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CNN legal analyst Jeffrey Toobin’s look at the Supreme Court with his book, The Nine

Thursday, October 11, 2007
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HH: Special hour ahead. Great new book out called The Nine: Inside The Secret World Of The Supreme Court by Jeffrey Toobin. You’ve seen Jeffrey Toobin for years on CNN. It’s a gossipy, wonderful, brisk treatment of what’s been going on in the Supreme Court for the last twenty years. Jeffrey Toobin, welcome to the Hugh Hewitt Show.

JT: Hugh, you make me sound so old.

HH: Well, you are old.

JT: I guess that’s why.

HH: I mean, you graduated in 1984 from Harvard, right?

JT: You’re not saying anything that’s not accurate. Yes, I am old, but I don’t like to think of myself that way. Anyway, how are you doing? I’m great.

HH: I’m good. I want to set this up the right way, because you’re a man of the left, right? I mean…

JT: Not really.

HH: Oh, come on.

JT: I’m not. I mean, I don’t think I’m a man of the left.

HH: Well, Nick Lemann is a man of the left, he owns it.

JT: Well, Nick Lemann is Nick Lemann.

HH: You’re a New Yorker writer. There aren’t a lot of men of the right running around the New Yorker, are there?

JT: Peter Boyer.

HH: Okay, I stand corrected. Let me ask you, Harvard College, ’84, Harvard Law School…

JT: ’82.

HH: How do you end up doing this?

JT: Oh, I mean, that’s a funny question. The…my parents were both journalists, and I grew up thinking the one thing I did not want to do was be a journalist. And…but I always did student journalism and what not, and I sort of was always hanging around it. And after my clerkship on the Second Circuit, I worked for Lawrence Walsh on the Iran-Contra prosecution force, and I wrote a book about being the junior member on the team that prosecuted Oliver North. But that was just, I thought, sort of a one off thing, and I went after that to be an assistant U.S. attorney in Brooklyn, and I did that for several years. But I guess sort of at some point, my genetic inheritance kicked in, and I was lucky enough to get hired as the Talk of the Town writer at the New Yorker. And a year later, the OJ case happened, and that sort of created my television career.

HH: Now were you a Crimson guy?

JT: I sure was.

HH: All right, which house were you in at Harvard?

JT: I was in what’s now called Cabot House, South House.

HH: Okay, so you’re a Southie. Let me ask you, when you come to take on the Supreme Court, this is a monumental task, and by the way, very entertaining book. I’m going to disagree with some of it, but I actually listened to it first, and then I had to go back. Was it abridged on the tape?

JT: It was abridged.

HH: You know, I was so annoyed when I was reading again, saying why didn’t they put this all in? Were you too lazy to read the whole thing?

JT: You know what? I’d never read a book before, and I thought it was one of the most exhausting things I’ve ever done. I was sort of irritated when I found out it was abridged. But then when I saw how hard it was to read the book, I was kind of grateful it was abridged.

HH: Well, if I make a mistake today, it’s because I had developed these impressions listening to it, and I was thinking to myself, why didn’t he cover the religion cases more. And then when I reread it to get ready for the interview, it’s in there. So that’s part of the problem. But let me ask you, when you decided to tackle this, did anyone take you aside and say no, it’s been done, Woodward did it, and you can’t beat the Brethren?

JT: Well, I…really, quite the opposite. I mean, I am a huge fan of the Brethren, but you know, the Brethren was published in 1979, and deals with the years 1969-1975. So as much as I love and revere that book, which I do, you know, it just deals with a completely different Court. So I happily would like to think my book is in that tradition, but just the story’s completely different, because the Court’s completely different.

HH: And did you, who did you clerk for on the 2nd Circuit, by the way?

JT: J. Edward Lumbard, a great Eisenhower appointee.

HH: Okay. Have you ever in your life vote for a Republican for president, Jeffrey Toobin?

JT: I don’t talk about who I vote for.

