2024 Election, Supreme Court, Voting Rights

Gutting the Voting Rights Act …

On Sunday night, March 7, 1965, the ABC Sunday Night Movie was interrupted for a breaking news bulletin from Selma, Alabama, a city of about 28,000 souls fifty miles west of the state capitol of Montgomery.

It’s a safe bet that most Americans watching the film Judgment at Nuremberg – a movie about Nazi war crime trials after World War II – had never heard of Selma in Dallas County, Alabama. After that Sunday, the events of Selma would come to define the long and still continuing struggle for voting rights in America.

As Alabama Heritage magazine has noted of Selma in the 1960s: “Despite the gains made by civil rights activists across the state of Alabama, the Black Belt city of Selma remained a bastion of racial discrimination. In particular, the city’s segregationist leadership excelled at disenfranchising the African American community. By 1964 whites made up less than half of the population of Dallas County but constituted 99 percent of the registered voters.”

Seven of every eight Black Americans who attempted to join voter rolls in that Alabama county were rejected. Little wonder that the major civil rights groups in the South, the Southern Christian Leadership Conference and the Student Non-violent Coordinating Committee (SNCC), chose Selma as the place to launch a march for voting rights.

Alabama Governor George C. Wallace gave the order to stop the marchers. Mayhem and blood followed, all broadcast on national television giving viewers a living room view of what was at stake for Black Americans.

John Lewis (foreground) is beaten by a state trooper in Selma, Alabama, on March 7, 1965. The future congressman suffered a fractured skull. | AP Photo

“The troopers rushed forward,” the New York Times reported, “their blue uniforms and white helmets blurring into a flying wedge as they moved. The wedge moved with such force that it seemed almost to pass over the waiting column instead of through it. The first 10 or 20 Negros were swept to the ground screaming, arms and legs flying, and packs and bags went skittering across the grassy divider strop and on to the pavement on both sides. Those still on their feet retreated.”

One marcher, beaten to the point of hospitalization, was John Lewis, the chairman of SNCC and years later a member of Congress from Georgia.

Others died trying to secure the Constitutional right to simply vote in a democracy. One of the martyrs was a white Unitarian minister from California, James Reeb, who responded to Dr. Martin Luther King, Jr’s call for white preachers to join the march from Selma to Montgomery.

Reeb died on March 12, 1965 of injuries sustained when he was beaten by white segregationists who were so opposed to fellow Americans attempting to secure the vote that they were willing to kill.

The Voting Rights Act was passed on August 6, 1965 with some naively believing a conclusive battle had been won. But while the events of that long ago bloody Sunday have faded the conservative assault on the Voting Rights Act never has.

Remember this history as you consider that Republican attorneys general from Alabama, Alaska, Georgia, Idaho, Indiana, Iowa, Kansas, Mississippi, Montana, Nebraska, South Carolina, Texas, and West Virginia recently asked the U.S. Supreme Court to gut – as in eviscerate – another key section of the Voting Rights Act.

The state of Louisiana brought the case to end the long established practice of individuals and voting rights organizations taking private legal action to enforce the right to vote. Louisiana and rightwing AGs like Idaho’s Raul Labrador and Montana’s Austin Knudsen claim that all that history is rubbish and that efforts to use the law to protect the right to vote cannot be invoked by private parties, but only by the Justice Department.

Rick Hasen, a law professor at UCLA and voting rights expert, has said that unless the Supreme Court reverses a recent ruling by the Eighth Circuit that ruled private actions unconstitutional the rights of minority voters will be decimated. The Justice Department, Hasen and many others say, has inadequate resources to go after a gerrymander in Wisconsin or a voter suppression effort in Mississippi or a hundred or a thousand other devious efforts to limit the Constitutional voting rights of Americans.

Hasen noted that two Supreme Court justices – Neil Gorsuch and Clarence Thomas – have already endorsed this specious reading of the law, the Constitution and long standing precedent. Three more justices could literally erase one of the most effective tools to ensuring voting rights, and in doing so expand the conservative re-writing of not only the law, but American history.

