The Real Activist Judges

supreme+courtIs It Time to Rein In the Court?

The esteemed American historian James MacGregor Burns published an important and fiercely argued little book last year that received too little attention.

Burns, an historian of “political power” – his books about FDR’s presidency are still among the best accounts of Roosevelt’s accumulation and use of presidential power – turned his attention in his latest work – Packing the Court – to the awesome power of the unelected members of the United States Supreme Court. Jeffery Rosen, writing in the Washington Post, called the book “readable and accessible,” but also a polemic, albeit an “elegant and interestingly radical” one.

Burns offered a bold and far-reaching critique of the Court as having historically and unconstitutionally overstepped its authority and he suggested that before long some president – or the people – will need to act to re-define the power of the unelected third branch of government. The Court, Burns contends, has historically been populated with “partisan politicos” who have made the judiciary both unstable and unrepresentative of the American people.

Burns, as Emily Bazelon noted in an excellent summary of the book at Slate, goes all the way back in his critique to the landmark case Marbury v. Madison. If you remember your history, Marbury was the case, with John Marshall as Chief Justice, that forever established the notion that the Supreme Court has the power – no where found in the Constitution – to review and rule unconstitutional acts of Congress. From such power, Burns argues, much trouble has come to the Republic.

Citizens United v. FEC

I’ve been thinking about Burns’ arguments in light of the extremely controversial recent case involving campaign finance limits. In that case, Citizens United v. FEC, the court effectively overturned a 100 year old ban on corporate and labor expenditures in federal elections and likely impacted existing laws in more than half the states.

[Montana, with a colorful and corrupt history of corporate political influence, is one state where existing law is potentially impacted by the Citizens ruling. The state's former top election official, Bob Brown, offered his take recently at NewWest.net.]

Some of the more compelling analysis I’ve read of the landmark Citizens case comes from Ben W. Heineman who once served in senior legal and public affairs roles for corporate giant GE. Heineman makes three key points about the Citizens case, but each also relates to a larger argument about the current Roberts Court and its approach to the Constitution and Congress.

First, Heineman says, the Court imposed in the Citizens decision its own “values” as opposed to the values of the elected and openly political branches of the government. The Court, he argues, did not need to render such a sweeping decision, but by the narrowest of margins, did just that.

Similarly, the Court swept aside a Teddy Roosevelt-era law that denied corporations the same rights as individuals. Again, a value judgment, in Heineman’s view. And, finally, the Court completely disregarded the “political record” concerning the issue of corporate political spending by denying that Congress – in a whole series of political findings over a long period of time – had demonstrated a compelling public interest in prohibiting unlimited corporate money in politics.

Whatever your feelings about corporate “free speech,” which is how the Roberts Court presented the issues, the Citizens case should, once and for all, put a torch to the claim that “conservative justices” bring to the bench a bias to defer to the political branches of the government. With one sweeping ruling, the Roberts Court, or at least five members, overturned decades of precedent, ignored the policy prescriptions of Congress and issued a broad, far-reaching decision where a narrow, limited ruling was not only possible but desirable. This is not the behavior of a “conservative” court.

An Activist Court

One of the great political fictions of the last 25 years years is that “activist” judges – these judges are always from left of center politically – have molded the law and the Constitution in ways not keeping with the intent of the Founders. In fact, over the last 25 years, it has been the conservative majorities on the Rehnquist and now the Robert Court that have been the “activists.” There is more to come.

In his book, Professor Burns offers the radical prescription that some future president – or current president – should simply defy the Court when it overturns a policy position that has been fought out, compromised and agreed to by the political branches of the government. I’m not sure I would go so far, since I still wonder what might have happened, for example, had Richard Nixon defied the Court during Watergate or had Al Gore not quietly stepped aside when the Court made George W. Bush president in 2001.

Still, the Citizens case and what comes along next from the Roberts Court may make such a challenge less and less unthinkable.

President Obama was sharply critical of the Citizens decision and was criticized for his criticism. Still, Obama’s critique was really quite measured and he may find that he’ll have many more occasions to speak out about rulings from this Court. In criticizing the Court, he was also in good company. Presidents have done so repeatedly in our history.

Franklin Roosevelt found that taking on the Court, as he did in 1937, was a short-term political loser, but more because of how he managed the criticism as opposed to the substance of his complaints. Arguably FDR’s assault on the Court helped moderate its conservatism in the late 1930′s. The other Roosevelt, Teddy, repeatedly lashed out at the Court early in the century, once complaining of “flagrant wrongs” committed by judges.

A wise man once told me the Founders had made one fundamental mistake: they turned one whole branch of government over to lawyers.