HH: Oh, come on, you never have, have you?

JT: I don’t talk about who I vote for.

HH: Why not?

JT: Because…who cares who I vote for? I’m not a public figure. I’m not running for anything.

HH: Oh, you know your tort law, you’re a public figure.

JT: Well, yes, I am a public figure if you choose to libel me…

HH: Yes.

JT: But I am not a…look, Hugh, I’m not talking about who I vote for.

HH: All right. Let’s get into the book. First of all…

JT: I did work for a Republican, actually, now that I think about it. I was an advance man for John Anderson in 1980.

HH: Oh, that’s an expansive definition of Republican.

JT: Well, he was a Republican Congressman from Illinois.

HH: But you might have voted then…

JT: I mean, hey, you know, I mean…

HH: I’m just…I would be knocked over stone-cold dead if you ever voted for a Republican.

JT: Okay, well, I certainly wish for your good health, so I don’t want…

HH: Objectively, do you think Al Gore won the election in 2000, because the book really gets into the 2000 election struggle on the Court. Just starting out from your premise, do you think he won?

JT: You know, I don’t want to beat around the bush. Yeah, I do think he won.

HH: Now in the book, you write, “The vote count in Florida was fantastically, almost surrealistically close.” But you don’t, and you wrote a book about this, you don’t report that the Miami Herald and the USA Today decided that George Bush would have widened his 537 vote margin to a 1,665 vote margin if the recount ordered by the Florida Supreme Court would have been allowed to continue.

JT: Well, no. Now, we’re getting into the intricacies of the recount, which the big recount, the so-called media consortium recount that was done out of the University of Chicago, much later and frankly, much more comprehensive than the Miami Herald recount, actually showed that a full statewide recount of the undervotes and the overvotes would have shown that Gore won. So I don’t….

HH: But that’s not what…

JT: I think that’s the bigger and more comprehensive and believable recount.

HH: But Jeffrey Toobin, that’s not what the Florida Supreme Court had ordered, is it?

JT: Well, they had ordered a full statewide recount. Yeah, they…every county was recounted.

HH: But not the overvotes, just the undervotes, as I recall.

JT: Now, we’re getting into a little bit more detail than I’m prepared to remember, but I’m not sure about that.

HH: All right, well, then let’s not get into the tall grass. I just thought that perhaps the Supreme Court might have, some members of the Court might have a different view of what their intervention meant, this many years later after overvotes…

JT: Oh, I think they obviously have a different view than I do. I mean, I don’t deny that.

HH: And did you think that the early call by the networks impacted the election that night, so that people in the Panhandle went home?

JT: I don’t. I’ve never seen any proof of that. I mean, I remember during the 1980 election, there were all these claims that because all the networks called the election for Reagan, that all these people in California went home and didn’t vote. And it’s also not clear who an early call would help. I mean, the people who were ahead, or the people who were behind? I mean, it would seem to affect both sides equally if they thought their vote didn’t matter, so I never thought that was significant.

HH: Okay, now on Pages 160-161, you’re complimenting Judge Lewis’ plan described there. But yet, when you read the opinions in Bush V. Gore, including two of the dissenters, seven of them thought that was a flawed plan, Constitutionally deficient, did they not?

JT: That was a 5-4 decision. The Souter and Breyer opinions are clearly dissenting opinions, and I think people talk about that as a 7-2 opinion. That’s really misleading. I mean, what Breyer and Souter wanted to do was have the Florida Supreme Court set a single standard for the whole state, but they wanted the recount to continue. It wasn’t Terry Lewis’ plan. All he was doing was executing what the Florida Supreme Court said.

HH: But in Justice Breyer’s dissent, he says, “I agree that in these special circumstances, basic principles of fairness may well have counseled the adoption of a uniform standard to address the problem.” He thought this was a terribly flawed process, even though he did not like stopping it.

JT: He thought it was a somewhat flawed process. I think he was wrong, but he did think that the process underway could have been improved, yes.

