Sunday, August 2, 2009

My Letter to Jeffrey Toobin

Dear Mr. Toobin:

I just finished reading your book The Nine, which I enjoyed quite well. I missed a more in depth analysis of some of the major cases you touched on, but I understand that it was not that kind of a book.

If it's of any interest to you, here is an email I just wrote to a friend of mine--we're both lawyers in Toronto:

...Ben: We had talked about this book (The Nine by Jeffrey Toobin) and I just finished reading it. I agree with Toobin's conclusion and if you don't I guess I don't agree with you as far as SCOTUS is concerned. He says concluding:

"When it comes to the core of the court's work, determining the contemporary meaning of the Constitution, it is ideology, not craft or skill, that controls the outcome of cases. As Richard A. Posner, the great conservative judge and law professor has written, 'It is raraely possible to say with a straight face of a Supreme Court constitutional decision that it was decided incorrectly.' Constituitonal cases, Posner wrote, "can be decided only on the basis of a political judgment, and a political judgment cannot be called right or wrong by reference to legal norms."

Then, perhaps, bringing some nuance and qualification to Posner's position, Toobin a little lower on the same page--394 in my copy--says, "It is, of course, possible to overstate the flexibility in the meaning of the Constitution. Honorable judges always tether their views to the words of the document, its history, and the precedents, so the justices' freedom to interpret is vast but not absolute."

I'd substitute the word "large" for "vast" and I'd restrict these comments to hard cases, typical of what SCOTUS takes and decides. But I agree with Toobin and with Posner as qualified by Toobin for hard cases.

There seems to be a marked difference in the amount of ideology that gets fed into the decisions of the Canadian Supreme Court, whose results seem much more to be compelled by the applicable law and by law more than by ideology...

One last comment: your section dealing with Bush v Gore was for me the most compelling and the most frustrating. It needs a book of its own to do it "justice", a book that can take in the sweep of the drama of events, the large and small personalities and all the legal twists and turns, maybe something like what Norman Mailer did in the second half of Executioner's Song, "Eastern Voices", the greatest "legal thriller" I have ever read.

That is a book waiting to happen and something I'd love to read.

Itzik Basman

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