Naked Partisanship at the Supreme Court Revisited

I just finished reading an excellent article in the new issue of Vanity Fair on the Florida recount in 2000, with ample anonymous quotes from Supreme Court clerks from that term. Besides confirming what we already knew about the brazen partisanship of the conservative majority, we learn this, I believe, for the first time. Apparently, Breyer and Kennedy had engaged in a variety of conversations about the case and Breyer had discussed, that if there were problems with the standard used for the recount, the best and fairest solution was to remand the case to the Florida Supreme Court to clarify the standard:

And for a brief moment Breyer appeared to have succeeded. At the
conference following the oral argument, Kennedy joined the dissenters and, at
least temporarily, turned them into the majority. The case would be sent
back to the Florida court for fixing; the recount would continue. But the
liberal clreks never believed that Kennedy had really switched, and predicted
that, having created the desired image of agonizing, he would quickly switch
back. "He probably wanted to think of himself as having wavered," one
clerk speculates. And, sure enough, within a half-hour or so, he did
switch back.

One side issue that came up during the Miguel Estrada judicial confirmation hearings that did not receive much press attention was the accusation that he had been part of a clerk screening committee that conservatives had set up to help ensure that Justice Kennedy (who many conservatives viewed as shaky on key conservative issues after his votes in Casey, concerning abortion, and Romer v. Evans, concerning gay rights) was steered true-believer conservative for clerks. The subject was raised during his confirmation hearing, and Estrada dodged it, as he did most substantive questions:

Two lawyers whom [Estrada] interviewed for the clerkship reported that he
seemed to be screening out liberals. The first reported that "Miguel told me his
job was to prevent liberal clerks from being hired"; the second had a similar
experience. Both believed they were being "subjected to an ideological litmus
test." When asked about these interviews at his hearing, Estrada first denied
saying what had been attributed to him or any effort to screen out liberals. At
lunch, however, he apparently thought on the matter, and when the hearing
resumed he asked to explain further. Repeated efforts by Sen. Charles Schumer
(D-N.Y.) to get him to answer definitively whether he had said what he had been
alleged to say all failed. Instead he responded with lengthy evasive answers
until Schumer gave up, leaving unsettling questions about Estrada's candor.

But apparently Estrada had done his job, as Kennedy's conservative clerks are credited with saving the presidency for Bush, by pulling Kennedy back to the conservative majority's position of shutting down the Florida recount by any means necessary:

"We assumed that his clerks were coordinating with Scalia's clerks and
trying to push him to stay with the majority," one liberal clerk says. "I think
his clerks were horrified, and the idea that he would even blink for a moment
here scared them," says another. "They knew the presidency would be
decided in their chambers," a third clerk -- working for one of the majority
justices -- recalls. "They would have fought tooth and nail -- they would
have put chains across the door -- to keep him from changing his vote."
Another clerk for another conservative justice puts it a bit differently.
"Kennedy would not have voted the other way," this clerk says, "but had he been
tempted, the clerks would have dissuaded him." Breyer lamented that he had
Kennedy convinced, only to have his clerks work him over and pull him back in
the other direction.

Something to remember as November 2 approaches.

UPDATE: The Vanity Fair article is now available online here, in two separate .pdf files.

- posted by Joshua @ 11:23 PM (0) comments