Patterico's Pontifications

9/29/2007

Toobin: O’Connor Moved Left When the Conservatives Were Meanies — and Also Moved Left When They Weren’t

Filed under: Books,General,Judiciary — Patterico @ 12:23 am



From the Toobin book, we learn that apparently O’Connor moved to the left in reaction to very conservative justices:

Most famously, from the beginning of his tenure, Scalia had actively repelled O’Connor, pushing her toward her moderate, swing role.

(p. 318)

If you’re going to be a meanie towards me, there’s no way I’m going to agree with you!

Except that it appears O’Connor wasn’t necessarily quite so shallow — because she also moved to the left even if not reacting to very conservative justices:

For all of O’Connor’s fondness for Roberts, his appointment did not restrain the move to the left that characterized her jurisprudence and thus the Court’s.

(p. 301)

Or maybe one meanie was enough to push her to the left?

27 Responses to “Toobin: O’Connor Moved Left When the Conservatives Were Meanies — and Also Moved Left When They Weren’t”

  1. I don’t recall O’Connor as a conservative justice who lost her way, I always saw her as mushy, exactly the type of justice who could be counted on to ‘grow’ while on the bench.

    stevesturm (d3e296)

  2. As you (Patterico) well know, there’s a much better book on this particular subject which covers this same territory with much better insight — and apparently much better writing — written by a certain ABC Supreme Court reporter. You know, the kind of journalist who has made a career out of reporting this kind of stuff, not a hack television commentator whose next trial will be his first.

    wls (fb8809)

  3. Well compare the reviews of her sagacity versus those of Thomas’ thoughtlessness. That move to the left seems to have worked for her.

    It helps, though, that the reviewers never actually read the opinions or understand the cases. If they did they’d notice that O’Connor often split the baby and got dead baby.

    Kevin Murphy (0b2493)

  4. Patterico;

    I know you will be just as objective with Thomas’
    memoirs, all 289 pages of it. (does that include the front and back covers?)

    I love this excerpt; “Thomas has been a sharp critic of affirmative action and the use of racial classifications in schools, but he acknowledges in the book that he was admitted to Yale Law School in 1971 partly because he was black. “I’d graduated from one of America’s top law schools — but racial preference had robbed my achievement of its true value.”

    Excellent ‘I got mine, EFF You!” attitude.

    Semanticleo (4741c2)

  5. Semanticleo:

    Why blame Thomas for acknowledging what was true? The fact that he benefitted from the practice doesn’t require him for all time to support the practice. If he advocated for AA, took the benefits, and then rolled up the carpet behind him, that would be different.

    Or maybe you think Thomas should have only applied to Howard Univ?

    wls (fb8809)

  6. I remember my first “introduction” (so to speak) to Toobin came after his first book on his experiences working with Judge Walsh and the Iran-Contra investigation.

    Toobin, who got into trouble for publishing classified information, said that he and his fellow liberals working for Walsh were “thrilled” at the thought of bringing down Reagan and Meese.

    Hmm…

    SMG

    SteveMG (a752c3)

  7. Excellent ‘I got mine, EFF You!” attitude.

    Right, a Supreme Court Justice engaging in judicial review isn’t supposed to make a ruling based on the facts. No, he is supposed to make it based on some other criteria such as whether he may have benefitted in the past from a similar law.

    Let’s see, I once benefitted from warrantless searches when the police were searching for a criminal who assaulted me. Now, I think warrantless searches (non-exigent circumstances) are unconstitutional. But since I was helped by it once, I’m going to uphold that search.

    This is the thinking of a 12-year old.

    As everyone with a modicum of understanding of laws knows, not all affirmative action programs are equal. Indeed, Justice Thomas has ruled that some types of outreach programs are legal; but others are not.

    It depends on the specifics of the program.

    SMG

    SteveMG (31f30b)

  8. i’ve heard that the justices were blatantly partisan and result-oriented in bush v. gore, and that o’connor has subsequently regretted her vote for bush.

    assistant devil's advocate (8c04f1)

  9. WLS;

    “If he advocated for AA, took the benefits, and then rolled up the carpet behind him, that would be different.”

