But Clinton's campaign is honing its counterattack. Her aides say the opposition isn't just attacking Hillary, but also impugning her husband—a tack they're confident will turn off most Democrats. "I don't think there's a very large constituency in the Democratic Party for that," says Clinton's communications director, Howard Wolfson. "I think they're misreading the electorate."
Perhaps. Perhaps people don't remember because in contrast to the fiascos since, the Clinton years are easy to romanticize. Or people just don't remember.
But reminders abound in Jeffrey Toobin's book The Nine, which I find hard to put down. I confess I've been skipping around trying to find the discussion on Bush v. Gore (it starts on page 141, at the opening of "Part Two") But I dipped into two other parts first.
The discussion of Kennedy's (a Reagan nominee to the court) evolution, especially in the area of citing international law rivited me as it was pivotal to the overturning of Bowers v. Hardwick - a 5-4 ruling which said the US Constitution does not include the right to practice sodomy. I remember that case from 1986. Lawrence v. Texas overruled that in June 2003 (6-3 - 5 including Kennedy, O'Connor concurring for different reasons than majority and 3 against - Scalia, Thomas and Rehnquist). Kennedy cited the European Court of Human Rights, among other foreign sources. And here's the fascinating part - the Massachusetts Supreme Court relied heavily on Lawrence when it ruled five months later that gays must be allowed to marry. Hmm - just in time for the 2004 election. What if Kennedy hadn't been convinced? Would John Kerry have won without gay marriage as a wedge issue? Isn't history interesting?
Then I fell into the pages describing Ginsburg's and Breyer's nominations to the Supreme Court by Bill Clinton (to replace Blackman and White). Breyer is even more "ardent internationalist" on the court. There is a real division on whether this examination of the legal practices and customs of the rest of the world is at all relevant to the deliberations of the US Supreme Court. Toobin recounts the oral arguments of Roper v. Simmons, a death penalty case in which the legality of executing juvenile offenders was considered. What sources could be cited to determine what was "unusual" (as in cruel and unusual punishment)? Breyer noted that the framers drew on foreign sources, that Lincoln studied Blackstone (a British legal scholar). The funniest point came when the lawyer arguing the case uttered he couldn't speak for Thomas Jefferson. Lawyers arguing the specifics of their cases are often taken unawares by the larger issues the justices start throwing at each other. The court overturned the law and said that juvenile death penalty was no longer permitted.
Anyone who thinks the Supreme Court is not an issue in the Presidential Campaigns is wrong. It is and should be more discussed and debated. They deal with important issues and the court has real power.
Back to Clinton's Supreme Court nominations: the process was nightmarish and disorganized. As Toobin notes, "Clinton's entire first year was characterized by similarly vertiginous swings of good and bad fortune." (similar to the high of Ginsberg's successful nomination and the low of Vince Foster's suicide, which occurred on the first day of Ginsberg's hearings). He continues, "Politically and otherwise, this president lived on the edge." (p. 74) Okay, so he's not running, she is. And she doesn't live on the edge. In fact, too far back from it.
But let's not romanticize the 90s and Bill Clinton. Like everyone else, I was excited, so excited in 1992 for the first Democrat to take office since I was 10. It was the first and only inaugural I went down to the Mall to witness. But these passages brought me right back to Lani Gunier, Zoe Baird, the travel office, Hubbell's resignation, Hillary's windfall profit in commodities trading (remember that?), Paula Jones, etc. etc. etc. Why do we want to go back there?
In other notes from Toobin's book -
- Clinton (unlike Bush) ran both nominees by Orrin Hatch, the Republican chair of the Judiciary committee. That's what working with Congress looks like King George.
- Justice Kennedy is portrayed as hungry for the Supreme Court to be involved in Bush v. Gore from the start. Toobin concedes that Kennedy was just doing his job, as FL fell into his area of responsibility for procedural matters. Kennedy sent memos to update the other 8 justices on the case. I don't read this quite as Toobin does - hunger for involvement. Not yet anyway. Any lawyer half awake was been fascinated by the case. I was very sick that fall, and I remember being very grateful that such intricate and obscure legal matters were the subject of 24-hours news, as it should have been with so much at stake. I was surprised to be reminded it was only 36 days. Kennedy interest strikes me as natural as breathing, and keeping his colleagues up to date responsible.