Friday, July 31, 2015

Properly vetted

I've finished reading the book The Nine, Inside the Secret World of the Supreme Court by Jeffrey Toobin. It covers the Court from about 1981 when Reagan nominated Sandra Day O'Connor to 2007 (my paperback version has an extra 15 pages covering parts of 2008). There is, of course, some discussion of the progressive Earl Warren and Warren Burger Courts that much of modern Court history since then is in reaction to.

The book has a look at all the justices of this time as well as all the major cases. For instance, after reading through the confirmation hearings of Clarence Thomas we read such things as: He is the most beloved by staff (he makes sure to know the names of all the clerks, not just his own, as well as the names of all the Court support staff). Because of his nasty confirmation he is the most reclusive, rarely talking to other justices in person. He has a huge motor home, which he and his wife, along with a great nephew in their custody, use to escape Washington on weekends, usually going to NASCAR events.

The major topics of the Court during this time are, of course, abortion and affirmative action. The author delves into the abortion cases during this time because each one was seen as an attempt to overturn Roe v. Wade. The closest attempt was Planned Parenthood of Southeast Pennsylvania v. Robert P. Casey (the state governor) in 1992. The state legislature had passed a whole slew of restrictions to abortion, then tried to argue that all must be kept (overturning Roe) or all tossed out. One restriction was that a married woman must have the consent of her husband. That didn't please O'Connor. She, Souter, and Kennedy teamed up to preserve the right to abortion. It was her ideas that brought in enough votes for a majority. Though William Rehnquist was Chief Justice the justice who mattered was O'Connor.

The other big case discussed in the book was Bush v. Gore\ of 2000. The author spends 50 pages on the details and discusses all the way this ruling was wrong and how it showed a majority of justices were highly partisan. O'Connor was a Republican and was desperate for her party to win. But O'Connor quickly found G.W. Bush to be appalling and damaging to the party and country. That was confirmed by the cases having to do with the Iraq war and Guantanamo detentions.

Alas, O'Connor's husband John was worsening under Alzheimer's, so she resigned to take care of him. Then shortly after that he had to be put into a home. He no longer remembered his wife and fell in love with a caretaker. O'Connor ended up not needing to care for him and felt she had resigned for nothing. She was especially annoyed because her replacement was Samuel Alito, who, with Roberts, pushed the court quite a bit to the right.

Some of the other things I learned through the book.

* Scalia may have the biggest mouth and the most colorful dissents, but he is annoyed at how little influence he has over the other justices. His opinions don't change their minds.

* The views of Clarence Thomas are so far to the right that he is rarely asked to write a majority opinion. He does write dissents, though other justices tend not to sign on to them.

* When Byron White left the Court Bill Clinton had a convoluted time coming up with a replacement. He finally settled on Ruth Bader Ginsberg. His nomination of Stephen Breyer went much more smoothly.

* The time 1994-2005 was the second longest in Court history without a change in justices. The longest was 1810-1823. All the tasks reserved for the justice with the least seniority were things Stephen Breyer did for 11 years.

A major theme of the book is the conservative and fundamentalists ongoing efforts to control the court. Their efforts could be summarized as, "Reverse Roe. Expand executive power. Speed executions. Welcome religion into the public sphere. Return the Constitution from its exile since the New Deal." That last refers to the Federalist belief that the Constitution has been ignored since FDR and practically banished under the Warren and Burger Courts. Conservatives know this would only happen through the Supreme Court and all their efforts are focused on making the politics happen so that the right president nominated the right justices (ones vetted by the likes of James Dobson). Roberts and Alito were very much vetted by the fundamentalists. They desperately wanted to avoid another Kennedy or O'Connor who had all the conservative credentials, yet voted much of the time with the liberal block.

The book is quite detailed about hashing out the various cases. We rarely hear about any of it. The author says he research included long discussions with the justices and with many of their clerks. However, justices and clerks said not to identify who said what. So, yes, this is the inside story.

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