Another made the observation that all judges, by their nature, are political and that doesn’t change once the black robe is draped over the shoulders of a former political operative. Judges almost always receive appointments, and, at the federal level, lifetime tenure, by virtue of a political background or a political sponsor. What they do with the power that they alone define is also political.

More Power to the Court

In the poisonous and largely paralyzed world that is Washington these days, the Roberts Court may have the clearest agenda in town and an agenda that can actually be implemented. Whether the country likes it over time is another matter.

Fundamentally, the power of the Supreme Court and the role these largely untouchable justices play is a matter of separation of powers. James MacGregor Burns would argue that the Court has amassed power all out of proportion to what our system envisions or can tolerate over the long term.

A president can influence the Court with appointments and the Congress must advise and consent, but something else is also required if our system is to “balance.” The Court must self regulate; it must restrain its own activist and value driven impulses. The corporate campaign finance case is an indication that the current majority is unwilling, or unable, to impose that burden on itself. Despite what Chief Justice Roberts said during his confirmation hearing about seeing the role of a judge as an umpire merely calling “balls and strikes,” these umpires don’t seem to be defining the strike zone as much as tearing up the rulebook.

We’ll also see whether the country – from the political right to the political left – really tolerates that attitude over time. Neither conservatives nor liberals should be very comfortable with the direction we seem to be headed.

School for Scandal

RangelNot Resting, Just Dead…

Will Rogers famously said he belonged to no organized political party. He was a Democrat. The cowboy philosopher would find himself right at home in the national party these days.

Disorganization, disunity and doom hangs around the party, with its Congressional fortunes neatly summarized by a snoozing Rep. Charlie Rangel catching a few winks outside the Caribbean villa on which he failed to pay taxes.

Do you think this photo might show up in a few GOP ads this year?

The Times chronicles today the litany of scandals dogging Democrats and further souring the anti-ruling party sentiment in the country. Here is a key graph from the piece:

“The mix of power and the temptations of corruption can be a compelling political narrative at any time. But with voters appearing to be in an angry mood and many already inclined to view all things Washington with mistrust, the risks for Democrats could be that much greater this year.”

Another piece with the same conclusion at The Daily Beast. Here is the key sentence:

To understand why the Rangel scandals are so dangerous for Democrats, you need to understand something about midterm landslides: They’re usually composed of three parts. First, the other party’s activists are highly motivated. Second, your own activists are highly unmotivated. Third, independents want to burn Washington to the ground.”

The reality for Democrats this cycle is simple: the party in power suffers from scandal. Republicans paid the same price when they last controlled the Congress. Remember Tom DeLay and Duke Cunningham? Writing at Slate, Christopher Beam quotes the always reliable Larry Sabato:

“I’ve always called elections the opportunity to throw the bums out and throw a new set of bums in. Partisans never believe that. They think their side is golden and the opposition is a bunch of second cousins to Beelzebub.”

Democrats are riding for a major fall in the fall and, it seems to me, there is little they can do about it because, as Will Rogers also, said:

“The more you read and observe about this Politics thing, you got to admit that each party is worse than the other. The one that’s out always looks the best.”

Right now, Democrats look both bad and like losers.

Larry Osgood

OsgoodIn Praise of “a Good Bureaucrat”

I am tardy in making note of the passing of Larry Osgood, a long-time Idaho state government employee and, in the very best sense of the word, a good bureaucrat.

Larry was director of the Division of Public Works – the outfit that manages all the state’s buildings and construction – when I served as Chief of Staff to Governor Cecil D. Andrus. Osgood and I had a standing Wednesday morning meeting during those years. He would wheel himself over to the Statehouse – he’d been hurt in an auto accident some years earlier – and give me his briefing on problems and progress in his domain. He was a take charge, no nonsense guy who never sugar coated the problems and, since the state is a big land lord, there are always problems, nor did he take any credit for a project coming in under budget or ahead of schedule. That was what he expected and he’d frequently say: “we’re trying to make you look good.”

As the Idaho Legislature heads into the home stretch, it was nice to see Osgood acknowledged for his contributions. Rep. Maxine Bell made special note of Larry. Too often state employees get the rap for being less than stellar performers, sitting on their suitcases, waiting to retire. That characterization is mostly bull, but it is a perception that lingers.

I’ll never know how many millions of dollars Larry Osgood supervised during his years as a public works manager, we’ll never know what decisions, large and small, he made that saved money, created efficiencies or provided better public access. You can bet he did all that and more.

My dad used to talk about the company supply sergeant in the Army who seemed to know where everything was stored and knew where to find everything that was needed. You know the type, the person who keeps the organization running with apparent little effort and usually with little acknowledgement. Good bureaucrats do the same for government and they rarely get their due. Larry Osgood was a good bureaucrat. He made a lot of people look good.

