February 12, 2007

Supreme Conflict by Jan Crawford Greenburg

I've been eagerly awaiting reading this book. Greenburg might not be Dahlia Lithwick (the Court reporter Armand worships), but she's one of the top Court reporters in the country, and she had an astonishing level of access to executive branch leaders and documents and even to the justices themselves. So having read the first four chapters ... well I'm surprised I don't like it more.

Well, I suppose the #1 reason I bought it was to learn the behind-the-scenes executive branch power plays that went on in various administrations as they decided who to nominate, and who not to nominate, to the nation's highest Court. And on that point it's not a disappointing book at all, and I'm not even up to the most interesting appointment fights yet (I've seen her cover the appointments of O'Connor, Scalia, Kennedy, Souter and the elevation of Rehnquist, so far). Reading about the Justice Dept.'s strong anti-Ken Starr position in the first Bush administration is interesting, as is Michael Luttig's strong stand against David Souter. So the book definitely delivers when it comes to the intra-executive branch machinations that it promised (and I can't wait to get to Harriet Miers on that - apparently AG Gonzalez fought a losing battle to block her nomination).

What's irritating is the way the book is framed. Again and again she comes back to the central point (to her text) of why the Court hasn't delivered for conservatives, given that Democratic presidents have only appointed 2 of the last 14 justices. And to that I must respond - hasn't delivered how? OK, sure, the Court hasn't overturned Roe and it hasn't had all the gays in the country locked up or deported, but the Court is much more conservative than it was for most of the second half of the twentieth century on many issues. Her constant privileging of Roe's continued existence as a sign that the Court isn't really conservative is pretty tiresome, and somewhat misleading - though she gets around that my using a lot of modifiers in her writing like "reliably" conservative. Actually some of her modifiers are rather grating, period. "Astonishing" this, or "surprising" that - when the actions they modify aren't necessarily that way, when viewed from a perspective outside her central premise (like how she finds it unbelieveable that liberals would vote against Souter's confirmation, though as she notes repeatedly, Souter was a cipher, so is any senator's vote against him all that shocking?). And of course she never talks about if "liberal" and "conservative" mean the same thing in the 1990's as they did in the 1970's, she equates justices who shouldn't be equated by throwing those labels on them (a 1990's liberal and a 1960's liberal aren't really the same thing on the Supreme Court), and she glides over discussions of legal theory and legal reasoning that might actually explain why the "conservative" justices don't always reach "conservative" outcomes. So basically, so far, when it comes to the substance of the Court's actions, she's adopting a simplistic, right-wing frame, and seems to argue it's all the fault (presuming Roe's existence is a fault) of certain administrations' sloppiness (in the case of Souter) or bad timing (Reagan nominating Scalia then Bork, as opposed to the other way around).

All this said, I'm only through four chapters, and it might be that she gets much more insightful as the book progresses. As it reaches the era when she's covered the Court I'd hope and expect that's the case. And like I said, the book does have some fun insider tidbits that keep my flying through it with interest. But I'd hoped for a rather more thoughtful analysis of the Court's actions. Hopefully, I'll see that in the pages to come.

Posted by armand at February 12, 2007 11:19 AM | TrackBack | Posted to Books | Law and the Courts


So I'm in the chapter on Clarence Thomas' arrival on the Court and Greenburg is annoying me again. She's constantly talking about O'Connor (and Souter) moving left after Thomas joined the Court. But so far (I'm on p.118) she isn't providing evidence of that. Sure, she's pointing out that O'Connor isn't signing on to some Thomas positions. But that's not any evidence of O'Connor moving to the left. Thomas' arrival moved the Court to the right, and therefore O'Connor might have become more likely to side with the "liberals". But that's no evidence she changed - the Court and her surroundings changed, so she could look more liberal in that new environment without really changing at all.

And of course that's not to say that there's not evidence that O'Connor drifted to the left then. I'm just saying that Greenburg's description (so far) doesn't provide such evidence.

Posted by: Armand at February 12, 2007 03:40 PM | PERMALINK

Does anyone know if JCG is a right-winger herself?

I ask this having just finished chapters 5 & 6. 5 is all about Clarence Thomas. Her work on him, and especially his first few months on the Court is interesting and revealing. Apparently he's a friendly, gregarious guy, but from the moment he joined the Court he was writing very strong, sometime "brash" opinions. And what's more, early on in Thomas' tenure, Scalia flipped his vote on more than one occasion to follow Thomas. The portrait she paints is of a nice, capable, principled guy whose addition to the Court pulled it strongly to the right - and Scalia followed Thomas down that road as often or more often than Thomas followed Scalia.

Chapter 6 is mostly the usual recitation of every criticism the far right has of Anthony M. Kennedy. She breaks out the "Flipper" skit, and the criticisms people have launched against how he decorated his office and all this other stuff that's been done to death a thousand times, without adding much new insight.

