Jan Crawford Greenburg's Supreme Conflict:

I recently read Jan Crawford Greenburg's Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court. Like co-blogger Orin Kerr, I agree that it's a "must-read." Indeed, it is probably the best book about the Supreme Court that I have ever read that was written by a journalist. Unlike some members of said profession, Greenburg has a solid understanding of both conservative and liberal legal thought and she uses it to good effect in trying to understand what the Court has done in the era of Rehnquist and Roberts. However, the real focus of the book are the Supreme Court nomination battles from Robert Bork's abortive nomination (1987) to Sam Alito's. There are numerous interesting revelatoins such as:

1. In 1986, Scalia was picked ahead of Bork in part because he was younger (and thus likely to stay on the Court longer), and in part because some of the people in Reagan's Justice Department actually thought that Scalia was more conservative than Bork.

2. Reagan's DOJ staff had correctly predicted in advance that Anthony Kennedy would not be a solid conservative vote on the Court, which is why he was not appointed until after the nominations of Bork and Douglas Ginsburg went down in flames.

3. David Souter was even more "stealthy" than is often believed. He and his backers were apparently able to convince not only President Bush 41, but also such DOJ officials as Federalist society co-founder Lee Liberman (now Lee Liberman Otis), that he was a conservative jurist.

4. Greenburg adds to the growing pile of evidence that Justice Thomas is not merely an acolyte of Justice Scalia's. She even contends that Thomas has influenced Scalia more than the other way around.

5. Sam Alito was Harriet Miers' personal first choice for the nomination that (at first) went to Miers herself. It was President Bush who insisted on choosing a woman as the nominee, which resulted in the decision to nominate Miers.

6. Attorney General Alberto Gonzalez recommended against the Miers nomination, correctly predicting that conservatives would go ballistic.

7. Bush withdrew Miers' nomination in large part because of her poor performance in mock interviews and meetings with GOP senators, not because of the revolt on the right. He believed (wrongly in my view) that conservatives would have come around to supporting Miers.

8. Sixth Circuit Judge Alice Batchelder, in my view possibly the strongest potential conservative female nominee that Bush could have picked, was removed from consideration because of a very minor conflict of interest in one of her cases (she had failed to recuse herself from a case that involved a company in which her husband - unbeknownst to the Judge herself - owned stock through a mutual fund).

I do have a few reservations about the book.

First, Greenburg is convinced that, with the Roberts and Alito nominations, conservatives have won a decisive victory in the struggle for control of the Supreme Court. I am more skeptical. The Court currently has five conservatives and four liberals, with one of the conservatives (Kennedy) often prone to defecting (as Greenburg acknowledges). Conservative control of the Court is therefore quite tenuous (though more solid than before Bush's two appointments). A lot depends on who gets to pick the next few nominees. If a liberal Democrat becomes president in 2008 (especially with a Democratic Senate majority), Bush's handiwork might well be undone.

Second, I think Greenburg sometimes overstates the importance of abortion and other "social issues" relative to other matters at stake in the battle over the judiciary. While it is true that the former are especially prominent to the general public, the conservative and liberal legal elites that she focuses on in the book also care intensely about questions such as federalism, property rights, affirmative action, free speech, and economic regulation. Many of the conservatives and libertarians who opposed Miers' nomination did so in large part because of the opaqueness of her record on these latter questions (myself included). And the anti-Miers backlash was primarily an elite backlash rather than a popular one.

Finally, it is often difficult to evaluate Greenburg's claims because, like Bob Woodward, she usually does not footnote or otherwise identify her sources. While this may be an inevitable aspect of investigative journalism, it does make it difficult for outsiders to assess the book's validity.

Such caveats notwithstanding, this is a great book, and anyone interested in Supreme Court nomination battles should definitely read it!

Jan Crawford Greenburg on Clarence Thomas:

In this Wall Street Journal column, Jan Crawford Greenburg focuses on one of the findings of her new book on the Supreme Court's recent history: that Clarence Thomas is not just a "lackey" of Antonin Scalia's.

In my view, this is actually one of Greenburg's less original revelations. Other writers, such as Thomas biographer Andrew Peyton Thomas (no relation to the Justice), and law professor Scott Gerber have already documented the considerable divergences between Thomas' approach to constitutional law and Scalia's.

Moreover, the two justices' published opinions reveal important differences even aside from the inside sources tapped by Greenburg, Peyton Thomas, and Gerber. They show that Scalia and Thomas diverged on a number of major constitutional issues including censorship of on-line pornography, federalism (especially in Gonzales v. Raich), the line-item veto, the rights of Guantanamo detainees (in Hamdi v. Rumsfeld), and the Public Use Clause (in Kelo v. City of New London, where both voted the same way, but Thomas wrote a separate dissent advocating a much narrower definition of "public use" than that endorsed in the principal dissent by Justice O'Connor which Scalia signed on to). Of course, Scalia and Thomas agree on many more issues than they disagree on. But that is not surprising for two generally conservative justices. The Court's liberal justices agree among themselves with roughly equal frequency.

The systematic disagreements between Thomas and Scalia, to my mind, stem from three principle sources: Thomas' greater commitment to originalism in cases where the original meaning clashes with precedent or modern policy preferences (evident in the federalism cases, especially Raich); Thomas' libertarian streak, which sometimes clashes with Scalia's social conservatism (evident in the First Amendment cases where they disagree; and perhaps also in Kelo); and Thomas' commitment to a broader view of executive power than Scalia is willing to support (as in the Guantanamo cases, where Thomas is the only justice to fully endorse the Bush Administration's sweeping claims of wartime executive power).