Knudsen, the Montana attorney general and a hard right firebrand who professional ethics are under review by the state bar, is a too young to remember his state’s greatest political leader and the role Senator Mike Mansfield, the Democratic majority leader in 1965, played in passage of the Voting Rights Act. Mansfield worked tirelessly with Republican leader Everett Dirksen to assemble a bipartisan Senate coalition to ensure that the promise of the 15th Amendment to the Constitution – the right to vote for African Americans – was guaranteed. Mansfield considered the Voting Rights Act the most important legislation of his generation.

Labrador, who as a Tea Party congressman helped set the U.S. House on the path of its current dysfunction, now employs a team of zealous, even radical lawyers from everywhere but Idaho to push the latest alt right legal hobby horse. Labrador should be reminded that no less a conservative than former Idaho governor and senator Len Jordan was one of the Senate Republicans who followed his party leadership in support of the Voting Rights Act 58 years ago.

You might do well to ask what Knudsen and Labrador are doing as they waste their state’s resources by signing on to legal action designed solely to deny Americans access to the courts? Why do they believe it’s worth the effort of their high office or the spirit of their sworn oath to embrace a patently transparent effort to disenfranchise fellow Americans and trash a historic law, as well as the protections of the Constitution? 

The answer to these questions is that it is all about power – raw, unbridled political power wielded by states against their own citizens. Conservatism has become about eliminating rights, not enhancing them.

In this Aug. 6, 1965, photo, President Lyndon Baines Johnson signs the Voting Rights Act of 1965 in a ceremony in the President’s Room near the Senate Chambers on Capitol Hill in Washington. Surrounding the president from left directly above his right hand, Vice President Hubert Humphrey; House Speaker John McCormack; Rep. Emanuel Celler, D-N.Y.; first daughter Luci Johnson; and Sen. Everett Dirksen, R-Ill. Behind Humphrey is House Majority Leader Carl Albert of Oklahoma; and behind Celler is Sen. Carl Hayden, D-Ariz. (AP Photo)

Conservatives started going after the Voting Rights Act about ten seconds after Lyndon Johnson signed it into law. Now they have created a national network of extremists at every level of government determined to roll back the clock. And they have realized a fever dream decades in the making – a Supreme Court more beholden to political outcomes than legal protections. It is a truism of our age that the Supreme Court’s decision to reverse 50 years of history on abortion rights was but the beginning.

You’ll hear more about this pending Supreme Court case in the days ahead and when you do remember Jim Reeb and so many others who gave their lives in the fight for these fundamental rights of citizenship.

No one, by the way, has ever been convicted of that young minister’s murder in Selma in 1965. Just one more reason why we should expect more today from those who would use the law he died for to effectively dance on his grave.

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Additional Reading:

A few other things that caught my eye …

Special counsel Jack Smith made a gutsy, momentous decision in his prosecution of Donald Trump

The always excellent Margaret Sullivan writes about the special counsel’s decision to take Trump’s claim of immunity directly to the Supreme Court.

The former guy calls him “deranged.” But Jack Smith may have just pulled off a master legal stroke.

“The former US president intends to use timing – delay, delay, delay – to avoid punishment for trying to overturn the 2020 election, which he lost to Joe Biden, and for fomenting a violent coup.

“Nope, said Smith this week. A tough guy who has prosecuted war crimes in the Hague, Smith clearly recognizes that putting off the case until after next fall’s presidential election could let Trump off the hook.”

Link to the full piece in The Guardian.


The Convert: The radicalization of Mike Lee

Nick Catoggio writes in The Dispatch about the Utah Republican senator and whether he’s really a cynic or a convert. His verdict – Lee hasn’t just drunk the Trumpian Kool-Aid, he’s happily chugging it.

“So if he sounds like a crank, it’s not because he has to. It’s because he wants to.

“Which brings us to the other problem. Only a true convert to crank populism would embarrass himself to the degree Lee routinely does nowadays. There’s a gratuitousness to some of his lapses of judgment that suggests he’s not faking them to impress the grassroots right’s worst elements, as is often the case with his buddy Ted Cruz. One simply can’t step on as many rakes as Mike Lee has lately without being genuinely blind.”

Good example of why the Republican Party really no longer exists.