    During his confirmation hearings it was revealed that he still found it valuable.
    In a November 1983 speech to his staff at the federal Equal Employment Opportunities Commission, Thomas called affirmative action ”critical to minorities and women in this society.”

    The irony is, he was Thurgood Marshall’s replacement. Tit for tat. BTW, Bush who, along with Reagan opposed the 1964 Civil Rights Act, nominated him.

    Semanticleo (4741c2)

  10. Devil’s Advocate: You mean Breyer and Souter had political conversions and were advocating for Bush to be Pres? Is that why they voted to stop the recount that had been authorized by the Florida Supreme Court?

    wls (fb8809)

  11. called affirmative action ”critical to minorities and women in this society.”

    You do know that not every “affirmative action” program is the same? There are as many as Baskin-Robbins ice cream flavors (if not more).

    Some have “locked in” numbers. Others are outreach programs that seek minority applicants. Some use race improperly as a factor; others use race as one factor.

    SMG

    SteveMG (4e418e)

  12. “Is that why they voted to stop the recount”

    John Paul Stevens, Stephen Breyer, Ruth Bader Ginsburg and David Souter—joined in a dissenting opinion written by Stevens. The minority denounced the stay as a violation of both constitutional procedures and democratic principles.

    Semanticleo (4741c2)

  13. Semanticleo says:

    I love this excerpt; “Thomas has been a sharp critic of affirmative action and the use of racial classifications in schools, but he acknowledges in the book that he was admitted to Yale Law School in 1971 partly because he was black. “I’d graduated from one of America’s top law schools — but racial preference had robbed my achievement of its true value.”

    Excellent ‘I got mine, EFF You!” attitude.

    I love this comment, because it will make my upcoming Toobin review easier.

    Toobin notes that Thomas, in a speech, asserted his right to think for himself, and said that he refused “to have my ideas assigned to me because I’m black.”

    Toobin claims that Thomas’s statements attacked “straw men.” According to Toobin, “No one quarreled with Thomas’s right to his own views; no one said black people had to speak with one voice; no one asserted that support for affirmative action was obligatory for Thomas or anyone else . . .

    Oh, really?

    I had already planned to criticize this obviously incorrect view in my upcoming review, and planned to search for examples of people who argued that a beneficiary of affirmative action must agree with it.

    Thanks for shortening my search.

    Patterico (2a8eaa)

  14. Devil’s Advocate: You mean Breyer and Souter had political conversions and were advocating for Bush to be Pres? Is that why they voted to stop the recount that had been authorized by the Florida Supreme Court?

    They didn’t, wls. Semanticleo is right about that.

    They did agree on the Equal Protection argument, though — something the libs always seem to forget when compaining about how partisan a decision this was.

    (Toobin claims they really didn’t, but read the opinions.)

    Patterico (2a8eaa)

  15. I’m in the money business. I have often found the most blatant examples of “I’ve got mine… F**C You” are the wealthy liberals. Because the USA taxes income, not wealth, the wealthy can often be relied on ton support increased income taxes, making it harder for the non-wealthy to gain wealth, but having no impact on the lifestyles of the wealthy.

    If you want to see how the wealthy react to anything that attacks their status, see how they react to a wealth tax or the elimination of trusts of the kind that protect the wealth of the Kennedy clan.

    Moneyrunner (86ab55)

  16. “Thanks for shortening my search.”

    Not sure how you square my comments with ‘he MUST support AA’.

    I simply make the point that he previously supported it, now he doesn’t? If you want to assign independent thinking as the cause of his ‘enlightenment’, sobiet. It can also be deduced that political pragmatism, and the starkly conservative trend in the US, made up his mind for him.

    Semanticleo (4741c2)

  17. I simply make the point that he previously supported it, now he doesn’t?

    This person doesn’t know that some affirmative programs are constitutionally-permitted – and have been upheld by Thomas – and others are not.

    Affirmative action entails a wide range of practices; some permissible, others not.

    SMG

    SteveMG (4e418e)

  18. Semanticleo — go read the opinion for yourself.

    The vote to stop the recount authorized by the Fla. Supreme Court — which was the question before the Court — was 7-2.

    The second vote, whether to return the matter to the Florida Supreme Court for further proceedings consistent with the opinion — i.e., to make another effort at conducting a recount that didn’t violate the EP Clause of the 14th Amendment — was 5-4 against returning it.

