?

Lastly, Viscus, as an aside, as you read through Supreme Conflict, you'll find that Thomas's own reason for not speaking frequently during oral argument is that he feels the other Justices already speak too much, and would learn more from letting the attorneys appearing before the Court present their case rather than interrupting. That said, he is always well-prepared for oral argument, and is an active participant in conferences.
3.11.2007 6:06am
Thomas Alan (mail):

So, I take it you don't actually have a substantive response. Is this supposed to be some sort of substitute??


If it will make you happy:

You win.
3.11.2007 6:38am
John Herbison (mail):
For someone to characterize as an "originalist" any of the five wardheelers who anointed George W. Doofus says far more about the commenter's intellectual honesty (or perhaps his/her grasp of reality) than it does about the justice.
3.11.2007 7:17am
Peet (mail):
Regarding tragedy v.s. comedy: I was taught the classical definition of the two. In both, the protagonist is presented with a conflict of some sort. In a tragedy, protagonist fails to resolve the conflict satisfactorily; in a comedy, protagonist successfully resolves.

In theory it is possible to have a comedy in which your whole cast dies.

Peet.
3.11.2007 11:30am
Zywicki (mail):
On reading the Comments, I think I may have used the wrong word in characterizing Greenburg's description of O'Connor--I take it as simply being "vanity." Several Commenters read it as a criticism of O'Connor for reading her ideological views into the law. Instead, I read Greenburg as saying that O'Connor simply recoiled from the aggressiveness of the attacks by Thomas and Scalia on the quality of her reasoning, which she took personally, rather than the desire to advance an ideological agenda. Which is why in retrospect a word like "vanity" may have been the more accurate term to use.

This is also why I took the book as portraying O'Connor in a somewhat inaccurate light, although Greenburg does suggest that this sort of vanity is an intrinsic part of human nature and that the failure to account for it will make a Justice less effective on the Court (again suggesting that Roberts and Alito will therefore be more effective than Thomas and Scalia).

As for my anecdote, it was conveyed to me in confidence, so I can't give the details. Suffice to say it relates to a statement that was expressed and recorded accurately in the book, but simply in a different setting than reported in the book. So the basic substance was correct, even though the setting was different.
3.11.2007 12:52pm
CJColucci:
As someone who once advocated cutting the federal deficit by firing Thomas and giving Scalia two votes, I should be willing to admit that I was -- or at least would now be -- wrong. Whether I missed something then or Thomas has changed since, it is now clear that he has "independence." But "intellectual leadership?" Too much has already been said about "intellectual," but what about "leadership?" If Thomas has "leadership," where is the "followership?" In any case with any juice, he is one vote, routinely and predictably taken for granted or written off. No one on or before the Court needs to engage him.
3.11.2007 1:06pm
Brian of Nazareth (mail):

In theory it is possible to have a comedy in which your whole cast dies.


Hey! That's my story! Don't copy me, you're all individuals here, you've got to work it out for yourselves!

"Al-ways look on the bright side of life..."
3.11.2007 1:06pm
frankcross (mail):
I don't think it is vain to recoil from people attacking you. Those attacks by their very nature make a person look closed minded and sometimes childish.

Interestingly, Jeff Rosen's recent book has Scalia saying that he writes those vituperative opinions because (a) he knows he isn't going to win anyway and (b) his language gets the opinions and associated arguments into casebooks read by future lawyers and judges.
3.11.2007 1:49pm
JonC:

I don't think it is vain to recoil from people attacking you.


But Scalia was not attacking Justice O'Connor qua Justice O'Connor. He was attacking the quality of her reasoning, as Prof. Zywicki put it a few posts above. That's a big difference. Supreme Conflict does seem to suggest that Justice O'Connor is rather thin-skinned in this regard.
3.11.2007 2:36pm
Christopher Cooke (mail):
First, I agree with Todd that the book is excellent.

Second, I found the book most illuminating on the degree to which Justice Thomas has influenced Justice Scalia in certain cases. The book's thesis is that Thomas has made Scalia adhere to his principles by pointing out situations in which Scalia was initially inclined to deviate from the orthodoxy but was pulled back by something Thomas said or wrote in a draft opinion.

Third, as an attorney, I think it is a shame that Thomas doesn't ask questions. He doesn't have to try to dominate the questioning (like Scalia) or "show off" his knowledge, just ask a few questions on the most difficult issues raised in a case, to hear what the advocates say in response to his own initial thoughts.

Fourth, one poster's comment about Brennan not asking questions is factually wrong. Brennan asked questions, indeed, there is the story of the oral argument that President Nixon gave in his only Supreme Court argument (in approximately 1966, I think the case was Time Warner v. Hill(?)), it was an invasion of privacy vs. First Amendment case). Nixon worried afterwards that he had not properly responded to Brennan's questions. The article on the argument, written by Leonard Garment, is very interesting and I commend it to anyone who likes to read about US history and the US Supreme Court. Brennan was supposedly very impressed with Nixon's abilities and commented that Nixon could have made one of the great Supreme Court advocates. It may be that Brennan stopped asking questions late in his tenure on the Court, when his health began to fail, but that is not the same thing as Thomas, who is a healthy and vigorous person (by all accounts).
3.11.2007 2:54pm
PersonFromPorlock:
Tragedy frequently is farcical; witness the recent fortunes of Congressional Republicans, for instance.
3.11.2007 5:49pm
volokh watcher (mail):
Todd:

Having read both Greenburg's book and Woodward &Armstrong's "The Brethren," I found them to be entirely different in purpose.

