BILL MOYERS: There's no appointment our next President will make that will be more important than the first nomination to the Supreme Court. With it can go control of the Court. John McCain left no doubt recently about his intentions.
JOHN MCCAIN: I have my own standards of judicial ability, experience, philosophy, and temperament. And Chief Justice Roberts and Justice Samuel Alito meet those standards in every respect. They would serve as the model for my own nominees if that responsibility falls to me.
BILL MOYERS: There you have it: if you like George W. Bush's appointees to the Court, President McCain would give you more of the same. President Barack Obama, on the other hand, would try to swing the Court in a different direction.
BARACK OBAMA: I think actually Justice Breyer and Justice Ginsburg are very sensible judges…I think that Justice Souter who was a Republican appointee, is a sensible judge. What you're looking for is somebody who's going to apply the law where it's clear.
BILL MOYERS: In this week's article for THE NEW YORKER Magazine, Senior Staff writer Jeffrey Toobin makes a case that, with both Justices John Paul Stevens and Ruth Bader Ginsburg approaching retirement, the future of the Supreme Court will be at stake in the 2008 election.
One of the country's most provocative legal journalists, Toobin has just won the J. Anthony Lukas Book Prize from the Journalism School at Columbia University. It's for his 2007 book, THE NINE: INSIDE THE SECRET WORLD OF THE SUPREME COURT. It's the most recent in a string of books on politics and the law that Toobin has written.
Three of them were best-sellers. In addition to writing for THE NEW YORKER, Jeffrey Toobin won an Emmy for his reporting at ABC News. He is a Senior Analyst for CNN. Full disclosure: I've known him since he was knee-high to a grasshopper. Jeffrey Toobin, welcome to the JOURNAL.
JEFFREY TOOBIN: Great to be here, Bill.
BILL MOYERS: Is there any evidence in Washington, on the campaign trail, among legal circles, that the big fight involving the Supreme Court in resolving the 2000 election Gore versus Bush is playing out in this election? People still thinking, talking about it?
JEFFREY TOOBIN: Democrats are. Democrats are furious about Bush v. Gore. It remains the wounds that won't heal. This weekend HBO is doing a really terrifically entertaining movie version of that whole Florida struggle called Recount, based in part on my book, Too Close to Call. And in watching Democrats respond to that movie, you see the frustration, the anger, the lingering of bitterness about it. Republicans, like Antonin Scalia on 60 Minutes the other day, say, "Get over it."
BILL MOYERS: Have you seen the Court do many things to try to protect itself against political accusations this fall?
JEFFREY TOOBIN: Well, I think they are going to do their best to stay out of the election, per se. They are not going to have many cases that deal directly with elections. But, you know, I think, for better or worse, the Justices are who they are. There are four very conservative Justices there. They decided a case about Indiana election law.
BILL MOYERS: Upholding the state's voter identification.
JEFFREY TOOBIN: Correct. Which will-
BILL MOYERS: What did you think about that?
JEFFREY TOOBIN: Well, I thought it was a bad decision but a predictable one because it was a very clear attempt by Republicans to stop Democrats from voting. I don't think there's any doubt about what the motivation was of that law. It didn't say that in the text of the law. And the aim of stopping fraud was one that we all can embrace. But the fact is electoral fraud scarcely exists in this country. The real agenda was to help Republicans.
The dissenting Justices said you need to look deeper. You need to look at the effect of the law, not just the text of the law. The Justices in the majority said, "We're not gonna look more closely." That's how they came out the way they did.
BILL MOYERS: But that's what conservatives say they most object to about the liberal argument that in the penumbras, in the shadows, in the nuances liberals find what legislators didn't intend.
JEFFREY TOOBIN: Well, the phrase that President Bush uses all the time is legislating from the bench. He doesn't like judges who legislate from the bench.
BILL MOYERS: Ronald Reagan said much the same -
JEFFREY TOOBIN: -much the same thing. Judicial activism. But, you know, judicial activism is in the eye of the beholder. One of the biggest decisions by this current Court, is the end of last term, Louisville and Seattle.
BILL MOYERS: School-
JEFFREY TOOBIN: School boards.
BILL MOYERS: Right.
JEFFREY TOOBIN: Said, "You know what? We care about diversity in our schools. We want siblings to go to school together. We want kids to go to school in their neighborhoods. But we also wanna make sure that there is some measure of racial diversity in the schools." No Court forced them to do that. They just decided on their own. The conservatives on the Court said, "Well, We know better. You can't do that. That's a violation of the Equal Protection Clause." Now, isn't that judicial activism? That's overruling the legislature just like Roe v. Wade was. So, you know, there is conservative judicial activism as well as liberal.
