E-mail a friendJeffrey Toobin
airdate November 2, 2007
As a broadcast legal analyst and New Yorker staff writer, Jeffrey Toobin has covered many high-profile cases, including the trials of Michael Jackson and O.J. Simpson. In ‘00, he received an Emmy for his coverage of the Elián González custody case. He's also written several critically acclaimed books, including Too Close to Call, on the '00 election, and The Nine, on the complex dynamic of the Supreme Court. A Harvard-trained attorney, Toobin once served as an assistant U.S. attorney in Brooklyn.
Jeffrey Toobin
Tavis: Jeffrey Toobin is a legal analyst for CNN and a staff writer for "The New Yorker" magazine. His latest book is "The New York Times" bestseller, "The Nine: Inside the Secret World of the Supreme Court." He joins us tonight from New York. Jeffrey, nice to have you on.
Jeffrey Toobin: Hi, Tavis.
Tavis: Let me start with the obvious question. What is the secret world of this Supreme Court?
Toobin: Well, the secret world is really that there is no such thing as law divided away from politics, that politics and law are essentially the same subject when it comes to interpreting the Constitution. So when you go into the voting booth for president, what you're also voting for is what direction you want the Supreme Court to go.
Tavis: And yet we live in a world where we are taught from junior high on that those two things are not supposed to intersect, that the Supreme Court is not supposed to have politics creep, much less walk up into its deliberations.
Toobin: You know, that's true, but I don't criticize the Justices for this. Look, you got questions like does the Constitution protect a woman's right to choose abortion? May a university consider race in its admissions? Those are issues that are not purely legal. Those are political issues and there is no way of somehow removing politics from how you resolve questions like that.
Tavis: I guess the question though, Jeffrey, is where the line ought to be and when in fact we know we have moved across that line. Again, I hear your argument that it's almost impossible to extricate the politics out of it and yet there is another end of this extreme which is to be just out-and-out too political in your decision-making.
Toobin: I think that's right and I think the case of Bush v. Gore really illuminated that conflict because a lot of people believe that, in Bush v. Gore, you had a situation where the Conservatives on the court who usually believed in state's rights, who usually believed in a narrow conception of the equal protection clause to the Constitution.
There you had a situation where, for the benefit of plaintiff, George W. Bush, you had conservatives being ideologically, I thought, inconsistent saying we're going to interfere in a state process and we're going to construe the equal protection clause broadly.
I think the most we can expect from the Justices is at least to be ideologically consistent and let the chips fall where they may. The problem with Bush v. Gore, I thought, was that it looked to me like the Conservatives really went out of their way to help a Republican like them.
Tavis: To your latter point now, let me just ask in a very forthright and direct way. What you call ideological inconsistency - your phrase - others would call pure partisan politicking by the Supreme Court?
Toobin: Well, I don't go that far because I can't prove that it's purely partisan. But if you look at the reasoning in the decision, frankly, the reasoning is so poor and so transparent that it lends itself to the kind of cynical interpretation that you say some people have. I can't argue with them either.
Tavis: But I wouldn't even put the word cynical in front of them. I hear your point that it may be their point of view, but why refer to it as a cynical point of view?
Toobin: Well, because it suggests that the Justices aren't saying what they mean, that they aren't being candid in their opinions. I mean, frankly, I think that's a reasonable interpretation of Bush v. Gore, but I can't go quite that far.
Tavis: Did the Supreme Court, in your mind, lose respect, lose stature, given how they handled or, in the minds of some, mishandled the process of making that decision?
Toobin: I think it was a real low point for the court. I think the court carries a lot of institutional credibility. I think Americans want to respect the Supreme Court and I think the Supreme Court has gradually recovered from Bush v. Gore, but I definitely think it was an injury to the court's reputation.
Tavis: I'll let you pick and choose who you like to talk about, but give me some insight into the personal quirks, the idiosyncrasies of some of the persons we've come to know as part of The Nine.
Toobin: Well, certainly the person I would start with is David Souter because he's such an eccentric person. I mean, he leads a nineteenth century style life. He doesn't have a computer. He doesn't have a cell phone. He doesn't like electric light. He moves his chair around his chambers to catch the natural light from the window. But clearly the most eccentric, the most unusual, the most complex character on the court is Clarence Thomas.
Tavis: And you say that - notwithstanding the book he just put out, you say that for what reason or reasons?
Toobin: Well, I think the book is part of the evidence of what an unusual person he is. I mean, there's a guy who, sixteen years after he's been on the Supreme Court, is as bitter, is as angry, is as isolated from the Black community as he was on the day he was confirmed. I mean, I think that's a really extraordinary thing.
Although at the same time, he's a very genial person, he's a very nice person, he's comfortable with his colleagues, but there is an anger and a resentment of liberals, of Democrats, of the press that really tortures his soul and it's very much in evidence in his book.
Tavis: You intimated a moment ago, Jeffrey, but you make it even more clear in your book that the contradiction of him is so interesting because on the one side, again, not at all regarded by Black America and yet, inside of this secret world of the Supreme Court, he's highly respected and very much liked by the people who work in the building.
