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So What Do You Do, Jeffrey Toobin, Author?

For his book on the Supreme Court's inner workings, this author and legal expert describes how he got justices dishing

By Diane Clehane - October 10, 2007
It seems only fitting that Jeffrey Toobin would once again find himself on the bestseller list at the same time that O.J. Simpson has returned to haunt the cable news channels. It's been 13 years since Toobin, who had recently left the U.S. Attorney's office to join The New Yorker, penned "An Incendiary Defense" for the magazine which broke the story that Simpson's defense team was "floating" the theory that LAPD detective Mark Fuhrman was part of a police conspiracy to frame the former NFL great for the murders of Nicole Brown and Ron Goldman. The 4,700-word piece caused an immediate furor and virtually overnight, Toobin became one of the best known attorneys-turned-talking heads to emerge from the chattering classes that chronicled the trial.

Since then Toobin, who still writes for the New Yorker and is now a legal analyst for CNN, has covered the crowded docket of celebrity trials including those of Michael Jackson, Martha Stewart, and most recently Phil Spector, as well as the Monica Lewinsky scandal and the Supreme Court's decision on Bush v. Gore. He told The Harvard Crimson earlier this year: "One of the things that I've always liked is the mix of high and low."

In his latest book, The Nine, Toobin went behind the pomp and circumstance of the red velvet curtain and black robes to demystify the Supreme Court -- due in large part to exclusive interviews with the justices -- and, in doing so, has created a page turner that, at times, reads like a novel. The book, which debuted at No. 5 on The New York Times' nonfiction list last week, currently holds the No. 2 spot. With O.J. in his rear-view mirror (although with the possibility of another Simpson trial it's likely Toobin will revisit the never-ending saga once more), the multi-hyphenate is happy to testify on what it's taken to finally emerge from the media scrum with a book that's not a ready made cable news story.

Name: Jeffrey Toobin
Position: Author, CNN legal analyst; staff writer at The New Yorker
Resume: Author of The Nine (Doubleday) and A Vast Conspiracy: The Real Story of the Sex Scandal that Nearly Brought Down a President; The Run of His Life: The People v. O.J. Simpson; and Too Close To Call: The 36-Day Battle to Decide the 2000 Election. (All published by Random House). Joined CNN in April 2002 after seven years as a legal analyst with ABC News. Staff writer at The New Yorker since 1993. Previously served as assistant U.S. attorney in Brooklyn; served as an associate counsel in The Office of Independent Counsel Lawrence E. Walsh, which served as the basis of his first book, Opening Arguments: A Young Lawyer's First Case -- United States v. Oliver North.
Birthdate: May 21, 1960
Hometown: New York, New York
Education: Harvard College '82, Harvard Law School '86
Marital status: Married to Amy McIntosh, chief talent officer at The New York City Department of Education; two children: Ellen, a high school junior, and Adam, a freshman.
First section of the Times: "Every day I walk [the family dog] Thunder Toobin and I take the sports with me as I walk around my block, so I guess I'd have to say the sports."
Favorite television show: The Sopranos
Guilty pleasure: "Playing golf. It's a very compelling activity and it's very hard to do well."
Last book read: "The Argument by Matt Bai and See You in Court by Thomas Geoghegan. I read those two more or less simultaneously."

How's the book tour going?
Great. I'm getting these enormous audiences at my appearances and as much as I'd like to think it's about me and my book, I think there is just this huge thirst for knowledge about the court. There is a recognition that the court is in a critical moment in its history. People are hungry for information about it, so I think my timing is really good.

What made you want to write this book? When did you decide to do it?
It's sort of a funny story. Three summers ago, in 2004, I had the wonderful idea of writing a legal thriller and my agent, Esther Newberg, said, "Oh, that's great. It's a terrific idea. [Editor] Phyllis Grann has always been interested in you and wants to read your novel." So I spent the summer writing three chapters and showed it to Phyllis. She invited me to her apartment and said, "This novel is terrible. You should not pursue this. This is going to be a very bad novel if you finish it." Then she said, "What you should do instead is write a book about the Supreme Court." It was like a light bulb went off in my head because I've been covering the court off and on for almost 15 years. I loved The Brethren, but it was published in 1979. There seemed like there was a tremendous need for a book on this subject and I also knew it was likely that one or more justices would leave in the next couple of years -- and this was of course before Rehnquist and O'Connor left. I knew it would be an issue in the 2008 [presidential] campaign, so all the stars quickly aligned. I more or less immediately agreed to do it but, I owe the success of The Nine to my ineptitude as a novelist.

When did you start writing? How long did it take to do?
I took a leave from The New Yorker of about seven months -- I also worked on it while I was there -- but there was a seven-month intense period. The dates are a little fuzzy to me. I worked on the book over three years.