And finally …

“Welcome, fellow haters, to another bilious edition of the Most Scathing Book Reviews of the Year.”

Come for the put downs, stay for the laughs. Here’s the link.


See you soon. Tip your server. Smile at strangers. Call an old friend you haven’t spoken with for too long. Get in the spirit.

All the best.

Civil Rights, GOP, Judiciary, Supreme Court

The GOP Goes Back in Time …

On September 5, 1922, a very conservative Republican from Utah, George Sutherland, was nominated by Republican President Warren Harding to the U.S. Supreme Court. In many ways, Sutherland was a natural choice: a former state legislator, congressman, senator and a diplomat.

Sutherland’s family eventually left the LDS Church, but he attended what was then Brigham Young Academy and made a reputation as a lawyer defending members of the faith indicted under federal anti-polygamy statutes.

On the afternoon his appointment was submitted to the Senate, Sutherland was confirmed to a lifetime appointment on the nation’s highest court. Quickest confirmation in history. No hearing. No FBI background check. No questions. Harding wanted it. It happened.

Mr. Justice Sutherland

Say this much for George Sutherland: he looked the part of a judge. Trimmed white beard. Regal bearing. And a resume seemingly ideal for a Republican president wanting to maintain a conservative court. Sutherland served as a justice for 18 years, came to be known as one of the “four horsemen,” the ultra conservatives who made the Supreme Court in the 1920’s and 1930’s the most conservative Court since, well, since now. As one legal scholar has noted, Justice Sutherland’s “predominant tendency was to cleave to the past when assessing issues before him.”

I thought about George Sutherland, a Supreme Court justice largely assigned to the judicial history dustbin this week, as a host of Republican senators took turns trying to denigrate the nomination of the first African American woman to the nation’s highest court. Those conservatives had a field day, or at least they tried to have a field day, at the expense of an obviously supremely qualified, supremely patient, supremely measured judge.

The larger context here is the rollback of American jurisprudence, “to cleave to the past.” The ghost of Justice Sutherland stalks the modern Republican Party.

And you ain’t seen nothing yet.

Missouri Senator Josh Hawley, getting a jump on hearings for Judge Ketanji Brown Jackson, actually previewed his line of attack days ago on social media. Hawley, most famous for his show of support for Capitol insurrectionists on January 6, sought to paint the judge as “soft on child pornography.”

Hawley, a Stanford and Yale trained lawyer, broadly distorted the judge’s sentencing record, so misrepresenting the facts as to be accused of “a smear” campaign. The conservative National Review called Hawley “a demagogue,” a charge that has the benefit of being true.

Predictably others – Ted Cruz, Mike Lee, Tom Cotton and Marsha Blackburn – helped advance the smear, causing CNN White House correspondent John Harwood to remark that “GOP senators shaped their attacks on a Supreme Court pick [with a] sterling resume to appeal to the kinds of people who fantasize about Democrats running a child sex trafficking ring out of a Washington pizzeria because loons like that play such an important role in GOP politics.”

And there was more. Cruz, channeling his inner Joe McCarthy, tried to make Judge Jackson responsible for every book used at the Washington, D.C. private school where she serves on the board. It’s just the kind of school Cruz’s children attend. The judge patiently explained her board doesn’t deal with curriculum, but the attack allowed Cruz to slime the nominee as an advocate of Critical Race Theory (CRT). Right on cue the Republican National Committee distributed a photo of Judge Jackson with her initials replaced with CRT.

As dog whistles go, this level of demagoguery and race baiting makes the tactics of the Senate’s southern segregationist’s of the 50’s and 60’s seem downright mild.

Blackburn asked the witness for a definition of a “woman” before slipping slimily into an attack on transgendered athletes. Lindsey Graham, another attorney, berated Jackson for her role as a defense attorney for detainees at Guantanamo, literally suggesting that some accused of crimes under our system aren’t entitled to representation in court. The subtext of Graham’s sleaze is, of course, the image of a Black woman defending a Muslim terrorist.

Make no mistake, these attacks on Ketanji Brown Jackson are not about her ten-year record as a judge or as a universally praised member of a national commission to review federal sentencing guidelines. No matter her record or what she says to questions based on grievance and the past, Jackson will be lucky to get two Republican votes for confirmation.

