The book tour continues for CNN legal analyst Jeffrey Toobin and his Clarence Thomas-bashing, Barack Obama-boosting routine. Last Friday, Toobin made his tour of nearly every NPR and PBS interview show complete with an appearance on Tavis Smiley, where he reprised his take on Thomas as bitter, isolated, and ultraconservative. (Thomas was isolated because he was interviewed by Rush Limbaugh, Sean Hannity, and Laura Ingraham on his book tour. It also makes him a "highly partisan figure.") Smiley complained that in the Thomas interview on 60 Minutes, CBS’s Steve Kroft "basically rolls over the guy," and asked Toobin if it’s time to consider an end to lifetime appointments to the Supreme Court.
The two liberals also had a cozy chat reconsidering how conservative justices were overtly partisan in the way they decided Bush vs. Gore in 2000, which Smiley found to be an "extreme" where the Court was "out-and-out too political."
SMILEY: And yet we live in a world where we are taught from junior high on that those two things are not supposed to intersect, that the Supreme Court is not supposed to have politics creep, much less walk up into its deliberations.
TOOBIN: You know, that's true, but I don't criticize the Justices for this. Look, you got questions like does the Constitution protect a woman's right to choose abortion? May a university consider race in its admissions? Those are issues that are not purely legal. Those are political issues and there is no way of somehow removing politics from how you resolve questions like that.
SMILEY: I guess the question though, Jeffrey, is where the line ought to be and when in fact we know we have moved across that line. Again, I hear your argument that it's almost impossible to extricate the politics out of it and yet there is another end of this extreme which is to be just out-and-out too political in your decision-making.
TOOBIN: I think that's right and I think the case of Bush v. Gore really illuminated that conflict because a lot of people believe that, in Bush v. Gore, you had a situation where the conservatives on the court who usually believed in states' rights, who usually believed in a narrow conception of the equal protection clause to the Constitution.
There you had a situation where, for the benefit of plaintiff, George W. Bush, you had conservatives being ideologically, I thought, inconsistent saying we're going to interfere in a state process and we're going to construe the equal protection clause broadly.
I think the most we can expect from the Justices is at least to be ideologically consistent and let the chips fall where they may. The problem with Bush v. Gore, I thought, was that it looked to me like the conservatives really went out of their way to help a Republican like them.
SMILEY: To your latter point now, let me just ask in a very forthright and direct way. What you call ideological inconsistency - your phrase - others would call pure partisan politicking by the Supreme Court?
TOOBIN: Well, I don't go that far because I can't prove that it's purely partisan. But if you look at the reasoning in the decision, frankly, the reasoning is so poor and so transparent that it lends itself to the kind of cynical interpretation that you say some people have. I can't argue with them either.
SMILEY: But I wouldn't even put the word cynical in front of them. I hear your point that it may be their point of view, but why refer to it as a cynical point of view?
TOOBIN: Well, because it suggests that the Justices aren't saying what they mean, that they aren't being candid in their opinions. I mean, frankly, I think that's a reasonable interpretation of Bush v. Gore, but I can't go quite that far.
SMILEY: Did the Supreme Court, in your mind, lose respect, lose stature, given how they handled or, in the minds of some, mishandled the process of making that decision?
TOOBIN: I think it was a real low point for the court. I think the court carries a lot of institutional credibility. I think Americans want to respect the Supreme Court and I think the Supreme Court has gradually recovered from Bush v. Gore, but I definitely think it was an injury to the court's reputation.
So as the two liberals prepare to insult Thomas as bitter and extremely ideological, they're displaying some old ideological bitterness that we were never rewarded with the national satisfaction of President Al Gore. From there, Smiley asked Toobin about the most interesting characters on the court. Smiley explained how David Souter hates light bulbs and doesn't use a computer, but the weirdest justice is still Thomas:
TOOBIN: But clearly the most eccentric, the most unusual, the most complex character on the court is Clarence Thomas.
SMILEY: And you say that - notwithstanding the book he just put out, you say that for what reason or reasons?
TOOBIN: Well, I think the book is part of the evidence of what an unusual person he is. I mean, there's a guy who, sixteen years after he's been on the Supreme Court, is as bitter, is as angry, is as isolated from the black community as he was on the day he was confirmed. I mean, I think that's a really extraordinary thing.
Although at the same time, he's a very genial person, he's a very nice person, he's comfortable with his colleagues, but there is an anger and a resentment of liberals, of Democrats, of the press that really tortures his soul and it's very much in evidence in his book.
SMILEY: You intimated a moment ago, Jeffrey, but you make it even more clear in your book that the contradiction of him is so interesting because on the one side, again, not at all regarded by black America and yet, inside of this secret world of the Supreme Court, he's highly respected and very much liked by the people who work in the building.
TOOBIN: It is true. Historically, the court has had very contentious relationships among the Justices and that has not been true of the Rehnquist and Roberts court. They really do make a real effort to get along with each other. But look at how isolated Clarence Thomas is out in the real world. Look who he gave interviews to for his book. You know, Rush Limbaugh, Laura Ingraham, Sean Hannity. I mean, he is very much an isolated political person.
He is not just the most conservative member of this court. He's the most conservative Justice to have served on the court since the 1930s. I mean, this is a really extraordinary figure on the court.
SMILEY: But doesn't that make the point - again, I'm not putting words in your mouth, but doesn't that make the point I was attempting to make earlier, Jeffrey, which is this is pure partisan politicking?
When you have a member of the United States Supreme Court and he just happens to be Thomas - I'm not picking on him because he's black - but when you happen to have a member of the Supreme Court who writes a book and then that is the list of persons who he chooses to interview with, that "60 Minutes" basically rolls over for the guy in the conversation with Steve Kroft, respectfully as far as I'm concerned, when you look at who Thomas chooses to speak to, that's not cynical. That underscores the politics these guys play on the court.
TOOBIN: Absolutely. You know, Thomas is someone - I mean, if you look at where he speaks, same scenario. He speaks to conservative organizations and foundations and at small evangelical universities only. He doesn't go to big state universities, doesn't go to other schools. I mean, he is a highly partisan figure. I don't think there's any doubt about that.
SMILEY: Never mind what the framers and the founders intended, given the fact that politics and the Supreme Court decisions are so intertwined, to your own earlier statements - which I now paraphrase, of course - has the time come for us to revisit the notion of lifetime appointments for any member of the court?
TOOBIN: You know, I think that is a subject you're going to start to hear more and more about. You know, when the Constitution was written in the eighteenth century, people were expected to be appointed in their fifties and die in their sixties. You were lucky if you made it to your sixties in those days.
Now, of course, you have someone like John Roberts appointed at age fifty and every likelihood that he's going to serve for thirty years. The question of term limits, the question of mandatory retirement, is really going to come to the front of the agenda.
Stephen Breyer makes an interesting point about this. He doesn't have a problem with mandatory retirement or term limits, but the one thing he says is that you have to make sure that the Supreme Court is your last job. You can't be on the court angling for something else. I think that's an interesting point. As this subject comes up, that will have to be addressed because I think Justice Breyer makes a good point.
From there, they moved on to how Smiley was "dying" to have Toobin explain his pet theory that President Hillary would appoint Obama to the Supreme Court -- which might make Smiley reconsider that whole curtail-the-lifetime-appointments thing.
