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Supreme Court expert sees political divide
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Supreme Court expert sees political divide

At Major Gifts dinner, Jeffrey Toobin laments a highly partisan bench

Staff Writer, New Jersey Jewish News

Sri Srinvasan, Goodwin Liu, and Paul J. Watford may not exactly be household names right now. But if Jeffrey Toobin is correct, one of these recently appointed judges may well be President Obama’s pick should a seat on the Supreme Court become open.

On the other hand, if a Republican president appoints the next justice, Toobin’s money is on Brent Cavanaugh, who wrote the “Starr Report.”

Toobin, who covers the Supreme Court as a senior analyst for CNN and is a staff writer at The New Yorker, offered these predictions at the Major Gifts dinner of the Jewish Federation of Greater MetroWest NJ, held Oct. 10 at the Crystal Plaza in Livingston. Close to 300 people attended the event, which was chaired by Terri and Michael Goldberg.

Toobin’s remarks focused on the ways partisan politics have affected the Supreme Court from the 1960s through today, both in appointments and key decisions.

He traced the evolution from the Warren Court in the 1960s, which he described as “a liberal institution” by the end of Warren’s tenure, through today’s increasingly Conservative court led by John Roberts.

“Today the Supreme Court has five Republicans and four Democrats. You now know most of what you need to know about the Supreme Court,” Toobin said. “People wish and hope and think that the Supreme Court is a refuge from partisan politics, different from what is so prominently on display right now. But I am here to tell you it’s not true. How many Republicans and how many Democrats are on the Supreme Court tells you how many cases are decided.”

Meanwhile, Republican picks for the court have been increasingly conservative since Richard Nixon got to appoint four justices, none of whom would be considered socially conservative by today’s measures. Of the four Nixon appointees, three were in the majority on Roe v. Wade and one of them, Justice Harry Blackmun, wrote the decision.

“That’s completely different from 2013,” said Toobin, author of The Nine: Inside the Secret World of the Supreme Court and its sequel, The Oath: The Obama White House and The Supreme Court. “The changes began in 1980 with the election of Ronald Reagan. Reagan brought with him to the White House someone who has long been underrated: Edwin Meese. It was Meese who said, ‘There has been a liberal agenda on the Supreme Court, and we need a more conservative agenda,’” said Toobin, paraphrasing Reagan’s counselor and later attorney general.

It was also Meese, said Toobin, who brought some young lawyers to help him carve out that agenda: John Roberts and Samuel Alito.

“Even then, the Republican Party of Reagan is not the Republican Party of today,” said Toobin. Sandra Day O’Connor, appointed by Reagan, “was not a social conservative or a religious conservative. She was a moderate Republican.” Ultimately, Toobin added, she was so uncomfortable with the way the Republican Party changed that she handed her seat to a Democratic president.

“The justices vote with their feet. They leave and hand their seats to the president of their preference,” said Toobin. “It’s no coincidence that [John Paul] Stevens and [David] Souter left as soon as Obama took the oath of office, or that moderate Republicans were left so alienated by the modern Republican Party that they gave their seats to Democrats.”

That is why “so many people are so angry with Ruth Bader Ginsburg for not stepping down” while Obama is in office, Toobin said.

“‘What is she waiting for?’ they ask. But she is at the peak of her intellectual power, and she has the choice to continue to serve on the Supreme Court, where she is the leading liberal justice — or to go back to her apartment in the Watergate and sit by herself,” said Toobin.

After a moment, he added, “Of course, if Ted Cruz becomes president, that decision may begin to look very different.”

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