Bench Memos

On Toobin on Obama’s Judicial Legacy

Jeffrey Toobin’s new New Yorker essay on President Obama’s judicial legacy is replete with his usual propagandistic distortions and sloppy errors. It would be tedious to try to document them all. But I will comment on a few of them:

1. When Toobin asked President Obama to identify the “best Supreme Court decision of his tenure,” Obama responded by praising the Court’s decision two weeks ago to deny review of various lower-court rulings striking down state marriage laws. Toobin then offers this astounding mistranslation of Obama’s response:

In other words, Obama’s favorite decision was one in which the Court allowed the political process to go forward, one state at a time. [Emphasis added.]

Far from “allow[ing] the political process to go forward, one state at a time,” the Court’s denial of review of the rulings by the Fourth, Seventh, and Tenth Circuits leaves in place the judicial imposition of SSM in Virginia, Indiana, Wisconsin Utah, and Oklahoma and guarantees that those rulings will be applied to the remaining states in those circuits. Further, it signals that the Court will acquiesce in the judicial imposition of SSM by other courts of appeals—a signal that it took the Ninth Circuit but a day to act upon.

The way for the Court to “allow[] the political process to go forward, one state at a time,” would have been to reverse the lower-court rulings and to rule that the question whether or not to redefine marriage to include same-sex couples is a matter that the Constitution leaves to the democratic processes. That position on the constitutional question is the one that Obama used to hold (or used to pretend to hold), but he has now abandoned it, as Toobin makes clear: Obama “told me that he now believes the Constitution requires all states to allow same-sex marriage.”

2. Toobin claims that the Gang of 14 Agreement of 2005 somehow meant, “when Obama became president,” that “the minority party in the Senate—now the Republicans—was supposed to acquiesce to votes unless the judicial candidate presented ‘extraordinary circumstances.’” But as I have spelled out in detail in these two posts:

a. The Gang of 14 agreement expressly related only “to pending and future judicial nominations in the 109th Congress”—that is, for 2005 and 2006. In other words, the agreement by its own terms stopped having any operative effect at the end of 2006. (That’s why one of the Democratic signatories, Mary Landrieu, could vote against cloture on the nomination of Leslie Southwick.)

b. Then-Senator Obama and other Democrats who were not signatories to the Gang of 14 agreement never regarded that agreement as somehow limiting their freedom to filibuster judicial nominees. 

c. It’s passing strange to think that a time-limited agreement among 14 senators could effect a permanent change to the Senate’s practices.

3. Memo to the New Yorker’s legendary (mythical?) fact-checkers: While Toobin’s routine distortions are beyond your power to correct, you missed some elementary errors:

a. Toobin asserts that “few Republicans had any substantive objections to any of the [D.C. Circuit] nominees” up for confirmation last November. In fact, lots of Republicans had lots of substantive objections to Cornelia Pillard.

b. It was in 2003 (after they lost control of the Senate in the 2002 elections), not in 2005, that Democratic senators “decided to make a stand” against “several of [George W. Bush’s] circuit-court nominees” by launching the unprecedented use of the filibuster against judicial nominees. (Over two years, ten Bush 43 judicial nominees encountered a total of 20 defeated cloture motions. That data, unnoted by Toobin, undermines his assertion that “Who filibustered more—the Democrats under Bush, or the Republicans under Obama—is disputable.”)