Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Ever since Bob Woodward in The Brethren applied the tools of investigative journalism to the inner workings of the Supreme Court, observers of that institution have had the benefit of an ever-expanding commentary. The latest entry is Jan Crawford Greenburg’s Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court, an engaging, if occasionally breezy, retelling of the selection process for Supreme Court candidates in the years following President Ronald Reagan’s failed nomination of Robert Bork in 1987. Much of Greenburg’s narrative retraces a familiar history. After Bork committed the cardinal sin of candor at his confirmation hearing, the procedure before the Senate Judiciary Committee assumed its present form of a staged drama in which nominees decline to express their opinions on controversial topics (read: abortion) while senators press the candidates to no avail. (Mercifully, Greenburg spares us a recounting of Justice Clarence Thomas’ confirmation hearings.) Following the tandem disappointments that Justices Anthony Kennedy and David Souter in turn presented to right-wing activists pursuing a rollback of the Warren Court’s precedents, the vetting of candidates for the Supreme Court reached a level of thoroughness that must rival, if not exceed, that accompanying the selection of the Pope in Rome. The strength of Greenburg’s book lies in her thoroughness in pursuing her topic through presidential archives, the open files of the late Justice Harry Blackmun, and her extensive interviews with many subjects, including, according to the jacket notes, nine Supreme Court justices. Particularly fascinating is Greenburg’s description of the maneuverings at the Justice Department and the White House in the administrations of Presidents Reagan, George H.W. Bush and George W. Bush, together with their aligned ideological think tanks and pressure groups, in response to impending or actual Supreme Court vacancies. Of course, lobbying for or against particular candidates, including self-promotion by those anxious to move on and up the judicial ladder, is nothing new. What’s new is the lengths to which prospective Supreme Court nominees these days are acceptable only if they come with a track record that enables their sponsors to all but guarantee the acceptability of their decisions once on the high court. Gone are the days when a pre-eminent scholar, private practitioner, state governor, United States senator, or senior government administrator is likely to be a viable candidate: so much for the likes of Frankfurter, Powell, Warren, Black, and Douglas. (On the present Court, every justice but Souter was elevated from a lower federal appellate court.) Moreover, as Greenburg reveals in the instance of Judge Michael McConnell of the 10th Circuit, just one bad decision in an otherwise unremarkable case in the eyes of White House reviewers suffices to disqualify an otherwise eminently suitable candidate. At the same time, Greenburg demonstrates that no jurist worthy of the name can be entirely predictable. The shifts of Warren and Brennan to the left and of White to the right — to name three justices no longer with us — show that the pressure of actual cases and continual interchanges among the sitting justices inevitably affect decision-making over time in all but the most hardened personalities. Here, Greenburg’s account brings few surprises. But she provides remarkable insights along the way, notably the influence that a newly arrived Justice Thomas had on the thinking of his senior colleague Justice Antonin Scalia, as well as the other way around, and the negative effect of Scalia and Thomas’ forceful expressions of views on their colleagues, notably Justices Sandra Day O’Connor and Kennedy. What the critics excoriate as weak-kneed truckling to law reviews and liberal commentators more likely reflects the workings of a judicial temperament, open to new ideas and willing to entertain divergent points of view. Largely because of this process of individual justices’ maturation over time, Greenburg correctly notes, one can speak of a Rehnquist Court in name only. The late chief justice achieved barely a measure of the objectives he staked out in his early years on the Court as one after another of his fellow justices slipped out of his orbit. Only the flow of cases and decisions will tell whether the high hopes pinned on current Chief Justice John Roberts Jr. and the most junior associate justice by their avid supporters will hold up over time. Those readers who want a comprehensive survey of the Supreme Court’s cases or a scholarly analysis of judicial decision-making must look elsewhere than Greenburg’s Supreme Conflict. But those who are in the mood for a refresher with ample tidbits will find much to enjoy.
Leonard H. Becker clerked for Justice Potter Stewart in the Supreme Court’s 1969 October term. He most recently served as general counsel in the executive office of former D.C. Mayor Anthony A. Williams.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.