The attacks on her are centered squarely on stoking grievance and furthering racial division. This might have been a time for bipartisan celebration of the career of an accomplished woman of color, but that’s not where most in the conservative base live. And while the attacks this week were particularly odious, brutal and fact-free they hardly represent a new page in the conservative playbook. Grievance and culture combat has been and remains the party line.

Graham, who admitted he goes “to church probably three times a year,” pressed Judge Jackson on her faith, even asking her to rank how important her spiritual beliefs are on a scale of 1 to 10. The judge described herself as a non-denominational protestant, and wisely observed that there is no religious test in the Constitution.

Good thing Mr. Justice Sutherland, the lapsed Mormon, never met Lindsey Graham.

Also make no mistake that there is much more at play here than the historic confirmation of one Black woman to the Supreme Court. Indiana Republican Senator Mike Braun spilled those beans when he told an interviewer this week that in his opinion Roe v. Wade had been improperly decided in the 1970’s. Such issues should be left to the states, Braun said. Pressed on whether that kind of judicial philosophy might extend to interracial marriage or state-level bans on the use of contraceptives, Braun opened the alt right kimono.

“You can list a whole host of issues,” Braun said. “When it comes down to whatever they are, I’m going to say that they’re not going to all make you happy within a given state, but that we’re better off having states manifest their points of view rather than homogenizing it across the country, as Roe v. Wade did.”

Braun quickly walked back his comments about interracial marriage saying he misunderstood the question – he clearly did not based on the videotape of his answer – while assuring us, very unconvincingly, that he is all for protecting individual rights.

Indiana Senator Mike Braun before he walked back his comments about interracial marriage

With this line of thinking – remember Judge Jackson was also questioned about Supreme Court decisions on contraceptives and same sex marriage – when Roe is overturned it follows naturally that other landmark court decisions ensuring individual rights will be ripe for re-assessment. Braun didn’t misspeak, he telegraphed the hard right’s judicial playbook for the next decade.

Roe v. Wade will be just the beginning. A Justice Jackson will make history. The most conservative court since George Sutherland’s day will too.

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Additional Reading:

Some additional items you may find of interest …

Was it inevitable? A short history of Russia’s war on Ukraine

Several pieces from various angles on Putin’s continuing war.

“This war was not inevitable, but we have been moving toward it for years: the west, and Russia, and Ukraine. The war itself is not new – it began, as Ukrainians have frequently reminded us in the past two weeks, with the Russian incursion in 2014. But the roots go back even further. We are still experiencing the death throes of the Soviet empire. We are reaping, too, in the west, the fruits of our failed policies in the region after the Soviet collapse.”

From Keith Gessen in The Guardian.

* * * * *

Putin Lives in Historic Analogies and Metaphors

A scene of the carnage outside a shopping area in Kiev

And I found this piece particularly good.

“Political scientist Ivan Krastev is an astute observer of Vladimir Putin. In an interview, he speaks of the Russian president’s isolation, his understanding of Russian history and how he has become a prisoner of his own rhetoric.”

From the German publication Spiegel International.

* * * * *

Assassinating Putin Won’t Work. It Never Has for America

The aforementioned Senator Graham of South Carolina blustered recently about “taking out” the Russian president. The great historian of the CIA, Steven Kinzer, says it’s really a pretty bad idea.

“Americans are impatient by nature. We want quick solutions, even to complex problems. That makes killing a foreign leader seem like a good way to end a war. Every time we have tried it, though, we’ve failed — whether or not the target falls. Morality and legality aside, it doesn’t work. Castro thrived on his ability to survive American plots. In the Congo, almost everything that has happened since Lumumba’s murder has been awful.”

Kinzer writes in Politico.


The Growing Blight of “Infill” McMansions

I quote Mike Lofgren, a long-time congressional staffer, in my book about the 1980 election. He’s found life after Capitol Hill as a writer, and this Washington Monthly piece on the new wave of McMansions – huge and often very ugly homes – in old, established neighborhoods is both well written and spot on.

