Justice Souter "sort of got the joke about being a Supreme Court Justice."

Says Jeffrey Toobin.

He didn't have an answering machine on his phone. He was late for William Rehnquist's funeral because they couldn't leave a message and find out where he was. He doesn't like electric lights to read. He moves his chair around his office over the course of the day for the sunlight. But the great thing about Justice Souter is that he sort of got the joke about being a Supreme Court Justice and he understood that he was important but it wasn't all about him.

Which might explain his graceful retirement. I sometimes wonder about those Justices who hang on for decades and into extreme old age. Why don't they think there should be more rotation of new individuals into those chambers?

Toobin's new book is "The Oath: The Obama White House and the Supreme Court." It's full of interesting material.  I'm enjoying it.

"[I]f the court overturns Obamacare 5 to 4, Roberts’s 'stated goal of presiding over a less divisive court will be viewed as an irredeemable failure.'"

"Oh? Viewed by whom?"

George Will, pushing back Jeffrey Rosen (the source of the internal quote).

In case you're wondering why I never blogged about that Jeffrey Rosen article (which got a lot of attention), I thought it was the usual propaganda, quite boring to someone who's very familiar with all the law.

Did I fail you? Did you want me to pick it apart... explain everything... because it's being talked about... because it was in The New Yorker?

I have an interestingness standard, not an it-was-in-The-New-Yorker standard.

Oh, wait! I'm mixing up my Jeffreys. Jeffrey Toobin wrote the article in The New Yorker that I thought was the usual propaganda. Jeffrey Rosen's usual propaganda was in The New Republic.

Seriously, tell me if you want me to do more dissecting of the Jeffreys. They talk about law to the general public and thus have a lot of influence. Should I be more vigilant? Please advise.

How bad was the SG in yesterday's oral argument?

Well, he certainly started off bad. I don't think once he got going, he was as much of "train wreck" as Jeffrey Toobin seemed to think, but something was really off. Here I am, knowing what Toobin had said, listening yesterday, for the first time, to the recording of Solicitor General Donald Verrilli's argument.

Jeffrey Toobin on the SG's argument today: "This was a train wreck for the Obama administration."

"I don't know why he had a bad day," said Toobin. "He is a good lawyer, he was a perfectly fine lawyer in the really sort of tangential argument yesterday. He was not ready for the answers for the conservative justices."

Aha! I might know why the Solicitor General Donald Verrilli was so bad. I told you last October 2d I had a theory:

I have a conspiracy theory, but I won't tell you what it is...

... because I hope the conspiracy — if it exists — succeeds. Some time next year, I'll tell you what the theory was, as this is a conspiracy that will play out within a limited time frame. Don't try to drag it out of me. I am not in this conspiracy, but I don't want to blow the lid off of it. It's has to do with certain political actors seeming to be pursuing one goal, when actually they seek the opposite.

What say you? Did the SG throw the game?

"There is a purity, a simplicity..." to Eric Holder's fight for voter rights.

Asserts Jeffrey Toobin... mystifyingly. Holder is fighting against voter ID laws, and the argument that these laws violate rights isn't pure and simple, as Toobin's own article shows. So why is Toobin saying that? It's by contrast to all the other issues that Holder might want to use "to define his legacy as Attorney General — as something more than the guy who tried, and failed, to have Guantánamo Bay detainees tried in federal court in New York."

There is a purity, a simplicity, about the voting-rights fight that is sadly absent from many modern civil-rights battles. This is not about special privileges, or quotas, or even complex mathematical formulae.

Why be sad? The straightforward civil-rights battles have been won. Those that are left are questionable. That's good. Unless you define the good in terms of opportunities for Eric Holder to define his legacy.

It's about a basic right of American citizenship, which is being taken from large numbers of people for the most cynical of reasons. [Voter ID] laws are, quite literally, indefensible...

Ridiculous! They're completely defensible. The case law is clear that requiring an ID doesn't violate the Constitution. The Supreme Court said so in 2008, in a 6-3 case. Holder still has a chance to use statutory law against the states that are covered by the Voting Rights Act, but to do that he'll have to argue for a broad interpretation of congressional powers, and what's pure and simple about that?

"Rush is the man," said Jeffrey Toobin on Journolist.

After Sarah Spitz said she'd immensely enjoy watching Rush Limbaugh die:

Rush cannot be replaced. What people miss about Rush is that he is just astonishingly good as a broadcaster.  He is compelling, funny, entertaining. I haven’t heard Thompson often, but he’s probably pretty lame. Ingraham is ok. I never listen to Hannity on the radio. But Rush is the man.