BILL MOYERS: I was somewhat surprised when I read your piece in the New Yorker because none of this seems new. I mean, for a long time conservatives have wanted to appoint judges and follow the election return. And liberals have wanted to appoint judges and follow the election returns. They just wanted different election returns.
JEFFREY TOOBIN: You know, we talk about Supreme Court Justices often as if they exist in some sort of world apart from politics. And the theme of my book, and I think a rational view of the Court, is that it is part of politics. It is not separate from. And the presidential election I think will determine the future of the Court for decades.
BILL MOYERS: But voters seem to be more concerned with everything except the Supreme Court in this election and election coverage.
JEFFREY TOOBIN: Well, presidential elections are often decided on issues that vanish quickly after the President is inaugurated. Look at the 2000 campaign. Remember all the discussion about the Social Security lockbox? Whatever that is. I can barely remember what it is.
But if you look at George Bush's presidency, particularly his second term, what matters, the legacy he'll leave is the war in Iraq and John Roberts and Samuel Alito. And I think that's likely the case for the next President as well, that the war and the Supreme Court will be a big part of what the next President does.
BILL MOYERS: So what surprised you about McCain's speech enough for you to want to write about it this week?
JEFFREY TOOBIN: Well, what surprised me was the degree to which he embraced, in its entirety, the really strong conservative agenda that President Bush has reflected in his appointments to the Court, that this was not the maverick John McCain. This was the John McCain who needs to ingratiate himself with the base. And he did in a big way.
BILL MOYERS: But it didn't surprise me because, as you know, he's been against Roe versus Wade for a long time. He voted for every one of George W. Bush's nominations to the judiciary. I mean, this man is not surprising on the Court.
JEFFREY TOOBIN: Well, he- it's not surprising, but also he is in the midst of a general election campaign now where it is the custom to move towards the center. And he didn't move towards the center here. He-
BILL MOYERS: On the Court?
JEFFREY TOOBIN: When it comes to the Court. His rhetoric particularly when it comes to the most divisive issues like abortion, like affirmative action, like the death penalty, was very much in the vein of appealing to the hard right.
BILL MOYERS: Why then did he speak in such a circumlocution? Because he doesn't mention abortion-
JEFFREY TOOBIN: No.
BILL MOYERS: -he doesn't mention gun control. He doesn't mention any of these hot button issues that the religious right and the conservative right really think are hallowed.
JEFFREY TOOBIN: Well, McCain has a problem. His problem is on those issues the public, by and large, is against them. The public doesn't want to see Roe versus Wade overturned, doesn't want to see abortion abandoned, doesn't want to see affirmative action ended, doesn't want to see the death penalty expanded. So what he did was he spoke in code. There were dog whistles in there, words that can be heard and understood by people who are on the inside of the conservative movement - but the way he dealt with the issue was to speak in code but to speak very clearly in code. And that's what I tried to do in my New Yorker story, which was to unravel the code to make it clear what he was saying.
BILL MOYERS: The only concrete nouns he utilized in his speech were Alito and Roberts. Now, when his conservative constituency hears those words, Alito and Roberts, what are they hearing?
JEFFREY TOOBIN: Well, they're hearing that these appointments have been a homerun for the conservative movement. That Alito and Roberts have now been on the Court about three years. There is not one vote that you can point to by either one of them that could be called a surprise, that could be called evidence of moderation either in the present or possibly in the future.
They are part of the conservative movement. They have joined Scalia and Thomas to be four of the most conservative Justices this court has seen since the 1930s. And that's why they were put on the Court. And that's what John McCain wants to do with his appointment.
BILL MOYERS: So what have Roberts and Alito, Scalia, and Thomas done specifically that you say, both in The Nine and in your New Yorker piece this week, have moved the Court much closer to the right-wing agenda, to fulfilling the right-wing agenda? What have they done?
JEFFREY TOOBIN: Last term they upheld the federal abortion restrictions, the so-called late-term abortion ban. First time in history the Court has ever upheld a ban on a specific kind of abortion. And certainly laid the groundwork for overturning Roe versus Wade. That decision in Seattle in the school district in Seattle and Louisville certainly limited school districts specifically in what they could do but also was a dagger aimed at the heart of all affirmative action, any consideration of race, period.
They limited the rights to sue for employment discrimination in the Ledbetter case. They made it harder to challenge the - mingling of church and state. That's just a sampling of what they did.