Evita Lives!

evitaDon’t Cry For Her…

I’m betting most Argentines don’t think much of Andrew Lloyd Webber’s 1978 musical Evita. As one young Argentine woman – well-read, worldly and a Master’s degree candidate – told me, the musical and the later movie that starred Madonna presented “the upper class view of Eva Peron.”

The young woman confessed to having “become a believer” in the good done by the spectacularly controversial wife of the late Argentine dictator Juan Peron. Not all her family agreed, she said. Her grandfather had come to loathe Juan and Evita after his property was confiscated. So it goes with the woman who is still called the “spiritual leader” of Argentina.

Lest one think that Evita and all she represents have become quaint historical footnotes, consider this: Current Argentine President Cristina Fernandez de Kirchner, a Peronist, presented her state of the nation speech to Congress on March 1. CFK, as she is called, spoke for 96 minutes and her talk was preceded, as the Buenos Aires’ English language paper noted, by the Peronist chant from the gallery. One might argue that CFK is the ultimate heir of Eva Peron’s influence that reached its zenith just before her death in 1952. Evita had designs on becoming Juan’s vice president, before her fatal illness sapped her physical and political strength. CFK, once an Argentine senator, succeed her husband as president and may just be keeping the seat warm for him to return in 2011. The current president often rules by decree, seems to ignore the rulings of the courts and has her own mini-cult of personality. Evita does live.

Juan Peron somehow was able to accumulate power by appealing simultaneously to the far right and the far left. His wife helped him by establishing her own independent power base. She formed a foundation and shoveled money at the working class – “the shirtless ones.” Not unlike an Argentine Huey Long, the Peron’s built schools, vacation facilities for workers, hospitals, even the amusement park that is said to have influenced Walt Disney’s ideas for Disneyland. They also accumulated enormous power, ruled by decree and personality and drove the country’s economy into the ditch.

Still, the power of Evita lives. In the end of the world town of Ushuaia, the local Peronists maintain a very public monument to Evita. Decked out in haute couture, her photograph is prominently displayed in a Buenos Aires hotel lobby. No Argentine politician dares use the famous balcony on the Pink House – the presidential building -where Juan and Evita spoke to massive rallies. The symbolism would just be too powerful. Evita’s modest tomb – modest at least by this cemetery’s standards – at Recoleta is always surrounded by those who see a visit to the grave as a pilgrimage. The faithful leave bundles of fresh flowers.

There is nothing even remotely like the power of Evita in American political culture. An equivalent would be a cult-like following, years after their deaths, for a Jackie Kennedy or a Hillary Clinton. Evita is in a class of one, even though her reign was a short one, really, only six years.

For years after Juan Peron’s overthrow by the military – another irony, he got his start as a junior officer visiting Mussolini’s Italy – any mention of the famous pair was outlawed, the party was made illegal and Eva’s embalmed remains made a tour of Europe before finally returning to Buenos Aires. But, nearly 60 years after her death, as the song goes, she has never really left.

As for that song – Don’t Cry For Me Argentina – I only heard it once here. An extremely talented trio of musicians struck it up during a dinner performance in a city far from the capitol. Maybe they like the song. Or, maybe they know that Americans think of the lyrics when they think of Argentina. Or, maybe they just get the whole Evita thing – whatever it is.

Argentina

argentinaThe Wandering Gene

In his marvelous book, In Patagonia, Bruce Chatwin speculates whether some folks are born with a gene that causes them to wander the earth in search of adventure. Or perhaps the wandering gene simply pushes a deeply felt human desire to visit new places to see and experience new things, different cultures and interesting sights.

I’m not sure I was born with the wandering gene, but thankfully I have been able to do a far amount of wandering during my life and have become more and more comfortable with the surprise and delight that is generally available when one travels. Of course, there are always travel hassles. The South American immigration system, for instance, could be right out of a Marx Brothers movie. Lots of fellows with tired eyes and bored expressions stamping, stamping and stamping thousands of forms. I’d be able to travel more if I could corner the rubber stamp concession for these guys. They must be glad they aren’t the fellows who have to file all those forms.

Even with the minor hassles, I’m often surprised by folks who travel and complain that the new and unusual places they visit “aren’t like home.” Isn’t that the point of wandering? Let’s go see something that isn’t like home. Argentina isn’t like home.

I have a couple more observations about the land of the Pampas, the subtropical rain forest, the glaciers and penguins before fully re-entering the “real” world and permanently forming those enduring memories of a place seen and experienced, even for a short time.

Today – yes, I’ve sampled them all – the four Argentine food groups – meat, wine, dessert and dulce de leche. Tomorrow, what would a visit to Argentina be for a political junkie without some thoughts on Evita.

But first, every wanderer has to eat.