And for that Jonathan Strong of The Daily Caller counts Toobin as one of the "Heroes of Journolist."

***

On July 20, Rush talked about Journolist, and mentioned Toobin:

Friend sends me a note, "Rush what do you mean? What do you mean here this 'small time, crazy, left-wing bloggers'? Jeffrey Toobin, Eric Alterman, Paul Krugman Joe Klein are crazy left-wing bloggers? They're treated as giants." Let's take 'em individually. Eric Alterman. Do you know who Eric Alterman is? The left may treat him as a giant. I know that they do. He's a kook! He's a far-left fringe kook. But do you know who he is? Do you? Jeffrey Toobin. You might know who he is. He works for the least-watched cable news network in history, CNN. He also worked there when they had viewers. I know he's considered a giant. He's a "legal correspondent." He's considered to be above reproach.

There is no journalism. These people are not journalists. They're propagandists, whether it's Jeffrey Toobin or Eric Alterman or Krugman. Yeah, he's a New York Times columnist; he's a propagandist. He is a giant because he's in the New York Times. But my point is whether it's people you've never heard of on this list writing for blogs you've never heard of or whether it is names you never heard of, it's the entire Washington media -- and it's pervasive. I really do think that the take here is there is no media. This is the big myth. You know, the German historian Carl von Clausewitz once stated "War is diplomacy by another means." Well, journalism is just propaganda now: The government putting out its agenda by another means. There are no reporters. There is no journalism. It's just liberalism....

"They were only in study groups together. They weren't friends. Yet he now goes on TV every night yammering on about her."

The NY Post reports what "one source" says about Jeffrey Toobin and Elena Kagan.

IN THE COMMENTS: danielle says:

this snippet is like teenage gossip where somone (Jeffrey in this case) knows the cool kids, but they dont like him as much as he thinks they do and so they make fun of him behind his back.

Precisely!

Tube in...

... tube out!

(Via Kaus.)

Jeffrey Toobin has at Chief Justice John Roberts.

In the New Yorker.

1. Things Roberts did to Deputy Solicitor General Neal K. Katyal during the oral argument in the voting rights case: a. "pounced," b. "removed his glasses and stared down at," and c. "was relentless in challenging.”

2. The tone of Roberts's questions aimed at a lawyer arguing in favor of a city's affirmative action policy: "belligerent."

3. What Roberts is like compared to Scalia: "extreme" and more "effervescent."

4. Why Roberts's style is inconsistent with the self-image as an "umpire" that he promoted at his confirmation hearings: "In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff." And "Roberts has served the interests, and reflected the values, of the contemporary Republican Party."

5. I skimmed the rest of the article.

IN THE COMMENTS: Juris Dentist said:

On the Althouse blog:

1. We went to the laundromat!

2. We took a drive.

3. We took a walk.

4. Boo hoo, why does Jeffrey Toobin get to write articles that should be written be me!!!

5. I skimmed the rest.

After Ginsburg? "A woman? It seems certain. It’s inconceivable that the Court could be all-male...."

Jeffrey Toobin thinks Obama might pick a non-judge — maybe Janet Napolitano or Jennifer Granholm. Of the judges, Toobin flags: Sonia Sotomayor, Diane Wood, and Elena Kagan.

Think it's in bad taste to launch into talk about replacing Ginsburg as soon as we hear of her cancer treatment?

What's in worse taste?
	Talk of replacing a Justice the instant we hear of her cancer treatment.
	An elderly Justice remaining on the Court when seriously ill.
pollcode.com free polls

While we're at it:

If the Ginsburg seat is vacated is it necessary to replace her with a woman?
	Absolutely. We cannot have an all-male Court.
	The President should use a sex-blind selection process.
	The President should give some consideration to the sex of the Justice, but not too much.
pollcode.com free polls

Live-blogging night 3 -- Sarah Palin alert! -- of the Republican Convention.

5:43 Central Time: I'm just setting this up so you can get started talking and to let you know that I'll be here -- on what is obviously a very exciting night.

7:48: I'm just settling in for some serious blogging, and the first thing I notice is this open mike eavesdropping on Mike Murphy and Peggy Noonan. Peggy: "The most qualified? No! I think they went for this -- excuse me-- political bullshit about narratives... Every time the Republicans do that, because that's not where they live and it's not what they're good at, they blow it."