HH: And so given all that, I think the Court did about as well as it could there, if you credit their sincerity in assessing this. Do you, Jeffrey Toobin, think that they sincerely believed that due process was on the line, those who voted to stop it, or that they were acting politically?

JT: This is the hardest, hardest question about Bush V. Gore, which is the question of motive. You know, was it cynically an attempt to have Bush win the election, or was it truly an invocation of Constitutional principles? I think the way the opinion was written, the way it appeared to embrace principles that the majority usually reject, and reject principles they usually embraced, lends itself to a cynical interpretation. But I can’t prove that, and I don’t say that, and I don’t know that.

HH: And so, and so I’m going back to your personal impressions. I know that people cynically interpret it, but since I was saying the same thing throughout broadcasting it, that that was the only result, I believe in my heart that they did the right thing. Do you believe that they believe that they did the right thing, or that they acted politically?

JT: Well, I think certainly, they believe they did the right thing. But I also believe that they are kind of embarrassed about how they did it. It’s interesting to hear the Justices in the majority talk about it now. They almost never, and I write about this in the book, that they almost never defend the opinion on the merits. Justice O’Connor makes the point that you were just making, is that the recounts would have had Bush win anyway, which you know, I dispute, but that also doesn’t tell you that the opinion is correct. You know, Justice Scalia sort of makes fun of the whole process and says look, countries were laughing at us, France was laughing at us, we had to end this thing. I think the fact that they choose not to defend the opinion on the merits indicates a certain defensiveness about the quality of the opinion. But certainly, none of them would concede today that they were simply acting politically.

HH: Do you think that had Gore been the beneficiary of the circumstances, had he been in Bush’s lead, that the five member majority would have voted the same way?

JT: Boy, you know what? I just have to say no. I mean, this is one of those hypothetical questions that I can’t say, you know, no one can know for sure. But boy, I just think that it was so politically polarized that this split would not have come out this way if the shoes were on the other foot.

HH: Why do you say no?

JT: Because I just think if you read particularly Scalia’s statement in concurring with the stay, I mean, this was real anger at a Democratic Florida Supreme Court, that they thought, the conservatives thought were trying to steal the election for Gore. And I think the partisan politics was so bound up in it that there is just no way you can look at this situation and simply switch sides. I just don’t think…

HH: That’s where we disagree most dramatically. I believe the originalists would have stayed true to their principles, because…principles matter to some people. We’re not all hyper-political.

– – – –

HH: You will really enjoy it. It’s a romp of a good read, even if you are going to find yourself disagreeing, as I do frequently with some of the conclusions of Jeffrey Toobin, it’s beautifully written. And I listened to it, and I really recommend that, but understand it will be abridged, and you’ll have to go back and get some of the other stuff from the book. Jeffrey Toobin, do you personally subscribe to the theory of stare decisis on display in Casey, or the theory of stare decisis on display in Lawrence V. Texas?

JT: Well, you know, I think that stare decisis is…I mean, I frankly agree more with Justice Thomas about stare decisis than with Stephen Breyer. I mean, I think the decision should be correct more than stare decisis should be the dominant concern of the justices.

HH: But I mean, Justice Breyer really can’t believe in stare decisis the way he says he does when he votes to overturn Bowers V. Hardwick, the sodomy case…

JT: I mean, and that’s basically my point, is that they all like stare decisis for the cases they agree with, and disagree with it for the cases they don’t like. So I mean, look, I think by and large, the Court likes to follow their own precedence. But when it comes to certain very high profile cases, like the gay sodomy case, Lawrence V. Texas, overruling Bowers V. Hardwick, or Roe V. Wade and its many iterations, I think the justices prefer to just have their side win.

HH: Yeah, so it’s really just the democratic, the majority vote of nine unelected justices. Stare decisis is a silly kind of concept.

