The Nine: Inside the Secret World of the Supreme Court | Jeffrey Toobin | Talks at Google

All right, well, welcome, everyone. My name's Josh Mendelsohn, and it's my pleasure today to introduce as part of the Authors at Google series, Jeffrey Toobin. Jeffrey is.

Applause comes early on. Wow.

Just a little bit of background.

It's going to be like a mosh pit out here.

Passing you around.

Exactly.

A little bit of background on Mr. Toobin. He's a graduate of Harvard College, Harvard Law School. Had a really incredible early career in the law as Both an Assistant U.S. attorney, and then with Special Counsel Lawrence Walsh, moved then into, really, journalism, I think, is how we'd have to describe it, as both.

That's the only way to describe it, I think. Absolutely.

He's both an author and as a legal analyst for a variety of networks. He's the author of several books, books on O.J. simpson, the 2000 election drama, I think is how we should probably put that. And now, most recently, the Nine, which hopefully you all have a copy of, which is Inside the Secret World of the Supreme Court. And really the title says it all. If you wouldn't mind, though, let's start with a little bit of your background and what it was that took you from a very distinguished career in the law to an equally distinguished career in journalism. You've won an Emmy. You must be good at it.

I hope so. But it's, you know, first of all, it's just so nice to be back. It really is such a wonderful place to go. I mean, as some of you may know, I did a piece. We can talk about this a little later. I did a piece for the New Yorker in March about Google Books and the various legal controversies about it. And it was just, it was so much fun to spend time out here and learn something about the company other than what I knew as a user of the product. And it's fun to be back. And as someone who is not a tech person particularly, I guess the key fact to know probably is that both my parents were journalists. My mother is Marlene Sanders, who was one of the pioneering television correspondents in women television correspondence. She was the first broadcast journalist woman to go to Vietnam when I was a little kid. And my dad, Jerome Toobin, was one of the founding fathers of public television. He was director of News of Channel 13, which is the public television station in New York. And the one thing they told me for sure was don't become a journalist. I was instructed repeatedly that this is a difficult and uncertain profession, and I took their advice for a while. I went to law school. I thought I'd work in government, but I always had. I was always involved in student publications. I was editor of the school paper in high school. I worked in college journalism. But I really thought I'd be a lawyer. And I was a lawyer, and I liked being a lawyer. And I worked. I was a law clerk on a court of appeals in New York, but I was lucky enough to get a job on the Iran Contra case. And I was the junior member of the team that prosecuted Oliver north. And I wrote my first book about that because I had sort of read the books of the young Watergate prosecutors and wanted to do a similar kind of thing. But at that point, I still wanted to be a lawyer. And I was an Assistant U.S. attorney in Brooklyn, which is a great job. Just an ordinary line prosecutor prosecuting, you know, swallowers of condoms full of cocaine and, you know, I mean. And like, crooked personal injury lawyers. It was great. It was just a great job. But I don't believe in epiphanies too much, but I did sort of have an epiphany once where I sort of. Someone said to me, well, name five lawyers you admire. And it was sort of hard for me to come up with people that I really thought were great. And then they said, name five journalists you admire. And it was easy for me because I really always looked up to journalists. And it was right around the time that Tina Brown had been hired to be the editor of the New Yorker, and she was looking to make some unconventional hires, and that was 1993. So I left the U.S. attorney's office and went to the New Yorker. And in 1994, O.J. simpson killed those two people. And that was really the turning point in my career because I wrote some of the early stories about it for the New Yorker and started appearing on Television in 1994. There was no such thing as a television legal analyst. That job did not exist. And it was only because of OJ and they needed people to explain, you know, what a sidebar was, what a peremptory challenge was that I started appearing on the Today show and Larry King Live after OJ after my. After my OJ Book came out, I joined. I was always with the New Yorker, but I was with ABC for six years, and then for the last five years, I've been at cnn.

So that's your resume reads. It's just a who's who of interesting cases to have been a part of and to commentate on. But.

Well, I specialize in those stories where people say, I can't stand it anymore. Enough for, you know, Enough, Monica. You know, enough. But anyway, I don't know that prompts.

To say, what's the weirdest case or the weirdest set of commentary a producer's asked you to?

Well, you know, it's hard to keep it all straight. But speaking of straight, the Larry Craig story is really a. Has been an absolutely fabulous story to cover because, you know, it's just the variety of crazy things that come at you. You know, I obviously can't tell you off the top of my head when this story broke, he said, well, I want to withdraw my guilty plea. Well, what's the law on withdrawing your guilty plea in the state of Minnesota? I mean, that is a rather esoteric fact of law that I could find out with research. But I had. I did know off the top of my head that it's very hard to withdraw a guilty plea. Judges don't like you to do it. They make. They establish roadblocks to it. And so that's the kind of thing you have to have to come up with stories on the fly. Hopefully not stories with facts on the fly. And so that's just one perfect favorite case.

Well.

