Deep into his Monday interview on NPR’s Diane Rehm show, Toobin explained the difference between Justice Thomas and Justice Antonin Scalia. Thomas was "a nut." He added at show’s end that Thomas’s legal views were "highly unusual and extreme." He also predicted that if elected president, Hillary Clinton would nominate Barack Obama to the Supreme Court, a "political masterstroke" for Hillary since Obama would be an "unassailable nominee."
When a caller from Texas asked if Thomas was competent enough to be on the Court, both Toobin and NPR’s other guest, Jeffrey Rosen of The New Republic, agreed he was competent – but Thomas was a nut:
TOOBIN: I think he’s perfectly competent. I don’t think that is the issue. I think what matters about these justices is what their ideologies are, and he is the most conservative justice to serve on the court, I think, since the 1930s, but is he capable –
REHM, sounding stunned: More so than Scalia?
TOOBIN: Oh, much more than Scalia. I was at a synagogue where Justice Scalia was giving a speech not too long ago and someone asked him to compare your judicial philosophy and Justice Thomas’s, and he talked for a while, and he said, ‘well, look, I’m a textualist. I’m an originalist, but I’m not a nut.’ And I think that sums up a little bit the difference between the two. Justice Thomas believes that much of the New Deal is unconstitutional. Justice Scalia doesn’t.
ROSEN: Diane, you’re looking shocked!
REHM: Wow, yeah!
(Patterico isn't buying that Scalia would imply Thomas was nutty. He's objecting to Toobin's book describing a 2005 synagogue event. Apparently, according to his links, Toobin also tried this line on another book-plugging NPR interview, on Fresh Air with Terry Gross on September 19.)
Rosen disagreed with Toobin’s theory that ideology was what mattered. It was still the question of Thomas’s roiling anger: "Temperament, personality matter. It’s the fact that Thomas is so angry...the fact that he can’t get over this wound, this indignity, that he’s always been so angry, that makes him more radical than people who are essentially ofthe same ideology like Scalia or even Roberts. This is an example of someone undone by his temperament."
At the end of the hour, a caller from Hillary’s adopted area of Westchester, New York worried strangely that Thomas had returned to a " a fundamentalist, Calvinistic form of Roman Catholicism." (Calvinism and Catholicism are rarely confused as synonymous.) Toobin said religion doesn’t matter: "What matters about Thomas is his legal views and they are highly unusual and extreme."
When asked what kind of Supreme Court justice Democrats would pick, and whether those picks would oppose the death penalty, Toobin placed Hillary in the political center:
TOOBIN: Hillary Clinton...she’s no radical. She supports the death penalty. Not that you asked, but if Hillary Clinton’s president, I think she’ll appoint Barack Obama to the Supreme Court. [Rosen laughs.] It’s no joke, absolutely.
ROSEN: You think before the primary?
TOOBIN: Before the primary, no, I think it would be a political masterstroke; legally, I think he’d be an unassailable nominee, and it would also have that great Clinton Machiavellian edge of getting him out of the way.
