Sunday, February 26, 2017

"Supreme Conflict", by Jan Crawford Greenburg

The issue today, with Trump's Supreme Court nomination of Neil Gorsuch pending, is whether the conservatives can take control of the Supreme Court. The longtime conservative crusade to tilt the court rightward is the subject of Jan Crawford Greenburg's 2007 book, "Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court".

The story Greenburg tells is one of Republican presidents appointing justices who they thought would tilt the Court towards conservatism, only to be repeatedly disappointed (as Republicans may well be with Gorsuch). Her story starts in the later years of the Reagan administration. First Chief Justice Warren Burger retired in 1986. Reagan appointed Associate Justice William Rehnquist to move up to be the chief, and Antonin Scalia was appointed to replace Rehnquist as associate justice.  Then in 1987 Lewis Powell retired. To replace Powell, Reagan first nominated Robert Bork, who performed terribly before the Senate Judiciary Committee, and was defeated. Then he settled on Douglas Ginsburg, but Ginsburg had to withdraw after it was revealed he had smoked pot.

Reagan now desperately (and understandably) wanted somebody who he could get confirmed, his political capital having been all used up from the prior two nomination failures, along with the Iran-Contra scandal which plagued his last years in office. He had been disappointed with his first replacement years earlier, when Sandra Day O'Connor turned out not to be the conservative justice his administration had hoped for, and he didn't want a repeat of that experience. But neither did he want another bruising nomination fight. Over the objections of most of his advisers, he selected a middle-of-the-road guy, Anthony Kennedy.

Greenburg claims that "the decision to nominate the more politically salable Scalia before Bork was a critical misstep". She seems to feel that had Bork been nominated first, he would have been confirmed; however, she offers no evidence or supporting argument for this dubious proposition. Indeed. at the time of the first vacancy, there was no way to know that there would even be the chance for a second
Reagan appointment, so why not nominate the strongest candidate?

Reagan was followed by his VP, George H.W. Bush. Bush, in his one term in office, was able to appoint two justices, David Souter and Clarence Thomas, to replace the two liberal giants, William Brennan and Thurgood Marshall. At this point the Court consisted of eight justices appointed by Republican presidents (Rehnquist and Blackmun by Nixon, Stevens by Ford, O'Connor, Scalia and Kennedy by Reagan, and Souter and Thomas by Bush Sr.). Only Byron White was a Democratic appointee, and he was part of the conservative bloc.

One would have thought that the court was now poised to overrule some of the Warren Court precedents which the conservatives so despised. However, this did not happen, and the question Greenburg seeks to answer, is "why not"?

Greenburg delves into some of the reasons for this. She documents how the middle-of-the-roaders, Kennedy, Souter and O'Connor, all moved left in response to Clarence Thomas joining the court. Thomas was so combative, so caustic, and so outrageous to the point of being dishonest in his opinions, that the natural reaction was to swing left. Greenburg describes how O'Connor was quite conservative in her early years on the court, saying that "Brennan's bold liberal positions were like a force field keeping O'Connor away". With Brennan gone, Thomas's radical right positions now pushed her the other way.

A specific example is a habeas corpus case, in which the justices were unanimous in ruling against the petitioning defendant, Frank Robert West. Thomas was assigned to write the opinion; however, when he circulated the opinion, Greenburg says O'Connor was furious, as she felt Thomas was wrongly describing prior opinions of the court, including one which she herself had written. O'Connor then wrote her own concurring opinion, "eviscerating" Thomas, and mentioning him by name eighteen times! Greenburg says this is quite unusual, as "rarely do justices repeatedly single out an author by name". In the end, six justices refused to sign on to Thomas's opinion, and he ultimately was joined only by Rehnquist and Scalia.

The abrasive and caustic Scalia was having the same effect on the other justices. Greenburg reports that Scalia's barbs were especially influential in pushing Souter to the left. She says that Scalia "is regarded as the court's preeminent master at the art of burning bridges" for his inflammatory dissents, in which he often goes out of his way to criticize his fellow justices.

Most of the last half of the book deals not with specific cases, but with the nomination process involved in the two justices appointed by Bill Clinton (Ruth Bader Ginsburg and Stephen Breyer), and the two appointed by George W. Bush (John Roberts and Samiel Alito). For some reason, Greenburg spends a whole chapter on the ill-fated nomination of White House counsel Harriett Meiers. Meirs was so incompetent that her nomination was withdrawn based solely on objections from the Republicans in the Senate. Her practice sessions went horribly, as did her meetings with Senators. She didn't seem to have any grasp of the important Constitutional issues which regularly came before the court. Her questionnaire submitted to the Senate Judiciary Committee was woefully inadequate. Her nomination was ultimately withdrawn even before the formal hearings began.

For a more detailed and informative look at this period of court history I recommend Jeffrey Toobin's "The Nine", which I will discuss in another post. 

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