BILL MOYERS: Some people criticize your book, National Review for one, as saying as going overboard on this conservative revolution, saying the Court has not moved that far to the right, as far to the right as you have described it.
JEFFREY TOOBIN: Well, I think it is important to recognize that the conservative the base of the party doesn't have total control. They have four Justices. Anthony Kennedy sides with them on certain issues but not others. He has been with the conservatives on racial issues. He has not been with them on Roe v. Wade.
So it is true that the conservatives don't have total control. But they're very close.
BILL MOYERS: That's what the election's about, right?
JEFFREY TOOBIN: That's what the elect- especially when you have John Paul Stevens just celebrating his 88th birthday. Ruth Ginsburg, her 75th birthday. David Souter, 68 and not really wanting to stay on the Court much longer. That's why it's very significant-
BILL MOYERS: What was the dog whistle Obama was blowing on the campaign trail when he mentioned the late Chief Justice Earl Warren?
JEFFREY TOOBIN: Oh, that's very clear. It is saving Roe versus Wade. It is allowing the consideration of race in college admissions. It is strict limits on the death penalty. It is special regard for the separation of church and state. You know, Obama is a former Constitutional Law Professor. And I've had the opportunity to talk to him about the Constitution. He still follows the Court very, very closely. He mentioned Souter, Ginsburg, and Breyer as Justices he admired. So I don't think there's any doubt what kind of Justices he'll appoint to-
BILL MOYERS: Liberal Justices?
JEFFREY TOOBIN: Liberal Justices but also I think Justices with some real-world experience. You know, this is the first Court in history where all nine Justices are former Federal Appeals Court Judges. I think the Court's missing something. And I think Obama feels that way, too.
BILL MOYERS: Earl Warren had been Governor of California. He was a Republican appointed by Dwight Eisenhower. He became the poster boy, to use that cliché, for the right wing's efforts to impeach him.
JEFFREY TOOBIN: You remember the bumper sticker-
BILL MOYERS: I remember, "Impeach Earl Warren." And that's when this all began because they saw him as a very liberal and activist judge. And I was curious when I saw that speech by Obama as to why he wants to rile the forces against him even further by mentioning perhaps the most hated name in the judiciary as far as conservatives are concerned.
JEFFREY TOOBIN: Well, I think this is something Obama feels strongly about. He has devoted years of his life to studying the Supreme Court. He really knows the subject. And I think the fact that Warren both was a progressive Justice and came from outside the monastery of judges is something that a President Obama, if there is one might well look to in making appointments.
BILL MOYERS: Do you think his strategy would be to keep the balance and instead of trying to tip the Court, the way McCain would like to tip the Court?
JEFFREY TOOBIN: No, I think he'll try to tip it his way.
JEFFREY TOOBIN: I'll say yeah, I mean, you know-
BILL MOYERS: Well, let's be very candid that you-both sides want activist judges.
JEFFREY TOOBIN: This is a big plum of being President of the United States, to have Justices who reflect your ideology. Now, if he only gets one appointment he won't have a chance much to tip the balance. But if he has two, if he has four, you bet he'll try to extend his influence. This is they don't want balance. They want victory.
BILL MOYERS: Help us understand how we watch this issue during the campaign. What will you be watching for to see how the campaign, the candidates tip their hands as far as what they will do? Of course, not just the Supreme Court but all the way down the judiciary?
JEFFREY TOOBIN: Well, the polling data I've seen suggests that the people who care strongly about the Supreme Court are the partisans on both sides. The people who are going to vote for their candidate anyway. The challenge for candidates when it comes to the Supreme Court is to make the issue real for the people in the middle. And I think Obama might well risk raising the issue of abortion at this point because it is something that candidates have generally stayed away from, but it is so close now to a court that will overthrow Roe versus Wade that that is an issue where the public is on a side. The question is can he turn it into a voting issue?
BILL MOYERS: Is this issue of the Supreme Court so important to Clinton supporters that it could be the issue that brings them to Obama in the general election?
JEFFREY TOOBIN: I think it is a very good issue for Obama to reach out to Clinton supporters, to say, "Look, I may not be your first choice, but look at the stakes of this election. If you care about choice, if you care about diversity, you need to be with me."
JEFFREY TOOBIN: So I do think it could be a powerful vehicle for reuniting the party.
BILL MOYERS: Jeffrey Toobin, I hope people will read your piece in the New Yorker and The Nine: Inside the Secret World of the Supreme Court. Thanks for joining me on The Journal.
JEFFREY TOOBIN: Thanks, Bill.