I think certainly, I mean, you know, O.J. was the, you know, the mother lode of all. You know, the thing about OJ that was so great was, you know, it combined everything that obsesses the American people. You know, it had sex, it had race, it had Hollywood, it had sports, and the only eyewitness was a dog. So, you know, it was just. It was sort of the perfect confluence of circumstances. And many of us who are in television legal analysis are, you know, it's the OJ Alumni Association. Whether it's, you know, Greta Van Susteren at Fox or dan Abrams at NBC, all of us really got our start covering O.J. or as we now think of it, O.J. part one.

That's right.

With this sort of. I mean, it's the perfect example of, you know, history starts as tragedy and repeats as farce. Because, you know, whatever else you had to say about the first case, you know, two people died. And it was a very sad thing, this ridiculous thing with these worthless autographs of, you know, selling the suit he wore when he was acquitted. Who the hell wants to buy the suit when he was acquitted? I mean, the whole thing is so absurd. And that ridiculous hotel room where, as far as I can tell, every single person in that hotel room was with some kind of thief and crook. And the only question is how you sort out who happened to be committing a crime at that red hot moment.

But anyway, that'll be seems almost mundane then to transition to the book that you're actually here to talk about. Come on the court.

We can talk about Larry Craig, but.

Let'S talk about the Nine. And what got you interested in the court in the first place?

Well, you know, this is the subject that interests me most. And frankly, much as I like writing a book about O.J. i am proudest of the nine because I think it is a very significant subject. The Supreme Court is a mysterious institution for many people, but I don't think anyone doubts that it is of enormous significance. But yet, one of the great things about writing this book, and one reason why I am so proud, so pleased by the response, the book is going to be number two on the New York Times best seller list next week. I mean, that's a big deal for me. And yet even the justices themselves recognize that people don't know much about the court. Let me just tell you one quick story. David Souter and Stephen Breyer are frequently mistaken for each other. No one knows why. They don't particularly look like each other, but you know, they are. And one time not long ago, Stephen Justice Souter was driving, as he often does, from Washington to his home in New Hampshire. You know, he's the famous bachelor justice. He lives by himself, kind of an eccentric guy. He doesn't like electric light. He keeps his chair in his chambers by the window, and he moves it around so he catches the sunlight to read all day long. He doesn't have a computer. He doesn't have a fax. He doesn't have a cell phone. He writes everything by hand with a fountain pen. He really is an, an extraordinary figure in that regard. But anyway, he's driving to New Hampshire and he stops in Massachusetts to get something to eat, and a couple comes up to him and says, you're on the Supreme Court, right? And he nods and he says, and he says, you're Stephen Breyer, aren't you? And he didn't want to embarrass the fellow in front of his wife, so he said, yes, I'm Stephen Breyer. But they chatted for a minute. But then the fellow asked something that he didn't expect, so he said, so Justice Breyer was what's the best thing about being on the Supreme Court? He thought for a while and he said, I'd have to say it's the privilege of serving with David Souter.

And then off he went.

So, I mean, you know, the justices recognize that they are only barely public figures, but you know, the court is right now at a tremendous turning point. I mean, we started to see in last June that even though George W. Bush only has had two appointments, the replacement of Sandra Day o' Connor by Samuel Alito has transformed the court. The court has gone from a fairly evenly balanced court, with o' Connor often siding with the liberals, to a very conservative institution overnight. And we saw at the end of last term, the late term abortion case, which late term abortion ban was upheld, you know, a school integration plan that was rejected, a church state decision that's going to make it much harder to challenge First Amendment church state issues. This court is very different from the one two years ago. And if you look ahead, the three justices most likely to leave. Well, at the moment you've got four very conservative justices. Chief Justice Roberts, Justice Alito, Justice Thomas and Justice Scalia. Four moderate to liberals, Justice Stevens, Souter Ginsburg and Breyer, and Anthony Kennedy in the middle, usually siding with the conservatives. Three justices are likely to leave soon after the next election. Stevens, Souter and ginsburg. Stevens is 87 years old. It is true that Justice Stevens older brother William Stevens at age 90 is still practicing law in Florida, but still. Still 87. Is 87. And those three justices are likely to leave if a Republican president is elected in 2008. You know, this court is going to become really conservative. And you know, Roe v. Wade is done over, Affirmative action done over. And you know, that's just how the system is set up. If Republicans keep winning presidential elections, they should control the Supreme Court court. But I think a lot of people are interested in that right now. And that's why I wrote the book.

That's great. But given that, though, two stories are sort of converging here. We've got the Suiter's story where he almost seems anachronistic today. Maybe that's because you're talking to a room of techies.

Yeah, I would say you people all have like computers, right?

God help you if you disconnect me from my BlackBerry. But the simple concept is you've got these guys on the bench that perhaps don't relate necessarily anymore. And now you've got a court that's really just yielding to the political whims of the day. Is the Supreme Court still relevant?