8:11: It's Mitt Romney. He's got a peppy, plastic style. It's hammy in a way that might work from farther back in the room. Down with the "eastern elites"! It's time for sun to rise in the west -- in Arizona and Alaska. Now, he's getting an audience chant going: "It's liberal!" "We need change all right. Change from a liberal Washington to a conservative Washington." Liberals don't understand business. They grow government and dependency. It's "death to initiative." Fight dependency "like the poison it is." "It's time for the party of big ideas, not the party of Big Brother." He does a pretty good job of sharpening up the line between conservatives and liberals and making the conservative side seem better -- especially in economics.

8:28: I'm watching on CNN, with a TiVo assist. I'm keeping up with the speeches. But I pause when a speech ends and then scroll through the commentary when it's time for the next speech. Are the CNN commentators interesting? I don't have time for it all. Let's stop. Here's Jeffrey Toobin saying that bitching about the news media is hypocritical coming from John McCain, because they always used to love him. How come suddenly they seem "hypocritical and biased against him"? Huh? What's hypocritical? That sounds like they were always biased, but they just aren't supporting John McCain right now. What the hell kind of a defense of journalism isn that supposed to be? I mean, I can see why McCain is pissed about it. But it's an embarrassing defense.

8:33: Candy Crowley snags Mitt on the convention floor. She poses a hypothetical. Hey, what if John McCain drops dead on day one, huh? What do you think about that? How is Palin up for it? Mitt responds exactly the way you'd expect: Well, Obama, if elected, would be Prez on day one and how's he going to do it? Yeah, you don't even need a death scenario for that, you know, Candy. Mitt-quote: "The question about experience raises a lot of questions about Barack Obama."

8:36: Now, Mike Huckabee is up. He admits he's disappointed not to be the nominee. But McCain was his second choice, he says. He's got "the character and the stubborn kind of integrity that we need in a President." He thanks the MSM for uniting the Republican Party. Obama "will elevate our taxes and our risk in a dangerous world." He's got a chant he's trying to get going: "You want something to change." But don't forget about the things you don't want to change, like our freedom. He mocks "Barack Obama's Excellent Adventure to Europe." We don't like "European ideas." We like our freedom -- in other words, we don't like big government. This is the anti-dependency message again. It's not what government will do for you, it's what you will do for yourself if government gets out of the way. "The only soap we ever had in my house is Lava." That's a great line. "I'm not a Republican because I grew up rich. I'm a Republican because I didn't want to grow up poor waiting for the government to rescue me." Hey! This is an excellent speech. Much better than Romney's. Nice rhetoric and delivery.

8:46: The digital backdrop -- a flag, I think -- is, on these closeups, just a throbbing red. It's hard on the eyes. They need to blue it up, like normal TV. [ADDED: When Sarah Palin speaks, they just turn if off and have a black background.]

8:51: Huckabee ends with a long, folksy story about a teacher with a lesson to students about how they could "earn their desks." Veterans carrying desks are involved. I respect respecting veterans, but don't really see what's so wonderful about taking little kids and lengthily instructing them about what men have done in far away wars. It's a little too Captain-Koons-Hello-Little-Man for my taste.

8:58: I just corrected a typo in the 8:11 entry. I'd written "It's hammy in a way that might work from father back in the room." My son John emailed me about the typo, and I indicated that maybe it was Freudian, and I really wished I could have Mitt Romney for my dad, and John sends me this pic...



... and reminds me that he always said that Mitt looks like the dad on "The Donna Reed Show."

9:05: It's Rudy Giuliani, and this should be good. He was great at the RNC in '04. (Closeup on Cindy McCain who suddenly has her hair curled. Did the memo go out to soften her up?)

9:07: Rudy is saying that electing a President is basically hiring someone to do a job. He recites McCains résumé. Then we have another man. "He worked as a community organizer." He pauses. Mutters "what?" The audience reacts. Rudy repeats: "He worked as a community organizer." "Maybe this is the first problem on the résumé." And: "He immersed himself in Chicago machine politics." (That's an important line that could take a lot more play.) The audience boos Chicago machine politics. On to the Illinois state legislature where he couldn't figure out whether to vote yes or no. "It was too tough!" "I didn't know about this vote 'present' when I was mayor of New York City." And Sarah Palin couldn't vote "present" as Governor of Alaska. Being able to vote "present" means you weren't in an executive position.

9:17: Barack Obama has never led people in times of crisis. "He is the least experienced candidate for President in at least the last 100 years." He's never led people in anything -- "nada, nothing." Hey, that's unfair! He led the Harvard Law Review.

