Christopher Edley: Good evening ladies and gentleman, welcome to City arts and Lectures, my name is Christopher Edley I am the dean of Berkeley Law School, and I am very privileged, [Applause] thank you, thank you.
Jeffrey Toobin: You ought to milk that.
Christopher Edley: Send money. I am very privileged I am very privileged to have been asked to host this evening's discussion. Jeffrey Toobin is not only a distinguished correspondent at CNN covering legal matters, he increasingly is picking up the burden of some of the most important political coverage, he is a graduate of Harvard Law School, 1986, didn't take any thing from me how ever.
Jeffrey Toobin: A A regrettable error on my part but that is sad but true, I went to some of your I went a couple administrative law classes, I remember that actually.
Christopher Edley: Okay, I will take credit every thing you know all of the successes since
Jeffrey Toobin: That is true though -
Christopher Edley: Welcome Jeffrey to San Francesco.
Jeffrey Toobin: Thank you. Great to be back.[Applause].
Christopher Edley: So let me start with the canonical opening question, why did you write this terrific book that by the way, is breaking - up to number two in the New York times best seller list - congratulations.
Jeffrey Toobin: Thank you, you know that that damn Alan Greenspan is like -
Christopher Edley: Uh-huh, He is so yesterday, I can you know
Jeffrey Toobin: Yeah I know I was trying to explain to my daughter I said look look, he was in charge of the American economy and I am in charge of Thunder our dog, so there is a little difference in the relative importance of of ourselves, so - any way, So the answer why why I wrote this book, well first of all can I just say how thrilled I am to be back at City Arts and lectures, the Rolls-Royce of you know urban conversation for conversational programs and I start I wrote this book because you know I have been covering the court on and off for ever since I have been in the New Yorker which is a little more than a 14 years, and you know the court sort of the ultimate subject for someone like me, it is the most important subject, yet even people who are familiar with the court and knowledgeable about the court don't really know much about who these people are and what they are like and what the interactions are like and how the and how the institution really works and one of the things I learnt is that the justices themselves know this, that they are not particularly recognized and they some times sort of ravel in that and now let me just tell you one one story here. For reasons that there are still some what mysterious to me, Stephen Breyer and David Souter are frequently mistaken for each other and this is a well known fact both I don't know if you know what they look like, they are both sort of upper middle aged white guys, they don't really look any thing alike, but they are
Christopher Edley: But they are of the same
Jeffrey Toobin: Yeah, well, you know how that - that's a good - it's really it's a good point and I think this proves that actually, so any way not too long ago, just as Souter as he often does was driving from Washington to his home in New Hampshire and he is stopped in Massachuteus to get some thing to eat, and a couple came up to him and said, I know you you are on the Supreme Court, right and he said yes, and he said I know you are Stephen Breyer, aren't you and he didn't want to embarrass the fellow in front of his wife, so he said yes, - yes yes I am Stephen Breyer, so they chatted for a little while and and finally though the guy asked a question which was somewhat unexpected, he said "so Justice Breyer, what's the best thing about being on the Supreme Court?" He thought for a minute and he said, I have to say it's the privilege of serving with David Souter, and that that story falls almost in the category of two good to check, but it actually is check, and it's apparently a true story so that's why I wrote the book, this is like who the hell are these people.
Christopher Edley: Well, listen speaking of Stephen Breyer, you have an interesting comment towards the end of the book in which you say that Justices Breyer and O'Connor struck up a wonderful deep relationship, especially towards the later years of Justice O'Connor's service, because you said they were the two least neurotic Supreme Court justices.