JT: Well, I don’t think it’s silly. I mean, I think the law…that people rely on the law to be predictable and not to change in dramatic fashions every so often. But there are certain cases that are familiar to all of us that have been highly controversial from the get go, and remain controversial, and justices are more willing to overrule them.

HH: But I mean, stepping back, you’ve been now so deeply immersed in popular Constitutional history for the last 25 years, it has been a quarter century of heads I win, tails you lose, or vice versa, depending on who’s counting the votes at the Supreme Court. I really do, when I read the Breyer kind of homages to stare decisis, just laugh, because it really is whose ox is getting gored.

JT: And I think I make that very point in the book…

HH: Exactly.

JT: …that it’s…you know, it’s not terribly persuasive to hear Justice Breyer talk about stare decisis as he did at great length and with great emotion last June at the end of the Supreme Court term, saying, you know, that in his famous quote, he said it is not often in law that so few have changed so much so quickly, talking about Alito and Roberts. But when it came to Lawrence V. Texas, he was only too happy to usher out Bowers V. Hardwick, because he thought it was wrong.

HH: So you know these guys, and it’s clear to me, and I know you won’t confirm this, that Justice Breyer is one of those you spoke with, that he’s fooling himself? Or does he not…

JT: Well…

HH: …is he capable of carrying these two completely contradictory arguments in his head without noticing the conflict?

JT: I think it’s more the latter. It’s not that he doesn’t notice the conflict, it’s that he can parse the circumstances when stare decisis should control, and when it shouldn’t. I mean, look, as I tell you, I’m not persuaded by his interpretation, but I think he would not recognize that it is completely contradictory. He would say well, there’s certain circumstances that applies, and certain circumstances it doesn’t.

HH: And that really takes us back to the fact it’s really not a judicial theory, it’s really a casting vote of convenience.

JT: Well, and this is one of the main themes of my book, is that you cannot look at law, particularly Constitutional law, as independent of politics and ideology. I mean, these are political, ideological decisions, and there’s no point in pretending otherwise.

HH: You know, I do appreciate that part of the book, because it’s true. That comes through. This supports my whole view of what’s gone wrong with the Supreme Court, your narrative here. Let me ask you, three justices get more focus than the others, Justices O’Connor, Kennedy and Souter. Did you intend, Jeffrey Toobin, to diminish them in this book?

JT: Oh, by no means. You think I did?

HH: Oh, absolutely.

JT: All three of them?

HH: All three of them.

JT: O’Connor? I mean, people say I made her a hero…I mean, I overdid the hero worship of O’Connor.

HH: Oh, no.

JT: I don’t really buy that at all. I mean, I think in retrospect, you know, I was probably toughest on Kennedy, but certainly Souter, I mean, I dwell a little bit on his personal idiosyncrasies, because frankly, they’re just fun and interesting and endearing. But I think my respect for him is very clear.

HH: Let me walk you through it. Justice O’Connor, it seems to me after listening…again, I listened to it first, and then I read it…untethered to anything except a desire to be in the middle of the Court. She has this idiosyncratic jurisprudence, Casey then Stenberg, the Michigan cases, the Ten Commandment cases, or airport speech cases, you know, soliciting money can be forbidden, but not pamphleting. This isn’t a jurisprudential legacy that comes through, you leave me, so much as sort of a Family Circus cartoon where the kids wander all over the place until they end up at retirement.

JT: I don’t think that’s fair. I mean…and that’s certainly not my intent. I mean, at one point, I describe O’Connor’s jurisprudence as indefensible in theory, and impeccable in practice. I think I use that phrase exactly. And that, to me…I wouldn’t like to see nine justices like her. And I wouldn’t like to see nine like Souter, either. But I think one like her, who is so closely tethered to the political system, is useful for the Court, and I think she used her power quite judiciously.

