Toobin Out

Jeffrey Toobin, in his latest New Yorker piece, disappoints. He starts out okay, quoting our old pal Richard Posner, to the effect that most constitutional decisions the Supreme Court makes these days can't be called right or wrong, since they essentially answer political questions.

Toobin accepts this but seems to feel, then, that Court nominess should be chosen based on their politics. Thus, they should tell the Senate how they'll decide certain cases, rather than dance the minuet that Roberts and Alito have done. This is questionable enough, but let's move on.

The odd thing is how insanely confident Toobin is that his team will pass muster:

[Supreme Court nominee Robert] Bork lost not because he answered but because of how he answered; a majority of senators saw him, correctly, as being outside the political mainstream of his time. That wouldn’t have been true for at least four of the six nominees confirmed since. If Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer had forthrightly answered questions about their judicial philosophies, they almost certainly would have been confirmed anyway; all of them belong in the large middle ground of American politics. Clarence Thomas, who squeaked by, in a vote of 52–48, probably would have been rejected in this imaginary regime of candor, given his extreme views on the bench.

Oh, Jeff, Jeff. We're talking about mainstream American politics now, not mainstream judging. Depending on the issues presented, Breyer and certainly Ginsburg could easily be painted as extreme leftists (as well as Kennedy on the right). Meanwhile, when Roberts and Alito are called "extreme," it's usually where they agree with the majority of the public.

Toobin apparently thinks he has a killer point when he notes "a recent poll shows that almost seventy per cent of the public would oppose Alito’s confirmation if he were committed to overturning Roe." (Let's ignore that this single-issue push poll was about making abortion illegal, not overturning Roe.) Big deal. You'll get numbers near seventy per cent supporting restrictions on abortion as well--does this mean Toobin's "mainstream" liberals couldn't make it? There are affirmative action practices defended to the death by the Court liberals that are opposed by well over seventy per cent of the public; same for separation of church and state cases.

The world Toobin wants, where qualified candidates are rejected for specifically answering how they'll decide cases years before they hear them, will simply lead to all-out political battles, where Republicans will reject Democrat nominees, and vice versa. Toobin better be sure his party will retake the Senate soon if this is what he wants.