9:19: And don't forget: He led his campaign for President.

9:23: Rudy says Obama talks about change, but it might be the wrong kind of change. We want the right kind of change. Like, we should drill for oil. The crowd is all: "Drill, baby, drill!"

9:24: The Dems worry that it's politically incorrect to say "Islamic terrorism." They're afraid of insulting terrorists. The big digital screen is used to show a big skyline of NYC.

9:26: The surge was right. McCain got it right and Obama got it wrong. John McCain has taken unpopular positions and political risks. When, Rudy asks, has Obama ever done that? He was for an undivided Jerusalem for one day, only one day, when he was in Israel. The idea is that Obama is a man who played it safe, ingratiating himself in one way after another.

9:31: Palin has had "more executive experience than the entire Democratic ticket combined." He doesn't throw in John McCain and say she's had more executive experience than all 3 of them put together. He mocks the Dems for mocking her for being a mayor of a small town... where they cling to religion and guns. And now she's the most popular Governor in the country with an 80% approval rating. "You never get that in New York City." She fought corruption. She stood up for what is right. She and McCain "are going to shake up Washington." And "how dare they question whether Sarah Palin has enough time to spend with her children and be Vice President. When do they ever ask a man that question? When?!"

9:36: And now! It's her! Sarah Palin! Black skirt. Silver jacket. Oh, when do they ever say that about a man?

9:37: Huge cheers. Cute kid closeup. "Thang-Q. Thang-Q. Thang-Q so much."

9:38: She introduces her family -- her son, who is going to Iraq, her 3 daughters -- the cute youngest waves -- and the baby Trig, the special needs child. And she looks out directly on America, as though she sees all the people who have special children in their families -- and pledges that we will have a friend and advocate in the White House.

9:48: She tells us about Todd, the fisherman, her "guy," and don't forget that Yupik ancestry. She's got a Native American husband.

9:50: She praises small town Americans (like her!). Don't disrespect them! They are the salt of the earth.

9:52: "I guess a small-town mayor is sort of like a community organizer... except that you have actual responsibilities." And in small towns, they don't know what to make of a candidate who "lavishes praise" on them when he's around and then, behind their backs, "talks about how bitterly they cling to their religion and guns." Don't talk about us "one way in Scranton and another way in San Francisco." Ouch. John McCain is the same man wherever he goes.

10:00: In power, she fought corruption and government excess. "That luxury jet was over the top. I put it on eBay." "Nearly half a billion dollars in vetoes."

10:11: She's laying into Barack Obama. What is he, once those styrofoam pillars are dragged off the stage? It's all show. And the real plan is the old tax and spend.

10:13: "The American presidency is not supposed to be a journey of personal discovery."

10:19: She retells the story of John McCain, with the emphasis on character and authenticity. Elect "a great man" as the next President, she implores... to fabulous applause. We see the newly-curly-headed Cindy in the audience. She's pumped. The Palin family files out onto the stage. Trig is awakened. No baby would understand what the hell is going on, but he's gazing around at the lights and colors. The pregnant Bristol is there with her hunky hockey boyfriend. And now McCain trundles out. He raises his arms as high as he can to wave to the crowd. His tie is the color of the pantsuit Hillary wore for the DNC. [ADDED: He's sending the secret tie signal.] "Don't you think we made the right choice for the next Vice President of the United States? And what a beautiful family." He leans over to respond to something the little girl said. He shrugs. I guess he didn't know whatever it was that she didn't know.

10:32: Maybe it was: "Are you the next President?"

Bizarre! The URL for the David Stout article about the D.C. gun case now goes to the Linda Greenhouse article on the same subject.

And the David Stout article is nowhere to be found. Here's the URL in question. I'm hyperaware of this switch, because I just wrote a long blog post that criticized the way Stout wrote about the Supreme Court, and I expressly doubted that Linda Greenhouse would have written it like that:

... I wonder how Stout knows Scalia "clearly takes pride in his writing as well as his reasoning." Did the use of the words "frivolous" and "bizarre" somehow imply that pride or is the evidence elsewhere and we're just supposed to know it?....

Oh, no! Reading Stout (and Liptak) today, I'm nagged by the question What would Greenhouse have written? Would Linda Greenhouse have inserted commentary about Scalia pride?

Not to be outdone, Justice Stevens called the majority’s interpretation of the Second Amendment “overwrought and novel” and said it “calls to mind the parable of the six blind men and the elephant”...