HH: But what is interesting, I actually have that phrase written down as one of the reasons I thought the book diminished her, indefensible in theory, because Constitutional law is nothing but theory. And if you can’t defend it as other than a serious of improvisations to the facts of cases…actually, her best jurisprudence, her concurrence in Usery, her dissent in Hodel, Lopez, Morrison, Swank, where she want to cabin the power of Congress, protect the states…that’s all, she is consistent, case to case there. That’s her legacy, but not the kind of stuff you hold up.

JT: Well, this is…your critique of O’Connor is precisely Scalia’s critique of O’Connor, and it is very persuasive to many. And I am not, I don’t mean to say that it is not an intellectually respectable position, and in fact, has a wonderful ideological consistency. I think O’Connor’s more ad hoc jurisprudence is not only defensible, but appealing in many respects.

HH: Here’s what I’m trying to convey, is that fifty years from now, they’re still going to be reading The Nine. I think this book is very significant.

JT: Well, that’s very nice of you to say.

HH: No, I believe that, because it’s hard to get this kind of stuff. I clerked on the D.C. Circuit. You’d be killed if you came out and talked about this sort of stuff outside. And so it’s very hard to get inside the world of courts.

JT: Who did you clerk for, Hugh, if I may ask.

HH: Judges Robb and McKinnon, although interestingly enough, when Judge Robb had a stroke, I got sent from chambers to chambers, so I actually spent two weeks with Scalia, two weeks with Justice Ginsberg, then Judge Ginsberg, and two weeks with Bork and Skelly Wright.

JT: Wow, wow, you really got…

HH: I know, I got the cook’s tour.

JT: You got the tour.

HH: And what I love about this book, in fact, the best part about it, it almost makes you weep when you realize what happened to Justice O’Connor’s husband. I used to live on California Street up near Calorama, and I’d see them out and about. And this is a human tragedy, really, to have to have that kind of career cabined by your great husband and much beloved husband’s decline. It was just wonderful writing, Jeffrey Toobin, but we’ll come back and argue some more about these other two.

– – – –

HH: Is it still number one on the New York Times list, Jeffrey Toobin?

JT: No, no. Number two. Allen Greenspan, I can’t catch him.

HH: No, you can’t. Now you’re going to have to go inside the Federal Reserve, but that will kill us.

JT: Yeah, I told my daughter, he was in charge of the American economy. I’m in charge of our dog, Thunder, so there’s a little difference in power between us.

HH: Let’s move to the second of the big three, in my view, Justice Kennedy. Here’s why I thought the book diminished him, and get your response. The portrait comes out of kind of a vain, intellectually weak fellow led around my smart old Stephen Breyer, in love of a good strudel, you know, lunching in Salsburgh, and getting people, oh, I’ll follow that, I’ll do this. Is he that feckless in his jurisprudence, in your assessment?

JT: Well, I don’t…I think that’s a little overstated, and I don’t think feckless is necessarily the right word, but it is true that the fact that he has spent so much time abroad, and really enjoyed the company of foreign judges so much, and felt like there needs to be an exchange of ideas between courts around the world, if you look at cases like the juvenile death penalty case, striking down the juvenile death penalty case, like Lawrence V. Texas, the gay sodomy case. If you look at his opinions in the Guantanamo Bay cases, I think the areas where he departs from being a conservative tend to be areas where the foreign judges he’s spent time with feel especially strongly that the United States is on the wrong course.

HH: Now clearly, the impression that comes through to me is, though, that you think Breyer can treat him like a fly in a spider’s web, and basically push him around to a conclusion, except…

JT: I don’t think that’s…no, I think…I don’t think Breyer pushes Kennedy around at all. I think the people who influence Kennedy are not his fellow justices on the Court. They are the people he spends his summers with around the world.

HH: Gosh, how terrible. Jeffrey, do you know how terrible that sounds? The people you spend your summers with?

JT: Why? These are human beings, and these are people who live in the world, and are influenced by political events…

HH: Let’s keep him out of a Sharia state then, because my gosh, that would be a bad thing.

