Does Justice O’Connor Have a Better Way?
News this weekend that an anti-abortion, pro-gun, Christian group in California is targeting judges in the San Diego area comes hard on the heels of another tough contest – including independent expenditures – in Idaho for a seat on the Idaho Supreme Court.
Retired U.S. Supreme Court Justice Sandra Day O’Connor has been speaking out and writing about the inherent problems associated with electing judges; something that most states do.
O’Connor summarized the problem nicely in a recent New York Times Op-Ed: “Each state has its own method of choosing judges, from lifetime appointments to partisan elections. But judges with a lifetime appointment are not accountable to voters. And elected judges are susceptible to influence by political or ideological constituencies.”
Speaking to a bar group in Chicago, O’Connor recalled a contentious 2004 race in Illinois that cost $9 million. “As you might have guessed,” she said, “the winner of that race got his biggest contributions from a company that had an appeal pending before the Illinois Supreme Court. You like that?”
O’Connor advocates a merit selection system and a retention election. “In a merit selection system, a nonpartisan nominating commission interviews and investigates applicants for judicial vacancies, and ultimately recommends a few candidates to the governor. The governor appoints one from the list. Regular ‘retention’ elections are held to allow voters to decide whether to keep the judge in office.”
As a state legislator in Arizona before going to the Supreme Court, in 1974 O’Connor helped create Arizona’s system of merit selection and retention. The respected Brennan Center at the New York University School of Law tracks judicial elections and reform efforts and the Center’s Adam Skaggs said recently that O’Connor has it exactly right – politics and judges don’t mix.
Strictly speaking, the Founders thought the same. Alexander Hamilton wrote in the Federalist Papers, “there is no liberty, if the power of judging be not separate from the legislative and executive powers.”
The election of judges may soon get even more complicated thanks to the recent U.S. Supreme Court corporate contributions case Citizens United that was decided by a divided court on First Amendment grounds. Skaggs predicts, as did Justice John Paul Stevens in his dissent in the Citizens case, that more money will soon flow into judicial elections making it even more difficult for voters – and those with business before the courts – to see how judges are any different than politicians.
As Justice Stevens noted in the Citizens case “concerns about the conduct of judicial elections have reached a fever pitch” and O’Connor predicts,“the problem of campaign contributions in judicial elections might get considerably worse and quite soon.”
A superb Frontline document a while back examined Justice for Sale, It was sobering and cautionary and for anyone who really cares about the independence of the courts viewing it will send a shiver down your spine. Justice O’Connor continues her trailblazing career and her thoughtful cautions are worth a careful listen.
Their Finest Hour
Seven decades ago, western civilization teetered on the brink on a sandy spit of land in the French coast at a little town called Dunkirk.
Over the last few days of May and the first few days of June 1940, 340,000 British troops and thousands more French were evacuated from northern France in what was at the same time a remarkable save and a stunning defeat. Dunkirk, that is all that need be said, to conjure up the image of England literally standing alone against what appeared to be the total superiority of the Nazi war machine. The 70th anniversary of the Miracle of Dunkirk is being remembered in England this weekend.
One veteran who was taken off that bloody beach all those long years ago told the Guardian that the memory is “on my mind all day every day.”
It is hard to make great history – or great speeches – from abject defeat, but when England and the world needed it most, that most remarkable Englishman, Winston Churchill, rose to the occasion. His “finest hour” speech still stands as a superb historical document and as close as any politician can ever come to turning political rhetoric into lasting literature.
The last three paragraphs of the speech Churchill delivered in the House of Commons on June 18, 1940 begin:
“What (French) General Weygand called the Battle of France is over. I expect that the Battle of Britain is about to begin. Upon this battle depends the survival of Christian civilization. Upon it depends our own British life, and the long continuity of our institutions and our Empire. The whole fury and might of the enemy must very soon be turned on us.”
Churchill did many remarkable things with his speech after the Dunkirk disaster, not least being that he leveled with his country about its almost unbelievably dire circumstances. We take it for granted today that Britain would survive, that the United States would enter the war, that Hitler would be defeated. It wasn’t so clear in that long ago spring.
Read Winston’s words and put yourself in that place 70 years ago:
“Hitler knows that he will have to break us in this Island or lose the war. If we can stand up to him, all Europe may be free and the life of the world may move forward into broad, sunlit uplands. But if we fail, then the whole world, including the United States, including all that we have known and cared for, will sink into the abyss of a new Dark Age made more sinister, and perhaps more protracted, by the lights of perverted science.”
Churchill later said that the British people had displayed the heart of a lion in standing up to Hitler. He had the honor to supply, as he said, “the roar.”
“Let us therefore brace ourselves to our duties, and so bear ourselves that if the British Empire and its Commonwealth last for a thousand years, men will still say, ‘This was their finest hour.'”
