Reevaluating Toobin

I've held Jeffrey Toobin in low esteem since seeing him on CNN during the Terri Shiavo affair. At the time, much was made of the de novo review afforded Shiavo's parents in federal court. Toobin never explained what de novo was in a way that I could understand. Now that I understand de novo review, I realize this is not a difficult concept. It could have been my inability to understand, but I blame Toobin for not teaching the concept clearly.

More recently, I watched Toobin comment on the commutation of Scooter Libby's sentence. Segment after segment on CNN railed against the commutation. I found Toobin's segment particularly unpersuasive, however. His basic argument was that the commutation was in violation of DOJ (Department of Justice) guidelines. Apparently Toobin thinks DOJ guidelines should bind the president even though the DOJ is part of the executive branch, and even though the Constitution give the president the absolute power to commute sentences. Perhaps his point was political point, i.e., there is less political fallout when the guidelines are followed. But is that what people think? Do they really go around judging commutations against the DOJ guidelines? While there may be some correlation between following the guidelines and outrage by the public, there is certainly no cause-and-effect relationship as Toobin seems to suggested. The guidelines, therefore, are more or less irrelevant from both legal and political standpoints.

Now Toobin has a new book out which bloggers are slowly and steadily picking apart. He has noticed the criticism and has asked that readers send him feedback. My first reaction was, what a nice gesture to his critics. He must be more humble and interested in opposing viewpoints than I initially thought. That's probably all true, however, upon further reflection, the comment perhaps betrays a deeper problem: Toobin's ignorance of conservative and libertarian legal thought. Some of the errors are really quite egregious. I wonder, did no conservative or libertarian legal scholar,--or even someone familiar with these arguments--read this book before it went to print? Furthermore, shouldn't Toobin himself be familiar with these arguments? He was, after all, the editor of the Harvard Law Journal.