Jeffrey Toobin: Well you know they they are - I mean they are very unlikely sort of on the surface I mean you know the Arizona rancher's daughter and the you know the Lowell high school graduate it's a but they are but they are they are both very practically oriented they would travel to foreign countries together frequently and they would get involved and you know how did you handle jury service and what's the child care relation - issues for the people who work in the court system, you know that's sort of practical stuff it is actually a sort of bizarre and macabre story about how they were both in India on 9\11 and they spent like a week trying to get back because all the air travel was was you know had fallen apart but the - you know I I think Justice Breyer is a is an interesting case study in what's happened to the court recently and I have to say a very meaningful experience for me as I was in court on the last day of the term in June of this last very very tumultuous term and and one of things about Stephen Brayer is that he is perpetually optimistic, he is someone who is you know 'can do', 'problems can be solved' you know if you go to Lowell high school, everything could be worked out in your favor, I mean he is very loyal to Lowell high school and he - on this day was unrecognizable from the Stephen Breyer I knew he was distraught and depressed I mean this is the justice who -
Christopher Edley: What is the school case the school case?
Jeffrey Toobin: But I have to say the school case, the day of - you know right after Bush V. Gore, it was his project to take all the liberal law clerks out to lunch and say "don't worry you know we will we will win cases again, this was different". And when Breyer said in his dissenting opinion the famous line - now famous even though it's only from June, talking about what had happened to the court in just one year, you know it is not often in law that so few have changed so much so quickly that was really sobering to me because if Stephen Breyer is depressed, that means there is a lot to be depressed about and I thought you know he - the fact that I knew something about his character made the events of I believe June 27 all the more significant.
Christopher Edley: Well let's talk a little bit about that because I understand what you are saying about his reaction but on the other hand the result really wasn't that surprising to court watchers appreciating what the balance of forces had become. So could you say a little bit more about what shifts you saw in in the court this last term? And what it pretends?
Jeffrey Toobin: Well you know the the two new justices Chief Justice Roberts and Chief Justice Alito have now been now now lets behave the have been on the court for just about two years and the first year was a kind of a honey moon year, there were more unanimous opinions than usual, there were not many deeply controversial cases in front of the justices, but last year one after another all five to four, all the same four against the same five and what's you know the the real change of course was not so much Robert Rehnquist who after all was a very conservative justice himself but Justice Alito for Justice O'Conner was a dramatic change in the court and what we saw was not only - you know conservative decisions which I think is to be expected and you know that's fine you know president Bush is conservative president, why shouldn't he appoint conservative justices but the aggressiveness of the of the new conservative majority in going after precedents in the area of you know abortion, school integration, church state all of the most provocative areas of the law after just two years I think was startling to even though even if the results weren't that surprising, the way the decisions were rendered was surprising certainly to me.
Christopher Edley: So has this become politics in another form?
Jeffrey Toobin: You know that's an issue I struggled with a lot in the book because you know
Christopher Edley: Let me say for the folks who have not yet had the joy of reading the book, it is an extraordinarily rich discussion accessible to non lawyers of - not only the Supreme Court decisions and the workings of the court over the last generation but also, I would say you really situated within the description of political culture and political developments during that period in a way that we almost loose the boundary so is this now just politics?
Jeffrey Toobin: Well you know my my teachers at Harvard law school I mean came out of the legal realist tradition I would say and I never had any any illusions about the fact that you know, law was somehow isolated from politics and that you had some island of law that was just about people's components and not about their ideological predilections and and you know, I came at this in a varied sort of open I mean my eyes were open on this subject and frankly I I think constitutional or particularly has always been really a branch of politics. I don't think there is a correct answer to the question of does the constitution protects a woman's right to choose abortion. I don't think that is susceptible to a right or wrong answer. It depends how you come at the question. I think you know, I write in the book at one point that there is no meaningful distant - difference that I can see between Justice Scalia and Justice Ginsburg on this on intelligence, on competence, on ethics what's different is their ideology. And that's what matters when it comes to these constitutional decisions.
Christopher Edley: Then why is it in the senate confirmation process that it's often seems as though the senators pay as much attention to a nominee's likeability as they do to ideology?
