Replacing Justice Stevens

Brandeis+portraitThe Liberal Seat on the Court

With Justice John Paul Stevens retiring, President Obama has the opportunity to name his second justice in less than two years. How important is the pick?

Consider this: Since 1916 when Woodrow Wilson made the controversial appointment of Louis Brandeis to the high court (that’s his portrait to the left) only two other men have held the seat. Stevens, who has sat on the Supreme Court for 35 years, and William O. Douglas who held the seat even longer, more than 36 years. Brandeis served for nearly 23 years.

One seat on the Supreme Court and only three occupants in nearly 100 years. There is a lot riding on any Supreme Court appointment, but the symbolism of filling this particular seat – the liberal seat on the Court – assumes even greater importance.

Brandeis/Douglas/Stevens, each made a large and lasting mark on the Court and the nation. Filling those robes demands a respect for the history of the institution as well as a sense of how one person can shape the Court.

One sure thread ties the three famous justices together. Each was a champion of the individual and individual expression. Douglas once said that the Constitution is not “neutral…it was designed to take the government off the backs of the people.” In addressing the importance of the First Amendment he said, “Free speech is not to be regulated like diseased cattle or impure butter.”

Brandeis and Stevens shared a profound distrust of concentrated government power. One of Brandeis’ most famous quotes addresses his concern. “The greatest dangers to liberty,” he wrote, “lurk in the insidious encroachment of men of zeal, well meaning but without understanding.”

Brandeis, an opponent of “bigness” in government and business, opposed much of the expansion of presidential power under Franklin Roosevelt even while sharing FDR’s progressive desire to regulate banks and eliminate monopoly.

Stevens will be long remembered, I suspect, for his Hamdan v. Rumsfeld opinion limiting presidential power related to the war on terror.

Brandeis, the first Jew appointed to the Supreme Court, brought controversy with him in 1916. Former President William Howard Taft spoke against his appointment contending Brandeis was unfit to serve. The Senate took four months to confirm him, the vote was 46-22.

Douglas, only 40 when FDR named him, drew only four negative votes in the Senate, but went on to become an extremely controversial figure while on the Court. He was very political – FDR came close to putting him on the presidential ticket in 1944 – and very outspoken. Douglas championed environmental causes to such a degree that some Court observers thought his strong personal opinions influenced his judicial decisions. Ironically, then-Congressman Gerald Ford tried to impeach Douglas in 1970 and five years later appointed Stevens to replace him. Douglas caused more gossip in 1965 when he married wife number four, a woman a third his age.

Stevens, by all accounts has become so effective by mastering the careful, personal politics of the high court. And while he is the acknowledged leader of the liberal faction, he evolved into that role or, as he prefers, the Court evolved around him. This much is certain, whomever Obama nominates will not receive the unanimous Senate vote that Stevens’ nomination received in 1975.

Many factors will be weighed and measured in the coming nomination and confirmation of the justice who will eventually replace John Paul Stevens, but the president – a student of history – must know that the person he appoints will be filling an historically significant seat on the Supreme Court. Stevens, as Linda Greenhouse wrote in the New York Times, has been the bridge between two different kinds types of Supreme Courts – the one he joined in 1975 and the one he leaves this year.

The Brandeis/Douglas/Stevens seat should be reserved for a justice of historic importance, such is the legacy of this appointment. Barack Obama may make no other more important decision in his presidency.

Weekend Potpourri

menckenFrom Mencken to the Dodgers…

Ever wonder about the origin of the term “banned in Boston?” It originated with what was called the Watch and Ward Society, as in watch for something bad and ward it off.

The caustic critic and reporter H.L. Mencken took those Boston blue bloods to task in 1926, trying and succeeding in getting himself arrested for distributing banned and “obscene” material – his magazine, the American Mercury.

My friends at the Massachusetts Humanities Council issue a wonderful, daily e-newsletter with a highlight of each day in the Bay State’s history. This week they featured the Mencken story, a classic example of one crusaders effort to counter censorship.

One of Mencken’s great quotes: “All [zoos] actually offer to the public in return for the taxes spent upon them a form of idle and witless amusement, compared to which a visit to a penitentiary, or even to a State legislature in session, is informing, stimulating and ennobling.” So there.