Except perhaps about Greenburg herself. The lengths she goes into all this is rather interesting. And some of her wording ... well if I ever did read Casey it was ages ago, but what do you think of a Court reporter saying it contained "ponderous philosophical musings on the liberty interests of women"? Is that phrase as revealing as it seems (or is the writing in Casey that bad?). Of course she closes the chapter noting that from 1992-2005 AMK voted with Rehnquist (who at least to be listed in those massive poli sci/legal studies data sets as the most conservative justice in the Court's history - well, as far back as they'd created measurements) as often as any justice on the Court, and that he'd been a solid conservative on lots of issues. But on abortion, gays and executing the retarded ...

I guess I'm just bringing this up b/c it fits perfectly with this book matching the Right's view of the Court and all its failing - which as I noted above seems to be the way this book is framed from the start.

Posted by: Armand at February 12, 2007 07:54 PM | PERMALINK

She's known as a journalist with superior access and sources. I have never heard her tagged as particularly right or left, and while I haven't read the book, I've read several reviews of it (from leftish and rightish sources) and haven't seen anyone calling her out as biased.

Posted by: jacflash at February 12, 2007 08:27 PM | PERMALINK

Hmmmm. Well most of the reviews I've seen focus on the cocktail party gossip aspects of it (so did you know Luttig did this? or that Rehnquist made O'Connor retire!), and of course on that front it's neither left nor right.

And yes, she is clearly highly thought of as a journalist and has had unprecedented access (I believe extensive interviews with O'Connor and 8 or the 9 current justices).

And I suppose chapters 5 and 6 might look the way they do, at least in part, simply b/c of a "bias" that extends from the personalities of their two subjects. Thomas is supposedly quite friendly and likeable (or I've seen that reported in lots of media outlets) while Kennedy is much more seemingly constantly aware of the import that he believes his job has (and regularly suffers jabs at his expense over perceptions of a certain haughtiness that comes from that view).

But considering the way a lot of this book is structured ... I don't know.

Posted by: Armand at February 12, 2007 08:34 PM | PERMALINK

And again with the AMK bashing (though by this point she's repeatedly made the obvious point that AMK is much more conservative than O'Connor), and right-wing framing.

On p.180 (one page after she labels Scalia an "orginalist", which of course he says he isn't - he says he's a textualist) she's talking about Kennedy not being an originalist and being willing "to recognize a right to engage in homosexual sodomy, to have an abortion ...". Now those might indeed be actions that are legal because of broader rights Kennedy recognizes, but those specific matters aren't really the key "rights" at issue are they? This reminds me of Justice Blackmun's dissent in Bowers v. Hardwick: "This case is no more about "a fundamental right to engage in homosexual sodomy," as the Court purports to declare, ante at 191, than Stanley v. Georgia, 394 U.S. 557 (1969), was about a fundamental right to watch obscene movies, or Katz v. United States, 389 U.S. 347 (1967), was about a fundamental right to place interstate bets from a telephone booth."

Posted by: Armand at February 12, 2007 09:58 PM | PERMALINK

Dude, you are bordering on obession with this. While the publicist in me likes this (this "live blogging" of a book is highly entertaining), I'm wondering about your sanity.

Who the hell is "AMK"?

Posted by: baltar at February 12, 2007 10:17 PM | PERMALINK

Anthony M Kennedy.

Posted by: jacflash at February 12, 2007 10:27 PM | PERMALINK

I think I could have guessed that, if I'd given it some thought. In any event, why not say "Kennedy", rather than "AMK"?

I'm neither as obessessed nor as informed about these matters as armand.

Posted by: baltar at February 12, 2007 10:29 PM | PERMALINK

Why AMK? B/c typing 3 letters is quicker than typing Kennedy (that's the main reason - though perhaps, aesthetically, I like the strong lines in that set of initials too).

Why am I doing this, generally? Good question. I guess one basic reason is that this is likely to be a book that gets mentioned a lot when it comes to explaining the Court. And perhaps that'll be the case for years to come. Jan has been described as the Eve to Linda Greenhouse's Margo - uh, the reference there being to all about Eve. And if that's the case her star is only going to get brighter, and her first book will get ever more attention ... so it seems appropriate to put out there that I'm really not all that impressed with it, and that while it has some strengths it's also surprisingly facile.

And related to that, I guess I'm also helping our 1 or 2 readers who might be interested in reading it decide if they want to read it.

Beyond that, I've been exceedingly moody over the last couple of days and this is one of the only things I've been able to concentrate on. She is a successful journalist after all, so it's awfully easy to read the breezy writing and keep turning the pages.

But don't worry. I've only got about 100 pages (or less than that) left. So ... hopefully I'll be sane again soon.

And coming next - just who were the 5 judges on George W. Bush's short list, and did the fact that O'Connor retired first (instead of Rehnquist) change the administration's calculus when it came to choosing who to appoint. I know you can't wait for that Baltar. :)

Posted by: Armand at February 13, 2007 09:09 AM | PERMALINK

Okay, so for those of you who aren't bored to tears by my current "obsession", here's the next bit.

What this book does best is its behind the scenes description of the nomination process. Well, that and try to raise respect for Justice Thomas & point out the importance of collegiality and group dynamics in explaining why the Court does what it does. But in terms of the value added by this particularly text, the backstory on the nominations is probably the biggest appeal of this book - especially the nominations of Scalia, Kennedy, Souter, Roberts and Alito (does she lack sources in the Clinton team? b/c her discussion of Ginsburg and Breyer doesn't provide any new information).

