Greenburg: “Bush Will Not Get Another Supreme Court Appointment”

There has been lots of speculation in the legal blogosphere about what Jan Crawford Greenburg knows regarding Justice Stevens’ retirement plans. See How Appealing here and Volokh here. Particularly intriguing was Greenburg’s comment to Howard that she knows the precise date Stevens plans to retire.

Well if she does know, she indicated yesterday that it would not be anytime soon. During the book signing presentation yesterday at Pepperdine, Greenburg said that based on her interviews with the justices she does not think that President Bush will get another opportunity to appoint someone to the Supreme Court. She said Justice Stevens shows no signs of slowing down or stepping down. She stated that Stevens gave every indication that he is strong and healthy and that he is “busy fighting for the soul of Justice Kennedy.” She also said that Justice Ginsburg has had health problems but she did not think that her health concerns would require her retirement in the near future.

I will echo what others have said and encourage anyone who is interested in the Supreme Court to buy her book. As Jonathan Varat said yesterday, it’s hard to imagine that a book about the Supreme Court could be a page turner, but this one is. Indeed, right now it is one of the top fifty books for sale on Amazon.

UPDATE: You can watch the Pepperdine book presentation here. It features Jan Crawford Greenburg and includes commentary about her book by Jesse Choper (Boalt Hall), Jonathan Varat (UCLA), Ken Starr (Pepperdine) and Doug Kmiec (Pepperdine). Her comment that President Bush will not get another Supreme Court appointment is in the 48th minute of Part Two.

UPDATE II: Here is a brief summary of the event for those who are curious. First, beginning at the 5th minute of Part One, Greenburg leads off the event recounting the privilege of having been given significant access to the justices themselves and her extensive use of the justices’ papers in the Library of Congress and the Reagan Library. Beginning at the 18th minute, Greenburg is followed by Professor Douglas W. Kmiec, who headed the office of legal counsel during part of the Reagan and Bush 41 administrations. Kmiec argues that those who see the Reagan and Bush efforts to remake the court as a disappointment because of the occasional unpredictability of Justices Kennedy, O’Connor, or Souter, understate the significance of the judicial selection effort as not being devoted to outcome, but a philosophy of judicial restraint or humility which in a given context might leave in place either a politically liberal or conservative result. Kmiec also praises Greenburg’s thoughtful exposition of how the justices interact with each other and respond to public and scholarly commentary. If there was any disappointment, Kmiec speculates, it was the failure to appoint Ken Starr and the court at the time of his service as solicitor general; this oversight, he reflects, was a self-inflicted wound of intra-conservative tribal sparring that should not have subverted the appointments process. Boalt law professor, and former Dean, Jesse Choper followed with a reflection of Sandra Day O’Connor’s significant contribution as a role model. Beginning at the 33rd minute, Choper nicely highlights how criticism of O’Connor from the right, understates her significant conservative rulings on presidential power, campaign finance and school choice. In making a comparison between O’Connor and Harriet Miers, Choper notes that O’Connor’s constitutional experience was not significantly greater or different than Miers at the time of nomination, and the two women had more in common than not. The difference, he notes, is 20 years time and the nature of the confirmation proceeding and the fact that O’Connor had the benefit, and the burden, of being a pioneer. Choper’s point leads later in the program to a robust discussion of the value of diversity for the high bench and the confirmation process which may or may not allow it. In Part Two, Dean Starr commented on the failed nomination of Robert Bork, indicating that Bork had a built-in following from the time of the Nixon administration on-ward. As for his own fate, Starr graciously declined to speculate, other than that he believed those who found him “unacceptable,” did so as “people of goodwill.” In her book, Greenburg recounts how Starr had been at the top of White House lists for the seat vacated by the late William Brennan. The seat went to David Souter. Beginning in the 13th minute of Part Two, former UCLA Dean Jon Varat found Greenburg’s book extremely accessible and well-written. He concurred with Professor Kmiec that a good deal of what defeated or misdirected conservative thinking had to do with intra-conservative disagreement among different strains of conservatism anchored in, respectively, judicial modesty, libertarianism, respect for precedent, and those who simply want conservative political outcomes. Speculating on the impact of Chief Justice Roberts and Justice Alito, Varat anticipates more openness to religious reference on the establishment clause and perhaps a rethinking of the free exercise jurisprudence as well. Varat is puzzled by conservative defense of the unitary executive or strong presidential authority, and wonders if it is inconsistent with the principle of limited government. At the 31st minute of Part Two, the event concludes with interesting questions and speculations among the panelists and audience, including Greenburg’s prediction at the 48th minute that President Bush is not likely to have another opportunity to fill a vacancy on the Supreme Court.