All is not well in Dodgerland

The Daily Beast has some of the lurid details of the high stakes, high money divorce of the McCourts, the owners of, among other things, one of the most storied franchises in sport – the Dodgers. Frank McCourt has said the divorce from his wife, Jamie – a divorce that the L.A. Times says will end up being the most expensive in state history (now that is saying a mouthful) – won’t disrupt the team.

“My kids will own the Dodgers someday,” McCourt said. “As we get this matter resolved… things will get back to normal.” I hope so, but only for Joe Torre’s sake. He’s the only thing this Giants fan likes about the Angelenos.

And, oh by the way, you ever wonder how the super rich manage to get by? The Times also reports that from 2004-2009, the McCourts banked $108 million and didn’t pay a cent of income tax. Now, I really dislike the Dodgers.

Egan on Earthquakes

In his New York Times on line column Tim Egan ruminates about the earthquake that will someday hit Seattle.

“Living in earthquake country,” Egan says, “is the life embodiment of F. Scott Fitzgerald’s line about the ability to hold two opposing ideas in the mind at the same time while still being to able to function.”

The human mind is amazing. Intellectually we know disaster can strike any moment, but practically we (mostly) continue to carry on despite that realization.

Better it is to hold the cynicism in check and live the life of an optimist. As the great Mencken said: “A cynic is a man who, when he smells flowers, looks around for a coffin.”

Have a good weekend.

What is it about Montana

MurrayGiants in the Senate

Fewer than a million souls live in Montana, the state that sprawls out under the Big Sky. Yet, during the 20th Century, Montana produced well more than its share of powerful, influential United States Senators.

The handsome and very liberal Jim Murray, a wealthy son of Butte, Montana, is one of a group of Democratic senators who wielded real power and have had lasting influence, while representing geographically massive, but population small Montana.

Murray’s pioneering role in pushing for universal health care coverage was recalled recently in a fine piece by Montana journalist Charles Johnson. Johnson notes that Murray occupied, from 1934 to 1961, the seat now held by Finance Committee Chairman Max Baucus, a champion of the health care legislation recently passed.

“Jim Murray was a trailblazer as part of a trio of lawmakers who worked hard but ultimately failed to pass national health insurance bills under Presidents Franklin Roosevelt and Harry Truman,” Johnson wrote.

As proof that little really ever changes in American politics, Murray’s work more than 50 years ago with Sen. Robert Wagner of New York and Rep. John Dingell of Michigan, the father of the current Dingell in the House, was attacked as “socialized medicine” that was certain to usher in the ruination the country.

Johnson recalls that Sen. Robert Taft, the Ohio Republican now regarded as one of the all-time giants of the Senate, once interrupted Murray at a hearing to denounce the health legislation as “the most socialist measure that this Congress has ever had before it.”

Murray, never a great orator, shouted back at Taft: “You have so much gall and so much nerve. … If you don’t shut up, I’ll have … you thrown out.”

The charge of aiding and abetting socialism was perhaps an even more powerful accusation in the 1950′s than it is when hurled at President Obama today. Murray’s brand of progressive liberalism always brought with it a charge that he was a dangerous lefty. In his long Senate career he never had an easy election.

Charles Johnson notes the irony in the fact that while Murray’s most passionate opponents in the 1940′s and 1950′s came from the ranks of the American Medical Association, the AMA’s current president endorsed the recent legislation, noting that it “represents an opportunity to make a real difference in the lives of tens of millions of Americans.”

Now, it is Baucus’ turn to have his role in the passage of the health care legislation fiercely debated in Montana. Perhaps as as indication of the intensity of the furor, Baucus, who was re-elected just last year, has gone up on television in Montana today seeking to explain why the legislation that he had a major hand in creating and, that dates back to his Senate predecessor, is good for Montana.

Each of Montana’s most influential U.S. Senators were controversial in their day. In my read of the state political history, Murray and Baucus properly join Sen. Tom Walsh, the investigator of the Teapot Dome scandal; Sen. Burton K. Wheeler, the man who lead the fight to turn back Franklin Roosevelt’s assault on the Supreme Court in 1937, and Sen. Mike Mansfield, the longest serving majority leader in Senate history, as Montanans who have made a lasting mark on the Senate and on the nation’s business.

Few states can claim a larger collection of truly influential – or controversial – U.S. Senators. Big names, indeed, from the Big Sky State.