We celebrate Memorial Day weekend with cookouts, baseball games, a few hours in the garden perhaps, and, I hope, with a few moments of pause to remember. Western civilization did hang in the balance 70 years ago.
It is history worth knowing and appreciating. Happy Memorial Day.
Footnote: There is a remarkable new wartime biography of Churchill – Winston’s War – by the acclaimed British World War II historian Max Hastings. It’s a terrific book. Hastings shows Churchill to be all that he was – brilliant, petulant, difficult, charming, a cigar smoking, champagne swilling leader and orator of the first order.
The Palin Effect and More
If there is a single journalist with a national audience who regularly keeps an eye on Idaho it would be Tim Egan, the former Spokane kid, who now writes a weekly, online column for the New York Times.
Here is the lead on Tim’s column today:
“In the midst of one of the most precipitous political crashes in the Mountain West, Sarah Palin made a mad dash into Boise on Friday, urging the election of a man who had plagiarized his campaign speech from Barack Obama, had been rebuked by the military for misusing the Marine uniform and had called the American territory of Puerto Rico a separate country.”
Read on for Egan’s take on the Palin brand and some insight into why her obvious popularity doesn’t seem to transfer to the folks she endorses, including Vaughn Ward.
Meanwhile, if its possible, the Idaho Legislature next year is shaping up to be even more conservative. One sure take away from Tuesday’s election in Idaho: the most conservative elements in the state GOP continue to be on the rise and they turned out this week.
The Associated Press’ John Miller notes in his summary story on the defeat of four GOP incumbent state senators: “Sens. Chuck Coiner of Twin Falls, Mike Jorgenson of Hayden Lake, Gary Schroeder of Moscow, and Lee Heinrich of Cascade lost to rivals who are either tea party adherents or courted voters espousing the movement’s limited-government, states-rights philosophy.”
Still, I’m reminded – from an historical perspective- that there is nothing new in the fact that given a choice, Idaho GOP primary voters often reward the most conservative candidates in a given race. That’s why Helen Chenoweth beat David Leroy in 1994 in a GOP First District primary and why Bill Sali won a six way race in the same district in 2006.
In the more distant past, then-House Speaker Allen Larsen won a six way primary for governor in 1978, in part, on the strength of his very conservative standing. In hotly contested GOP primaries, all things being equal, the most conservative candidate tends to win.
None of this history diminishes the obvious intensity of the “tea party” movement. Idahoans and people across the country are fuming about a lot of things and they are taking it out on incumbents or those seen as representing “the establishment.” As a result, one-time GOP moderates like John McCain in Arizona, fearing the anger, are running to the right, while the middle of American – and Idaho – politics becomes more and more a no candidate land.
November may tell us the power of anger as a political platform. Historically, optimism and practical solutions have proven to be a better path to power, but we’re in a new zone and Tuesday’s outcomes in Idaho will serve to reinforce the notion that being against something feels better to most candidates in this climate than being for something.
Money, Endorsements Lose to Gaffes and Guts
Raul Labrador, the new GOP candidate for Congress in Idaho’s First District, is political proof of Woody Allen’s famous phrase – “Eighty percent of life is showing up.”
Back in the gloomy cold of winter, with the Idaho Republican establishment in line with the guy Labrador decked on Tuesday, you wouldn’t have found many political watchers in Idaho – this one included – who would have given the very conservative state legislator even a five percent chance to win the GOP primary. You gotta hand it to Labrador. He had the guts to show up and win he did. All politics require measures of luck and timing and courage and Labrador got just enough of each.
Labrador will now face first-term Democrat Walt Minnick in a race that could well turn on whether Republicans nationally have a genuine chance to recapture control of the U.S. House of Representatives this fall.
Minnick will hope to make the election about his effectiveness and his conservative Democratic credentials. In other words, localize the contest. Labrador will try, as he began to do on election night, to make the contest part of a national referendum on Nancy Pelosi. Minnick has a war chest, while Labrador must have awakened this morning looking for money.
The one-time anointed GOP candidate in the First District, Vaughn Ward – now dubbed the worst candidate ever – saw his front runner status dissolve over the last month in what will go down in Idaho political history as the most astounding series of, as Randy Stapilus says, “goofs and gaffes” that anyone can remember.
Ward’s demise drew significant national attention because he had been so completely embraced by the national and state GOP establishment and because Sarah Palin’s last minute appearance on his behalf seemed to do nothing to help his cause.
At the end of his line, Ward’s big name endorsers, including two former governors, were no were to be found. Sen. Mike Crapo admonished him in the campaign’s 11th hour for misusing a quote and a YouTube video of Ward stealing – of all things – Barack Obama’s words went absolutely viral. Shakespeare couldn’t have written this ending.