Jeffrey Toobin: What you know, - my book is not polemical in any in any way, I mean it is mostly descriptive, mostly analytical, but one of the things that I really am pretty outraged about is the nature of the confirmation process because you know, our own specter is found of saying and I think it's accurate is that you know, a supreme court nominee will answer just as many questions as it take to get confirmed. And that's the only rule that there is but the senate has really abdicated its role of examining a nominee's qualifications in ways that matter. I mean there is this so real experience - fact let's say - so you know, there are 18 members of the senate judiciary committee. Every single one of them while running for office is required by his constituents or her constituents to answer the question, "do you think Roe V Wade is correctly decided and they all take that what ever views they have to do. None of those senators have anything to do with whether Roe V Wade is is affirmed or reversed. The one person in the room who can answer has some influence over that is not expected to answer the question because or it may be come before the court. Well, of course it's going to come before the court. That's why we want to know the answer to the question. And it's not like you haven't thought about that question, you would have to be an idiot not to have thought about that if you are at all interested in constitutional law. We will get to Thomas don't worry. The and and - but the thing as- the senate allows that sort of ducking they go on and it's easier to duck these questions than to take a perhaps unpopular stand and that's so they don't. They don't take a stand.
Christopher Edley: You know, I do not understand why the founders didn't assign this responsibility to law school deans because I so if what is striking is that is that you have some wonderfully rich discussions of the politics behind the selection of a nominee and the war of interest groups affections and so forth. Talk a little bit about the role of the what you could term the conservative movement in guiding the choices of the choices of nominee.
Jeffrey Toobin: Well, one of the themes of my book which which I think is I mean which I I tried to develop at some length is that this story - during the war inquire when the Supreme Court was really you know very liberal institution. It wasn't really place or a a even a law school or even a group of professors who engaged in a sustained critic of of Warren Court. It really dominated the discussion but starting with the with the election of Ronald Reagan in 1980 you you had you know a conservative movement that really set to itself look, "lets let's put the whole critic together and in the in the law school, in the legal world, you know that took the form of the federal society which is you know, a lot of liberals you know talk about the federal society, like it's something out of the "Da Vinci Code" and it's like really the sinister and secret. There isn't anything wrong or improper about the federal society, it's a group of people who got together and settle up we want to organize, we want to expand executive power, we want to lower the barriers between church and state, we want to end racial preferences as intended to assist African Americans and we want to end constitutional protection to the right to choose abortion. All of that you know gradually move through the Republican Party not - imperfectly and not all at once. But by the time George W Bush became president, this was the orthodoxy of the Republican Party and to me the most interesting part of the tragic comedy of the nomination of Harriet Miers was not you know her sort of pathetic efforts to look like she knew a lot of more than she did, but -but the fact that Harriet Miers is the first nominee in the history of the supreme court I believe to withdraw her candidacy even though she probably would have been confirmed. I mean I believe to this day that if Harriet Miers had gotten through the judiciary committee I mean one of the rules of senate I mean it's an old Russian and I think you will appreciate this, the witness always look better than the senators. The senators are so awful that the people always feel sorry for the witness and Miers would have been ok but the reason Miers withdrew her nomination was not because of her limited competency, it was because of the right wing of the Republican Party so dominates the process now that they thought she wasn't a 100 percent reliable on the issues that matter most to them. Now I actually thinks she would have been that reliable but they weren't sure and so they put so much pressure on the white house and on her, she was through even though she had a good chance to being confirmed and instead they wanted Samuel Alito who is a 100 percent guaranteed and I thought that was just such an amazing demonstration of political juice, I mean the power that they had to force Miers out and force Alito in was just an extraordinary thing.
Christopher Edley: So compare that with the way you saw the process working with democrats in the white house.
Jeffrey Toobin: You see I I think the the I would say this is a a veteran of veteran in the Clinton white house. I thought that the nominee.
Christopher Edley: That is me not him.
Jeffrey Toobin: No -No I don't mean -
Christopher Edley: He is a journalist.
