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Monday, July 16, 2007

Beldar reviews Jan Crawford Greenburg's "Supreme Conflict"

I've read quite a few reviews of Jan Crawford Greenburg's book Supreme Conflict: The Insider Story of the Struggle for Control of the United States Supreme Court, and most have been very favorable, including some by reviewers whom I believe to be tough critics. And I actually bought the book some time last spring, within a few weeks of its late January 2007 release. But it's been sitting on an end-table next to my couch.

I just haven't been able to bring myself to read it before now because I knew it would rip open psychic wounds I still bear from the Harriet Miers nomination.

And it did. I'll review this book because it deserves it. But I'm also gonna close the comments on this post because I don't want someone to re-open mooted old fights in them based on what I say here.



One passage, though (at pp. 258-59, boldface mine), made me laugh aloud through some otherwise sad memories, when Crawford described discussions that were going on between the Federalist Society's Leonard Leo, general counsel Wendy Long of the Judicial Confirmation Network, Deputy White House Counsel William Kelley, and White House Counsel Miers. It was at a time when only Kelley, among that group, knew that Miers' name was under serious consideration to for the Sandra Day O'Connor seat (after John Roberts' nomination had been shifted to the Chief Justiceship upon William Rehnquist's death):

In that meeting with Leo and Long, Miers led the discussion, soliciting their views on what Bush should consider in making his decision. "What do you think is most important?" Miers asked at one point.

"Quality, quality. That's all that matters," said Long, whose Judicial Confirmation Network was formed to support Bush's judges and supported by the same donors that contributed to the Federalist Society.... "We can handle the rest if there is quality," Long said.

Miers and Kelley nodded in agreement. The discussion on nominees was brief. Most of the conversation focused on the strategy for getting Bush's nominee through the confirmation process and how to ensure the most widespread support against inevitable attacks by Democrats. Miers in particular was keen to tap into the grassroots groups and influential commentators outside the mainstream press. "I think the blogs will be really important," Miers said.

Later, Ms. Greenburg's book goes on to mention by name a great many of the pundits who opposed the Miers nomination, including David Frum and Ramesh Ponnuru at the National Review, Bill Kristol at the Weekly Standard, and David Brooks at the NYT. I don't know whether that's the sort of "bloggers" that Ms. Miers' mention of "the blogs" corresponded with; I'd instead characterize all of those as mainstream media columnists, even though (for example) Ponnuru contributes regularly to The Corner and Frum has his own kinda-sorta NRO blog. Certainly Ms. Greenburg could also have constructed a long list of more traditional (non-MSM columnist) bloggers who also lined up against the Miers nomination, and whose clamor is widely regarded as having also contributed to the nomination's withdrawal. But she doesn't name those names — much less compile the very short list (comprising mainly me and Hugh Hewitt, who's also of course not just a blogger) who aggressively supported the nomination.

But as she tells the inside story from the White House, it was Dubya alone who made the decision to pull the nomination, and he emphatically didn't give a furry rat's butt about the furor in either the conservative blogosphere or the broader conservative punditocracy at all. He was, according to Ms. Greenburg, persuaded solely and reluctantly by the reports from conservative senators and especially from her confirmation hearings prep team that in the three weeks available, she simply couldn't be adequately refreshed and/or re-educated in constitutional law to a degree sufficient to get her through the hearings.

That seems likely to me — meaning, in keeping with my understanding of Dubya's character and tendencies. And I guess it makes me feel marginally better. I might have been a dim and unsuccessful candle against a hurricane, but it wasn't the hurricane that ended up wrecking the ship, no matter how smug the hurricane was afterwards.


Ms. Greenburg also writes (at page 279):

... [T]he confirmation process had changed since Reagan nominated Justice O'Connor, who was no constitutional law expert herself. The hearings [during the Bush Administration] were so contentious and the questions so focused that nominees without a background in constitutional law — either an experienced judge or a Supreme Court advocate like [Miguel] Estrada or [Maureen] Mahoney — would have a very tough time of it. Gone were the days when a president could nominate a practicing lawyer like Lewis Powell or Byron White and watch him sail through.

And then again (at page 302), in one of the book's occasional examples when an editor could have profitably trimmed some redundancies:

Lawyers like Miers, who haven't spent their lives planning for a Supreme Court nomination, are expected to do the impossible. At one time, there was a place on the Supreme Court for lawyers like Miers, those with practical experience who handled witness interviews and managed law firms and ran bar associations. Lewis Powell was one before President Nixon nominated him. But those days are gone. The job interview is designed for the appeals court judge or the elite appellate lawyer — someone like a Roberts or an Alito.

I can't disagree with those paragraphs as being accurate and penetrating observations of the process at the time of the Miers nomination. But one of the great successes of Ms. Greenburg's book in my view is how vividly it communicates the extraordinary and unusual confluence of contributing factors during the Miers nomination — specifically, (1) the judicial rockstar John Roberts' confirmation hearings having just ended, (2) followed immediately by a soft-spoken and somewhat shy Powell-type practicing lawyer nominee (without a judicial or academic career), who (3) would be taking a "swing seat," combined with (4) harsh time pressures and (5) a president whose political capital was hemorrhaging madly due to a perceivedly bungled response to a uniquely catastrophic hurricane.