I think they're very relevant. I mean, Justice Robert Jackson has a line which I like to quote, which is, we are not final because we are infallible. We are infallible because we are final. You know, somebody has to have the last word in American Life in American government. Now, the question may always appropriate to ask is, are they good? Are they doing the right thing? But they're always relevant because, I mean, you know, you only need to look at Bush v. Gore to realize the stakes of what the subjects they deal with. I mean, you know, they pick this president. And so in that respect they are, they are highly relevant. I mean, I was thinking about Souter as I was coming over here, because he is about as far from Google as you can get as a human being. Yet the wonderful thing about Souter is that he does what we can all hope to do, which is he has risen above himself. He is the author of perhaps the most significant tech opinion that has come out of the Supreme Court in the last few years, which is the Grotzker case about file sharing, which I think, I mean, I don't know how many of you know about, but it was an extremely sophisticated and largely positively received opinion by the tech community and by the broader community. And you know, Souter was the one who wrote it, the guy with the fountain pen. And I think that was a wonderful example of someone just taking the time to study the issues, learn the subject, and coming out with something that was really satisfactory to most people.

When you're talking about the conservative trend of the court, it's often in terms of they're going to pull back and start re looking at Roe v. Wade and reversing decisions. It's kind of the opposite of the Warren Court that we have such a love affair with these days when we're talking about pushing a affair with.

But I mean, conservatives don't. Right. But yeah, well, I mean, I think, you know, you have to look at, you have to go back to the 60s to see a comparable situation in reverse. You know, in William Brennan, the great liberal justice used to ask his law clerks at the beginning of each year, what's the most important rule of the Supreme Court? And they sort of think, well, freedom of speech, equal protection. And finally they say, okay, what is the most important, important rule? And he'd hold up his little hand and he'd go, five. With five votes, you can do anything you want around here. And you know, that's really true that, you know, with five votes you can do anything. And in the 60s, there were seven liberal votes on the court. You know, in the 60s, when, you know, Lyndon Johnson was appointing Abe Fortas and Thurgood Marshall and Brennan was there and William Douglas was there and Earl Warren was the chief justice, basically the Supreme Court decided as a group that they were going to drag the south kicking and screaming into the 20th century and say to them that Jim Crow was no longer acceptable and segregation was no longer acceptable. And you can argue about whether they used the right tactics or not, but I think it was an admirable enterprise they were on. But one of the stories, the themes of Nine is when Ronald Reagan came to Washington in the 80s, conservatives decided, look, we need a comprehensive critique of the Supreme Court. We need not just to pick a, criticize an issue here and there. We need to say we want to expand executive power. We want to end racial preferences intended to assist African Americans. We want to lower the barriers between, between church and state, and above all, we want to allow states to be allowed to ban abortion. And they started a group called the Federalist Society. And a lot of liberals talk about the Federalist Society as if it's some kind of Da Vinci Code evil thing. The Federalist Society is not a sinister secret group. It's a group where lawyers get together, conservative lawyers, and, you know, try to change the law. And, you know, two of the young stars of that movement in the early 80s were John Roberts and Samuel Alito. And the story of the book really is how the conservatives, with many bumps and not all successes along the way, have moved towards controlling the core.

One of the most interesting things as a fan of just books and authorship in general has been you've had one prominent review and then several write ups in blogosphere about your sources and how you got this wealth of information that you've come upon for this book.

Well, I'm sorry, go ahead.

No, no, no, please. But what really went on there? How good were your sources? What was that relationship you developed with your sources and how did it impact the writing of your book?

Well, the, you know, the Supreme Court is an unusually closed institution. I was saying at lunch, you know, as a reporting challenge, Google is only slightly easier. Google's a tough nut to crack for a reporter. It's a very controlled, controlling environment. You know, I remember coming around here and I had my PR keeper following me around to every meeting. And, you know, there's very clear description of, you know, what's allowed to be talked about and what's not allowed to be talked about. And the Supreme Court is similar. It doesn't work the same way, but it's a somewhat similar attitude. You know, the Court is a secretive institution. And in 1979, Bob Woodward and Scott Armstrong published a book called the Brethren, which I'm sure some of you are familiar with, which is really the first time anyone went behind the scenes at the court and it was really traumatic for the court. And as a result, there was a real pullback in terms of public attention. They started making law clerks sign all these. I promise never to talk to a reporter or I will be killed and burned at the stake. And you know, and it took 20 plus years to get people to relax a little bit also, you know, you have some younger justices who recognize that they are part of the world and that they need to, you know, put their story out. And you know, and I got much better cooperation from the justices and their law clerks than I expected. But one of the challenges in journalism, especially in a sort of quasi political journalism like this, where, you know, some people look good and some people not look good, is, you know, you feel an obligation to your readers is you want to be fair to everybody, but there is a natural inclination to be nicer to the people who are your sources. And that is something that I deal with all the time in my journalism is sometimes people cooperate and sometimes people don't. But you as a reader, but you know, your readers expect you to be fair to everybody. And you know, it's a challenge, I have to tell you to, you know, to treat people who are nice to you just the same way that people who are not nice to you. And I did my best. You know, I can't claim that it's. That it's perfect, but that my absolute fairness. But that certainly was a challenge in writing the book.

Okay. You alluded earlier to if Republicans win the White house again in 2008, the court's going to take a further turn to the right.

Yes.

What happens if a Democrat gets elected?