“While the sheer size of the structure guarantees disharmony with the local houses, the eye-lacerating incongruity of its style brings it to a new level. The structures resemble the architecture of the Loire Valley, Elizabethan England, or Renaissance Tuscany—as imagined by Walt Disney, or perhaps Liberace. As with McMansions everywhere, the new owners could have obtained a sounder design for less, but they prefer the turrets, portes-cochères, and ill-proportioned Palladian windows that they bought.”

Read the whole thing.


John Clellon Holmes on the Funeral of His Longtime Friend Jack Kerouac

The cover of the book that features four essays on Kerouac

My old and dear pal, Rick Ardinger – along with his wife and partner, Rose – have re-published a great book length piece on the celebrated “beat” generation writer Jack Kerouac by Kerouac’s friend John Clellon Holmes.

The book was excerpted recently at the LitHub site. Read the excerpt here and please consider ordering the book.


The LaLee, London: ‘A menu designed for well-heeled tourists’ 

And finally, I am a sucker for the snarky restaurant review. This one is pretty good, or bad …

“It’s attempting to be a thrilling destination restaurant, when in truth it should just be the utilitarian dining option in a fancy boutique London hotel. As a result, it’s neither.”

All righty, then. Here’s the link.


Thanks for following along. Stay engaged. Democracy is on the ballot this year. All hands on deck.

Russia, Supreme Court, Weekend Potpourri

What to read this weekend …

Friends:

I’m on a two week hiatus from my Friday column. I’ll be back in your inbox the week of March 7.

Meanwhile, there is plenty going on in the world. I’m hoping some of these pieces will be of interest. I found them all valuable.

All the best.

Understanding the Ukraine Crisis: A Comprehensive Reading List

An extensive list of titles to help you make sense of the senselessness Russian invasion of Ukraine.

From Lit Hub. Here is the link.

One book on the list – Red Famine – by the superb historian and analyst of Eastern Europe Anne Applebaum. The Economist rated the book one of the best of the year when it was published in 2018.

Read anything by Anne Applebaum

“From the author of the Pulitzer Prize-winning Gulag and the National Book Award finalist Iron Curtain, a revelatory history of one of Stalin’s greatest crimes–the consequences of which still resonate todayIn 1929 Stalin launched his policy of agricultural collectivization–in effect a second Russian revolution–which forced millions of peasants off their land and onto collective farms. The result was a catastrophic famine, the most lethal in European history. At least five million people died between 1931 and 1933 in the USSR. But instead of sending relief the Soviet state made use of the catastrophe to rid itself of a political problem. In Red Famine, Anne Applebaum argues that more than three million of those dead were Ukrainians who perished not because they were accidental victims of a bad policy but because the state deliberately set out to kill them.”


Ghosts of Ukraine

I’ve known the author of this piece, Dean Bakopoulos, for a long time. Dean is a novelist, screenwriter and teacher and once directed the Wisconsin Humanities Council. His recent essay about his Ukrainian grandparents is both profoundly sad and important in a totally relevant and uplifting way.

“I thought of them both this week, of course, my Dido and Baba, as Vladimir Putin sent Russian troops into Ukraine. I’d known this day was coming—Ukrainians knew it in their bones—but I did not expect that I would burst into tears, or that I would cry off and on all night and most of the next day, unable to sleep, or work, or eat. Instead, I scrolled through Twitter and watched the situation get worse and worse until it began to resemble how Stalin’s genocidal campaign began in the 1930s and ’40s. It appeared to be the same kind of darkness, the same reckless evil, and the same violent hatred that my grandparents had fled. The only thing that had changed was the name of the despot.”

Please read and share.


The Long Crusade of Clarence and Ginni Thomas

A remarkable piece of reporting here from the New York Times.

“The Thomases have long posed a unique quandary in Washington. Because Supreme Court justices do not want to be perceived as partisan, they tend to avoid political events and entanglements, and their spouses often keep low profiles. But the Thomases have defied such norms. Since the founding of the nation, no spouse of a sitting Supreme Court justice has been as overt a political activist as Ginni Thomas. In addition to her perch at the Council for National Policy, she founded a group called Groundswell with the support of Stephen K. Bannon, the hard-line nationalist and former Trump adviser. It holds a weekly meeting of influential conservatives, many of whom work directly on issues that have come before the court.”

