For the second piece in this series,
Jeffrey Toobin (NY ’80), noted legal analyst and bestselling author, was
interviewed by Anthony Vitarelli (NJ ’04), law clerk to Judge Thomas B.
Griffith of the United States Court of Appeals for the District of Columbia
Toobin serves as senior legal
analysis for CNN and as a staff writer for The New Yorker, where he
has covered legal affairs since 1993. A prolific writer, Toobin has authored
numerous acclaimed essays and books. His latest, The Nine: Inside the
Secret World of the Supreme Court, earned the 2008 J. Anthony Lukas Prize
for Nonfiction from the Columbia Graduate School of Journalism and the Nieman
Foundation for Journalism at Harvard University. Toobin graduated
from HarvardCollege and Harvard Law School.
Vitarelli recently graduated from Yale Law School,
where he was editor-in-chief of The Yale Law Journal. He will join
the Criminal Division of the Justice Department in the fall of 2010.
Toobin (NY ’80), Noted Legal Analyst and Best-selling Author
By Anthony Vitarelli (NJ ’04), Law Clerk
April 12, 2010
Anthony Vitarelli: Do you view the judicial confirmation process as a
one-way ratchet of partisanship, or do you think there is a way that a
President—either this President or one in the future—and members of the Senate
could make the judicial confirmation process more civil?
Jeffrey Toobin: I don’t think partisanship is necessarily a bad thing.
These are important issues and important disputes. There is aWashington phenomenon
that people think disagreement is inherently bad. I don’t buy that at all.
Sure, if Barack Obama nominated a
Republican to be on the Supreme Court, that would eliminate the fight and the
partisanship. But one reason we have elections is so the President can put
people who are ideologically simpatico on the Supreme Court. Barack Obama, like
every other President, plans on doing that. Now, it may be more or less
difficult to get this person confirmed, but I certainly don’t think he should
back away because there may be some unpleasantness.
Vitarelli: Let me probe that a little more. It seems that in the last
few years—you could trace it back either to Justice Thomas’s confirmation
hearings or some would point to the filibuster of Miguel Estrada—that there are
some nominations that seem like they would not have been so discordant a few
decades ago. Now, for instance, many circuit court nominees are getting a lot
more attention than they would have in the past. It seems the rhetoric has
continued to ratchet up, especially in light of anonymous holds that can be
placed on nominees.
Toobin: I think it’s true that circuit court nominations have been
more closely scrutinized in recent decades. But there have been a lot of
Supreme Court nomination fights since the beginning of the Republic, [such as]
in 1920. There were Haynsworth and Carswell under Nixon, Robert Bork under
Reagan, and then Thomas.
In fact, the last several
nominations have been fairly civil. Yes, I think we have passed the day
when—like Justice Stevens—nominees get confirmed 98 to nothing. But, was there
ever any real chance that Sonia Sotomayor was not going to be confirmed? I
don’t think so.
Vitarelli: Since you mentioned Justice Stevens, 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 Educationdidn’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.
Vitarelli: What do you think the biggest issue facing the federal
judiciary as an institution is now? Certainly, the issue of a stalled judicial
pay raise has created some concerns, particularly in light of judges like
Michael Luttig, David Levi, and Michael McConnell leaving the bench. Do you
perceive any other challenges facing the judiciary as an institution right now?
Toobin: I think it’s terrible that they’re paid so little, but I
wouldn’t call it the biggest challenge of all. Most American political issues
wind up in court. The issues that divide us politically will be the biggest
ones that divide us legally, as well.
Vitarelli: Shifting gears, I’m curious about your experience working
for Lawrence Walsh on the Iran-Contra investigation, the topic of your book Opening
Arguments. Did that deter you from being a career lawyer, or did that
enhance your interest in becoming a journalist?
Toobin: My decision to be a journalist was an affirmative decision
to embrace journalism, not a negative decision to reject law practice. I loved
working for Walsh. I was very privileged to do that, and I learned a lot.
Vitarelli: How did your experience as an Assistant U.S. Attorney [in
the Eastern District of New York] influence the way you cover trials, and
criminal prosecutions in particular?
Toobin: I think it’s a big influence. Trying a case is a very
particular skill. You operate within a specific legal and cultural framework,
and you have specifically defined goals. Journalists have a different framework
and different goals. I think journalists are often frustrated when trials don’t
seek to explore the facts of a situation. That’s not what they’re about.
Criminal trials are about proving someone’s guilty beyond a reasonable doubt or
failing to do that. In addition to helping me understand the specific rules of
evidence and all the other kinds of rules that trials operate by, just
understanding the mindset of trial lawyers is very important.
Vitarelli: What advice would you give to young attorneys just
graduating from law school now? Do you perceive the legal world as a different
world from when you graduated law school?
Toobin: Of course it is a different place. But, I think law school
breeds in people a very narrow sense of what’s possible and what’s successful.
You hang around with law students and you think the job with the biggest law
firm at the highest starting salary is necessarily the best. Grown-up life
doesn’t work that way. People get other sorts of rewards from their
work—non-financial rewards. There are ways to make money, if that’s what you’re
interested in, that are different and perhaps better than being a lawyer. Being
open to a variety of possibilities, including not going to law school at all,
is the best thing you can do.
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