I think likelihood is the best that Democrats can hope for is a status quo mostly. You know, it continued to be an evenly divided court. I do have a prediction, however, this is one of. I've been saying this everywhere because I want to get credit for being right. Because. And if I'm wrong, no one will remember anyway is that if Hillary Clinton gets elected, and I think certainly that's a possibility at this point, if you look at all the candidates, I'd say she's the most likely to win. Who will be her first appointment to the Supreme Court court? Barack Obama. You heard it here first. Seriously, that is a total non joke. Barack Obama was president of the Harvard Law Review, professor of Constitutional Law, University of Chicago. You know, he would be in his late 40s so he could have a long career on the court. There hasn't been an African American appointed to the court since Clarence Thomas. He. No, Clarence Thomas. The. You know, you're on the record. I've said worse about Clarence Thomas. And then it has the great sort of Clinton Machiavellian angle, which is. Gets him out of the way as a potential rival. So I think it's a total genius move if she does it. And I really, I do think it's going to happen.

All right, fair enough. Thank you.

All right. It's on tape.

It's on tape.

Yeah.

Making news here at Google.

But let's move my prediction, like that's news. Who cares anyway?

Yes, perfectly fair. Let's talk about some of your New Yorker pieces of particular interest. And then you've already mentioned your Google piece and Google Book search. How do you feel about Google Book search?

I'll tell you what I think about. I mean, it relates to how I feel about Google generally. I mean, like most people, you know, I love Google. I remember having a conversation, I was allowed in an audience with Sergei, and, you know, we were talking a little bit and, you know, we were talking about the difference between Google and Microsoft. And, you know, the thing about Google and the reason people like Google is it is a voluntary relationship with Google. You know, you, you choose to use Google. If you don't want to use Google, you don't have to have anything to do with Google. Microsoft is this crappy piece of software that is like, imposed on you, that doesn't work very well but is pretty much obligatory in life. And that's one of the things about Google and it's like a colorful logo and stuff. People have a positive impression. The problem with Google, the big problem, particularly from a journalistic point of view, is, you know, I often think of this when I'm using Google News, you know, you type is that, you know, Google relies on other content providers. You know, Google does not pay a single journalist, and Google does not pay anybody to create any content. It just directs content to various sites. And we are at a moment in journalism where the people who pay to collect content, the New York Times, you know, the networks are struggling. And, you know, my friend Susan Chira is the foreign editor of the New York Times, and she has 60 people she's paying just in Baghdad. You know, how expensive it is to maintain a Baghdad bureau. I mean, it's just astonishing. And, you know, it is important to our democracy that the New York Times be able to keep 60 people in Baghdad. And Google is thriving unbelievably by, you know, sending eyeballs to the New York Times. But the New York Times ability to monetize. I know this is about as far as I can get in using lingo, but I mean the ability, the New York Times ability to monetize those eyeballs is very difficult. And the problem, I think Google Faces on the horizon is that you are this fantastic instrument for directing eyeballs to content providers. But for you to thrive, the content providers need to thrive and you have not done a great job of sharing the wealth with them. Do we have a question here? Perhaps an indignant one.

Why don't you grab the mic real quick and we'll.

So I am a former subscriber to the New York Times select service and I was actually saddened.

We're all former subscribers.

Precisely. You know, I was kind of saddened when I couldn't pay them that 40 bucks a year or whatever it was because I consider them, you know, such a jewel, such a national treasure. But they decided that it was more to their advantage to be able to monetize all the eyeballs that they would get from Google by opening up that. So that doesn't seem to jibe with what you're saying.

Well, I mean you're right that that was the decision made that they wanted to get, that they wanted to get the eyeballs rather than get the 40 bucks a year per person. But I mean, I think my complaint is more structural than, you know, any individual case. I mean, I just think there is a wild disparity going on now. I mean Google and God knows I don't but grudge Google's fantastic success. And I think it's great that it's so successful. But you know, these newspapers are dying. They are on the verge of going out of business. I mean, New York Times, that's an exaggeration about the New York Times, but that's not true about other newspapers. The first ones to go are going to be the middle level newspapers, you know, the Times, the Wall Street Journal, I think ultimately will figure out a way to go. But it's the, the Cincinnati Inquirers, it's the Cleveland Plain Dealers and you know, this wild disparity between the Google delivery mechanism being hugely successful and content providing being very tenuous, I think is a problem. I think it's a real problem and not just because I am on the content side of the equation. I think it's in Google's interest and I don't pretend to know enough about how this would work, but it's in Google's interest to figure out a way that the prosperity can be shared in a greater way because ultimately you are respons. I mean, people, much as people like to see the Google and the Q, figure out what holiday is being celebrated on the OO or whatever. But the you are only as good as the content at the other end. And that content needs to be an economically viable proposition.

Using the other side of your background, the legal background, you have this great quote in the February New Yorker piece where you say being taken to court and charged with copyright infringement on a large scale might be the best thing that ever happens to Google's foray into the printed word. If it goes to court, it doesn't seem that unlikely. It might make it all the way to its court. Supreme, Supreme Court. How do you see us doing?

