I have a new column up at The Federalist, “Jeffrey Toobin’s Clueless Supreme Court Meltdowns Should Embarrass CNN,” mostly about his strange claim that the stakes for Supreme Court nominations are higher now because the framers of the Constitution thought everyone was dying in their 50s — a view that misunderstands vital statistics and misleads as a matter of history.
What got left out? I was writing on a de facto ASAP deadline, so one thing I neglected to note that John Adams nominated two Justices who served over 30-year terms — one of whom was Chief Justice John Marshall. Jefferson and Madison also nominated Justices who served more than 30 years, including the famous-among-lawyers Joseph Story. Chief Justice Roger B. Taney, who burdened us with the Dred Scott opinion, served over 30 years due to Andrew Jackson.
It would be fair to say — as Jeffrey Rosen has — that while the average term for a Justice is roughly 15 years, it has increased to 25-26 years in the period since 1970. But this math doesn’t really help Toobin. To the contrary, the timing suggests that the tendency of Presidents to nominate younger Justices who can serve longer terms has little to do with increases in life expectancy, but a lot to do with the late Warren Court and early Burger Court appropriating power and converting the Court into the sort of political institution the framers worried about.
I also wound up leaving out the bigger picture, though it’s one familiar to WHRPT readers. Here you have Toobin, CNN senior legal analyst, sounding more like the network’s progressive talking heads like Neera Tanden — despite the fact that the “finalists” were known well in advance, allowing Toobin plenty of time to research their records and philosophies. Why does that happen? In large part because news has devolved into infotainment, a problem accelerated by Jeff Zucker’s tenure at CNN.
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