When CNN’s Jeffrey Toobin offers analysis on U.S. Supreme Court nominee Elena Kagan, get used to hearing these two words:
To avoid the appearance of a conflict, Toobin informs viewers, up front, about his long friendship with the Solicitor General, which dates back to their first day at Harvard Law School in 1983. She danced at his wedding. When her mother died, he sat shiva with the family.
The on-air acknowledgment was Toobin’s idea, he says. He first informed his bosses of the connection more than a year ago, when Kagan was a finalist for the Supreme Court nomination that eventually went to Federal Appeals Court Judge Sonia Sotomayor.
Being open about the friendship “shows respect for our viewers’ intelligence,” says Toobin, author of the 2007 best-seller, “The Nine: Inside the Secret World of the Supreme Court.”
“We have no pre-existing relationship with most of the people we cover,” he explains. “This is different. I think viewers should know that, and draw their own conclusions. Presumably, I can bring some insight, based on my knowledge of the story.”
Toobin tries to bring up the link on all his segments, but “this is cable, so you’re on a lot. I wouldn’t presume to do it every time.” Often, an anchor sets him up while introducing him on a live shot.
Since President Obama announced Kagan’s nomination Monday, the media has been scrambling to come up with any personal information on the publicity-shy former Harvard Law dean.
As a law student, Kagan “was among the smartest and most socially normal people in a place of high-powered intellect,” Toobin recalls.” That’s not true for a lot of high-achieving people. She’s funny, well-informed about the world. She’s good company.”
Toobin and Kagan last kept company “not too long ago” in Washington, he says, offering no details. If she is confirmed, he understands that the friendship must be put in storage.
Kagan’s confirmation will be an easy one, he predicts. It’s all in the numbers. “You start with 59 Democrats [in the Senate.] She clearly has majority support just by showing up.” In the final tally, Kagan will score in the mid-60’s, he says.
Odds of a filibuster are slim, in Toobin’s view. “It’s hard to fathom what issue would generate enough controversy to justify” the required 40 votes. “She’s not that controversial as a person or a lawyer.”
While some criticize Kagan’s lack of judicial experience, Toobin sees it as a plus. “Diversity of background is a good thing. I think it’s terrible that there are no former governors or Senators on the court, given the range of issues they [Justices] deal with.”
Historically, the idea that one must be a judge before becoming a Supreme is a relatively new concept in the Court’s history. It wasn’t until 2005 that all nine Justices were former magistrates, Toobin says.