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Bar News - March 23, 2007


Book Review: “Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court” By Jan Crawford Greenburg

By:

 

Jan Crawford Greenburg’s Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court is an entertaining “behind-the-scenes” account of Supreme Court nominations, beginning with Sandra Day O’Connor, and of the internal dynamics of the “Rehnquist Court.”

 

Greenburg, a graduate of the University of Chicago’s law school and a correspondent for ABC News’ Washington D.C. bureau, based the book on interviews with current and former Supreme Court justices and their law clerks, federal appeals court judges, current and former White House officials, and the papers of Justices Thurgood Marshall and Harry A. Blackmun.

 

Greenburg’s conclusion is that President George W. Bush, through the nominations and subsequent confirmations of John Roberts and Samuel Alito, has succeeded in creating a “conservative” Supreme Court. While Greenburg rejects the canard that the Rehnquist court was a conservative court, instead correctly noting that, “[b]y the end of Rehnquist’s tenure as chief justice, his court was decidedly not conservative,” one of the shortcomings of the book is that she never adequately explains the difference between a conservative jurist and a liberal jurist. This is an unfortunate omission because it prevents the lay reader from understanding what the fight over Supreme Court nominations is really about—the role of the judiciary in our system of government—and from deciding which side is right.

 

Greenburg’s conclusion that Bush has remade the Court is, in my view, clearly wrong. On issues including the “separation of church and state” and “privacy,” Justice Anthony M. Kennedy sides with the so-called liberal justices. This means that until one of these seats becomes vacant and is filled with a justice with the jurisprudential philosophy of Antonin Scalia or Clarence Thomas the Supreme Court remains a “liberal” court by a 5 to 4 margin. Additionally, it is far too early to know how Justices Roberts and Alito will turn out. After all, O’Connor and Kennedy voted with Justice William H. Rehnquist most of the time when they first joined the Court.

 

Greenburg is at her best describing the processes by which the nominees were chosen and in providing behind the scenes glimpses of the Supreme Court. Her criticism of President Ronald Reagan for nominating Scalia before Robert Bork smacks too much of hindsight, however.

             

In 1986 when Scalia was nominated, the Reagan White House had no way of knowing that there would be another vacancy in 1987. Accordingly, nominating the more confirmable Scalia, because he was 10 years younger than Bork, made quite a bit of sense. On the other hand, Greenburg’s criticism of the Reagan Administration for failing to defend Bork’s jurisprudential philosophy of originalism is well deserved.

 

Another quibble I have is that Greenburg’s treatment of Justice Ruth Bader Ginsburg’s nomination is shallow. Greenburg contends that President William J. Clinton hit a “home run” with the nomination. Although Ginsburg was confirmed 96-3 by the Senate, that says a lot more about the Republicans’ belief that the President should get to appoint judges that share his judicial philosophy than it does about Ginsburg’s merits, as Ginsburg’s paper trail made her quite “Borkable.”

 

Of course, New Hampshire readers will be most interested in the nomination of David Souter. Tragically for those who believe that the Supreme Court should be a legal not a political institution, the Bush 41 White House passed over far superior candidates in choosing Souter. Warning: skip the next two paragraphs if you want to avoid spoilers.

 

Ken Starr, who was the heir apparent, was passed over because, ironically, officials in the [US Attorney General Dick] Thornburgh Justice Department felt that he would be too malleable, while Bush 41 personally rejected Laurence Silberman because he felt Silberman was too coarse.

 

Greenburg’s treatment of Souter and his main advocates, then-Senator Warren Rudman and then-White House Chief of Staff John H. Sununu, is not flattering. Souter quickly became silly-putty in the hands of retired Justice William Brennan and Harvard Law Professor Larry Tribe. Rudman assured liberal special interest groups that Souter would never vote to overrule Roe v. Wade, but withheld that opinion from the White House. And Sununu simply “had no idea what he was talking about” when he assured Bush 41 that Souter was a reliable conservative.

 

The most informative part of Greenburg’s look at the Court’s internal dynamics may be the section on Thomas, which shows him in a completely new light. Rather than the Scalia-acolyte portrayed by the mainstream media, Thomas was from the beginning an independent and influential voice. In comparison, O’Connor, Kennedy and Souter come across as shallow and even petty.

 

Supreme Conflict is a “must read” for Supreme Court junkies.

 

Edward C. Mosca is an attorney with Soltani-Mosca in Epsom. He has been a member of the NH Bar since 1992.

 

 

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