ConfirmThem

By Alexham Posted in SCOTUS — Comments (15) / Email this page » / Leave a comment »

The second installment of Confirm Them's three-part interview with Jan Crawford Greenburg, author of "Supreme Conflict," is below the fold. And once again, Jan does not disappoint.

Justice Stevens has recently said that he believes himself to be a conservative. Is he being honest, or just disingenuous in order to spite those conservatives who have criticized his past opinions?

Answer: He believes it. As incredible as it may seem, Stevens insists he hasn’t changed, that he’s the same “conservative” that President Ford nominated in 1975. I interviewed him for Nightline in January after Ford’s funeral, and he was adamant. “I don’t really think I’ve changed. I think there have been a lot of changes in the Court,” he said. “I can see myself as a conservative, to tell you the truth, a judicial conservative.” And he didn’t laugh. He was sincere. He meant it.

Obviously, he’s not going to get a lot of takers out there for that. But even when pressed to explain his obviously evolving views on, say, affirmative action, Stevens insists he’s been consistent over the years. Most people would disagree, noting it’s pretty hard to reconcile his hard-line stand against race-based preferences in 1980 in Fullilove (when he rejected a federal minority set-aside program) with his subsequent acceptance of them a decade later in Metro Broadcasting (when he voted to uphold FCC policies designed to increase the number of minority-owned radio and television stations). But Stevens won’t give an inch, and his often-maverick views give him some cover. For example, in Fullilove, Stevens refused to endorse an outright ban on the use of all race-based programs, writing a separate, more narrow dissent (but one that clearly indicated he wouldn’t allow racial preferences except in the narrowest of circumstances, and not to remedy the effects of societal discrimination). That gave him wiggle room 10 years later in Metro Broadcasting, when he said he would allow some race-based programs and that he’d meant that all along.

Stevens is a tough justice to characterize because of his independence and often eccentric views. One of my favorite anecdotes about him (which I learned while reporting the book) is that he’s the only justice who insists on donning his robe all by himself. The justices have a swanky, wood-paneled locker room, where they keep their robes in their individual lockers (with brass nameplates on them), and they gather there just before they take the bench for argument. A court employee helps all the justices with their robes—except for Stevens, who refuses the assistance. He does it himself. He goes his own way. But a conservative? With respect, I dissent.

Does Justice Souter feel in any way that he acted duplicitously in how presented himself to Bush I and his advisors?

Answer: No. I agree with Judge Luttig on Souter. David Souter himself didn’t know what he believed. He was inexperienced as a federal judge and hadn’t thought through tough constitutional issues or developed any judicial philosophy. Luttig, who worked in the Bush I Justice Department and helped vet Souter, raised alarm bells early on. “Because of his brief tenure on the federal bench, there is no real basis on which to evaluate his views on many of the key issues that would come before him on the Supreme Court,” Luttig wrote in one memo. Luttig would make that point repeatedly, but Souter had strong Republican supporters in Bush’s chief of staff, John Sununu, and in then-New Hampshire Sen. Warren Rudman. Both swore up and down he was a conservative, though they had absolutely no idea what they were talking about. Sure, Souter may have had a “conservative” persona in New Hampshire, with his old-fashioned, modest demeanor. But he was not conservative in judicial matters, and that would quickly become abundantly clear.

The Bush White House, in its haste to find a nominee to replace Justice Brennan, did a poor job of vetting Souter and missed some obvious clues that he was anything but a solid judicial conservative. Souter said conflicting things in interviews and in opinions, almost like he was floundering around to decide what he himself believed. He told a Massachusetts legal publication shortly after he became a federal judge that he did, in fact, view the Constitution as a living document. “We’re not looking for original application,” he added, “we’re looking for meaning here. That’s a very different thing.” But in 1986 while on the New Hampshire Supreme Court, he wrote a dissent that sounded like one of Scalia’s. He said the Court’s task in interpreting the state constitution was “to determine the meaning of the…language as it was understood when the framers proposed it and the people ratified it as part of the original text.” And within weeks of his nomination—as soon as he started testifying before the Senate Judiciary Committee—David Souter was sounding like the man he was nominated to replace.

George W. Bush was determined not to repeat his father’s mistake. His legal team exhaustively vetted nominees, scouring opinions for any clue on how a judge saw the law and his or her role in interpreting it. And they were successful. John Roberts and Sam Alito are solid judicial conservatives who’ve spent years thinking about the law and the role of the courts in society. Both have proven track records and deep experience. And neither is floundering for a philosophy.

Many conservatives hoped that Edith Jones would be nominated by Bush II, but she was passed over three times (Roberts, Miers and Alito). Was she not nominated due simply to her comments against Roe or was there a larger problem concerning an antipathy to her interpersonal style?

Answer: Edith Jones was never seriously considered, and it was her comments about Roe that did her in. The White House believed she would be impossible to confirm--that even moderate Republicans would decline to support her. And interestingly enough, Jones herself never expected the nomination. When Bush was elected in 2000, she believed her shot at a high court bid was over. She thought George W. Bush would not want to be seen as so obviously “correcting” his father’s mistake in 1990 in passing her by for David Souter. I think that freed her to write more forcefully against Roe—as she did in 2004 when she said it was an “exercise in raw judicial power” that she “fervently” hoped the Court would reevaluate.

[In your book], you assert that Justice Alito is the Conservative's equivalent of Justice Ginsburg. Can you please elaborate on that point?

Answer: Sure. Justice Alito—like Justice Ginsburg—was a known quantity. He’d been an advocate for political change on the Right, just as she was on the Left. He was an experienced judge with well-known views, just as she was before her nomination. He was clearly conservative, just as she was clearly liberal. He would be a solid vote for the president who nominated him, just as Ginsburg would for the president who nominated her. He would change the direction of the court, because he was more conservative than the justice he replaced. She would change the direction of the court, because she was more liberal than the justice she replaced. He was collegial and well-respected by his peers on the other side of the ideological aisle, just as Ginsburg was by her peers. George W. Bush didn’t nominate a cipher like his dad with David Souter. He didn’t nominate an unmoored “80 percenter” like President Reagan with Anthony Kennedy. Alito had a track record. And he proved that a Republican president could nominate a justice with clearly held, conservative views and get him confirmed—just as Bill Clinton had in nominating liberal Ruth Bader Ginsburg. Now of course, there’s one slight hole in my theory, so those of you who’ve figured it out, stop yelling at me. Yes, I know, Justice Ginsburg was confirmed 96-3. Justice Alito was confirmed 58-42. And I’ll let you guys speculate on why that vote count is the big difference between the nominations/confirmations of Ginsburg and Alito—and what it means for Bush if he gets another one.