JT: You know, look, there are a lot of people, starting with Justice Scalia, and including Chief Justice Roberts and Justice Alito, who think it’s a terrible idea for the United States to cite foreign sources, and cite international law. So it’s not like the view you’re expressing isn’t even a minority view. But you know, Justice O’Connor, Justice Ginsberg, Justice Breyer, agree with Justice Kennedy that it is a good idea to have this exchange of views between courts across borders.

HH: But again, where it’s not appalling for me to hear that Breyer thinks that or Justice Ginsberg, by the way, one of the fiercest intellects I’ve ever come across, what…it’s not that Kennedy believes that, it’s just that he happened to vacation somewhere. In your book, it makes it sound like the last guy to talk to Tony Kennedy wins.

JT: Well, you know, I do think that you’re talking about which justices I’m somewhat critical of, and I am somewhat critical of Kennedy, because I think sometimes his jurisprudence is a little intellectually incoherent, and hard to follow the strands that tie things together. And I think sometimes, the language is more flowery than comprehensible. So I mean, I’m not going to defend him entirely, but I think fecklessness is a little too far than I’m willing to go.

HH: Now I also love the fact that you drill down on Justice Breyer as not being able to write a lick. I mean, that’s…I have always thought of Stephen Breyer as fiercely argumentative in his dissents, along with Souter, and if not persuasive, because I’m not persuaded, but not because he lacks art. You don’t seem to think…what did you call him? Clumsy? Or what was…

JT: Well, I just don’t think he’s…John Roberts, I think, has already emerged as really the best stylist on the Court after maybe Scalia. And Justice Breyer, I don’t think, is much of a stylist. You know, some justices write better than others, and that’s just, that doesn’t mean…I think a friend of Justice Breyer said to him once, Steve, you think like an eagle, but write like a turkey.

HH: That’s what…that was the line.

JT: And I think that’s…I mean, that’s probably a little harsh, but there’s an element of truth in it.

HH: Now when you talk about the ability to persuade through argument, I shared an office suite with the Chief Justice for a year in the White House Counsel’s office. He is clearly perhaps the smartest lawyer I’ve ever met. Do you see him able to bring any of these justices with him by force of intellect?

JT: Boy, you know, I really don’t. I don’t think that particularly with the Court we have now, all of the justices having served a long time, I think the power of lobbying is overrated on the Court. I don’t think, I mean, even famous William Brennan that supposedly schmoozed his way to majorities, I just don’t buy that, and I don’t think that’s true today, either. So I think Robert, having arrived at the Court talking about the value of unanimity, and attempt to rally the Court, this past term showed that he was happy to win his cases 5-4, and just plow ahead with the majority he has.

– – – –

HH: Jeffrey Toobin, one minor nitpick with you on Page 240. Bush, “won a narrow victory over John Kerry.” Now look, the 62 million votes cast for Bush were the most individual votes cast for anyone in history, three million more than John Kerry. What’s narrow about that?

JT: Well, if…he won…if he hadn’t won Ohio, he wouldn’t have won the election.

HH: Yeah, but that’s 160,000 votes in my home state.

JT: Look, I mean, my point in that, my point in that statement was that it was an undisputed election to draw contrast to the 2000 election, is that I don’t know other than your really fringe, crazy people who think that Bush, that Bush didn’t win this election.

HH: I agree, I just thought diminishing the victory by putting narrow, it was a blowout. But…now let’s go back to Souter. Justice Souter, to me, is perhaps, got the worst of your book. And there’s an attempt by you to call him a third way justice. But he’s just basically a lefty who votes with the left always. Can you give me even three examples of where he stood apart from Ginsberg, Breyer and Stephens in the last fifteen years?

JT: Well, you know, not really in the last fifteen years. His first year, he voted with the majority in Rust V. Sullivan, and he was, he was pretty conservative. But I mean, if you look at how he writes his opinions, I mean, I agree, he really does vote with the liberals most of the time. But I don’t think of him as approaching the law just the way the liberals do. I think it’s more in the sort of second Justice Harlan mode of Poe V. Ullman and all that.