How much time did you spend reporting?
It was much of the three years. A lot of the reporting was at the same time I was writing. It's not neatly divided.

How does one go about getting Supreme Court justices to talk?
I had done profiles of three of them already. I had written long New Yorker pieces about Thomas, Kennedy, and Breyer. I was not an unknown quantity to them. There were also clerks who are a lot more hit or miss. It took a thick skin. Some clerks would tell me to go to hell promptly or not return my phone calls, but many were cooperative. It was just a question of pounding your head against the wall with the justices and the clerks.

Were there specific challenges endemic to this book since the critical interviews were all not for attribution?
It was pretty clear from day one what the terms of the deal were going to be -- all interviews were on background. I could use the material, but I couldn't identify the source. People were relatively comfortable with that. Once people agreed to talk, the conditions were pretty obvious. I was able to cross reference a lot of the more controversial stuff. I was usually able to get multiple sources.

The Nine is such an in-depth examination of the personalities of the justices. I would think you would have naturally wanted to attribute much of what was said to the person to give it even more context.
I just knew that wasn't going to be the case.

But did it make writing the book more difficult?
Not really. Magazine writing is different from book writing. In the practice of magazine writing attribution is mandatory, particularly at The New Yorker. Whereas a book is more of a seamless narrative without that sort of attribution. I had done that with my previous books as well when I was writing about the recount or writing about Monica or O.J.

Can you tell me which justices required the greatest amount of finessing?
My deal with them was I would not disclose either the number or the identity of the justices who spoke to me. All I can say is that it was better than I expected.

What was the biggest surprise once you got into the meat of the project?
The extraordinary drama of Sandra Day O'Connor's life was the biggest surprise. Here you have this woman when she graduates near the top of her class at Stamford the best job she's offered is as a legal secretary. That's the world into which she arrived. Flash forward to a tenure at the United States Supreme Court where she dominated the court on all the most contentious issues. She provides the decisive vote to put George Bush in office in Bush v. Gore, then becomes totally alienated from him over the war or terror, the war in Iraq, and the Terri Schiavo case and doesn't want to give up her seat to him, but because of her husband's illness feels like she must. As the crowning irony by the time she actually leaves the court, her husband has disappeared into Alzheimer's disease. She winds up losing both her beloved seat on the court and her beloved husband almost at the same time.

She emerges from your book as being not only the most influential justice but seemingly from your perspective the most intriguing.
It's not just that she was the first woman -- although that is very significant -- she was just enormously influential. Her legacy is a chord that hued very closely to what the majority of the American people believed on any given issue. She had a politician's instinct for being a judge. But I think her legacy is in extreme and immediate jeopardy right now and I think she knows it. This is a very much more conservative court and looking ahead the three justices likely to leave in the next presidential term are Stevens, Souter, and Ginsberg are all on the liberal side. If they're replaced by a republican president, her legacy disappears practically overnight.

How did Clarence Thomas writing his own book impact your access to him?
[His book, My Grandfather's Son] was kind of a mystery for a long time. HarperCollins was very secretive about it because it was very late. The book contract has been announced quite a few years ago and it took him a very long time to deliver. Then they didn't announce publication until shortly before it was out. Frankly, it's great that it's out the same time as mine. It just means more attention to the court. He such a polarizing, fascinating figure -- it's always good to be able to talk about him.

Your timing was great on that one.
It was total dumb luck.

Is the secrecy surrounding the court what makes it compelling to a wide book audience?
It's the combination of the enormous secrecy, the huge stakes of what they decide, and the compelling idiosyncrasies of the people involved. Once you chip away at the secrecy, you learn that these are very interesting people. David Souter is a huge catalog of idiosyncrasies. The nuclear weapons program is secret, but nobody is particularly interested in it. What makes it interesting is the secrecy plus the stakes involved and the characters.

My reaction so far is if O.J. Part One is tragedy, O.J. Part Two is farce.

Have you gotten any feedback from the court on the book?
Not yet. Frankly, I'm sort of relieved. David Remnick once told me after he writes a story his preference is not to hear anything one way or another. I think I've sort of adopted that approach. You kind of feel bad either way. If they hate it, you feel like you were unfair; if they love it, you feel like you were too soft. No news is good news.

Any interest in developing the book for a movie? There are lots of meaty roles there.
HBO is doing two of my books for movies. They're doing Recount and that starts filming this month. The lead is Kevin Spacey with Laura Dern and Denis Leary. Jay Roach, the Austin Powers guy is directing it. It's a great script which I did not write. A Vast Conspiracy, the Monica story, is also in development at HBO. With [The Nine], I'm certainly open to offers.