Would Linda Greenhouse have imputed that competitive motivation to Stevens's choice of words? Stout's writing has something of the problem that plagued Jeffrey Toobin's book "The Nine." For narrative effect, the Court is portrayed as a psychodrama.

I'm not saying they changed it because of what I wrote. But that is curious, freakish, odd, peculiar, strange, unusual, and weird.

And Greenhouse notably and admirably avoids the Court-as-psychodrama problem.

"It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."

Writes Justice Scalia, for the majority, in the D.C. guns case, accoring to David Stout's report in the NYT [UPDATE: The link no longer goes to the David Stout article, which I can't find on line at all anymore!]

Justice Antonin Scalia, writing for the majority in the landmark 5-to-4 decision, said the Constitution does not allow “the absolute prohibition of handguns held and used for self-defense in the home.”...

But the court held that the individual right to possess a gun “for traditionally lawful purposes, such as self-defense within the home” is not unlimited....

The ruling does not mean, for instance, that laws against carrying concealed weapons are to be swept aside. Furthermore, Justice Scalia wrote, “The court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”...

“The amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second clause,” wrote Justice Scalia. “The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.”

Not at all, Justice Stevens countered, asserting that the majority “stakes its holding on a strained and unpersuasive reading of the amendment’s text.”

Stout informs us that Scalia "clearly takes pride in his writing as well as his reasoning" and in the same sentence writes that he applied "adjectives like 'frivolous' and 'bizarre'" to the dissenting opinion.

I wonder what "adjectives like 'frivolous' and 'bizarre'" Scalia used. Empty-headed? Featherbrained? flighty? Frothy? Giddy? Harebrained? Lighthearted? Scatterbrained? Silly? Gaga? Birdbrained? Dizzy? Cranky? Curious? Eccentric? Erratic? Freakish? Idiosyncratic? Odd? Outlandish? Peculiar? Quaint? Queer? Quirky? Singular? Strange? Unnatural? Unusual? Weird? Kooky? Screwball?

Oh... you mean he actually used the words "frivolous" and "bizarre"? I see.

Well, then I wonder how Stout knows Scalia "clearly takes pride in his writing as well as his reasoning." Did the use of the words "frivolous" and "bizarre" somehow imply that pride or is the evidence elsewhere and we're just supposed to know it? (Or do you just not want to plug his book?)

Oh, no! Reading Stout (and Liptak) today, I'm nagged by the question What would Greenhouse have written? Would Linda Greenhouse have inserted commentary about Scalia pride?

Not to be outdone, Justice Stevens called the majority’s interpretation of the Second Amendment “overwrought and novel” and said it “calls to mind the parable of the six blind men and the elephant”...

Would Linda Greenhouse have imputed that competitive motivation to Stevens's choice of words? Stout's writing has something of the problem that plagued Jeffrey Toobin's book "The Nine." For narrative effect, the Court is portrayed as a psychodrama. [UPDATE: Since my link now goes to the Linda Greenhouse report, you can read it and answer my question! The answer is: No.]

***

Stout tells us how McCain and Obama reacted to the case:

“I applaud this decision as well as the overturning of the District of Columbia’s ban on handguns and limitations on the ability to use firearms for self-defense,” Mr. McCain said in a statement, which contained a reminder that his Democratic nominee, Senator Barack Obama of Illinois, refused to join him in signing an amicus brief in support of overturning the district’s law.

Indeed, Mr. Obama’s view, expressed in a statement, was more nuanced than Mr. McCain’s.

More nuanced!

“I have always believed that the Second Amendment protects the right of individuals to bear arms, but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common-sense, effective safety measures,” Mr. Obama said, predicting that the ruling would provide needed guidance for lawmakers.

Is that nuance or the same point Scalia acknowledged, that the rights don't preclude regulation? What I think is telling in Obama's statement is the mismatch between concern about "crime-ravaged communities" and "violence" on the one hand and, on the other, the desire for "safety measures."

What the Brit learned reading 2 books about the U.S. Supreme Court.

He's lawyer turned columnist, Marcel Berlin:

... I had just finished reading a recent book on the Supreme Court judges: The Nine, by Jeffrey Toobin. What struck me first was how impossible it would be to have such a book here. In the US the nine judges of the highest court are national news: here their equivalent, the 12 law lords, are virtually unknown outside the legal world....

