E-mail a friendJeffrey Toobin
airdate November 12, 2008
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.
Author predicts which Supreme Court justices are likely to retire, who Obama might pick and what the court will look like after the choices have been made. (3:00)
Full interview. (11:04)
Jeffrey Toobin
Tavis Smiley: Jeffrey Toobin is a staff writer for "The New Yorker" who of course appears frequently as a senior legal analyst on CNN. He's also a bestselling author whose latest book is out now in paperback. The book is called "The Nine: Inside the Secret World of the Supreme Court." Jeffrey Toobin, nice to have you back on the program and in Los Angeles for a change.
Jeffrey Toobin: Absolutely -- good to be here, Tavis.
Tavis: Glad to have you here.
Toobin: Thank you, sir.
Tavis: I was suggesting, of course, saying a moment ago that you are a regular contributor for CNN. I saw you every day -- it seems now like every day for two years. Was this campaign just too long for you, or did you love every minute of it?
Toobin: I loved every minute of it. It was such a big story in every sense of the word. Here you had the most famous woman in America was one of the candidates. You had Barack Obama coming essentially out of nowhere. You had John McCain, this celebrity in his own right. It was new junkie paradise.
Tavis: News junkie, yes. As a legal scholar, though, you don't think that our campaign process would be benefitted by a shorter and more certain period, like the U.K. or Canada?
Toobin: I just don't think in our system you could set it up in such a way to limit it. We don't have a parliamentary system. I do think that I wish the focus was more on issues than it was on strategy and tactics, but I think in terms of length -- Sarah Palin's giving interviews now because she's campaigning in two years. The Republican race is underway. (Laughter.)
Tavis: I'm laughing at that. She's done more interviews in, like, three days than she did in three months on the campaign trail -- it's fascinating for me.
Toobin: It's bizarre.
Tavis: Yeah. (Laughs.) The money in this campaign, with all due respect to Barack Obama and the three-quarters of a billion dollars he raised in this campaign, do we need to get back now to a serious conversation about campaign finance reform? Because everybody can't do what Obama did.
Toobin: Everybody can't, but the one thing that I think is different about his fundraising that is almost unprecedented is the fact that it came from so many small contributors. Where the risk of campaign finance is that people feel like they own you if they give you a lot of money, but if you get that much money from small contributors, there's less risk of corruption, I think.
So he did it well, but the Supreme Court has said that there is almost no way, constitutionally, to restrict campaign spending, so I think we're kind of stuck with the system we have.
Tavis: Nice segue; the Supreme Court.
Toobin: Yes.
Tavis: Hm. (Laughter.) I think I'll take that cue. So the book is called "The Nine." It is, of course, your bestselling book, out now in paperback. Let me just start with some simple questions; we'll work our way up here. How many justices do we expect will retire in Obama's first term?
Toobin: The rule on Supreme Court retirements is those who tell, don't know; those who know, don't tell. So we never know for sure. But John Paul Stevens is 88 years old. Ruth Ginsberg is 75 years old. David Souter is 69 years old, and doesn't like the job, clearly, as much as the others. So I think those three are likely to leave -- three of the four liberals are likely to leave, probably sooner rather than later.
Tavis: So for those who practice or believe in left politics, there really isn't a net gain here, as I hear you.
Toobin: Probably not, although you never know. Antonin Scalia's 72; Anthony Kennedy is 72. Nature has a way of surprising us. But in terms of the political dynamics on the court, I think you're right -- it's likely to remain pretty much the same, even though individual changes always make a difference.
Tavis: Since you mentioned Scalia -- and I hear your point that anything can happen in nature -- but I'd have to believe that Scalia would stay on that court to his last breath if it meant giving up that seat to a liberal.
Toobin: Well, Thurgood Marshall used to say to his law clerks, "If there's a Republican president, just prop me up in my seat. Just prop me up here." But you know what? He did retire during George Bush's -- George Senior's presidency. So it's not always up to the justice, sometimes time just takes its toll.
Tavis: All right, so if Mr. Obama, President-Elect Obama gets, as president, two or three shots at these appointments, based upon what you've studied and have come to research about him, what's your sense of the kind of persons he'd be putting on the court? Other lawyers, other judges?
Toobin: Not judges. The current Supreme Court is the first court in American history where all nine justices are former federal appeals court judges. The court that decided Brown v. Board of Education in 1954, not one of the justices had been a judge of any kind before. Earl Warren was governor of California.
I think Obama is going to return to that more political tradition -- someone like Duval Patrick, governor of Massachusetts, Jennifer Granholm, the governor of Michigan, Janet Napolitano, the governor of Arizona -- those kind of people who have the broader experience than just a law book world I think he's going to be looking at for at least one of those seats.
Tavis: And you feel that way why?
Toobin: Well, he's said it, for one thing. And also I think one thing Joe Biden, who will have a role in this, always used to say during Senate confirmation hearings, he'd say, "You guys are so smart, but I just wish one of you had run for dog catcher once."
Because being on the Supreme Court, it's different from any other court. It's not like where you're just sort of enforcing the law made by others, you're making the law. And I think it's important to have a view of the society where you've seen it from more than just the perspective of a law professor or a judge, and that, I think, is important to Obama.