Life in the West

ACPPAndrus Center Explores Land Issues, Challenges

When Bob Abbey, the director of the Bureau of Land Management, testified before Congress last year during his confirmation hearing he talked about the need for common sense communication around the many demands on the 256 million acres of our land that he manages.

“We can achieve our common goals and better serve the public by working together while we continue our discussions on issues where we might disagree,” Abbey told the Senate Energy and Natural Resources Committee.

That statement is a pretty good summary of the 15 year old philosophy of the Andrus Center for Public Policy.

The Center, chaired by the former Idaho governor and Secretary of the Interior, will host Abbey and the nation’s other major land manager, Tom Tidwell, the Chief of the Forest Service, at a day long conference in Boise on May 1st.

Registration for the conference – Life in the West: People, Land, Water and Wildlife in a Changing Economy – began yesterday at the Center’s website.

As Dr. John Freemuth, the Boise State University political scientist who serves as the Center’s Senior Fellow, has written:

“Whether it is lost habitat, wolves, or the many other battles stemming from different values, many worry that a livable and familiar Idaho could slip away under economic and other pressures. At the grassroots level there have been a number of efforts and partnerships underway in Idaho that might have something to teach us about building necessary “civic capacity” as we try and grapple with this landscape level change at the state level. We want hear hear and learn from some people involved in these efforts, in order to better see what might be needed to build a sustainable political and social coalition to work successfully all around the state.

“This Andrus Center conference will develop a set of action items designed to build on current successes in Idaho and elsewhere and commit to a follow up of these action items over the next several years by tapping citizens and leaders committed to making our capacities grow.”

If you are one of the thousands of Idahoans who care deeply about the use and future of our public lands, you will want to be part of this conversation. As Cece Andrus has often said, the best ideas come about when people check their guns at the door, sit down together to understand the point of view of others and come away with common sense conclusions. The many thorny issues – energy, water, wildlife, access – that confront us in the West certainly need a common sense touch.

I hope you’ll join us on May 1st at Boise State University.

Quit Digging

st.+petersThe First Rule…

The Roman Catholic Church has violated the first rule of addressing a crisis – again.

That old and true rule: when you find yourself in a hole – quit digging.

I say this with love for my Church, but with a profound sadness about the inability of its leadership to understand how badly – and repeatedly – the now world wide sexual abuse scandal has hurt. Not to mention how inappropriate has been the response of Church leaders to a crisis that seems to grow more serious by the hour.

First, a long line of American Catholic Bishops failed to address the issues of abuse by priests dating back, in some cases, for decades. When the lawsuits began to unravel the cover ups and the media attention increased, the church took precisely the wrong stand. It circled the Catholic wagons, stonewalled, avoided responsibility and blamed the media. Eventually some Church leaders saw the light and realized their first duty was to the victims and not the institution, but in the interval much lasting damage was done.

Now the whole, awful pattern seems to be playing out again in Ireland and Germany and beyond. The Pope’s handling of the mess, and his handlers handling of the mess, prompted a well-known parish priest in Idaho, who is also a canon lawyer, to go public with a call for Pope Benedict to resign. Father Tom Faucher in Boise suggested in an Op-Ed in the Idaho Statesman that some of the problem is generational. Benedict is 82. But, there is nothing generational about failing to aggressively, sensitively and completely address this cancer on the Church. We’re talking about the safety and well being of children, after all. Even a bunch of old men must know the importance of doing that.

The real first rule of crisis communication – whether its a clergy abuse scandal or a Tylenol recall – is to simply, humbly and honest do the right thing. There is no substitute.

As USA Today noted in a recent editorial: time and again in the recent past the Church has faced a choice to protect children or protect the Church. The choice has been to protect the institution. Doing the right thing begins with admitting the obvious. This is a crisis of leadership, a failure of fundamental decency, an abdication of candor and responsibility. None of it will be fixed by blaming the New York Times or equating criticism of the Pope with the horrors of the Holocaust.

There must be a collection of Cardinals holed up deep in the inner sanctums of the Vatican who see this is just another PR problem. If only we shift the blame, they must be thinking, and spin the issue to make it about anti-Catholic sentiment all this will fade away. Nope.