What she leaves out, but what I believe was also a huge factor, was (6) a large portion of the President's so-called conservative base (one over-represented on the coasts, inside the Beltway, and among the pundits and "opinion leaders" generally), that is, and actually always has been, deeply suspicious of his own commitment to transforming the Court, and his fitness for making sound judgments in pursuit of that goal. That George W. Bush knew Harriet Miers more thoroughly than almost any other President has known any other Supreme Court nominee counted for nothing in their eyes. Instead they insisted in pre-playing what they claimed would be the broad Democratic charge of "cronyism" based on that thorough personal knowledge. Instead, the Dems, who also reflexively hold Dubya in low regard (but take no effort to conceal that), would have been perfectly willing, even delighted, to let Miers sail through after first embarrassing her and Dubya just for giggles and grins and Bush-hater brownie points.

And thus, it's not entirely clear to me that if some of those factors were absent or even just diluted, the same results would be repeated. If, for example, you had a decidedly non-shy mid-40s female trial lawyer with a strong academic record from a top-25 law school (even if not Ivy League), a somewhat more prestigious judicial clerkship, and a deeper first-chair courtroom record (maybe including a stint as a state or federal trial judge) — one who had a little more time to study up and was, perhaps, both undistracted and a very quick study — who was replacing, say, Justice Scalia ....

Then maybe. I'm not giving up yet on my hopes of getting someone who's actually tried some jury trials and maybe presided over a few up there on the SCOTUS' loft bench.


My intense personal recollections of, and lingering painful emotional investments in, the Miers nomination notwithstanding: I very much enjoyed Ms. Greenburg's book.

It does leak a few minor state secrets — or at least, things roughly comparable to the breathless revelations of intra-Court confidences from Bob Woodward's and Scott Armstrong's "The Brethren" from some years back. And I remain skeptical of the degree to which Ms. Greenburg ascribes to contrasting personality types the various Justices' successes in persuading their fellows to join them on legal rulings. I seriously doubt, for example, that the course of the Nation's judicial history was as seriously affected as Ms. Greenburg suggests by a perceived slight Justice O'Connor received as a rookie Justice at the hands of Justice Brennan. I do not believe that the Supreme Court functions mostly on the principles of a junior high school cafeteria, with the cool kids all at one table on any given case. 

But most mainstream media legal analysts seem incapable of ever exhibiting anything deeper than a junior high-esque understanding of the Court. To them, the idea that Justice Scalia and Justice Ginsberg and their respective spouses can have been steadfast personal friends over many decades just does not compute; they think it's like those "lion and lamb" photographs in which the lion has secretly been shot with a tranquilizer rifle before the photo was snapped, and someone's putting one over on them.

Instead, to her credit, Ms. Greenburg doesn't rely solely, or even mostly, on such shallow psycho-babble, nor exclusively on frenzied interpretation of the number of exclamation points that Justice Blackmun added to the draft opinions from other Justices' chambers. She actually understands, and more amazingly, fairly consistently explains in laymen-accessible language, the substance of a great many issues that the Court's been dealing with over the last thirty years or so. She doesn't view everything through the prism of abortion rights cases (although, inevitably, that is her number one focal point). And she mostly gets the details right.

Without question — as many other reviewers have already noted — Ms. Greenburg takes enormous and, frankly, very courageous strides toward correcting huge injustices in the widespread misperceptions about Justice Thomas, even (and perhaps especially) within the legal community and the ranks of the well-educated and legally-observant laity. It would be the rare individual, lawyer or not, who reads this book without having his perceptions of that cryptic man much affected, and almost certainly for the better. And it's based on solid reporting about the merits of cases and his positions on them and intra-Court communications about them, not just anecdotes and homilies about how he grew up or how he relates on a personal basis to other Justices. The material about Justice Thomas would, all by itself, make this a book worth purchasing.

And best of all, though, from my viewpoint — because I didn't learn any law from reading her book, nor did I expect to, and I already knew the outlines of the changes in the Court's ideology and its members' drift patterns — Ms. Greenburg provides a whole host of genuinely vivid and consistently delightful personal details that aren't state secrets. Here's one, for example (from page 190), that just made me grin:

The morning of his interview with President Bush's selection team, Roberts went to work in his courthouse chambers downtown as usual. Later that day, he drove himself back up Massachusetts Avenue, past the big embassies that line the street, to Cheney's residence in northwest Washington. He got there forty-five minutes early, so he sat in his car until it was time to go in.

Now, see, that just dovetails so neatly with everything else I know of and about John Roberts (and with everything else Ms. Greenburg writes of him, too), that I can practically see him sitting calmly behind the wheel, checking his wristwatch but not very often and without any impatience — assured of not being late, gracious, and indeed grateful for the quiet chance to practice, sotto voce and into the sun visor, more of his anticipated answers to some of the Veep's anticipated questions. I know John Roberts has done that hundreds of times before oral arguments at which he's appeared as an advocate — maybe on a courthouse bench or in a back hallway, if not in his car. And reading that sort of simple detail, thinking of him gesturing into the steering wheel, re-confirms his humanity to me, and helps me relate to him in endearing and important ways.

I grade this book at a solid, unequivocal A. I don't think I've ever given that high a grade to any legal writer affiliated with any mainstream media outlet in the four years I've been blogging. I don't suggest you take its every word as gospel, nor that it be your only source of information and analysis about the modern Supreme Court. But I do recommend it, without any substantial reservation.

(Disclosure and shameless financial self-promotion: buying it via the Amazon link at the top of this post will cost you no more, and save Beldar a few pennies off his own next Amazon purchase, if you're persuaded even in part to buy the book based on this review.)

Posted by Beldar at 01:18 PM in Books, Law (2007) | Permalink


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