From one end of the spectrum to the other, we last spoke at Michael's the day Denise Brown went on The Today Show to implore the publisher of the Goldman's version of the O.J. book, If I Did It, not to publish it. At the time, when I asked you what you thought the public's reaction would be to the book, you said it would be "a disgusted sigh." Are you surprised it's become a best seller?
The book is selling better than I expected. I figured it would make the bestseller list briefly, but it seems like there's more interest in the book than I expected.

Simpson certainly helped things by getting arrested in Vegas.
I guess that's right. Wasn't it the day after it was released he was arrested? That's sort of a cosmic complement. It sort of is like old home week. The O.J. repertoire company has reconvened.

Have you read the book?
I don't have a copy yet, but out of professional obligation I should get one.

If you had to write the epic end to the O.J. saga what would it be?
My reaction so far is if O.J. Part One is tragedy, O.J. Part Two is farce. As best I can tell, every single person in that goofy hotel room in Las Vegas was some kind of shady character and who's exactly the thief and who's exactly the victim will be difficult to sort out. The first trial was about the horrible murder of two people; the second trial is basically about some worthless merchandise so the stakes are wildly different.

But for those who are obsessed with O.J., this is a second chance to immerse themselves in every detail.
As with the first case, I think the public is more interested than it admits. If this case really proceeds and there's a trial, there will be a tremendous amount of interest.

By and large, with few exceptions, no one really seemed to care about the Phil Spector trial.
That case made no impression, did it? He's old and his accomplishments are old. But the public cared about Scott Peterson and no one had ever heard of him. That is kind of a puzzle.

You've been covering these sensational trials-turned-train wrecks for a while. What makes one capture the public's attention while another doesn't register on the radar?
It takes a certain combination of events. One of the reasons why there's not interest in some cases is they're not televised. But Spector was televised. Yet still no one was particularly interested. I think it just dragged on for so long. I don't know -- there was something about him that people were not interested in.

What are they putting in the water coolers in Los Angeles courtrooms that prevent juries from convicting anyone with a modicum of celebrity?
It is interesting -- with each individual case you can muster an explanation. I did follow the Spector case somewhat -- I only did it when CNN forced me to do it and that wasn't very often -- and the suicide theory, which I initially thought was completely absurd, did have some evidence behind it. I thought it was absurd when I first heard it, but it was not as crazy as I thought.

What do you consider your greatest success?
The success of The Nine. My other book piggybacked on events where there was already enormous interest. With The Nine, I had to create a narrative out of an institution rather than an event. I think that made it a more difficult writing assignment. I think the book is my best book. It was the hardest book to report and write. O.J. was huge, Monica was huge -- even the recount was big. This was more sort of my creation.

What's been your biggest disappointment?
I don't want to sound like a whiner. I've written five books -- two of them came out in the middle of huge news events which really swamped them. My first book, Opening Arguments, about my experience as a prosecutor in the Oliver North case came out just as the Gulf War happened in 1991. Too Close to Call, about the recount in Florida was published in October 2001 right after 9/11. It's weird -- my O.J. book happened to be published exactly when the O.J. civil case started. It was just fantastic timing. This book has had fantastic timing. I've also had two books with terrible timing. It's all dumb luck -- some good, some bad.

How would you say you've gotten to where you are?
It's funny. It's very circuitous. I had two journalist parents -- my mother is Marlene Sanders, who is one of the pioneering women television correspondents, and my dad, Jerome Toobin, was one of the founding fathers of public television and Bill Moyer's producers for many years. So I grew up in this television household and thus, was repeatedly instructed never to consider a career in television. So I went to law school thinking I'd be a lawyer but I always worked on the school paper and I started freelancing when I was in law school. It's a question of my genetic destiny kicking in and that fact that Tina Brown took a chance on hiring me out of the US Attorney's office were really key factors.

These days there are people going to law school because they want careers on television.
I hear from people like that and it's surprising to me. When the O.J. case happened in 1994, there was no such thing as a television legal analyst. The job didn't exist -- that's just 13 years ago. The advice I always give to would be law students is: don't go to law school if you want it as vehicle to something else because the sad truth is most law school graduates become lawyers. If you want to be a journalist, be a journalist. Don't go to law school to be a journalist. Obviously, my career refutes that to certain extent but it's very much the exception rather than the rule.

Do you have a motto?
The writing motto I have is 'Show, don't tell.' It's the best writing advice I ever got. It's the writing advice I always give.

Diane Clehane is a contributing editor to FishbowlNY and TVNewser. She writes the Lunch at Michael's column.

[This article has been edited for length and clarity.]

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