For the second piece in this series, Jeffrey Toobin (NY ’80), noted legal analyst and bestselling author, was interviewed by Anthony Vitarelli (NJ ’04), law clerk to Judge Thomas B. Griffith of the United States Court of Appeals for the District of Columbia Circuit. 

Toobin serves as senior legal analysis for CNN and as a staff writer for The New Yorker, where he has covered legal affairs since 1993. A prolific writer, Toobin has authored numerous acclaimed essays and books. His latest, The Nine: Inside the Secret World of the Supreme Court, earned the 2008 J. Anthony Lukas Prize for Nonfiction from the Columbia Graduate School of Journalism and the Nieman Foundation for Journalism at Harvard University. Toobin graduated from HarvardCollege and Harvard Law School. 

Vitarelli recently graduated from Yale Law School, where he was editor-in-chief of The Yale Law Journal. He will join the Criminal Division of the Justice Department in the fall of 2010. 

Interview with
Jeffrey Toobin (NY ’80), Noted Legal Analyst and Best-selling Author
By Anthony Vitarelli (NJ ’04), Law Clerk
April 12, 2010 

Anthony Vitarelli: Do you view the judicial confirmation process as a one-way ratchet of partisanship, or do you think there is a way that a President—either this President or one in the future—and members of the Senate could make the judicial confirmation process more civil? 

Jeffrey Toobin: I don’t think partisanship is necessarily a bad thing. These are important issues and important disputes. There is aWashington phenomenon that people think disagreement is inherently bad. I don’t buy that at all. 

Sure, if Barack Obama nominated a Republican to be on the Supreme Court, that would eliminate the fight and the partisanship. But one reason we have elections is so the President can put people who are ideologically simpatico on the Supreme Court. Barack Obama, like every other President, plans on doing that. Now, it may be more or less difficult to get this person confirmed, but I certainly don’t think he should back away because there may be some unpleasantness. 

Vitarelli: Let me probe that a little more. It seems that in the last few years—you could trace it back either to Justice Thomas’s confirmation hearings or some would point to the filibuster of Miguel Estrada—that there are some nominations that seem like they would not have been so discordant a few decades ago. Now, for instance, many circuit court nominees are getting a lot more attention than they would have in the past. It seems the rhetoric has continued to ratchet up, especially in light of anonymous holds that can be placed on nominees. 

Toobin: I think it’s true that circuit court nominations have been more closely scrutinized in recent decades. But there have been a lot of Supreme Court nomination fights since the beginning of the Republic, [such as] in 1920. There were Haynsworth and Carswell under Nixon, Robert Bork under Reagan, and then Thomas. 

In fact, the last several nominations have been fairly civil. Yes, I think we have passed the day when—like Justice Stevens—nominees get confirmed 98 to nothing. But, was there ever any real chance that Sonia Sotomayor was not going to be confirmed? I don’t think so. 

Vitarelli: Since you mentioned Justice Stevens, I’m curious what your thoughts are on what has made Justice Stevens effective at garnering majorities in cases like Hamdan and Boumediene? If this President were seeking to replicate that aspect of Justice Stevens's temperament, what would he look for in a nominee's career to date? 

Toobin: One of the myths of Supreme Court confirmations, or Supreme Court appointments, is that there are very good predictive tests of how people will turn out as justices. I mean, look at Justice Stevens. Justice Stevens started out on the bench as kind of a lone eccentric and turned into a tremendous consensus builder. Through the course of all his decades, there were a couple of different kinds of justices that he was. 

Obviously, it would be best not to nominate a reclusive scholar, but it is hard to predict what kind of personality would move the very small electorate that is the Supreme Court, especially when you’re largely talking about only one persuadable target. That’s really guesswork. Any nominee that is nominated in 2010 is likely to serve with many justices whose identities we don’t even know yet. All this talk about the kind of personality you want is really guesswork at best. 

Vitarelli: In terms of the current careers that potential nominees have, the last nine have been sitting judges on circuit courts. How has that fact helped or hurt the Court as an institution? What advice would you give to the President on this point? 

Toobin: I think Obama is right that it is time to end the circuit judge monopoly on the Supreme Court. Historically, the justices have not all come from the appellate court bench. Personally, I don’t think the Supreme Court should be the top step on the civil service ladder for judges – it’s a different job than other kinds of judges. And it’s no coincidence that the court that decided Brown vs. Board of Educationdidn’t have one person on it that had ever been a judge on any court before that. I think judges with legislative, executive, and business experience would be very good. 

Vitarelli: Do you think that the fact that 2010 is an election year will affect which person the President nominates for the Court? 

Toobin: I don’t think so. We operate in a 24-hour, 365-day political and news cycle. So I don’t think 2010 is much more politically incendiary than 2009 was. Democrats and Republicans fight all the time, that’s just the world we live in. And I don’t think it matters much. 

Vitarelli: What do you think the biggest issue facing the federal judiciary as an institution is now? Certainly, the issue of a stalled judicial pay raise has created some concerns, particularly in light of judges like Michael Luttig, David Levi, and Michael McConnell leaving the bench. Do you perceive any other challenges facing the judiciary as an institution right now? 

Toobin: I think it’s terrible that they’re paid so little, but I wouldn’t call it the biggest challenge of all. Most American political issues wind up in court. The issues that divide us politically will be the biggest ones that divide us legally, as well. 

Vitarelli: Shifting gears, I’m curious about your experience working for Lawrence Walsh on the Iran-Contra investigation, the topic of your book Opening Arguments. Did that deter you from being a career lawyer, or did that enhance your interest in becoming a journalist? 

Toobin: My decision to be a journalist was an affirmative decision to embrace journalism, not a negative decision to reject law practice. I loved working for Walsh. I was very privileged to do that, and I learned a lot. 

Vitarelli: How did your experience as an Assistant U.S. Attorney [in the Eastern District of New York] influence the way you cover trials, and criminal prosecutions in particular? 

Toobin: I think it’s a big influence. Trying a case is a very particular skill. You operate within a specific legal and cultural framework, and you have specifically defined goals. Journalists have a different framework and different goals. I think journalists are often frustrated when trials don’t seek to explore the facts of a situation. That’s not what they’re about. Criminal trials are about proving someone’s guilty beyond a reasonable doubt or failing to do that. In addition to helping me understand the specific rules of evidence and all the other kinds of rules that trials operate by, just understanding the mindset of trial lawyers is very important. 

Vitarelli: What advice would you give to young attorneys just graduating from law school now? Do you perceive the legal world as a different world from when you graduated law school? 

Toobin: Of course it is a different place. But, I think law school breeds in people a very narrow sense of what’s possible and what’s successful. You hang around with law students and you think the job with the biggest law firm at the highest starting salary is necessarily the best. Grown-up life doesn’t work that way. People get other sorts of rewards from their work—non-financial rewards. There are ways to make money, if that’s what you’re interested in, that are different and perhaps better than being a lawyer. Being open to a variety of possibilities, including not going to law school at all, is the best thing you can do. 

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