    HISTORY will show that what was underway in Florida at the behest of the Gore campaign, and under the direction of the Florida Supreme Court, was rejected by the US Supreme Court 7-2.

    wls (fb8809)

  19. Patterico — Souter and Breyer did not dissent from the entirety of the majority opinion — which as I recall was per curiam. They dissented only from the parts of the opinion that rejected as a remedy the idea of sending the case back to the Florida Supreme Court for further proceedings.

    wls (fb8809)

  20. The poster makes two statements:

    Statement I:
    Thomas has a ‘I got mine, EFF You!” attitude.”

    Statment II: “I simply make the point that he previously supported it, now he doesn’t?”

    Right, just “simply” making a point. Nothing pejorative intended. No questioning of his character or integrity.

    Just making a “simple” “EFFing” point.

    SMG

    SteveMG (4e418e)

  21. wls,

    “The vote to stop the recount authorized by the Fla. Supreme Court — which was the question before the Court — was 7-2.”

    I believe that was the vote on whether the counting violated Equal Protection. The vote to stop the recount — which occurred in a separate opinion issued days earlier — was 5-4. The vote on the remedy for the Equal Protection violation — i.e. whether to send the case back for more counting or just stop it — was 5-4.

    Patterico (2a8eaa)

  22. Having looked back over the decisions, I stand corrected. Souter and Breyer both filed dissents from the majority per curiam opinion, meaning there was no 7-2 vote as I recalled.

    But, my larger point, and the one pointed out by Patterico, is that Breyer and Souter both recognized that the portion of the Florida Supreme Court’s decision authorizing a stricter standard for counting ballots in only the four counties challenged by the Gore campaign, and not applying those same strict standards in the remainder of the counties in the state, was a violation of the EP Clause of the 14th Amendment, thus the count that was underway in Florida was Unconstitutional.

    They both differed with the outcome dictated by the majority opinion.

    But they both found that if the recount underway had been allowed to proceed, and Gore would have been declared the winner by virtue of the process then underway, Gore would have been elected in an Unconstitutional manner.

    wls (fb8809)

  23. wls – And we know from the media sponsored recount that Gore lost on five out of six recount methodologies in any event so that it’s a moot point.

    daleyrocks (906622)

  24. Well, I suspect that O’Connor moved to the left, right, or center depending on who’s doing the talking…and which case they’re talking about.

    If she was “pushed toward her moderate, swing role” because Scalia actively repelled her, I would guess, given the general theme of the book, that it was because of his judicial philosophy rather than his “meanness.” After all, Toobin had been talking about Scalia’s rather marginalized position (again, his opinion), and he prefaced the sentence about O’Connor’s evident repulsion by saying,”Nor did Scalia have much influence on his colleagues.” He also followed the bit about O’Connor by saying, “He had a similar effect on Kennedy.” And I don’t think Kennedy thought in terms of meanness either.

    Just my read on it.

    As to O’Connor’s judicial philosophy, I don’t know that I agree with his implication – throughout – that her judicial philosophy was nearly one and the same with her political philosophy. If he means that, as with many judges, they both sprang from a particular view of the world, okay, I get it; but he seems to imply here and there that she was more overtly political in her judicial thinking.

    She has such a starring role in this book, I wonder if she was his informant.

    Itsme (92753f)

  25. Semanticleo #4:

    I know you will be just as objective with Thomas’
    memoirs, all 289 pages of it. (does that include the front and back covers?)

    Well, I understand it covers his life just up to his swearing-in, so not sure how much people are going to argue about.

    Itsme (92753f)

  26. Semanticleo #4:

    I know you will be just as objective with Thomas’
    memoirs, all 289 pages of it. (does that include the front and back covers?)

    I assume your memoirs would be longer?

    Thomas may have faults, but being long-winded isn’t one of them.

    Kevin Murphy (0b2493)

  27. O’Conner’s movement L/R/C demonstrate the danger of confirming someone with no descernable philosophy. But, if she had shown a strong philosophical position in her earlier writings, she would have never been confirmed. Sometimes the system just sucks! The rest of the time, it also sucks!

    Another Drew (8018ee)


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