HH: That’s where I’m going to take out the long knives with you. There is nothing of Justice Harlan in him. Justice Harlan would no more have voted for Kelo than the man on the Moon would have, or any of these other property rights cases. None of the old Yankees would have done this, Oliver Wendell Holmes, have gone with the state the way that David Souter sides with the state. Give me a counter argument on that.

JT: Well, I mean, you know what? I fear I’m a little out of my depth in talking about what Oliver Wendell Holmes thought about property rights. That’s a little Constitutional history that’s beyond my ken. I mean I certainly don’t dispute that Souter has become a solid vote with the liberals. I mean, that is certainly correct.

HH: Now the oddness of his character, you write that he was mugged, literally, in 2004, and awfully. But it’s not really that which has made him unhappy in the role of Supreme Court. He’s just not a modern man, is he?

JT: That’s right. I mean, I think he is not…I write about his eccentricities, the fact that he doesn’t have a computer, he doesn’t plug in his television, that he doesn’t like to read by electric light, he follows the Sun across his chambers. And he also likes New Hampshire and doesn’t like Washington, D.C., a sentiment I can certainly relate to. So I mean, that’s really a personal preference, not really a jurisprudential one.

HH: Let me ask you if you think there was an ethical issue posed when he’s being interviewed by George Herbert Walker Bush, and he does not disclose that he’s not who he thinks he is.

JT: Well, not really. How so? What would be the ethical issue?

HH: Wouldn’t…if you’re being nominated to go to the United States Supreme Court by George Herbert Walker Bush, you’ve got Edith Jones in the other room, eventually nominates Clarence Thomas, he’s clearly looking for Potter Stewart. He’s looking for a conservative. And you’re sitting there, and you’re…

JT: No, it was for William Brennan.

HH: What’s that?

JT: I mean, it was William Brennan’s seat, not Potter Stewart’s seat.

HH: I know, but that’s who he…

JT: Oh, you mean, he’s looking for someone like Potter Stewart.

HH: Like Potter Stewart.

JT: I’m sorry.

HH: And in fact, you’re just pretty much a Brennan. Don’t you have an ethical obligation to say Mr. President, you’re not looking for me, you’re looking for somebody else, because I’m going to vote with these guys. Because what he did, in essence, was reverse an election.

JT: Well, I mean not really. I mean, I think it’s incumbent upon George Bush to ask the questions he wants to ask. And if he doesn’t get the answers he wants, don’t nominate him. But I don’t think Souter’s reticence is something that is unethical. You know, the power here was all with Bush. If he didn’t think he was answering sufficiently, and my sense, what I’ve heard about those conversations is that it was not terribly substantive, and it wasn’t like Souter refused to say things.

HH: Have you been following the controversy over Charles Schultz’ biographer?

JT: Yes.

HH: So do you think that biographer acted ethically by saying to the family I’m your guy, work with me, and then coming out and hitting him with a hammer? Clearly, he walked into that biography with an agenda, like I think Souter walked onto the Court with an agenda that he didn’t disclose to George Herbert Walker Bush.

JT: Well, I think journalists deceive people all the time. My colleague, Janet Malcolm, wrote a famous book about this, about Joe McGinnis in The Journalist and the Murderer. I mean, I think people should be candid, but I also think people with enormous power, like George Herbert Walker Bush, can choose to exercise that how they feel. And if they don’t feel like they’re getting straight answers from people, they should just move on to the next candidate. There’s no shortage.

HH: That was a stunning statement. Do you think journalists deceive people all the time?

JT: Well, I think some of them do, yeah. I mean, my colleague, Janet Malcolm, wrote this famous, great book about it, that you know, we prey on people’s vanity, and we say oh, you know…I mean, I don’t think I do this, but I think people sometimes give people the impression they’re on their side when they’re not.

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