Toobin looks behind the scenes of the court's decision - by a majority of 5-4 - to hand the US presidency to Bush in 2000, following the Florida voting fiasco. His account does not enhance the court's reputation. Reading it made me feel even more strongly than I had before that the case was decided by the majority on primarily political, not legal grounds.

Clarence Thomas, generally regarded as the weakest of the judges, recently published his autobiography, My Grandfather's Son, describing his upbringing as a black child in a poor family in the racist south. It should be an inspiring story. He spoils it by his bitterness, anger, egotism, and the burden of many chips on his shoulders.

Thanks for the pithy summary of your bias.

The interpretation of carpeting.

Remember the way Jeffrey Toobin — in "The Nine" — belittled Justice Anthony Kennedy through the interpretation of carpeting?

[Justice Anthony] Kennedy's vanity was generally harmless, almost charming -- sort of like the carpet in his office.

Understatement was the rule for the decor in most justices' chambers. Everyone had a few personal touches -- O'Connor employed a southwestern motif, with Native American blankets and curios; Ginsburg had opera mementos; Stevens had the box score from the World Series game in 1932 when Babe Ruth hit is "called shot" home run against the Chicago Cubs. (Stevens had attended the game as a twelve-year-old boy.) Kennedy, in contrast, installed a plush red carpet, more suited to a theater set than a judge's chambers. Worse (or better, depending on one's perspective), the carpet was festooned with gold stars -- garish touches that made the office a sort of tourist attraction for law clerks and other insiders.

When I read the book, I wrote:

What the hell? So what if Kennedy has proletarian taste in carpet? Does that mean anything about him? And, supposing it does, why would a man who likes thick carpet and bright colors be less suited to make decisions for us than someone with high-class, refined tastes? Who are these asinine clerks who are trying to take the justice down a peg because of his carpet?...

[Toobin is] promoting the theory that Kennedy -- as the next sentence reads -- "tried hard, maybe too hard, to impress"... Kennedy is a ridiculous man, don't you know...

I'm thinking about that now, as I eat breakfast in the elegant restaurant in a beautiful, historic hotel in Austin, Texas and stare at the floor:



Maybe it's not so much about high and low class taste as it is a matter of Eastern and Western taste. Yes, I know Sacramento (Kennedy's home town) and Austin are far from each other. This hotel reflects the styles of 1886 and the tastes of a cattle baron. Sacramento was a gold-rush town in the 1800s. But some rough, adventurous people got rich in the 19th century. Shouldn't east-coasters like Jeffrey Toobin — he was a New York City preppie — and — I'm thinking — those law clerks — show a little respect for the sweep of American culture?

"He sees an opening right now to move the law toward what the conservative movement wants..."

"...and you never know whether that opening will last." Says Anthony Lewis about Chief Justice John Roberts. He's reviewing Jeffrey Toobin's "The Nine" in The New York Review of Books.

It's a rank slur on the Chief Justice.

"Unforgiven: Why is Clarence Thomas so angry?"

That's the title of this Jeffrey Toobin piece in The New Yorker. I don't think that's a very accurate title and suspect his editor was hot to spread the Thomas-is-angry-meme. What concerns Toobin is Thomas's attachment to conservative politics. Here's the concluding paragraph (which you can see isn't about anger at all):

The tenor of Thomas’s memoir, as well as his judicial record, suggests that he will continue to display his brand of “courage”—that is, to serve the interests of a conservative élite, and hearten Vice-President Cheney and his ideological kin with his exhortation “Be not afraid.” As Thomas has often said, it is a credit to the country that a man from Pin Point can be given the opportunity to serve on the highest court in the land. “As a child, I could not dare dream that I would ever see the Supreme Court, not to mention be nominated to it,” he said on the day he was selected. There is less to celebrate in the way that Thomas has used the opportunity to speak power to truth.

Hugh Hewitt talks to Clarence Thomas about religion, Jeffrey Toobin, blogs, jihadists, Black Power, Anita Hill, George Bush....

1. Does Catholicism affect his judging? Hugh Hewitt asks Clarence Thomas. Hewitt notes that Chicago dean Geoffrey Stone of Chicago has said that Catholicism infused the the Court's recent "partial-birth" abortion decision. Answer:

Oh, no. In fact, it works just the opposite. My view is simply that the important thing that it pushes you toward is adherence to your oath, which is to judge impartially. And my view is once you start sort of putting your personal beliefs and opinions into the law, or into the Constitution, you cease to have legitimacy, and I don’t think you should be on the Bench. Now I find that fascinating, though, that people would say things like that, and in the same breath, what I get, is the criticism that I don’t judge as a black judge, you know?