Jeffrey Toobin: The the Clinton nominations to the Supreme Court were kind of a metaphor for the Clinton presidency which were this bizarre sort of chaotic kind of disorganized process, but actually kind of worked out pretty well. And you know the process that led to Ruth Ginsburg's election, I mean there was this very elaborate courtship of Mario Cuomo Clinton definitely wanted Mario Cuomo for that's spot and and Cuomo in his inevitable way wouldn't commit one way or another, he wouldn't decide whether he was going to way wouldn't commit one way or another, he wouldn't decide whether he was going to
Christopher Edley: Hamlet on the Hudson.
Jeffrey Toobin: Hamlet on the Hudson and finally he said he said to George Stephanopoulos who was intermediary you know "I just can't do it because I am the only democrat who can keep the governorship for the democrats in 1984" the race he lost the George Pataki So then you know he had all these various quotations with Bruce Babbitt who was secretary of interior, Richard Riley secretary of education, he offered the job to George Mitchell who said no I cant do it because I am too busy getting your health plan through the senate, we see oh well that worked out too and finally you know Clinton is standing in a room with the bunch of people and said has anybody asked Janet Reno which she thinks and you know he asked Betty Currie, "get Janet Reno on the phone" and then Janet Reno says "Oh! Have you thought about Ruth Bader Ginsburg and you know her name had appeared on various lists and you know Ginsburg was I think it's in the Thurgood Marshall of the women's rights movement.
Christopher Edley: Absolutely
Jeffrey Toobin: You know the - the women who you know argued all the big cases but she was not you know she is not a big personality, she is not a you know she was she has a husband to say has a big personality and he is a big promoter of hers, but she is not and finally they sort of came around and and Stephen Breyer was a candidate but Stephen Breyer had a bicycle accident up in Cambridge and when he came down for his interview he he and Clinton didn't hit it off very well and -
Christopher Edley: Had a broken rib -
Jeffrey Toobin: Had a broken rib and he had taken an eight hour train ride to - from from Boston to Washington which you know in the best of health, it's a pretty and terrible idea and having done it and so he did you know Clinton didn't like him that time, so he settled on Ginsburg - Ruth Bader Ginsburg - has been a pretty ascendible justice of the supreme court and it was a similar process - I mean just - I mean just my father used to say to make a long story unbearable it's the the second vacancy he really wanted to nominate this judge named Richard Arnold - Richard Arnold was a legendary figure through much of the federal judiciary but especially in Arkansas, he came from this frontier aristocracy, he had been appointed to the district court by - and then I think to the court of appeals both by Jimmy Carter, beloved in Arkansas, highly respected. Clinton played golf with him, liked him - a man so araldite that he taught himself as a hobby, Greek and Latin. No joke and Clinton really wanted to appoint him to the supreme court but for one problem several years earlier he had had lymphoma and there were some issues of whether he was cured and he didn't want to appoint someone to the court who would be A, distracted by his treatment and B, perhaps you know going to die soon and they they brought in this neutral arbiter, this this doctor at Harvard medical school to sort of analyze Arnold's charts and he looked at the charts and said "Mr. President, this man is not cured and Clinton reached Arnold in the Minneapolis airport which was not yet famous for something else and and with with you know we think said to Arnold "you know I can't nominate you and Arnold far from being bitter, the doctor who became who- who did the evaluation "he said boy you see my sick mark, why don't you become my doctor" and he he treated him for last eight or nine years is like but Arnold did in fact die of lymphoma so you know it's not disrespect to Stephen Breyer that you know he was the second choice but I think you know that he also has turned out to be a very successful justice but again it was a somewhat chaotic process.
Christopher Edley: Talk a little bit if you would about Bush V. Gore, after the 2000 election and in particular you know say anything you want to say about it, but in particular get - tell us your sense of the impact that deciding that case had on the internal dynamic of the court or relationships of the court the way justices viewed each other and there institutions.