Well, I think, you know, I mean, the lawsuit over Google Books is to me just, you know, a negotiation by other, by other, by other means. I mean, I would be shocked if this case even got to a verdict in the district court, much less, much less the Supreme Court. I mean, first of all, you know, the Supreme Court, the legal system works at a pace that is completely unacceptable to people like you. I mean, even the motion to dismiss, the summary judgment motion is scheduled to be heard in that case in 2009, I think. I mean, you know, 2009, you know, I was just, I was talking to these folks at lunch. I was, I forgot it was February when I came. Google had just had its 10,000th employee, and now there are 13,000 employees here. So, I mean, the pace at which Google is changing, look, I mean, I think Google Books is an example of that problem I was discussing in another context, which is that book publishing is similarly embattled. It is a very difficult proposition to make money publishing books. I think everyone understands in the book business that there has to be some way of distributing books that's different than this. I mean, I think books, you know, like paper, the carbon byproduct on, you know, is actually much more efficient than people often give it credit for. And electronic substitutes have fared fairly poorly so far. But I do think the publishers and the Authors Guild who are suing over Google Books, they're not saying we don't want our books on the web. They're not saying we don't want the Google eyeballs to reach us. We just want to do it in a way where we have a potential to make some money. And that, to me, seems like the recipe for a settlement. And I think there will be a settlement. And I don't pretend to know exactly what terms that will be made. But I think it's clearly in both sides interest to settle this case.

As just a last question here we find ourselves in a society that's just fascinated by the legal process. Court tv certainly you're no longer alone in being a legal analyst on the networks. We're staring at so many every night. But at the same time, this great phenomenon, you have a really good story in the nine about the court actually watching a piece on Guantanamo Bay and being influenced by it. So there seems to be this interesting relationship where society has a relationship with the media, the media has a relationship with the court. Is the media really playing a role in tying us all together?

Well, you know, I guess I have a. I'm not much of a theorist about media. My attitude is basically just more is better. The famous Justice Brandeis quote, which is sunlight is the best disinfectant. I think more scrutiny is better than less, especially when it comes to the Supreme Court. I mean, it really is preposterous that an institution which has so much power gets as little attention as the Supreme Court does. And one of the reasons I think I'm pleased to say that my book has, you know, gotten hit a responsive chord is that people want to go like, well, what the hell? Who are these people and what motivates them and how do they, and how do they work? I think, you know, obviously you could go overboard. You know, I think the justices conference, the private, the secret conference that they have, you know, that shouldn't be televised, but the arguments not front of the Supreme Court, of course they should be televised. How could. I mean, it is outrageous that Supreme Court arguments are not televised. But you know, the justices don't want it televised and you know, they'd rather not be bothered in airports and they'd rather not have their statements reduced to sound bites, which certainly they would be. And my response is too bad, you know, you're too important to be available only to the handful, the handful of people who happen to show up in Washington on any given day. And again, I think they're moving slowly and the Supreme Court moves slowly and there's nothing particularly wrong with that. I think what you're going to see first is audio. Same day you have same day audio of some Supreme Court arguments. There'll be more of that and eventually they'll probably move towards video, but not as fast as they should be.

All right, well, it's time for questions. If you wouldn't mind using the mic.

So Justice Thomas has recently. Justice Thomas has recently started a round of public relations and issued a book and gone on 60 minutes. What is he trying to accomplish with that and what do you think he's going to achieve with that? Well, I think, and I don't say this in criticism but you know, he's trying to make some money for starters. I mean he got a million and a half bucks for this book. And you know, far be it from me to criticize someone who writes for money because it's certainly a main reason I write. It's not the only reason. But I mean, but don't kid yourself. I mean that's a big factor at work here. And he's also not a wealthy man. I mean he was still paying off student loans when he was on the Supreme Court. I mean this is not a very wealthy guy, I think in a broader context. I mean, and he's such an interesting person because, and you can see it in the book and you could see it on 60 Minutes if you saw the interview. He is so full of rage even today about this story. I mean the Anita hill controversy was 16 years ago which you know, even by non Google time is a really long time. And yet, you know, and it's not just at Anita Hill, at Democrats, at the, at the media, hates the media. Once said the happiest day of his life was the day he cancelled his subscription to the Washington Post. I mean that's the level of bitterness there. Yet at the same time he's one of the most popular people at the court. Very friendly, very relaxed, very, you know, laughs a lot, gets along well with his fellow justices. He's a very paradoxical figure. But I think he has decided, decided that his public image will be as a conservative niche figure. I mean his only interviews have been with besides 60 minutes have been with, you know, Rush Limbaugh and Laura Ingraham. I mean, you know, he's like on their team.

I sort of have to take issue with your prediction regarding Clinton and Obama because you're assuming that she's been elected president, in which case he is no longer her rival because she either wins reelection or doesn't. He presumably wouldn't run against her unless her opinion polls are down in the basement. I would actually consider it much more likely she would either appoint Mr. Clinton or possibly Al Gore if she felt really perverse about getting him on the court that kept him out of being president.

That's, I mean the Gore hadn't occurred to me. I mean Gore is not a lawyer so that's one of the Pro. That would be a problem with him. You don't have to be a lawyer.

Non lawyers have been appointed before. Sorry, non lawyers have been appointed before.

