- The Washington Times - Monday, April 23, 2007

Last week’s Supreme Court decision upholding a ban on partial-birth abortion brought a national focus on the subject Jan Crawford Greenburg knows best — she has covered the court since 1994.

For most of those years, the court’s membership was stable. After Stephen G. Breyer joined the court in 1994, there followed 11 years in which no justices were replaced — the longest such period in modern history — until the death of Chief Justice William H. Rehnquist in September 2005.

Mrs. Greenburg’s new book, “The Inside Story of the Struggle for Control of the United States Supreme Court,” initially was conceived as an account of the process of filling the vacancy on the court.

“Of course, at that time, none of us had any idea just what a historic moment was about to unfold, because Justice [Sandra Day] O’Connor the next year would announce her retirement,” said Mrs. Greenburg, who began covering the Supreme Court for the Chicago Tribune, and is now legal correspondent for ABC News. “And that, of course, gave President Bush a truly historic opportunity to change the direction of the Supreme Court.”

While studying the court, however, Mrs. Greenburg came across information that has shed new light on the internal dynamics of the Supreme Court, and particularly the role of Justice Clarence Thomas.

“When Justice Thomas joined the Supreme Court in 1991, he was quickly portrayed as [Justice Antonin] Scalia’s sidekick — that he was just following Scalia’s lead — and there were many news stories written to that effect,” Mrs. Greenburg says. “But that story line is patently and demonstrably false.”

The proof, she says, is in the papers of the late Justice Harry Blackmun, who spent three years on the court with Justice Thomas.

Justice Blackmun “took very detailed notes and recorded their votes when they would have their conferences, and also took down their comments and what they had to say about the cases,” Mrs. Greenburg says. “So the Blackmun papers gave a very vivid look at what happened behind the scenes.”

The picture that emerges of Justice Thomas is different from what has been portrayed in the press over the years.

“From his first week on the bench, Justice Thomas was willing to stand alone in dissent,” Mrs. Greenburg says. “He joined the court with a clear, strong, independent voice. And if any justice [during the 1991-92] term changes his vote to join the other, it was Justice Scalia who changed his vote to join Justice Thomas, not the other way around.

“But, of course, everyone would see Scalia and Thomas voting together and just assumed Thomas was following Scalia, but that’s not what happened.”

Why was Justice Thomas’ role so misunderstood? Those who had opposed his nomination “weren’t in any mood to hear what he had to say or give him any credit whatsoever,” Mrs. Greenburg suggests.

“It’s just unfair,” she says, adding that Justice Thomas has “interesting and complex views about how the law and how the Constitution should be read.”

Mrs. Greenburg says that Justice Thomas may have had an unexpected effect on Justice O’Connor. For many years the key swing vote on the court, Justice O’Connor often sided with more liberal justices on major cases.

“She saw herself as sort of a moderate, balancing person. … She tended to seek that middle ground,” Mrs. Greenburg says. “So when Justice Thomas replaced [Justice] Thurgood Marshall, the court appeared headed for a turn to the right. And that caused O’Connor to back away and move to the left.”

Mrs. Greenburg’s book also sheds light on President Bush’s decision to nominate Harriet Miers to the Supreme Court in October 2005. Miss Miers withdrew her name from nomination after conservatives questioned her qualifications.

The Miers nomination, Mrs. Greenburg says, stemmed largely from the president’s desire to name a woman to the court and from his desire to avoid the “mistake” his father, President George Bush, made in nominating David H. Souter, who soon emerged as a consistently liberal vote on the court.

“President Bush wanted to nominate a woman to replace Justice O’Connor. … Justice O’Connor herself was urging him to do that. Justice [Ruth Bader] Ginsburg has said she thought a woman should get the nomination, as did the first lady [Laura Bush],” Mrs. Greenburg said.

“George W. Bush knew Harriet Miers. He knew she was a conservative. He believed she would stay that way and not drift to the left once she joined the court. I think it’s impossible to overstate how seared President Bush was by the Souter nomination, and how determined he was to avoid a similar mistake.

“That’s the great irony of the Miers nomination. Conservatives responded as if President Bush had done precisely what his father did.”

Mrs. Greenburg is a native of Morgan County, Ala., and a graduate of the University of Alabama who went to work for the Chicago Tribune in 1987, and subsequently received her law degree from the University of Chicago Law School. In 1998, she began covering the Supreme Court for the Public Broadcasting Service’s “NewsHour,” and also worked as a CBS legal analyst before joining ABC last fall.

On the transition from print to broadcast reporting, she says, “It’s very similar in many ways. … The big difference is that reporting for television … is very much like writing for the front page. And so if your story isn’t significant enough to make it on the front page, there’s not a Page A17 where you would file it.

“That’s changing, though, because ABC is really bolstering its online presence. I write the same kind of stories I did for the Chicago Tribune — they just appear online instead of in newsprint.”

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