The pithy, often very wise, cradle Catholic Maureen Dowd, writing in the New York Times, said what I suspect many Catholics feel: this year the Church gave up its credibility for Lent. Sounds about right.

We know how this is going to end and it will not end well. Every great crisis of responsibility and accountability has an arc, a trajectory. The crisis of confidence and leadership will continue to get worse. Responsibility will be assigned. It is only a question of how long it takes and how much more damage is done while we wait.

In the meantime, it will be said time and again that the Catholic Church has survived scandal and worse for 3,000 years. But, these times are different. This is the age of Facebook and Twitter and the 24 hour news cycle. Judgments are faster and last longer and the impacts are world wide. The only way to spin this crisis is to confront it and accept responsibility. The sooner the better.

Someone in a high position – the highest position – must say, as that patron saint of lawyers Sir Thomas More did upon the scaffold, that one can be the servant of an institution, but first one must be the servant of God.

As Maureen Dowd notes in her column today, Catholics live and believe on faith. “How can we maintain that faith, she asks, “when our leaders are unworthy of it?”

Catholics around the world wait for their leaders to do the right thing.

Fussing Over Polls – Part II

dewey_defeats_trumanHow Good Is the Data…

The image of the just re-elected Harry Truman holding the front page of the Chicago Tribune is one of the most recognizable photos and one of the most spectacularly inaccurate headlines in American political history.

All the respected pollsters of the day – it was 1948 – got the outcome of that election wrong. Most had quit polling a week before the election certain that New York Gov. Thomas E. Dewey had a lock on the White House. It turned out to be an historic mistake that the Truman-hating Tribune was all too eager to believe as the early results trickled in on election night. Truman, of course, staged what it now considered one of the biggest comebacks in political history, likely turning the tide in the last few days of his feisty campaign.

Polling has come a long, long way since Truman’s day and even farther since the Literary Digest famously predicted Alfred Landon beating Franklin Roosevelt in 1936. In that case, the Digest relied for its self selecting sample on folks with a telephone or an automobile registration. Many Americans didn’t have either in 1936.

Yesterday I offered up some observations on the state of the current Otter – Allred race for Idaho governor that were prompted by a recent Rasmussen poll. Rasmussen’s Idaho research – he bills himself as a strictly independent pollster – was one of two or three polls on various political races that he releases every week.

In a nutshell: Otter appears to have a comfortable lead and Allred is still introducing himself as a first-time candidate unknown to most Idahoans. In my view, Allred may also come to regret missing a strategic opportunity during the legislative session to cast himself as the anti-Otter. While the press and many in the public, including education supporters, human rights activists, park users and those who think texting while operating a motor vehicle is a bad idea, were focused on the daily actions of the legislature and the governor, Allred hardly got up on the stage to offer a counterpoint. We’ll see if that turns out to have been a big mistake or not.

The Rasmussen poll shows Otter up 60-28.

How Good Is Rasmussen’s Research?

That is a good question regarding Rasmussen’s poll, or for that matter any poll that finds its way into the public arena. Just how good is the data?

The first thing to say about Scott Rasmussen is that he nailed the 2004 and 2008 presidential races and has a respectable record in state level contests.

Left-leaning bloggers don’t like him and accuse him of partisanship. The respected polling analyst Nate Silver noted in January that Rasmussen’s numbers “tend to be more favorable to Republican candidates and causes than most other polling outfits.” Silver is quick not to accuse Rasmussen of bias. It could be, he says, an issue with the methodology of Rasmussen surveys; he screens for “likely voters” when other pollsters don’t and Rasmussen uses automated data collection techniques that some folks question. And Silver notes, Rasmussen, who did polling work for Republicans and George W. Bush in 2003 and ’04, could be right on with his numbers even as some question his methods.

In any event, Silver’s analysis of Rasmussen’s work and methodology is worth reading, as is a piece by Mark Blumenthal in the National Journal who asks and tries to answer the question of when a poll is “partisan.” The conclusion: it is getting harder and harder to tell.