Yes, but not for over 100 years. One of the interesting things about the court is this current group of nine justices is the first nine justices in history where all nine were judges previously on lower courts. The court that decided Brown v. Board of education in 1954, not one of them had been a judge previously. And I think it's a mistake to go only to judges as part of the pool. I think, you know, used to be senators. Earl Warren was governor of California. William Douglas was head of the sec. Felix Frankfurter was a law professor. I mean, I think it would be good to have someone outside the guild of judges. And you know, as for, you know, what the relationship between Clinton and Obama is or would be, you know what these people are the Clintons, they're all about like what's good politically. Like friendship is not a big factor in this. And if they think it will be work for them, they'll be happy to appoint.

That's actually why I've had him penciled in as the vice presidential nominee.

Well, vice president is possible too. I mean, I don't pretend to know who her vice presidential nominee will be if she gets the nomination.

I'm as big a consumer as anybody of news. And I agree that there's a terrible problem with reducing income sources for newspapers particularly. But I take issue with your assertion that in some sense Google is taking money out of these people's pockets. This is a business model that's 150 years old. Ten years ago there was no such thing as a search engine. And when there were search engines, people were jumping out of that business because they didn't see any future for it. Essentially, Google has succeeded because we've managed to monetize this business. And what it calls for is bold tech friendly leadership in the news industry. And I'm sure you'll agree that there is no such thing. Most newspapers are run by very conservative. Conservative in the business sense, not in the political sense. Although that too very conservative old school business people who are beholden to their readers and can't change anything without upsetting their current user base, as it were. What it's going to require is that they figure out a way to make money using the billions of eyeballs that Google is sending them. So to say that we're not sharing the wealth is not true. We are in fact sharing the wealth. And this goes for book publishers too. We're sending them plenty of traffic. And there are many websites that thrive on the traffic that Google sends them. And it's incumbent on the New York Times and the Cleveland Plain Dealer and so on to do the same.

Well, you know, I mean, this is what Sergey said to me when I, you know, raise this issue with him. And so, you know, you'll go far, young man. No, and, you know, he said, it's like, what do you mean? The New York Times is begging us to send more eyeballs to them. They all want us to send traffic to them. And that's certainly true. And, you know, it is also true that the management of the news business has not been as innovative as it should be. But it is also true that not every single manager of every single newspaper is an idiot. And it is not true that all these business people are just wrong about everything that they do. It is true, I think, that there are structural problems in the news business right now. And yes, I hope so. I mean, you know, no one more than I hopes that you're right that there are visionaries out there in the news business who figure out a way to monetize those billions of eyeballs. The problem is like, what happens next year when my friend Susan has to drop her budget for the foreign desk of the New York Times. And you know, what happens when the bosses say to her, you know, we just don't have the money for 40 people in Baghdad or 60 or whatever it is. And I'm not a business person. I'm not a master of the universe. I'm just saying I think it's a problem, and I think it would be in Google's interest to spread the. To recognize that Google's success in some respects is bound up with the success of the content providers. And I'm not sure that attitude is. Is as prevalent here as it should be.

Well, let me push back a little bit. I think Google shouldn't be in the business of deciding which content providers essentially are given monetization by us. The Internet is a much more democratic institution than the media in general. People vote with their eyeballs, and Google's not going to be in the business of picking winners in this game. The winners are picked by their users. Essentially. There's a revolution going on, and there has been for many, many decades in the newspaper business. The people who survived the revolution are the people who are going to seize the day. I don't know if it'll be the New York Times or not. I hope it will be. I love the New York Times. But if it's not, somebody else will pick up the slack. And if the New York Times Baghdad bureau has to shrink to zero in the meantime, that'll be very unfortunate. But I'm afraid that's what's going to happen.

Well, I mean, you know, I think, you know, there's obviously a lot, a lot to what you say the problem is, you know, if the New York Times, it's nice to think that there is some level, that there is some demand that will be met somehow if it's not by the New York Times, it will be met by someone else. What I'm concerned about is if.

The.

Billions of eyeballs all go to Britney Spears problem and somehow there is no one in Baghdad. I mean, I think that is not outside the realm of pessimism, that if you, if this is purely a monetary decision, you know, sometimes there is that, you know, the market is not the proper mechanism to decide absolutely every question. Believe me, I think the market should decide most things. But you know, one of the great treasures in American journalism and thus American life is that the New York Times and the Washington Post remain family owned and they are not at the whims of the stock market. And the Sulzberger family and the Graham family have said, you know, we care about the Baghdad Bureau and we are going to make some financial sacrifices short term, long term to maintain the standards that we care about. Now they also think, and I think they're right, that there is an economic value to being the high quality news provider. But the fact that they are a private company and can make those sorts of decisions without the worry of shareholders is something that we all as news consumers are fortunate for.

Thank you.

I wasn't particularly happy when I heard about the Supreme Court's decision back in2020. And as sick as it made me at that time when I started to hear stories about people saying it wasn't constitutional, I believe he said in an interview, or maybe someone else said that a couple of the justices like felt sick or cried when they think about that.

That was me. Yes. Suitor. Yeah.

Was that the Daily show by the.

Way, or that was Colbert.

