Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court
By Jan Crawford Greenburg
Penguin, 340 pages, $27.95
How much do presidents care about Supreme Court appointments? Conventional political wisdom suggests they must care a lot. Otherwise, why have so many nominations of the last quarter century proved so controversial, with interest groups mobilizing, senators posturing and presidents portraying their choices as the products of searching, conscientious, buck-stopping-here deliberations?
Before accepting that obvious conclusion, consider some evidence on the other side of the question. Given the mill-grinding nature of our legal system, few presidents can expect any nominations they make to significantly affect their own administrations. The one noteworthy exception here is Franklin Roosevelt, whose New Deal program was gutted by the Supreme Court in the mid-1930s. But even that court had reversed course (“the switch in time that saved nine”) before FDR effectively remade the Supremes in his own image with a staggering slew of nine appointments from 1937 to 1943.
Moreover, while lawyers dominate our political life, only a handful of modern presidents have had legal training. Not counting the assassinated William McKinley, only four presidents since 1900 have been lawyers: William Howard Taft (later chief justice), Woodrow Wilson, Calvin Coolidge, Franklin Roosevelt, Richard Nixon, Gerald Ford and Bill Clinton (this sentence as published has been corrected in this text). One doubts whether most presidents care deeply about the issues the court spends its time resolving: whether to subject a statute to strict scrutiny or reasonable-basis review, or whether the doctrine of state sovereign immunity depends upon the literal language of the 11th Amendment.
These are the reservations of a skeptical historian, trained to take the long view. In “Supreme Conflict,”Jan Crawford Greenburg brings a more urgent and intimate perspective to her lively attempt to answer one of the great puzzles of modern American politics: Why have the Republican presidents who have made all but two of the Supreme Court appointments since 1969 so far failed to build the enduring majority for which conservatives have longed?
Greenburg closes her book by suggesting that the construction of just such a majority may be George W. Bush’s one great successful legacy–as opposed to the array of disasters, natural and man-made, to which he now seems destined to be linked. If it is (and I’m skeptical on this as well), she argues, that will be because he absorbed the lessons from the lost opportunities of his two Republican predecessors, Ronald Reagan and dad, by replacing William Rehnquist and Sandra Day O’Connor with John Roberts and Samuel Alito. Even then Bush committed a major error of his own with the nomination of his longtime loyal aide, Harriet Miers, whose sad story Greenburg describes with genuine pathos.
As a long-time Supreme Court correspondent, first for the Tribune and now for ABC News (with numerous previous appearances on PBS’ “NewsHour With Jim Lehrer”), Greenburg has come to know the justices as individuals and the workings of the court as an institution. But working for the World’s Greatest Newspaper evidently did not bestow quite the same aura as writing All the News That’s Fit to Print at The New York Times. For as Greenburg makes clear, the right-wing legal activists who have sought to control judicial appointments since 1981 blame the Times and its reporter Linda Greenhouse for seducing O’Connor, Anthony Kennedy and David Souter away from their assigned mission to consolidate a conservative judicial retrenchment that would undo the damage to constitutional law inflicted during the heyday of the Warren court (1954-1968) and the early years of the Burger court. Instead, O’Connor and Kennedy became unreliable swing votes, too eager to please the Times and its dyed-in-the-red-wool liberal readers. And Souter, far from being conservative, turned out to be a damnable liberal.
“Supreme Conflict” is essentially a Republican story. Greenburg devotes a brief, bland chapter to Clinton’s appointments of Ruth Bader Ginsburg and Stephen Breyer. But those were easy and non-controversial, important only for providing lessons for conservative strategists to grudgingly absorb whenever their next crack at the court came around.
The critical lessons, Greenburg makes clear, came from the Reagan and Bush 41 presidencies. Those lessons had less to do with the failed nominations of Robert Bork and another Ginsburg (Douglas, purged for a youthful fling with a controlled substance) than with the post-confirmation deviance of O’Connor, Kennedy and Souter. The real challenge was not the confirmation hearings, treacherous and ponderous as they had become. It was, rather, to preserve the doctrinal loyalty of conservative justices once they were seated.