Thoughts to keep in mind as you read about polls

  1. Most reporting on surveys is less than adequate. Even the big news organizations like the Washington Post and CNN never seem to provide enough context as to how the survey was conducted and what was going on that might influence the results. Idaho reporters are at an even greater disadvantage in reporting on polls since they are often writing about something for which they have no first hand knowledge. An Idaho reporter gets what looks like interesting information from a Rasmussen – or soon you can bet from a more Democratic-leaning pollster – and about all they do is report the findings and add the comments from the opposing camps. When it comes to polls we need more context. We need explanation of how the surveys were conducted. What and how many questions were asked? We need more detail. We need more reporting.
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  3. The real value in polls is contained in the “internals.” We all love the horse race question: “if the election were held today”…and those results typically get the headlines. The really valuable strategic information is always buried deeper in a good survey. How are the demographics of age, religion and gender sliced? Do Idahoans feel the state is heading in the right direction? What issues make one candidate or the other vulnerable? The horse race is fun and it tells us something, but it is far from the complete picture. I’d love to see such a survey, but that information is going to be held very close to the vest by both campaigns and pollsters like Rasmussen don’t do that kind of sampling, at least not that they make public.
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  5. Idaho news organizations would do all political junkies and the election process a real favor if they were to develop their own research capabilities. Good research costs money, but perhaps a collection of news organizations could pool the resources – The New York Times/CBS News model – and provide the context and “internals” that would provide real value to voters and policy makers.

Lessons From Distant Campaigns

I have been deeply involved in two statewide races for governor – 1986 and 1990 – and have watched every race since from the back row. One of the surprising findings from our research in 1986 – Cecil Andrus was mounting his comeback that year after having been off an Idaho ballot for a dozen years – was that fully a third of the probable voters didn’t know the former governor and Secretary of the Interior from a bale of hay. He just didn’t register with those voters who had come of voting age or moved to the state since he had been governor in the 1970′s. In other words, the candidate needed to be introduced to these voters.

The lesson: most candidates underestimate the level of public understanding of who they are and what they stand for. This is a particular problem for first time candidates and it often proves fatal.

[A footnote: Andrus relied on Jimmy Carter's controversial and outspoken pollster Pat Caddell for research in 1986 with mixed results. Doug Schoen, who polled for Bill Clinton, did the job splendidly in 1990. In the small world category, Scott Rasmussen touts endorsements from both Caddell and Schoen on his website. Both Caddell and Schoen often provide contrarian views at odds with national Democratic talking points and both provide commentary for FOX News. Each pollster has predicted massive Democratic loses at the polls this fall as a result of health care legislation.]

Another polling lesson for me comes from 1992 when four-term Democratic Rep. Richard Stallings, who represented southern and eastern Idaho, ran for the United States Senate, I’m going to bet Stallings’ name ID north of the Salmon River never got above 60%. I can’t prove that notion, but the election outcome demonstrated that Stallings was not able to connect with voters in that region of the state. For a guy from Rexburg, the territory north of Riggins might as well have been in another state.

The lesson: being well known in Boise doesn’t mean much in St. Anthony or Sandpoint. Statewide name recognition is a long, hard and expensive slog. You earn it with time or with money or both. It is but the absolutely first step to a successful political campaign. There is an old, old fomulation in politics that holds that every candidate must travel a cycle. First the name must be established, then who they are as a person can be developed, and finally comes the message. But it all starts with name recognition. You don’t have that you don’t have much of a political campaign.

Here’s my guess: Otter is not in quite as good a shape as the Rasmussen poll indicates and Allred is not in quite as bad a shape. Such polls measure name ID and party affiliation and not a lot more. Having said that, and with the acknowledgement that it is early in the cycle, campaigns do develop a certain rhythm and pace – call it the narrative – and this one is starting to firm up. Today it is very much Otter’s race to lose and his name ID, his long record of familiarity with Idaho voters, Idaho’s strong R tendencies and this being a GOP year all put him in solid shape to be re-elected.

A further guess: Otter will run a very traditional, tried and true Republican campaign based on presenting a united GOP front and emphasizing the party’s anti-tax stand. Couple that message – we’re Republicans and you can trust us on taxes – with a strong ground game to turn out voters and that has been enough for a GOP gubernatorial candidate to win every time over the last 20 years.

If Allred is to have any chance of pulling the big upset, he had better start running soon with the political equivalent of football’s “wishbone offense.” He needs something to revolutionize the game. He has to shake up the race in a very significant way, change the developing narrative and move the polls or he’ll find himself on the wrong side of “Dewey beats Truman.”