Colbert.

Ford.

I knew I'd seen you somewhere. So.

Right.

I actually don't understand why it was unconstitutional and I'd like a little bit more knowledge behind my rage if you could provide that.

There's a whole book there.

There is what the heart of the book is about, because there is. I wrote a book previously called Too Close to call about the 36 day recount which is written from the perspective of the Bush people and the Gore people. The three chapters at the center of the nine are about Bush v. Gore from the perspective of the court, what the court was going on, and to look. I mean, the core problem with Bush v. Gore, I think, was that if you are a conservative in constitutional terms is basically what you believe is that the states should settle states issues and that the equal protection clause of the Constitution should be interpreted narrowly and rules should apply to everybody. But when it came to Bush v. Gore, the five conservatives said, oh no, we're not going to let Florida decide how to run their recount. We're going to impose our solution on them and we're going to say, well, we don't really believe in the equal protection clause for black people or for women, but George W. Bush is a victim of an equal protection clause violation because of what Florida did. And finally, we usually decide rules of general application, but we're going to put a sentence in, in our opinion in Bush v. Gore that says this ticket for good for this train only that only George Bush is the beneficiary of this decision. So what's wrong with Bush v. Gore? And I don't want you to get a misimpression about the book. My book is not like thumbs up, thumbs down on all these decisions. And, you know, it's mostly reporting and analytical rather than, you know, an evaluation. Bush v. Gore is an exception. I think it's a terrible decision. And I think it's a terrible decision because the conservatives departed from what they usually do for what certainly appeared to be partisan ends, that they looked like they were simply awarding the election to President Bush. And it was a tawdry moment for the court, I think.

Okay, well, before I go vomit from blind anger, I'm gonna.

Which I, I mean, don't let me stop you from that.

I was actually wondering. I've heard that there is a couple of times where conservative justices have gone to the left as they age in the court. Do you have any predictions if that may or may not happen from any of these guys?

That is a common misconception that, you know, oh, don't worry John Roberts, he's going to get liberal. You know, it's like, does not happen. I mean, it's cited for o' Connor somewhat. O', Connor, it's the most true of Souter was always a moderate. Kennedy was always a moderate conservative. But if you look at certainly the last five justices appointed to the court, Thomas, Ginsburg, Breyer, Roberts, Alito, no Change. And precisely what you see is what you get. You know, there's an arrogance about liberals sometimes where they say about Roberts, they say, and you remember him, he's like, he's so intelligent, he's so charming. He must be moderate. No, there are conservatives who are intelligent and charming, and he's very intelligent and very charming and very conservative. And he's going to stay that way. So.

Yes, yes. Question on a slightly different topic, politics and law are very closely allied in the United States. Do you have any suggestions and observations on about the state of political reporting in the United States given things like.

The Dan Rather incident and other cases.

Of poor reporting or malfeasance at that level?

Well, you know, lest you think that my criticism of Google makes me some sort of Luddite, I mean, I think the state of political reporting in 2007 is healthier than it's been in many years, largely because of the web and because of blogs and because of the extraordinary scrutiny being brought to politics on the Web. I think, you know, if you are a remotely curious consumer, remotely energetic consumer, there is so much information for you out there from so many different perspectives. Really good, good analytical stuff that is just a Google search away. And I think that is an absolutely great thing. I think I was pleased to be part of the first YouTube debate that we did for CNN and YouTube partnered. And I think that ordinary people are getting involved in this presidential campaign at a level and in a way they never had before. And that's all because of the Web. So, you know, sure, there are always going to be problems and there's going to be bad reporting sometimes, and there are corporate pressures, although I don't think they manifest themselves very much. I certainly have never felt it. I mean, I think the Dan. I don't pretend to understand exactly what happened in the Dan Rather Bush National Guard story. And maybe it's an exception. But, but I think it's kind of a golden age for political reporting right now, if you care to look.

Thank you.

Talking about politics, I'm just itching to know, how would you describe your personal politics and how did that play a role when you were writing this book?

Well, you know, I don't, I am not a terrific partisan of one kind or another. I mean, I am, you know, I have the sort of, I mean, I like a good story, you know, I mean, I, you know, no one had more fun during the Monica Lewinsky story than I did. I mean, my God, I mean, like, especially after O.J. it was like, hey, you know, come on no one died. He was a middle aged guy who got in trouble with a woman at the office. You know, it was like this is, this was a, I mean it was, it was such, it was so easy to understand. You know, I mean, it's like, you know, everybody. So, you know, I suppose, you know, I am more sympathetic to the liberals on the Supreme Court at some level than the conservatives, but not in any. I mean, I'm not much of a partisan.

Yeah, I wanted to follow up on the issue of journalism and your idea that we're sort of approaching a golden age of political reporting because I mean, in a way it seems a little odd to say that when the, you know, the big media outlets are sort of realizing that they've had the wool pulled over their eyes about the Iraq war for the last three or four years. And do you think that, you know, there's going to be some kind of resurgence in a real analysis of what's coming out of Washington?