Tavis: I'm not sure, Jeffrey, I like this term -- and we won't debate it, I guess -- but I'm not sure I like this term "identity politics," although I understand it what people try to suggest when they use that term. That said, presidents in the past have played identity politics with Supreme Court picks.
Ronald Reagan wanted to put the first woman on. George Bush wanted to put a Black, albeit Clarence Thomas -- different views -- he wanted to put a Black on to replace Justice Marshall, etc., etc. Obama certainly has not run a campaign that plays to identity politics -- he tried to stay away from that. But how might that complicate or not complicate his Supreme Court picks?
Toobin: I think only under one circumstance. If Ruth Bader Ginsberg leaves the court, as she might, I think he would face a lot of pressure to put a woman on the court, because there is only one woman on the court now. And I think it would send a poor message about our country at this moment that we couldn't fine one woman to serve on the Supreme Court.
Women are now more than 50 percent of all law students, women are at very high levels. So I think if she leaves. Other than that, I don't think he will feel a lot of pressure to put an African-American --
Tavis: Hispanic have been waiting. They've been waiting.
Toobin: Hispanics. Hispanics, yes, certainly, and there are possibilities.
Tavis: They voted for him.
Toobin: They voted for him in big numbers. But I think that is less likely. If he has two or three appointments, I'm sure one will be Hispanic. But the first one, not necessarily.
Tavis: So issues -- every president says "There is no litmus test for my choice for the Supreme Court, and we all know they're lying. (Laughter.)
Toobin: Yes, basically. Yes. Yes, yes.
Tavis: With all due respect. There are certainly issues that matter to them. What issues are going to come to play on Obama's -- President-Elect Obama's list, should he get this opportunity?
Toobin: Well, I think there are two big ones. The first is abortion. He will appoint a supporter of Roe v. Wade. He will appoint someone who will say that the Constitution protects a woman's right to choose abortion. He will also choose someone who will say that affirmative action is constitutional, and that issue is really on the knife's edge right now with the Supreme Court. There are really maybe five votes at the moment to strike down virtually any kind of racial preference, whether it's in employment, whether it's in schools.
One of the biggest decisions of the past two years was the court's decision in the Louisville and Seattle school district cases where the courts -- where those school districts, on their own, not forced by any court, said, look, we care about siblings going to school together, we care about neighborhood schools, but we also care about a measure of racial diversity, and the court said no, you couldn't do that.
So that's something where I think Obama feels strongly and his nominee will feel strongly as well.
Tavis: Let me challenge you on that, just for the sake of argument here, on two different fronts. How does he respond to pressure, then, from people who voted for him who thought that voting for him meant that we would live in a post-racial America, that we would not be being counted, that we wouldn't be doing things that speak to racial preferences. Number one, how do you respond to that kind of pressure from certain Americans?
Well, the argument is -- I don't think Obama said he was against affirmative action.
Tavis: But he pivoted on that, and I want to come back to that in a second. On affirmative action
Toobin: Right, but what he said and I think what he believes is that diversity is a value in and of itself. One of the most important things in the famous University of Michigan law school case, Justice O'Connor's opinion was that she said, "Look, we need a diverse work force to travel around the world and sell our products. We can't have an all Whites graduating from our law schools, from our business schools.
In our military, we can't have an officer corps from West Point and Annapolis exclusively White. Diversity is an affirmative value, not something that we should be ashamed of. Something we should be proud of and work to make possible. So that, I think, is consistent with Obama's message.
Tavis: But she did, as you recall from her opinion, put a time frame on that.
Toobin: Twenty-five years.
Tavis: Twenty-five years.
Toobin: But we're only about five years in.
Tavis: I was about to say --
Toobin: I don't think the time limit has expired.
Tavis: But that was when people who opposed corrective programs like affirmative action didn't have a Black president in the White House to point to to say "We're making progress at a much faster rate than Justice O'Connor thought about.
Toobin: Yes, that's true, but I don't think the fact that we have an African-American president is going to suddenly eliminate the need to address the issue of diversity and affirmative action. But you're right, I think the arguments against affirmative action will now start with exhibit A, President Obama.
Tavis: What about gun control?
Toobin: Gun control is an issue that really sort of exploded on the scene this year, with the decision to strike down the District of Columbia gun laws. What we don't know is how far that decision goes. I think it is safe to say that Justice Scalia would approve of a law that says you can't have a tank in your backyard.
You don't have a constitutional right to a surface-to-air missile. What's the line between a handgun in D.C. and a surface-to-air missile? I think the courts are going to have to figure that out. There is some line there but we don't know where it is, and you're right, that's another issue that's going to be percolating through the courts.
Tavis: In 10 seconds, why did this issue not come up more in the campaign?
Toobin: Because swing voters don't care about it. The partisans on both sides care strongly about the Supreme Court, but the people who decide the outcome of elections tend not to care about the Supreme Court.
Tavis: Well, we will all be caring if he gets a chance to make two or three choices, and I'm sure we'll be talking to Jeffrey Toobin when that time comes, if not before. The book now out in paperback is called "The Nine: Inside the Secret World of the Supreme Court," by Jeffrey Toobin. Jeff, nice to have you here.
Toobin: Tavis, great.
Tavis: Good to see you.
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