Now the nominations of the first three are also covered (though not with some of Greenburg's information) in David Yalof's Pursuit of Justices. If what you really want to understand is the nomination process, buy that book, not this one. That one covers a much broader set of appointments - Truman's through Clinton's - and is quite simply a superb bit of research, filled with fun backstories (just when you think your opinion of Nixon can't fall any lower ...). So, anyway, read Yalof's Pursuit of Justices - it's much more informative than Greenburg's book for the most part.

But of course Yalof's book was published in 2001, so he didn't have the Roberts and Alito nominations to consider. And since Greenburg's best sources (other than O'Connor) seem to have worked for the current president, you'd be correct if you think the best part of her book starts in the second half.

As to the backstory on Roberts, this is how it went down. Team Bush thought the Chief Justice was going to retire, and had been working on a list of replacements for some time. When O'Connor retired instead, did that change things? Not really. They already had a list they liked, and their favored potential "diversity" nominees (Maura Corrigan and Miguel Estrada) refused to be considered for the position. So the list to replace Rehnquist basically became the list to replace O'Connor. It included 5 federal appealate court judges - John Roberts, Sam Alito, Mike Luttig, J. Harvie Wilkinson and Edith "Joy" Clement. Clement didn't seem to have a single real backer, and seems to have only been on the list so that it would have a woman on it. As to the others, Luttig had some powerful enemies. Roberts had the most backing in the White House Counsel's office, and he had a great interview with the president - so Roberts it would be.

Posted by: Armand at February 13, 2007 10:09 AM | PERMALINK

re Casey and "ponderous philosophical musings on the liberty interests of women"

yeah, that's about right, although i might contest that the most ponderous musings were so precise as to be gendered. i remember the most over the top rhetoric, what scalia memorably aptly castigated in dissent (aptly not because i dislike kennedy's rhetoric philosophically, but because it was ludicrously broad for a supreme court opinion) as kennedy's "sweet mystery of life" passage, as roughly fitting the quoted description (scalia's and yours).

Posted by: moon at February 13, 2007 11:28 AM | PERMALINK

oh, and also, i think the positive reviews i've read have been most effusive with regard to JCG's coverage of the more recent appointments. and that gets back to what i wrote you this morning privately: that i think it's the novelty of her access that is propelling a lot of the positive reviews more so than it is the legal soundness of her analyses or any particular orientation. based on what you're writing, though, i've got serious reservations about committing time to this book any time soon. i'd rather read woodward or yalof if i were going to read a book about the Court just now, and i'd probably rather grab a volume of legal philosophy than ready any book about the appointment process, which is what it is.

Posted by: moon at February 13, 2007 11:29 AM | PERMALINK

Btw, for all of you out there who fear the effects of Darth Cheney - guess who was in the room for the long list interviews (the interviews the staff did prior to scheduling the interviews)! Sure, AG Gonzalez, Harriet Miers, William Kelley (Miers' deputy, a law prof at Notre Dame), I want to say Scooter Libby, though I'm not certain about that, and, yes, Vice President Richard Bruce Cheney.

Are there any senior personnel matters the Vice President DOESN'T get personally involved in?

Posted by: Armand at February 13, 2007 12:43 PM | PERMALINK

Well, she kept up with what appeared to me to be hits at Justice Kennedy (twice in the book, in different parts, she seems to imply that Kennedy likes relying on foreign law to make Court decisions - though of course noting foreign law and relying on it are hardly the same thing), but other than that, the book gets much, much better in its later chapters. And honestly, I'm left wondering why she didn't write a book on the Bush administration's judicial appointments. So much of what she covers has ben done to death (even if now we know Justice O'Connors perspective on those events). But she's obviously got fantastic sources in the current ruling legal circles, and a passion for where the current president's appointees are taking the law. I think that would have been a better book. But instead, we got this one.

So, like I said, the ending is much better. The stuff on Roberts, Miers and Alito is why you should read the book if you read the book. I'll just mention one thing about all that that I think is interesting. President Bush desperately wanted to name a woman when he picked Miers (apparently as a general rule the president gets testy when he's not given the opportunity to consider women for high positions). And eventually he did put Miers forward. But that was only after the White House lawyers had come up with a list of female and minority candidates for the position - only to eventually cross them all off. EVERY SINGLE ONE (this is on page 245). Apparently Judges Owen, Brown and Jones were never on the list b/c it was viewed as impossible to get them through the Senate (I believe the word "thermonuclear" is used to describe what would follow a Brown nomination), but none of the others they considered (and they considered several) were judged to be the kinds of reliably conservative judges Bush would want to appoint. Well, in a couple cases there were personal issues involved - but mostly it appears that they weren't reliably conservative enough.

This would suggest two things. First, Alito is going to be REALLY conservative, and secondly, if there is another Court opening in the next two years (unlikely, but if there is) it's a virtual certainy that a woman will be put forward as the next nominee.

Posted by: Armand at February 13, 2007 09:35 PM | PERMALINK
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