Boy, that's, I mean that was very good cross examination. You know, I think the Iraq war is, or the origins of the Iraq war and the initial coverage of the Iraq war was not a proud moment for journalism. And I think, you know, one of the things we have to guard against is groupthink and fear of criticism. And you know, it took a long time, time by contemporary standards for journalists to, you know, get to, you know, correct their errors. You know, one of the problems in reporting in the, I mean, I don't do national security reporting but you know, my colleagues who do. It's very hard because so much is classified and so much is you are so dependent, dependent on your sources and your sources are mostly in the government. I mean, I really don't think there are, you know, there were conspiracies to, you know, pull the wool over Americans eyes about whether they were wmd. I think the problem was the only sources that people were relying on were in the government and they had a vested interest in making a case that turned out not to be true. But you know, all I can say is I think in subsequent years the press has made a very determined effort to make up for it. And I think, you know, not to say we won't make mistakes again, but you know, I do have sympathy for some of the reporters who were on those stories because they're very hard to do.

Hi. I think I heard you say this. Not. I know some other commentators have said it that one of the successes of the Bush presidency is the appointments of the justices to the Supreme Court.

I certainly believe that.

So just from a legacy perspective and just as one of those also fun, great stories that happened, how will the Harriet Myers fiasco impact his legacy? And sort of. How do you touch upon that in the book at all?

Oh, my goodness. One of my favorite parts. I mean, the Harriet Myers tragicomedy. I mean, it was just. Just so, you know, to me, there's one very significant fact about the Harriet Meyer story. She is the first person in American history to withdraw her candidacy for the Supreme Court, even though she probably would have been confirmed. Really remarkable when you think about it. She probably would have been confirmed, yet she withdrew. Why? Because the conservative party part of the Republican Party turned against her. This is how important the Supreme Court is to the base of the Republican Party, and this is how powerful the base is in the Republican Party is that they could go to President Bush and say, as they did, look, we care about this issue more than any other. And we don't need 75% guarantees. We need a hundred guarantees that our nominee, that your nominee is going to be down the line conservative. And Harriet Myers probably will be, but we can't be sure. And they demanded someone who they could be sure about, and they were so powerful that Myers pulled out and they got Samuel alito, who is 100% guarantee. And to me, other than the sort of amusing part of the story about how sort of clueless she appeared and that was, I mean, God knows I have fun with that in the book a little bit, but the real significance of the story was an exercise in power by the base of the Republican Party.

So thank you very much for coming to speak today. I really, really enjoyed your book. It's the first time I can recall a nonfiction subject pulling me through. I think I finished it basically doing nothing else for, like, two days. I didn't really work at all, so. And in particular, I thought several things that you did in the book and presented in the book were pretty impressive. One was that you commented that you tried to be kind of fair. And I think that while some of your political attitudes come through in the book, you do a good job of presenting things just sort of as they happened. It felt not necessarily objective, but. But there wasn't a lot of affect assigned to what was going on. And that made it really engaging because I could kind of assign my own affect and follow along. And then you close the book. After talking about things like the rule of five in the middle of the book, you close the book and you say that if nothing else, we're really Getting the court we deserve, and you talked about this a little earlier, that really kind of the system is set up to work in a particular way, and it's working. We may not like the outcome, but the system is working. So I was curious, you know, applying that to the 2000 election. You expressed discontent. You said that was actually a bad decision.

It was.

What's that? Yeah.

Right.

And so. But then that was the decision that it didn't just happen at the Supreme Court. Right. It sort of. It started at, you know, very low levels of the election mechanisms in Florida and moved up through their courts, their Supreme Court, you know, all the way up. And at every level, there's a system in place there that was, I think, for the most part, working as it was intended to work. As you depicted in the. In the book. You know, the Florida Supreme Court made a call that was kind of theirs to make, and a lot of people didn't like that call, but they had, you know, put the Supreme Court in office through the system, and then the.

Supreme Court that we had just on account of time. I got to push you to a question.

Sorry.

Okay.

So I guess my question is, you know, where does. Where does stare decisis actually come into this whole process?

Why.

Why is stare decisis even a process? Part of the deliberation. Was the outcome in Florida legal and what would have been the correct kind of what should have happened?

What should have happened is that Florida should have run their own recount and continued to count all the votes, and the person with the most votes should have won. They shouldn't have stopped the recount. They should have recounted all the votes the way the Florida Supreme Court said they should have. The precedent is an interesting question because, you know, that's always an issue of who's ox is gored. You know, all the liberals love the liberal precedents and the conservatives love the conservative precedents. And, you know, most of the justices feel that in the interest of stability and predictability, the court has an interest in trying to hew the precedent as much as possible. But they all feel they're exceptions and they're all issues that they would love to get precedents overturned. I mean, you know, the Liberals celebrated in 2003 in Lawrence v. Texas when they overruled the Texas's ban on gay sodomy. They said, look, that's something. And the conservatives, you know, will celebrate when Roe v. Wade is finally overturned if it is. So, you know, they're for precedent, except for when they're not.

We're actually out of time. So for those of you with questions, can we ambush Mr. Suban after.

I apologize, but I'd like your shirt.

I'm sure you'll get many more questions, but thank you very much for joining us again here at Google.