Bench Memos

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Jeffrey Toobin’s The Nine—Part 3


A supposed insider’s account like Toobin’s requires that the reader trust the author to be careful in presenting the facts.  Does Toobin earn this trust?  Legal historian David Garrow (who I’ll point out, lest he be suspected of ideological bias against Toobin, is a liberal whose essays have appeared in the Nation and the New York Review of Books) and law professor Eugene Volokh (here and here) have already disputed a number of Toobin’s factual assertions.  In addition to those in my first two posts, I’ll identify here some that jumped out at me on a quick and rather casual read.  (I do not include here the countless examples of biased commentary.)  Some of these, I acknowledge, would be trivial in and of themselves, but they suggest in some instances a disturbing sloppiness or unfamiliarity with the subject matter and in others an animating bias.


1.  Toobin seems not to realize that Democrats mounted an actual filibuster effort on the Alito nomination that required a vote on cloture.  In recounting the floor vote on Alito’s nomination, he writes (on p. 316):


Alito’s opponents mustered forty-two votes against him—more than the forty needed for a filibuster [sic—41 votes would actually be needed to sustain a filibuster].  But many of the senators voting no made clear that they would not support a filibuster.…


No one needs to look to senatorial statements on the final confirmation vote to make a guess as to who would, and who would not, support a filibuster.  The cloture vote the previous day yielded a 72 to 25 vote.  (Some might read Toobin’s statements that Senator Kerry “called for a filibuster” but that “[f]ew of Kerry’s colleagues joined his call to arms” as recognizing that there was an actual cloture vote, but I don’t think that’s a sensible reading of the passage.)


2.  Toobin states (on p. 7) that the Court in the Rehnquist years “gave a cautious embrace to the cause of gay rights.”  But he contradicts himself some 180 pages later:  “There was no mistaking the significance of Kennedy’s opinion [in Lawrence v. Texas].…  The people who had devoted their lives to that cause understood precisely what had happened, which was why, to a degree unprecedented in the Court’s history, the benches were full of men and women sobbing with joy.”  And:  “True to Scalia’s prediction, just five months later, with heavy reliance on the Lawrence precedent, the Supreme Judicial Court of Massachusetts held that gay people must be allowed to marry, too.”   It’s difficult to see how “a cautious embrace to the cause of gay rights” could lay the foundation for judicial imposition of same-sex marriage.


3.  Toobin states that, at the Court’s conference on Planned Parenthood v. Casey, Rehnquist and three other justices wanted “to overturn Roe outright” but that Justice Kennedy was not “ready to go that far” (p. 47).  But a few pages later, he contradicts himself:  Kennedy had “voted with Rehnquist in [the 1989 ruling in] Webster, an opinion that advocated overruling Roe,” and, “[e]ven more dramatically, Kennedy had clearly supported Rehnquist at the conference in Casey” (p. 53 (emphasis added)).  Well, which is it?


4.  On abortion, Toobin’s bias seems clear: 


            (a) Rather than identifying a provision as providing for informed consent, he states (p. 37) that it “mandated that women be given a lecture about fetal development and alternatives to abortion.” 


            (b) He states (p. 132) that the Casey decision meant that “[f]irst-trimester abortions could not be banned.”  That’s quite an understatement, as Casey disallows bans on abortion at any time before viability (and it also leaves in place Doe v. Bolton’s seemingly enormous “health” loophole for post-viability abortions). 


            (c) He asserts (pp. 132-33) that “the vast majority of [partial-birth] abortions were done on women who suffered major medical complications or whose fetuses were horribly defective.”  But, as I detailed here (in response to a similar previous misstatement by Toobin): 


More than ten years ago, the New York Times reported that Ron Fitzsimmons, the executive director of the National Coalition of Abortion Providers, admitted that he had “lied through my teeth” in claiming (in the Times’s paraphrase) that partial-birth abortion “is rare and performed primarily to save the lives or fertility of women bearing severely malformed babies.”  In truth, “the procedure was common,” and “[i]n the vast majority of cases, the procedure is performed on a healthy mother with a healthy fetus that is 20 weeks or more along.”  In Fitzsimmons’s words, “The abortion-rights folks know it, the anti-abortion folks know it, and so, probably, does everyone else.” 


Everyone except Toobin and his trusting readers. 


5.  As Eugene Volokh has already pointed out, Toobin somehow cites the Court’s 2005 Commerce Clause ruling in Gonzales v. Raich as evidence of “the move to the left that characterized [O’Connor’s] jurisprudence and thus the Court’s.”  But O’Connor was in dissent in Raich.


6.  Toobin mistakenly identifies (p. 100) Harvard law professor (and former Kennedy clerk) Jack Goldsmith as the first-stage screener of potential law clerks for Justice Thomas.  Goldsmith has never played any screening role for Thomas.


7.  Toobin says (p. 156) that in “one notorious incident” one law clerk pushed another into a fountain during the 1999-2000 term.  As Garrow points out, that incident occurred a decade earlier.


8.  In another seeming contradiction, Toobin maintains that the same Souter who had a “lifestyle that hovered somewhere between modest and ascetic” (p. 243) and who “ate the same thing for lunch every day:  an entire apple, including the core and the seeds, with a cup of yogurt” (p. 43) was also one of the five “leading wine aficionados on the Court” (p. 306).  Somehow that last assertion just doesn’t ring true.


9.  Toobin claims (p. 4) that “a sedentary life had added as much as a hundred pounds to [Justice Thomas’s] frame.”  That supposed weight gain seems wildly off.


10.  Toobin states (p. 269) that the controversial series of In re Jane Doe cases in which Alberto Gonzales participated as a Texas supreme court justice in 2000 involved a parental-consent law for abortion.  In fact, the law related to parental notification, not consent.

Tags: Whelan


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