The Four Basics:

Meat: To say that Argentine beef is excellent would be to damn with faint praise. This is not a country for vegetarians. If you like your beef, you’ll like Argentina. Grass-fed, lean, almost always grilled over a wood fire, the cuts are massive, tender and full of flavor. At one of the best Buenos Aires parrillas, La Brigada, in the San Telmo neighborhood of the capitol, the waiter separated the meat from our T-bone (the most massive T-bone I’ve ever seen) with a folk and a spoon. It was that tender.

Wine: Argentine wines have been enjoying a lot of buzz recently and based upon a very unscientific, but tasteful, sample we have not even begun to enjoy or appreciate the full impact of the country’s quality wine. The wine is high quality and value priced. You can spend a lot on a bottle, but you can buy extraordinarily good Argentine wine from the Mendoza region, for example, for $10 or $12 bucks. Perfect with that T-bone.

Dessert: Lots of ice cream in every conceivable flavor and wonderful pastry form the backbone – or waistline – of Argentine desserts. The ice cream rivals the best Italian and it seems to be available on every street corner.

Dulce de leche: At first blush, we’d call this stuff caramel sauce, but in Argentina it is more like a national obsession. The silky dulce de leche fills the center of cookies, is served with pancakes, accompanies breakfast toast and seems to be applied to just about everything.

The food and wine would be almost enough to justify a visit to this vast place that has a vague sense of having one foot in the 19th Century and the other stepping tentatively into the 21st. Buenos Aires has often been described as the “Paris of South America,” and parts of the city, with its French-inspired architecture, wide boulevards and enormous parks, could pass for Paris. But, Buenos Aires is also its shanty towns and street people, a world-class city with world-class problems of poverty and pollution. It is a place that seems not quite up to meeting its potential, but compared to Paris the Argentine capitol is a new outpost on the frontier. This is a young country, younger than our own and full of possibility and challenge.

The Chatwin book, first published in Britain in 1977, and now a Penguin Classic, has been a welcome companion in Argentina. It is a mix of travel writing, personal observation, fascinating history and perhaps just a little story telling. The book centers on Patagonia, but begins in Buenos Aires. Here is an early line: “The history of Buenos Aires is written in its telephone directory. Pompey Romanov, Emilio Rommel, Crespina D.Z. de Rose, Ladislao Radziwil, and Elizabeta Marta Callman de Rothschild – five names taken at random from among the R’s – told a story of exile, disillusion and anxiety behind lace curtains.”

How could you not wander to such a place and think always of returning.

Uruguay and Argentina

uruguayOdds and Ends: Politics and Mate

A very big day today in Montevideo, Uruguay and you probably won’t read much about it in the U.S. A new president, a left of center politician and one-time guerrilla, who spent years in jail, will take the oath in the famous Independence Plaza in the Uruguayan capitol today. Secretary of State Hillary Clinton is attending. Good for her. It will keep the local spotlight from falling totally on Hugo Chavez.

Our knowledge of Uruguay, such as it is, probably just about begins and ends with futbol. One former politician said of the country’s devotion to the great game, “other countries have their history, we have our futbol.” The Uruguayan’s are proud of their two World Cup championships and are already looking forward to hosting the 100th anniversary of the Cup in 2030 in a storied stadium in downtown Montevideo. The first championship was held in the same stadium in 1930. That will be a party.

Back to new president Jose “Pepe” Mujica; in his initial comments he sounded more like an American-style moderate than an ex-con. He pledged, among other things, to try to improve relations with Argentina; relations that have suffered over a controversial paper mill in Uruguay that environmentalists say threatens the Argentines along their shared river border. Pepe, in pledging to work on the dispute, said he didn’t consider Argentina a “foreign” country. Sort of like us saying we don’t consider Canadians to be foreigners, at least we didn’t before the most recent hockey game.

Argentina and Uruguay do share much. A spectacular river – the Rio de la Plata – a language, much Spanish colonist history, most of the same tango moves, grilled beef, futbol, and a curious tea-like drink called mate.

If Starbucks is to America, then mate is to Argentina and Uruguay. Young men especially carry their gourd cups of mate all day and all night, constantly adding steaming hot water from a thermos to refresh the brew that is sipped through a silver straw. Mate is simply everywhere. One young Argentine tried to explain to we gringos what the habit was all about and simply concluded, “we drink mate, we don’t know why.”

Still, like folks from the United States and our Canadian neighbors, we can’t always get on the same page. Tango, for instance, is common to both the South American neighbors, but the Uruguayan’s reject the more athletic aspects of Argentine tango, preferring a more romantic, fluid style. When told of the dramatic nature of an Argentine tango show, a young man in Montevideo shrugged and simply said, “that’s Argentina.”

Both nations also share a weak economy and a burdensome foreign debt, but these days, who doesn’t. At least these Latin American neighbors have their mate and, at least, two forms of tango.