As Ed has detailed, one can’t expect much from Jeffrey Toobin in terms of straightforward analysis about the Supreme Court. Toobin is spinning wildly again — this time in anticipation of the Monday release of Justice Thomas’s much-anticipated memoir, My Grandfather’s Son.
Toobin appeared on CNN today to talk about the book, based upon a CBS website piece plugging its “60 Minutes” interview of the Justice by Steve Kroft, airing Sunday night. CBS quotes Justice Thomas as saying that the abortion issue “was really the elephant in the room” at his Senate confirmation hearings.
Toobin used this comment to imply that Justice Thomas had been misleading in his confirmation hearings: “[H]e refused to say what he thought about abortion; he said he’d never even discussed abortion and Roe v. Wade. Yet, less than a year later, in the Casey case, he called for Roe v. Wade to be overturned. So he’s clearly right that abortion was a big deal, but the fact is, he didn’t let on what his views were in the course of his confirmation hearings.”
To unravel this spin, a few facts:
1. Justice Thomas did not testify that he had never “even discussed abortion and Roe v. Wade.” He testified that he had never “debated” Roe.
2. As Justice John Paul Stevens has recently said in an interview, this is entirely credible, because Roe was not a major focus of controversy when it was decided in 1973, or when Justice Stevens was nominated to the Court in 1975 — the year after Justice Thomas was graduated from Yale Law School.
3. Justice Thomas declined — like other nominees since the 1973 decision who were asked by Senators in confirmation hearings — to answer hypothetical questions about how he would rule on cases involving Roe or abortion. As Justice Ginsburg said in her confirmation hearings: “no hints, no forecasts, no previews.” For Justices to opine in advance about issues that may come before the Court undermines judicial independence, both because it creates expectations about the Justice’s views that may be incorrect, and because it allows Senators to try to substitute themselves for judges and effectively dictate the outcome of future cases by applying such specific test questions to nominees.
4. The whole metaphor of the “elephant in the room” refers precisely to an issue that is not directly acknowledged, but is an invisible driving force behind events. By 1991, pro-abortion judicial activists had decided that any proponent of judicial restraint should be destroyed during the confirmation process, because they wanted only Justices who would perpetuate abortion-on-demand through the courts. They looked then, and continue to look now, for any way to bring down nominees who adhere to principles of judicial restraint. They tried it with Chief Justice Roberts and Justice Alito, and they will try it again.
5. To imply that, because Justice Thomas expressed no opinion on Roe in his confirmation hearings, it was somehow disingenous for him to opine “less than a year later” that it should be reversed when the Justices had to decide Casey, is absurd. He had an obligation to independently consider the law and the facts in every case or controversy that came before him, whether it was one week, one year, or one decade after he came on the Court. That is what he did.
People need to read the book for themselves when it becomes available on Monday. In the meantime, they should watch “60 Minutes” on CBS Sunday night to see the Justice speak for himself. ABC News legal reporter Jan Crawford Greenburg will have an analysis of the book on ABC’s website Sunday night at about the same time that the CBS interview airs, and she will have various interview segments with the Justice on ABC on Monday.
Justice Thomas is a far more complex and nuanced person than many on all sides have appreciated to date. He has led an amazing, and inspiring, life of hardship, trial, perseverance, courage, and triumph. Let him tell his own story, without the spin and distortion, and without trying to twist every comment to serve some current political outcome.