Jeffrey Toobin: I I to to repeat something that's becoming increasingly unbelievable I have been I promise you that the book is not all that opinionated and polemical except about the Supreme Court confirmation process and except about Bush V. Gore. I I you know I do think Bush V. Gore was a terrible blow on the Supreme Court's record I think historically it will be viewed very unkindly by by students of the court and by citizens not because it led to George Bush being president but because it it seems so cravingly political and there were two dramatic reactions to the court by on the part of two justices and the first with with David Souter - you know David Souter is really a remarkable figure, someone who is you know wittiest that's how that story I hope illustrates but also I figure out at the nineteenth century someone who you know does not use a computer, does not have an answering machine, does not have cell phone, does not have a fax, does not use email, who does not like electric light, who you know who has a chair in his chambers that he moves around so he can read in the sun as the sun moves across across in the course of the day, when he arrived at the court he had not heard of the drink known as diet coke, when he was at a wedding at 2003 that you know someone mentioned the Supremes and he had never heard of that particular singing group. I mean he is somewhat isolated figure but but you know this is also the guy who wrote the Grokster opinion about file sharing which is a very sophisticated I mean he is no I mean he - he is capable I think as we all hope to be as being bigger than himself but I think that illustrates you know the the a a certain lack of cynicism that he has. You know he is not someone unlike his colleagues who is out on the Washington dinner party Circe. He is not someone who who you know socializes in Washington and and is un-cynical about the work of court and he was shattered by Bush V. Gore you know Stephen Breyer wasn't shattered, he he sort of went back to work. Ginsburg you know was used to losing cases, Stephen is used to losing cases - Souter was shattered and he seriously considered quiting the court in protest and he didn't but I think that was I an illustration of just how profound the experience was on hand --.
Christopher Edley: Lingering impact on the court do you think?
Jeffrey Toobin: Well I think the big lingering impact was on Sandra Day O'Connor. I mean I am a believer that Sandra Day O'Connor is one of the larger than life figures in American history and I say I say in the book that I think O'Connor is the most important woman in American history and you know you think about and I you know it was a superlative that was - I chose advisedly but I think it's true I mean you think here is a woman you know when she graduated near the top of her class at Stanford law school, the best job she was offered was as a legal secretary. You know that was the world that she arrived at 1981, she shows up at the Supreme Court, not even from the highest court in Arizona you know from the intermediate appeals courts in Arizona and within a few years she controls the outcome on every important issue, on abortion, on civil rights, on assistance of counsel, federalism I mean just an enormous impact. She cast that the decisive of vote in Bush V. Gore for Bush and you know this was - she is not someone - the Rancher's daughter is not someone who believes in looking back and I have never heard her or heard of her expressing regret of about that vote but O'Connor's alienation from the presidency of George W Bush begins almost immediately. She comes out of the Goldwater tradition, the libertarian tradition in the Republican Party. She is horrified by John Ashcroft, she is horrified by the religious right, she thinks this administration is extreme. She doesn't like the civil liberties impact of the war and terror. She doesn't like the war in Iraq, she especially doesn't like an event that I think historically will be seen only bigger in history which is the Terri Schiavo case. Very big impact on O'Connor and she becomes more and more alienated from Bush, votes against him on all these big cases, on Lawrence V Texas on you Know gay sodomy, on the University of Michigan affirmative case, she dismisses the concerns of the administration on all those Guantanamo case fake cases, but at the same time her husband is is falling into grip of Alzheimer's disease and she is someone who you know takes her family responsibility seriously and in time, she says "look I have to leave to take care of my husband" and she decides she have to leave in 2005 well if you remember her leave taking was quite extended because at first Roberts is appointed to replace her, but then Chief Justice Rehnquist dies so Roberts is then nominated to replace Rehnquist. That confirmation hearing takes place and then there is the Harriet Miers interregnum, then there is the Alito nomination, all of which takes place in about a year. During that year John O'Connor slips away, I mean he just becomes gone, with the Alzheimer's disease, so simultaneously she loses her beloved seat on the court and loses her beloved husband its just an extraordinary personal drama.