Now, the vetting of Labrador really begins. Ward, as the front runner and generally regarded as the toughest opponent for Minnick, collapsed under the scrutiny and because of his own verbal gaffes. Now Labrador, who went virtually unchallenged during the primary, get his turn in the barrel.
The rest of the primary soup in Idaho was pretty thin. Incumbent Gov. C.L. “Butch” Otter won renomination, but a squad of challengers held him under 55 percent. Still Otter, a decades-long fixture in Idaho politics, seems well positioned for the fall. He will face first-time candidate Keith Allred, who had little opposition in the Democratic primary. Incumbent Republicans Crapo and Idaho’s other Congressman Mike Simpson seem on a sure glide path to re-election.
Glen Taylor…an Idaho Original
For the last few weeks, many Idahoans – particularly those who enjoy a good political tale – have been fascinated by the congressional primary between Raul Labrador and Vaughn Ward that will be decided today. The Ward-Labrador GOP primary has been a fascinating race, but can’t hold a candle to a long ago Democratic primary.
Fifty-four years ago, Idaho witnessed one of the most contentious primary elections ever and the guy who lost that epic battle – Glen Taylor – went to his grave believing the victor – Frank Church -had stolen his chance to return to the U.S. Senate. That 1956 primary launched Church’s distinguished 24 year career.
Idaho has produced its share of political characters – Big George Hansen, Steve Symms, C. Ben Ross, to name but three – but few could hold a candle to Glen Taylor, the Singing Cowboy. Taylor ran for the Senate six times, but won only once, in 1944, when he beat incumbent D. Worth Clark in the Democratic primary.
In his earlier attempts at elective office, Taylor traveled Idaho with a sound truck, his wife Dora and the GlenDora Singers. As Taylor’s biographer, F. Ross Peterson, has colorfully detailed in his excellent book on Taylor – Prophet Without Honor: Glen Taylor and the Fight for American Liberalism – the Taylor clan would ride into town, set up on a street corner and start belting out country-western tunes. After a crowd gathered, Taylor would climb up on the roof of the truck and deliver his political stump speech. It must have been quite the show.
Taylor ran and won in 1944 as an unabashed liberal, an advocate of what became the United Nations and a supporter of civil rights. His left-leaning politics eventually propelled Taylor onto the 1948 Progressive Party national ticket where he ran as former Vice President Henry Wallace’s running mate. They two liberals lost badly – Wallace and Taylor polled fewer than 5,000 votes in Idaho – and the stench of socialist or communist influence in the Progressive Party never completely left Taylor. He lost the 1950 Idaho Democratic primary to the guy he’d beaten in 1950 – former Sen. Worth Clark. Clark, in turn, lost to one-term Sen. Herman Welker.
Taylor tried again for the Senate in 1954 and lost again. He made one final try two years later against the 32-year old Church. Church ran a vigorous campaign and by the morning after primary election day he held a less-than-commanding 170 vote lead over Taylor.
Taylor alleged irregularities in the vote count in Elmore County, but Church was declared the winner and went on to defeat Welker in the fall. A subsequent Senate review of the election – lead by Tennessee Sen. Albert Gore, Sr. – confirmed that Church had indeed won, but Taylor never believed it.
In his 1979 memoir – The Way it Was With Me – Taylor wouldn’t let the long-ago election die. I remember interviewing Taylor at the time and he remained, at age 80, feisty, opinionated and outspoken. Taylor died in 1984, a one-time senator from Idaho and a many time candidate. One of the true Idaho originals.
After running out his string in politics, Taylor made a fortune as the inventor of the Taylor Topper and he operated the extremely successful toupee business for many years. The ex-senator was a walking advertisement for his hairy product.
In 1963, TIME did a piece – pardon the pun – on the male hair piece and quoted the general manager of the Taylor Topper company as saying: “The Senator is always saying that the only thing that will stop hair from falling is the floor.”
Don’t forget to vote today.
Opposition Research, Politics and the Press
Richard Blumenthal’s problems prove one of my cardinal rules of politics – there is no such thing as a coincidence. You look deeply enough and you’ll find a reasonable explanation, not a coincidence, for everything.
Blumenthal is the attorney general of Connecticut and, before the New York Times exposed his – to say the least – inconsistent statements about his Marine Corps service during the Vietnam era, he was also the front runner to replace retiring Sen. Chris Dodd in the U.S. Senate.
But Blumenthal’s still unfolding story is about more than just another politician not being square about his military service. His story is also a rare and fascinating glimpse behind the veil of secrecy that, more times than you might think, finds reporters and news organizations serving as the willing conduits for information/dirt/scandal that one political camp wants to dish on another.
