“Ask the Author” with Jan Crawford Greenburg: Part 3

Last week, we invited readers to submit questions to ABC News’s Jan Crawford Greenburg about her new book, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.

Jan’s responses are in, and this entry is the final installment in our discussion with her; part 1, which ran Wednesday, can be found here, and yesterday’s edition can be found here.

From the book, we learn how strongly the President seemed to want a woman or a minority for his second vacancy. Do you think his lack of success in this area will have a real negative impact on either the public’s view of the Court or its work product? Do you think that his stinging and very public defeat in this area means that the next vacancy – regardless of the President at the time and regardless of which seat comes open – essentially HAS to go to someone who is not a white male? Who would be the top contenders in each party?

No on the first question. I asked Chief Justice Roberts about this when I interviewed him in November. Here’s how he put it:

“Well, you remember we had the debate, maybe people don’t, about nuclear proliferation with the Soviet Union and there was always a debate about how many missiles the United States had and how many missiles the Soviet Union had, and there was a concept of throw weight, which is it’s not the numbers, it’s the force that’s involved, and Justice Ginsburg certainly carries a lot of throw weight on the Court. I think diversity on the Court is an important feature. As I was just saying, I think we have a very diverse bench in terms of the backgrounds of the people. I’m sure in the future there will be more women on the bench than just one.”

I agree Justice Ginsburg more than holds her own, and I agree we’ll have more than one woman on the bench in the near future—as soon as we get the next retirement. If Bush gets another nomination, he will not tap a white male. My sources say he’s going to nominate a woman, and the leading contenders are names we know: Owen, Brown, Sykes. Mahoney remains a possibility, if Bush decides he wants to extend the olive branch to Democrats. But she’d disappoint conservatives, and right now, the mood in the White House is to go strong: Tap a solid conservative, rally the base, wage the fight. It changes the subject—which the White House obviously would love to do. Right now, judges are about the only thing holding the base together.

That said, I seriously doubt Bush will get another nomination. Justice Stevens shows no signs of slowing down or stepping down, nor does Justice Ginsburg. And by the way, I do not know precisely when Stevens is going to retire. That was a joke! (Clearly I am not as funny as I think I am.) Now, as for Scalia’s future plans, well…

Joking! Joking!

The next president, whether a man or woman, is likely to get at least one nomination. If a Democrat is in the White House, I think the field is wide open. Merrick Garland would be a top choice, but a white man will not fill the next vacancy. I’d think about Elena Kagan (an old professor of mine at Chicago who is extremely liberal—but who gets high marks from conservatives for fairness and who’s done a lot to hire more conservatives at Harvard). I also wouldn’t discount a Hispanic pick—Democrats would also welcome the opportunity to nominate the first Hispanic and make inroads with this key constituency.

You reviewed a number of appointments and confirmations (Souter, Thomas, Kennedy, Roberts, etc.) in your book. What lessons have we learned from these experiences, and what do you see as the future of the appointment process for Supreme Court Justices? Do you think the Democrats have learned anything from the Republicans’ supposed missteps (depending on one’s point of view) in this area (i.e., Souter, Kennedy)?

Conservatives learned they can properly vet nominees and get a pretty good idea what kind of justice the contender will be. Kennedy’s nomination is a perfect example. A group of lawyers in the Justice Department strenuously opposed him because they believed—from reading some of his appellate court decisions—that he was not a solid judicial conservative. They were right, but no one at the time really listened. It’s different now. The White House scoured opinions and writings for clues. It rejected some nominees based on that. Mike McConnell, a favorite of social conservatives, fell off the short list, in part because of a decision he wrote in an immunity case. White House lawyers read opinions like that for broader clues on how judges see their roles.

For Democrats, the equation is slightly different. They’ve had more success getting liberal nominees confirmed—and then seeing them take expected liberal positions once on the bench. Conservatives believe liberal justices don’t have to worry about external pressures—like bad reviews from the Times. The issue of cultural drift has been a source of great frustration for conservatives. To head it off, conservatives have come to see experience in the executive branch—where a nominee was battle tested and criticized by the press—as a real plus. They think it will make them less sensitive to criticism once on the bench and therefore less likely to drift to the left.

Do you believe the contentiousness of lower court appointments, particularly to the circuit courts, are a product of the battles that were fought over Supreme Court Justices over the past 20 years? Was the battle over Bork the critical appointment in changing the face of politics over judicial nominees?

That’s a great question. Yes. The battle over President Bush’s lower court picks, which resulted in the first-ever filibusters of appellate court nominees, erupted solely because of the Supreme Court. But it wasn’t so much Bork as Thomas. Democrats and the liberal interest groups believed they erred by not blocking Thomas to the D.C. Circuit. They vowed not to repeat that mistake. As a result, they targeted almost all of President Bush’s women and minority appellate court picks—anyone who could be a possible Supreme Court nominee. And it worked. I’d put a lot of money on Justice Miguel Estrada or Justice Carolyn Kuhl—had either been confirmed when Bush nominated them to the appeals courts. Instead, both were filibustered, and both withdrew their nominations—making them unavailable when Bush was looking for a replacement for O’Connor. It must be bitterly ironic to Democrats that their successes in filibustering those women and minority nominees led Bush to nominate two white men.

Thanks again to Jan Crawford Greenburg for participating. And thanks to all who e-mailed questions or left comments for Jan.