Opening Statements

The Next Confirmation Battle

Posted Nov 1, 2008 11:20 PM CDT
By Richard Brust

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As a lawyer, CNN legal analyst and auth­or of the best-selling The Nine: Inside the Secret World of the Supreme Court, Jeffrey Toobin has no shortage of opinions about the third branch of government. With the release of a new paperback edition of Toobin’s book—which won an ABA Silver Gavel Award this year—ABA Journal U.S. Supreme Court editor Richard Brust asked him about what the court might look like during a McCain or Obama administration:

BRUST: Are some Supreme Court justices waiting for the election to decide whether to stay or leave?

TOOBIN: Those who are considering leaving will be much more likely to leave if there is a president who shares their general approach. And I don’t think there is anything wrong with that. I think the justices care about their legacies, and if they think all the cases they care most about will be overturned, if they worry that the president will appoint their successor, why shouldn’t they hang around until a more congenial president comes into office?

BRUST: How long can 88-year-old John Paul Stevens remain?

TOOBIN: The thing about these justices is that you can’t gen­eralize. I have never seen a more fit and intellectually agile 88-year-old than John Paul Stevens. But 88 is 88, and you have to assume that he will leave in the next four years.

BRUST: There also has been talk that David Souter will leave.

TOOBIN: David Souter loves the job less than many of his colleagues and really dislikes living in Washington, loves New Hampshire and wants to spend some chunk of his life there. It is incon­ceivable to me that Souter will be on the court at Stevens’ age. But he, too, would want a politically congenial president to appoint his successor—which would probably be a Democrat at this point.

BRUST: Whom might each candidate nominate?

TOOBIN: I think that regardless of who’s presi­dent we may see an end to the lock that federal appellate judges have on the appointments. One of my favorite facts is the current court is the first court in history where all nine are federal appeals court judges. The court that decided Brown v. Board of Education in 1954—[only] Sherman Minton had been a judge of any kind on any court anywhere.

I think that the breadth of knowledge that a gov­ernor or a senator has is every bit as useful to a Supreme Court justice as the knowledge of the law that a judge gets.

I think that Barack Obama could appoint [Mas­sachusetts Gov.] Deval Patrick, for example; [law school deans] Harold Koh [of Yale] and Elena Kagan [of Harvard] from inside the academy; I think [Arizona Gov.] Janet Napolitano.

On the Republican side there are fewer elected officials who are obvious candidates. I think Chris­topher Cox, the former congressman and head of the SEC, is a possibility.

BRUST: Is there pressure to appoint a woman or a minority?

TOOBIN: It depends who leaves. If Ruth Bader Ginsburg leaves, probably yes. But pressure? No, I think it’s all about ideology, and diversity is distinctly secondary.

BRUST: Should the confirmation process change?

TOOBIN: Oh, my God, totally. I would change the fact that the senators allow the nominees to avoid answering any questions of substance. “Do you think Roe v. Wade should be overturned?”—period. Why do all 18 members of the Judiciary Committee have to answer that ques­tion from their constituents, yet the one person in that room who actually has any authority over whether Roe v. Wade is overturned is allowed to duck it?

None of them has any problem saying that Brown v. Board of Education shouldn’t be overturned. Or Marbury v. Madison shouldn’t be overturned. Why can’t they say that about Roe v. Wade, or say that it should be overturned?

But the only way you can enforce that is by the senators saying, “Look, I’m going to vote against you if you don’t answer it.”

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