It was no coincidence that the story about Blumenthal’s apparent embellishment of his military record hit just before the state’s political nominating conventions and at a moment when he appeared to be on a smooth glide path to election in the fall. The story of a politician imploding that appears on the front page of the Times is about as big a body blow as you can imagine for a candidate, particularly if that candidate is a Democrat.
The Bluemental story went national instantly and with all the mainstream credibility that goes with a story where the venerable Times takes down a liberal. Its hard to think the story would have had as much impact had it originated in, say, the Hartford Courant. An immediate Rasmussen survey showed that the Times story had dramatically tightened the Connecticut race.
It was also no coincidence that Blumenthal’s GOP opponent in the November election, multi-millionaire Linda McMahon, helped the Times explore the essence of Blumenthal’s exaggerations based upon McMahon’s own opposition research. While it is still unclear how exclusively the Times relied upon the work of Blumenthal’s opponents to try and bring him down, it is not in doubt that McMahon’s campaign had a role. They actually bragged about it.
Times’ editors, meanwhile, defend the handling of the story and insist it didn’t originate with McMahon’s campaign, but don’t explain precisely how they came to investigate the story. Blumenthal defenders quickly hit back, with Howard Dean calling the Times story a “hatchet job” because the paper relied upon information from an opposing campaign.
The hubris of Blumenthal’s opponent actually admitting to playing a role in advancing the story is fascinating since it violated the unwritten rule about such things. Political operatives and reporters engage in the dance for information all the time but rarely, if ever, let the rest of us in on the details. Ironically, the bragging by McMahon’s campaign also tended to dampen the impact of what Blumenthal has done.
Consider all this the journalistic version of the Mafia’s code of silence. Reporters take tips and research from political operatives all the time, but it is considered truly bad form to admit that it happens. This delicate dance is part of the little understood symbiotic relationship among reporters, politicians and their operatives who constantly engage in the trading of information. Information, like the fact that a candidate hasn’t been square about his military service or had a business deal go bad, is particularly valuable to reporters when an election roles around and a opposing campaign has the financial ability to fund deep and broad opposition research. It’s like adding a research bureau to the newsroom.
Closer to home, I have no idea – only my belief in no coincidence – about why and how the relentless barrage of stories have surfaced over the last month about the various missteps of Idaho congressional candidate Vaughn Ward. It violates my rule to believe the stories are mere coincidence.
Clearly some of the stories – Puerto Rico is a country, for example, not a U.S. Commonwealth – were driven by Ward’s own words. But with all due respect to the Idaho reporters who broke other stories about Ward’s failure to pay taxes, failure to vote in 2008, failure to acknowledge – or at least see the irony – in his wife taking home a paycheck from Fannie Mae while he was bashing bank bailouts, that he cribbed from other candidates websites to flesh out his own positions, that he misfiled his financial disclosure form, that he violated Marine Corps rules about using his military standing in his ads and that he borrowed a pick-up truck for his first TV ad – did I miss something – its impossible to believe all that information was merely the result of old fashioned, hard-work reporting…or coincidence.
We all know newsrooms are in steep decline. Reporters and news organizations have fewer resources and less time than ever to pursue stories, particularly stories that take time and may – and often do – result in nothing more than arriving at a dead end. This environment makes opposition research even more valuable for news organizations and makes it all the more important that news consumers understand how the game is played.
A few weeks ago, John Miller of the Associated Press filed a fascinating story – no coincidence – that Idaho campaigns are becoming better and better at opposition research. Miller noted that reporters often get a call that starts with something like: “hey, did you hear about…”
So, with these caveats – Blumenthal has some serious explaining to do, each of the Ward stories is legit and helps explain the character of a major candidate and there is nothing wrong with reporters getting tips from anyone – I offer three rules to guide future reading of such stories.
- Money pays for research. McMahon’s campaign in Connecticut is self-funded – she says she’ll spend $34 million on the race – with the millions she made from professional wrestling. And, again no coincidence, national Democrats have more money than Republicans so far in this election cycle. By definition, that means more money for opposition research on candidates like, say, Vaughn Ward. Well-funded campaigns tend to do the most complete job of researching their opponents – no coincidence.
- Reporters make use of this kind of information – oppo research – all the time and almost never with any hint of where it came from. Nothing wrong with that, perhaps, but it does raise questions of motive and benefit. Next time you see a story along these lines, ask yourself who stands to benefit the most from having the story reported? Who has a motive for getting the story out? And, remember no coincidences.
- Finally, as Harry Truman famously said, if you can’t stand the heat leave the kitchen. Politics is a contact sport. Life – political life, especially – ain’t fair. If you have skeletons in that closet, they’ll be rattled. Reporting the shortcomings in political resumes is what reporters do. With respect to Sarah Palin’s stumping for Ward in Boise this week, as she calls it, the “lamestream media” reports what it can stumble upon and also what it is served on a silver platter and that, too, is no coincidence.