In theory, the kind of independence that these three wavering justices demonstrated is exactly what the framers of the Constitution hoped to attain by giving federal judges tenure “during good Behaviour.” But life tenure can yield the opposite result. A president who vets his nominations carefully enough can lock his own views (or more likely, those of his more ideological subordinates) into the judiciary for decades, turning life tenure into a source of reliability rather than independence.
With O’Connor, however, there was no judicial record to vet. She had been an appellate-level state judge in Arizona, and that did not give the activists in the Justice Department’s Office of Legal Counsel enough material to evaluate. Though a political conservative, the independent-thinking cowgirl from the Lazy B ranch had no truck for the big legal theories, like originalism and textualism, that her sharpest detractor, engaging but acerbic Antonin Scalia, likes to bandy about. O’Connor takes her cases neat.
With Kennedy, a 9th Circuit federal appellate judge with a written record, the problem was different. Conservatives rightly feared he came with a strong streak of independence, or, to put it politely, a philosophically inconsistent temperament they did not trust. But after Bork’s rejection and Ginsburg’s withdrawal, Kennedy’s California credentials stood him in good stead with President Ronald Reagan and Atty. Gen. Ed Meese. Even then he had to withstand a battery of tough questions related to vital aspects of his judicial philosophy. For example, had he had sex in junior high school? Or did he and Mrs. Kennedy engage in “kinky sex”? (Evidently he did not respond: It all depends how you define “kinky.”)
Souter’s nomination by Bush the Elder was the third variation on this theme. He seemed every inch the rock-ribbed New Hampshire conservative, though perhaps a bit too idiosyncratic even for that state. En route to his Washington interview, he had all of $3 in his wallet until his sponsor, Sen. Warren Rudman (R-N.H.), gave him cab fare and spending money. Greenburg has fun noting how pro-choice activists smeared Souter as New England’s worst threat to women since the Salem witchcraft trials of 1692. But after a rough freshman year–he was so slow that his brethren viewed his office as a black hole from which opinions never escaped–Souter gradually emerged as one of the court’s most thoughtful jurists.
The payoff from these lessons was a long time coming. First there were the Clinton years, when Republicans had to content themselves with obstructing lower level judicial appointments. Then, after 2001, the same justices who intervened to stop the Florida recount had the ill grace–or so Justice Department staffers thought–to remain on the bench, rather than retire. Only Chief Justice Rehnquist’s final illness and the declining health of O’Connor’s husband produced the circumstances that finally enabled conservatives to make their move.
Greenburg provides a masterly insider’s account of how the Roberts, Miers and Alito nominations unfolded. She has spoken to principal players in the administration and the nominees, and even those who followed these matters closely will enjoy her lively account. Along the way, she provides a wealth of anecdotes that humanize the workings of the court, the institution that Americans still respect because it somehow manages to offset travesties like Bush vs. Gore with the good work of Hamdan vs. Rumsfeld.
But Greenburg also has relatively little to say about the substance of what the court does. This is constitutional jurisprudence lite–enough to frame her story and imply that great matters are at stake, but not to clearly explain why, or how, or to what purpose decisions really matter. Of course, that is also an entirely sensible way to write a book whose real focus is the appointments process itself.
Still, “Supreme Conflict” disappointed me in two other respects. Greenburg does not devote enough attention to the conservative legal activists and ideologues who, far more than the presidents whose decisions they seek to capture, have arguably been the real active force in the appointments mess of recent decades. Rather than examine their politics and purposes, she takes their concerns as a given and moves on to the higher levels of decision-making. A critical element of this story thus gets slighted.
My other reservation concerns the first rule of American constitutional law: learning to count to five. Greenburg’s conclusion that the Roberts and Alito appointments may seal the character of the court “over the next three to four decades” overreaches. If Kennedy is still the unreliable swing vote whom right-wing activists detest, then the solidly conservative bloc is still four. Affirmative action may be in trouble, but abortion would not yet seem to be. And should a vacancy arise during the final two years of the Bush presidency, it would have to be filled under circumstances very different from the ones Greenburg so engagingly describes. Even when decades of constitutional law may be at stake, a few months can still be a long time in politics.
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Jack Rakove is the W.R. Coe professor of history and American studies, and a fellow at the Center for Advanced Studies in the Behavioral Sciences, at Stanford University.