I had the sense that Greenburg put on her "I'm a conservative" glasses and looked at the post-Carter era, appointments, disappointments, and all. I'm not criticizing her. That's just the point of view I think she took to make the book work.

Woodward and Armstrong, IMO, took a fairly gossipy approach to the Court. For me, at least, their point of view was the voyeur -- not a sinking liberal, content moderate, or optimistic conservative [whatever any of these phrases mean vis-a-vis the Court.]

I prefer "The Brethren." But maybe it's my age that accounts for our difference.

I suppose it's why I still think Mays, Mantle, and Aaron are the best there ever were. Not Ruth, Gehrig, Ripkin, Bonds, or young Albert Pujols -- who most certainly, unless death or injury intercede, will be the greatest of his generation. (Ted Williams and Joe DiMaggio's greatness bordered on my time. But as great as they were, I'll take Mays, Mantle, and Aaron.)
3.11.2007 6:23pm
David M. Nieporent (www):
The point is not that Clarence Thomas is in fact unintelligent. The point is that people are justified in thinking that he is, based on his decision to do nothing to demonstrate otherwise. He doesn't ask questions,
I love this disingenuous reasoning: it's not that people are racist when they call him stupid; it's his fault, because he "doesn't demonstrate" he isn't. The disingenuity of this position is obvious:

1) It's hardly the burden of a Yale Law grad to "demonstrate" his intelligence.

2) Asking questions has nothing to do with demonstrating intelligence.

3) The people who call him unintelligent aren't people who attend oral arguments, listen to the audio when those arguments are released on tape, or read the transcripts.
3.11.2007 6:46pm
David M. Nieporent (www):
But Scalia was not attacking Justice O'Connor qua Justice O'Connor. He was attacking the quality of her reasoning, as Prof. Zywicki put it a few posts above. That's a big difference. Supreme Conflict does seem to suggest that Justice O'Connor is rather thin-skinned in this regard.
I don't think that's a big difference at all. If you say that the opinion came out the wrong way, that's not a personal attack. But an opinion can't be stupid without the person writing it being stupid. Unless of course the person puts forth no effort in writing it, in which case the person is lazy and sloppy. Either way, it's pretty personal.
3.11.2007 6:54pm
surprised (mail):
I'm surprised so many of the comments have focused on Thomas or O'Connor, and almost nothing has been said about Souter. Mr. Zywicki himself was wondering what people thought about the book's revelations on Souter (comedy or tragedy, etc.).
Since I won't have time to read the book for the next few weeks or months, could people who have read it (including Mr. Zywicki) say more about what Ms. Greenburg reveals about the Souter nomination and confirmation? In particular, I've always wondered whether Souter behaved (disingenuously) as if he were a "stealth conservative," or if he simply avoided disabusing anyone of the notion. Surely he must have realized that conservatives presumed that he was one of them. Did he deliberately act the part, and if so, to what degree was it shameless and deceptive?
That is, did Judge Souter pull a fast one at the time, or were Bush Sr. and the Republicans in Congress to blame for failing to see the obvious? Were there any reasons to assume that Souter would be a conservative vote on the court, or was it wishful thinking?
For what it's worth (though I don't know the details that the book provides), I would call the Souter nomination a "tragedy" with a capital "T."
3.12.2007 12:18pm
y:
It always bothers me when liberals play this "I know you are but what am I?" game with conservative justices:

Even if you assume (and NO evidence was given in this thread) that Scalia, Thomas, etc. sometimes (often? always? nobody really clarifies the charge) sacrifice their originalist/textualist ideals because of some prejudgment or political ideology, you really don't get anywhere.

Because if your best response to the "legislating from the bench" charge is that everybody does it, then that's the strongest argument I've heard for junking the Court entirely, and getting rid of Roe and Bush v. Gore alike. Since when did it become ok to let an undemocratic body render judgments on divisive issues based on its political ideology?

At best, the liberals have proved the inevitability and danger of nine unelected lawyers legislating from the bench (pursuing the radical right agenda that they fear about as often as they pursue a liberal course). At worst, they've given the originalist/textualists victory by default.
3.12.2007 1:45pm
JonC:

That is, did Judge Souter pull a fast one at the time, or were Bush Sr. and the Republicans in Congress to blame for failing to see the obvious? Were there any reasons to assume that Souter would be a conservative vote on the court, or was it wishful thinking?


Surprise, Greenburg relates that Souter did not "pull a fast one." The simple truth of the matter was that he simply had not been a federal judge long enough to develop a coherent constiutional philosophy. Hence, there was no good reason to think that Souter would be a judicial conservative. He was a complete cipher: no one knew what his philosophy would be, even Souter. In his Senate hearings, there were some hints that he took a favorable view of the Warren court and the "evolving Constitution," but by then it was too late.

New Hampshire Senator Warren Rudman basically strong-armed Souter through, and Bush 41 obliged, essentially as payback to Rudman for helping deliver the NH primary.
3.12.2007 2:26pm