I’m supposed to somehow include my race in my judging, but the religion, you don’t include in your judging. I don’t think you should include either in your judging, and I don’t. And in sixteen years on the Bench, well, I’m one week short of sixteen years. But in the almost sixteen years I’ve been on the Bench on the Supreme Court, I have never done that. And in the more than sixteen I’ve been a federal judge, I have never done that.

2. Thomas loved Justice White:

I just loved the way Byron White conducted himself. I love the fact that he felt that the job was important, he felt that the Court was important, that the Constitution and our laws were important, but he wasn’t. that he was there to do his job and go home. And that’s what he did. He was just a good man.

3. Has he read "The Nine"? No, and he won't, but he knows Hewitt didn't like it. Hewitt says he thought Jeffrey Toobin was "very unfair" to some of the Justices, the way he made the Court — after Bush v. Gore — look "dysfunctional," with "bitterness is going on and people are crying and crushed." Thomas:

I didn’t see anybody crying. And the last I can remember is that after we announced the opinion, we all went upstairs and had lunch.

HH: He writes in there that the Court’s embarrassed by Bush v. Gore. Is that fair?

CT: I haven’t seen it (laughing). Look, I suffer from the disadvantage that I’m there every day.

HH: (laughing)

CT: I mean, this would all probably make more sense to me if I wasn’t there. I’ve not seen any embarrassment, I haven’t seen any dysfunctional, any evidence that the Court is dysfunctional. And so I can’t, I really can’t comment on something that’s not happening.

4. Hewitt asks Thomas if he reads the blogs! He says "no," then backtracks":

No….some of them. You know, occasionally I’ll read something, but not that much.

HH: And do your colleagues? Or are they still practicing Supreme Court jurisprudence the old fashioned way, via the briefs and not public opinion?

Are the lawprof blogs really "public opinion"? This gets Thomas off the subject of blogs and back to the denial that he lets public opinion affect his decisions. But the law blogs contain legal arguments. Sometimes...

5. Hewitt asks Thomas if he's "aware of the war," which seems like a ridiculous question, but what he means is does the knowledge of the war affect his judging. But then, Hewitt poses a really insightful question:

HH: I was…when I was reading My Grandfather’s Son, I had an unusual question that I wrote down. Do you understand the jihadists who are these angry, young men, who are locked out of opportunity, who suffer discrimination of the worst sort, and who really have nowhere to go except into this sort of conflict?

CT: Well, I can’t say that I understand them. I do know that for example in this country, and I make this point in the whole portion of the book in 1968, when I talk about being drawn into this whole notion of black power, and that is that you know, when you feel locked out, you do gravitate toward things that feel, that seem empowering. At least that’s the way it was for me. I can’t speak for others. And so this black power notion made you feel, it was invigorating, and it made you feel empowered. And it could also be debilitating, as I found out later, or self-destructive. But I can’t speak for them, but I know in my own case, it was sort of something similar to that, but not nearly as, I guess, as universal.

6. And Hewitt's got a theory about Anita Hill:

HH: I want to try out my theory on you, and maybe you can comment or not, but that she had told little lies to explain failures that got out of hand, and she had to defend them. Does that make sense to you?

CT: That makes sense, but you know, again, I can’t, I have not gotten into whether or not…I could speculate, but I think it would probably, it would be remiss if I did so.

We don't get to hear his speculation, of course.

7. Hewitt asks him if he likes George Bush:

I admire anybody who stands up and leads. Now you can always disagree with a person here or there, but I admire anybody who gets in a position and actually tries to lead.

There's some faint praise!

About Justice Kennedy's garish carpet and the way his desk is wedged in a corner.

Let's take a look at this passage from Jeffrey Toobin's book "The Nine: Inside the Secret World of the Supreme Court," page 147:

[Justice Anthony] Kennedy's vanity was generally harmless, almost charming -- sort of like the carpet in his office.

Understatement was the rule for the decor in most justices' chambers. Everyone had a few personal touches -- O'Connor employed a southwestern motif, with Native American blankets and curios; Ginsburg had opera mementos; Stevens had the box score from the World Series game in 1932 when Babe Ruth hit is "called shot" home run against the Chicago Cubs. (Stevens had attended the game as a twelve-year-old boy.) Kennedy, in contrast, installed a plush red carpet, more suited to a theater set than a judge's chambers. Worse (or better, depending on one's perspective), the carpet was festooned with gold stars -- garish touches that made the office a sort of tourist attraction for law clerks and other insiders.