Toobin: It is true. Historically, the court has had very contentious relationships among the Justices and that has not been true of the Rehnquist and Roberts court. They really do make a real effort to get along with each other. But look at how isolated Clarence Thomas is out in the real world. Look who he gave interviews to for his book. You know, Rush Limbaugh, Laura Ingraham, Sean Hannity.
I mean, he is very much an isolated political person. He is not just the most conservative member of this court. He's the most conservative Justice to have served on the court since the 1930s. I mean, this is a really extraordinary figure on the court.
Tavis: But doesn't that make the point - again, I'm not putting words in your mouth, but doesn't that make the point I was attempting to make earlier, Jeffrey, which is this is pure partisan politicking?
When you have a member of the United States Supreme Court and he just happens to be Thomas - I'm not picking on him because he's Black - but when you happen to have a member of the Supreme Court who writes a book and then that is the list of persons who he chooses to interview with, that "60 Minutes" basically rolls over for the guy in the conversation with Steve Kroft, respectfully as far as I'm concerned, when you look at who Thomas chooses to speak to, that's not cynical. That underscores the politics these guys play on the court.
Toobin: Absolutely. You know, Thomas is someone - I mean, if you look at where he speaks, same scenario. He speaks to conservative organizations and foundations and at small evangelical universities only. He doesn't go to big state universities, doesn't go to other schools. I mean, he is a highly partisan figure. I don't think there's any doubt about that.
Tavis: Never mind what the framers and the founders intended, given the fact that politics and the Supreme Court decisions are so intertwined, to your own earlier statements - which I now paraphrase, of course - has the time come for us to revisit the notion of lifetime appointments for any member of the court?
Toobin: You know, I think that is a subject you're going to start to hear more and more about. You know, when the Constitution was written in the eighteenth century, people were expected to be appointed in their fifties and die in their sixties. You were lucky if you made it to your sixties in those days.
Now, of course, you have someone like John Roberts appointed at age fifty and every likelihood that he's going to serve for thirty years. The question of term limits, the question of mandatory retirement, is really going to come to the front of the agenda.
Stephen Breyer makes an interesting point about this. He doesn't have a problem with mandatory retirement or term limits, but the one thing he says is that you have to make sure that the Supreme Court is your last job. You can't be on the court angling for something else. I think that's an interesting point. As this subject comes up, that will have to be addressed because I think Justice Breyer makes a good point.
Tavis: Okay, to your latter point then, Jeffrey, about longevity, you argue - and I've been dying to hear you make this case to me personally and to the audience for that matter, but I'm personally curious about this - you argue that, if Hillary Clinton is the nominee and becomes president, you believe that a President Hillary Clinton would nominate a Barack Obama to the United States Supreme Court. This guy is all of forty-seven or forty-eight.
Toobin: Money in the bank, Tavis. I'm telling you, this -
Tavis: - you believe this?
Toobin: I totally believe it.
Tavis: Jesus, Jeffrey, I don't get it.
Toobin: You don't get it?
Tavis: No.
Toobin: Oh, my goodness. Here's a guy, Barack Obama, in his late forties, so he would serve for a very long time. President of the Harvard Law Review, professor of constitutional law at the University of Chicago, someone who is really knowledgeable about the court.
I've spoken to Senator Obama about constitutional law and this is a guy who really still follows the subject and cares deeply about it. Plus, I think the would-be President Clinton would have an incentive to push Obama into a kind of gilded exile on the Supreme Court.
The question is, would Obama take it? I think he would in a second. Do you know the kind of power you have as a Supreme Court Justice? Lifetime tenure, serving for thirty years, being only the 111th person to serve in the history of the United States Supreme Court? I think Obama would take it in a heartbeat and I think he'd be smart to do it too.
Tavis: Well, of course, once she's president, he's no longer a threat.
Toobin: Well, maybe he is and maybe he isn't. You never know. I mean, there are primary challenges. You know, the Clintons have a combustible political history. They rise, they fall. But I think you just have to remember what a good job it is to be on the Supreme Court. Let me tell you another thing. This current Supreme Court is the first time all nine Justices are former Appeals Court judges.
Tavis: Right.
Toobin: The court that decided Brown vs. Board of Education in 1954, Earl Warren's court, not one of the Justices had been a judge before. There have been lots of senators, governors, professors, private lawyers who've been on the Supreme Court. I think it's time not just for racial diversity on the court, but occupational diversity. Why should it be only Appeals Court judges? So I think the fact that Obama is a senator will actually be a benefit to him in his nomination and confirmation to be on the court.
Tavis: I wish I had more time, Jeffrey. So much stuff to talk about. We'll have you back on again to talk more about these issues, about the Supreme Court as they get busy looking at the death penalty and child porn and so many other issues. We'll do it again. I promise.
Toobin: Terrific, Tavis. Good to talk to you.
Tavis: The new book, "New York Times" bestseller by Jeffrey Toobin, is "The Nine: Inside the Secret World of the Supreme Court." Jeffrey, nice to have you on.
Toobin: Okay, Tavis.
Tavis: That's our show for tonight.
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