Thomas's version of these events in his memoir is different. He says that even when he decided to leave the EEOC in 1990, becoming a judge never occurred to him; he agreed to be nominated for the Court of Appeals only because he thought "maybe this is God's way of telling me what to do"; it had never occurred to him that Bush might nominate him to the Supreme Court--until just before his Senate confirmation hearing for the Court of Appeals, when Joe Biden told him that might happen. He understood Biden to be warning him the Democrats would try to stop him. And in his memoir he never mentions anybody expecting the elderly and ailing Thurgood Marshall to resign. Finally, in his description of Bush announcing his nomination, Thomas does not quote the President telling Americans he picked Thomas because he was "the best qualified"--a statement whose absurdity has haunted Thomas ever since.

The White House plan for Thomas's confirmation called for emphasizing the Algeresque story that the man from Pin Point, Georgia, rose from a wooden shack to the highest court in the land. "Without Pin Point," Merida and Fletcher write, "Thomas would never have made it to the Supreme Court." And sure enough, Thomas goes to the well again in his memoir, which begins with the Pin Point story.

There was, however, the problem of his qualifications. In 1991 Thomas had been a judge for only a year. Before that he had never argued a case in any federal appeals court, much less the Supreme Court. He "had never written a book, an article, or even a legal brief of any consequence," Toobin notes. Given his utter lack of experience, and in light of the story Merida and Fletcher tell, it's beyond belief that Thomas's success owes nothing to the various forms of affirmative action and racial preference he has come to despise.

As Jeffrey Toobin shows in The Nine, a behind-the-scenes account of the Court from 1992 to 2005, Thomas isn't the only Justice whose presence on the bench is dispiriting, if not embarrassing. Toobin is especially incisive on the Court's performance in Bush v. Gore, a case where the Justices, he says, "did almost everything wrong." The case brought out the "worst flaws" of each Justice. William Rehnquist: intellectually lethargic but politically energetic; Sandra Day O'Connor: eager to appear moderate but more eager to keep the White House in Republican hands; Antonin Scalia: relying on intimidation in place of logic, open partisanship in support of Bush; Anthony Kennedy: incompetence made worse by pretentious rhetoric; Ruth Bader Ginsburg: weakness and an inability to take on the other side; Stephen Breyer: confusion and ineptness in seeking the middle of the road; and finally Thomas: angry, grim and deeply biased. For Toobin, only John Paul Stevens made logical and consistent arguments with a clear constitutional basis.

Toobin also effectively dismantles the majority ruling in Bush v. Gore. The Court stopped the recount of Florida votes (Bush was ahead), arguing that because Florida lacked a uniform standard for recounting ballots in different counties, the recount violated the equal protection clause. But as Toobin explains, "No court, much less the Supreme Court, had ever before imposed any kind of constitutional rule of uniformity in the counting of ballots. Most states, including Florida, used different voting technologies in a single election." If the Justices really believed it was their job to assure a uniform standard for the recount, they should have instructed the Florida legislature, or the Florida Supreme Court, to do that. By blocking a recount, the Court "preserved and endorsed a less fair, and less accurate, count of the votes." Finally, they declared that their ruling regarding uniformity in the counting of ballots did not apply to any other elections--it applied only to the Florida vote for the plaintiff, George W. Bush.

The aftermath of Bush v. Gore is remarkable. David Souter was so shaken by the crude partisanship of the majority that, according to Toobin, he "seriously considered resigning." At the time the case seemed to mark the iron grip of the conservative majority, but as Toobin shows, the real result of Bush v. Gore was that O'Connor and Kennedy turned away from the right-wing majority, especially on the death penalty, affirmative action, gay rights and the President's claims of executive power in the Hamdi case.

Toobin argues that, overall, the Court deals with two kinds of cases: "There were abortion cases--and there were all the others." Presidents nominate Justices primarily on the basis of their position on Roe v. Wade, and confirmation hearings revolve around Roe v. Wade--although, of course, all nominees deny in all confirmation hearings they have a commitment on any particular case. Thomas himself testified that he'd never even discussed Roe v. Wade. The whole "original intent" school of constitutional interpretation is "a proxy," Toobin argues, for the campaign to reverse Roe v. Wade; for the originalists, since the men who wrote the Constitution never intended it to protect abortion, there is no constitutional right to abortion. When Roe passed in 1973 the vote was 7-2. By 1986, the vote to uphold Roe was 5-4. As Toobin explains, the lesson for conservatives was clear: "They didn't need better arguments; they just needed new justices." Clarence Thomas was nominated for the Court in 1991.

The vote in the Senate on Thomas was 52-48, the smallest margin of any Justice in more than a century. A shift of just three votes would have kept Thomas off the Court. Liberal readers will gnash their teeth over Merida and Fletcher's report that enough senators came to regret their vote a year or two later that they would have made a majority against his nomination: David Boren, Democrat of Oklahoma; John Breaux, Democrat of Louisiana; Ernest "Fritz" Hollings, Democrat of South Carolina; and Warren Rudman, Republican of New Hampshire. Even some of Thomas's most avid defenders stopped saying he told the truth about Anita Hill; now Orrin Hatch says that, even if Hill told the truth, what she said about Thomas sexually harassing her wasn't really all that bad.

Thomas's predecessor on the Court, Thurgood Marshall, retired at 83. If Thomas does the same, he'll serve until 2031--another twenty-four years. When Justices Souter, Kennedy and O'Connor moved away from the Court's right wing, the media described them as "evolving." Thomas once posted a sign in his office that read, "I ain't evolving." Nobody is disagreeing with him about that.

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