FIRST ONE @ ONE FIRST

Friends of F1@1F: Interview w/ Toobin & McDonald Esoterica

Posted in F1@1F Friends, Law and Politics by Mike Sacks on April 13, 2010

I should have anticipated that only the second installment of “Friends of F1@1F” would be a bit of a deviation from its mission to highlight the blogs of those I’ve met in line.  This week, I bring you an interview with Jeffrey Toobin by Anthony Vitarelli, a pre-F1@1F friend of mine who gave me my blogging start at a now-defunct political blog that he founded and edited.

Here’s an excerpt from the interview:

Vitarelli: [...] I’m curious what your thoughts are on what has made Justice Stevens effective at garnering majorities in cases like Hamdan and Boumediene? If this President were seeking to replicate that aspect of Justice Stevens’s temperament, what would he look for in a nominee’s career to date?

Toobin: One of the myths of Supreme Court confirmations, or Supreme Court appointments, is that there are very good predictive tests of how people will turn out as justices. I mean, look at Justice Stevens. Justice Stevens started out on the bench as kind of a lone eccentric and turned into a tremendous consensus builder. Through the course of all his decades, there were a couple of different kinds of justices that he was.

Obviously, it would be best not to nominate a reclusive scholar, but it is hard to predict what kind of personality would move the very small electorate that is the Supreme Court, especially when you’re largely talking about only one persuadable target. That’s really guesswork. Any nominee that is nominated in 2010 is likely to serve with many justices whose identities we don’t even know yet. All this talk about the kind of personality you want is really guesswork at best.

Vitarelli: In terms of the current careers that potential nominees have, the last nine have been sitting judges on circuit courts. How has that fact helped or hurt the Court as an institution? What advice would you give to the President on this point?

Toobin: I think Obama is right that it is time to end the circuit judge monopoly on the Supreme Court. Historically, the justices have not all come from the appellate court bench. Personally, I don’t think the Supreme Court should be the top step on the civil service ladder for judges – it’s a different job than other kinds of judges. And it’s no coincidence that the court that decided Brown vs. Board of Education didn’t have one person on it that had ever been a judge on any court before that. I think judges with legislative, executive, and business experience would be very good.

Vitarelli: Do you think that the fact that 2010 is an election year will affect which person the President nominates for the Court?

Toobin: I don’t think so. We operate in a 24-hour, 365-day political and news cycle. So I don’t think 2010 is much more politically incendiary than 2009 was. Democrats and Republicans fight all the time, that’s just the world we live in. And I don’t think it matters much.

I don’t know if Obama has actually committed himself to ending the circuit judge monopoly on the Supreme Court with his next nominee.  I support the revival of politicians and practitioners on the Court, but am wary of starting that trend with Stevens’s successor.  Stevens’s role on the Court as the senior associate justice and the liberal bloc’s leader has become too valuable for Obama to choose a nominee that possesses insufficient institutional knowledge, pre-existing gravitas, and political skills to step right into Stevens’s shoes.  There are surely non-circuit judges that could ably fill the Stevens seat, but none of them are on Obama’s shortlist.  The President would do well to wait for Justice Ginsburg’s retirement to start experimenting with unknown quantities.

Today’s second Friend of F1@1F is Sabrina Ghaus.  Sabrina was one of the thirty-some high school students from Cupertino, CA, who camped out overnight for the McDonald argument on March 2.  Below is an excerpt from her reflections on that cold, happy night:

The last time we walked by the marble steps of the Supreme Court, it was 4:30 pm and the late afternoon sun shone lazily in the sky. “Lazily,” because it couldn’t be bothered to provide us with any warmth. The weather itself was briskly chilly.

We sat in a group, 32 members strong on the cold marble, huddling for warmth.

“Do you guys want to camp out?” Mr. Chiang asked.

My eyes widened. YES, I said under my breath. PLEASE.

There was chatter and noise as people argued and complained about the cold.

“Can we go back to the hotel? It’s not worth it!” “But what if we WANT to sleep outside?” “Can we come early in the morning?”

And after about 20 minutes of useless argumentation, it was settled. Those of us who wanted to would camp out. The rest would stay at the hotel.

I couldn’t believe it was really happening.

If you, too, have a story from the Supreme Court sidewalk, please do write to me.

Toobin on Justice Stevens

Posted in Justicespotting, Law and Politics by Mike Sacks on March 15, 2010

The New Yorker just released Jeffrey Toobin’s long profile on Justice Stevens.  Other parts of the blogosphere are commenting on Stevens’s hedging over his seemingly imminent retirement, so here are a few other notable law-and-politics excerpts:

Stevens is an unlikely liberal icon. When he was appointed, he told me recently, he thought of himself as a Republican and always had—“ever since my father voted for Coolidge and Harding.” He declined to say whether he still does. For many decades, there have been moderate Republicans on the Court—John M. Harlan II and Potter Stewart (appointed by Eisenhower), Lewis F. Powell and Harry Blackmun (Nixon), David H. Souter (Bush I). Stevens is the last of them, and his departure will mark a cultural milestone. The moderate-Republican tradition that he came out of “goes way back,” Stevens said. “But things have changed.” [...]

Still, Stevens’s views suggest a sensibility more than a philosophy. Many great judicial legacies have a deep theoretical foundation—Oliver Wendell Holmes’s skeptical pragmatism, William J. Brennan’s aggressive liberalism, Scalia’s insistent originalism. Stevens’s lack of one raises questions about the durability of his influence on the Court.

But, more than anything, his career shows how the Court has become a partisan battlefield. In that spirit, Roberts last week denounced President Obama’s criticism of the Court in his State of the Union address, saying that the occasion had “degenerated to a political pep rally.” When Stevens leaves, the Supreme Court will be just another place where Democrats and Republicans fight. [...]

After his clerkship, Stevens returned to Chicago and took a job at one of the city’s first religiously integrated law firms. Abner Mikva clerked on the Supreme Court the year after Stevens, then returned to Chicago to start a career in public life. “Those were the days when there was such a thing as a moderate Republican, and that’s what he was,” Mikva said of Stevens. “He was a pretty conservative Republican on economic issues, but he was always a great progressive on civil rights and social rights.” [...]

Stevens, throughout his years on the Court, has drawn not just on history and precedent but on contemporary values and even on his own experience as a judge. According to Stevens, that approach has its origins in his brief stint as a lawyer on the staff of the House Judiciary Committee. “That was probably one of the most important parts of my education,” Stevens told me. He recalled an incident involving an antitrust law: “I remember explaining one of the tricky problems in the statute to one of the members of the committee. I got all through it, and he said, ‘Well, you know, let’s let the judges figure that one out.’ ”

What that told him was that “the legislature really works with the judges—contrary to the suggestion that the statute is a statute all by itself,” Stevens said. “There is an understanding that there are areas of interpretation that are going to have to be filled in later on, and the legislators rely on that. It’s part of the whole process. And you realize that they’re not totally separate branches of government—they’re working together.”

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