So, let's see. Some law-clerk source of Toobin's was all... Omigod, you should see the carpet in Kennedy's office. It's all red like thick red like something you'd put in a theater set and it has like these garish stars all over it, so whenever our friends come in late at night we always go into Kennedy's chambers. I am always all you have got to see these garish stars like festooned all over the thing. I mean, like O'Connor has these really tasteful Native American thingies and Ginsburg has all this really high-class opera crap, and Stevens has that Babe Ruth thing because he actually saw Babe Ruth. My friend was all O'Connor and Ginsburg and Stevens all have stuff that like represents actual interests, you know, represents who they are. So it's like Kennedy is thick red carpet with gold stars, you know what I mean? Now, we all say that to each other whenever we want to crack up. It's always good when you want to roll on the floor laughing to have this really thick, plush, Kennedyesque, red carpet with garish stars to roll on.

What the hell? So what if Kennedy has proletarian taste in carpet? Does that mean anything about him? And, supposing it does, why would a man who likes thick carpet and bright colors be less suited to make decisions for us than someone with high-class, refined tastes? Who are these asinine clerks who are trying to take the justice down a peg because of his carpet?

And what the hell is a "theater set"? If you mean the carpet seemed like the kind you'd find in the aisles or lobby of a theater, that is not the set. The set is up on the stage, and the kind of carpet that would belong in the set would depend on what the play was. We're not using plush red with gold stars for "Long Day's Journey Into Night" or "Waiting for Godot."

Back to the passage that is irking me so bad:

All of the justices had the right to borrow paintings from the National Gallery, but Kennedy had taken the fullest advantage, plucking several near-masterpieces from the collection.

Now, what's the problem? He's got the good taste to pick the best paintings? Or do you think he's hogging paintings that the National Gallery would like to have on display for the general public? I'm willing to bet that the National Gallery is lending paintings that would otherwise be in storage. So now you're knocking Kennedy because he likes art? That makes him inferior -- more grandiose -- than the justices who display their personal memorabilia? Why?

What was more, he wedged his desk into the far corner of his office, away from the door, so that visitors had to traverse the expanse of the room to shake his hand.

Who's imposing that interpretation of the placement of the desk? There are any number of reasons why you might choose to position your desk in a corner. In fact, if Toobin wasn't in the middle of promoting the theory that Kennedy -- as the next sentence reads -- "tried hard, maybe too hard, to impress," most readers would probably think the corner was a rather humble position for a desk. Or maybe the light is better over there. But Kennedy is a ridiculous man, don't you know. He has red carpet, paintings, and a desk in the corner. Q.E.D.

"I'll take care of John Roberts"/"You just leave John Roberts to me."

In "The Nine: Inside the Secret World of the Supreme Court," Jeffrey Toobin tells the same anecdote twice, with different quotes.

Page 301:

O'Connor loved Roberts... [S]he thought that Roberts's good looks and charisma projected exactly the right image.... But O'Connor was hardly, as some thought, a starstruck schoolgirl. At a meeting to plan a conference she was hosting, someone wondered if the chief justice might be asked to attend. With icy confidence, O'Connor said, "I'll take care of John Roberts."

Page 326:

In September 2006, [Sandra Day O'Connor] sponsored, organized, and hosted a conference at Georgetown University Law Center on judicial independence.... O'Connor's self-confidence was intact. At a planning meeting for the Georgetown event, several people wondered whether the new chief justice might attend. "You just leave John Roberts to me," O'Connor promised, and the new chief dutifully paid homage.

Well, maybe she said both things, but I have to doubt that Toobin meant to use that anecdote twice and think that if anyone had noticed they wouldn't leave it with two quotes. And I think it's fair to suspect that Toobin assembles material into quotes that are not really quotes.

He also -- and this is characteristic of the entire book -- takes little details and uses them to make statements about the psychology of the Justices. At least in this case, he doesn't slip up and use the statement (whatever its exact words) to demonstrate two different things. The meaning of the shred of evidence is the same on both pages. It shows self-confidence.

But really, even to use this anecdote once is pretty weak. Naturally, if O'Connor is involved in planning a conference, she's in the best position to invite Supreme Court Justices, and if "someone" or "several people" mentioned inviting Roberts, she should be the one to do it. How much confidence -- icy or toasty warm -- would that take? Or is it something about the precise words? Whatever the precise words were....