I know it’s an old fashioned notion, but Supreme Court justices – at least in the last 60 years or so – have not been so blatantly political as Justice Thomas and his wife. If nothing else, the story puts the lie to notion that only “liberal” Supreme Court justices are political activists.

And, yes, it is high time for enforceable ethics rules for members of the Supreme Court.

Here is the link.


Jack Palance Vs. Vladimir Putin

I confess to being astounded that there are significant numbers of Americans on the political right – like Donald Trump – who have actually offered praise for Putin or found ways to justify his unjustifiable actions in Ukraine.

Such behavior should be disqualifying for any politician, but here we are.

That makes this remarkable story by critic Sonny Bunch about the actor Jack Palance even more telling.

Jack Palance in Batman with Jack Nicholson

“Jack Palance was not born Jack Palance; like so many movie stars, he changed his name to something a bit more palatable to the ticket-buying public (though the ticket-buying public was buying tickets to see him box at that time). And that’s how Volodymyr Palahniuk became Jack Palance.

“My point: his parents were Ukrainian immigrants and Palance remained proud of his heritage to the end of his life. In 2004, he was asked to accept an award at an event sponsored by the Russian Ministry of Culture. When he was introduced to accept the award, he took the stage and said: “I feel like I walked into the wrong room by mistake. I think that Russian film is interesting, but I have nothing to do with Russia or Russian film. My parents were born in Ukraine: I’m Ukrainian. I’m not Russian. So, excuse me, but I don’t belong here. It’s best if we leave.”

“And then he walked out.”

Whoo…great piece.


Making the simple impossible: We don’t want to admit the real worker shortage problem

Absolutely great journalism is being done in many states by non-profit outlets like The Daily Montanan. I can’t recommend enough the work of these folks.

Here is Daily Montanan editor Darrell Ehrlick on a story hiding in plain sight.

“The workforce shortage issue is being framed as an economic problem – employers can’t find enough workers and wages don’t seem to entice them.

“Yet, maybe there are drivers of this wave of joblessness that we all know, but don’t really want to tackle. Maybe we just don’t like what the workforce shortage is telling us, and so we search for other more complex, nuanced interpretations.

“As an observer and reporter, I think maybe the answer to the workforce shortage is a combination of time and fatigue.”

Here’s a link to Darrell’s piece:


Thanks for following along. Stay strong. Pray for the good people of Ukraine.

2020 Election, Andrus, GOP, Supreme Court

Old School Politics…

I worked for many years for a politician of the old school. Former Idaho governor and U.S. secretary of the Interior Cecil D. Andrus practiced what is now clearly an old-fashioned version of politics. 

Andrus could be, and often was, a tough partisan, yet as a Democrat who served more than 14 years as governor during four terms spread over three decades Andrus never once had a Democratic majority in the state legislature. He had to practice the art of the possible and that almost always involved give and take and compromise. It is an old school notion to believe that it’s not a political disaster when you have to settle for half a loaf. 

Andrus had political adversaries, but few enemies. He counted among his closest political friends an old golfing pal and frequent partisan adversary Phil Batt, the conversative Republican who followed Andrus into the governor’s office in 1995. A long-time Republican state senator from Boise, H. Dean Summers, was on Andrus’s speed dial. Back in the day when Democrats had greater numbers in the legislature, if never a majority, Summers often helped Andrus pass his priority legislation. They were friends who could also make a deal. 

In 1974, when Andrus was trying to get a controversial nominee confirmed to the state Public Utilities Commission (PUC), a project requiring a handful of Republicans votes, Summers convinced his friend the governor that another Boise Republican, Lyle Cobbs, might be persuaded to support the controversial Democratic candidate, but only if the conditions were right. The condition that became persuasive for Cobbs involved his enthusiastic backing of legislation to make then-Boise State College a university. 

South Idaho Press, February 5, 1974

As luck would have it, or perhaps it was a matter of exquisite timing, a bill to rename the college was sitting on the governor’s desk when the PUC nomination came to the floor of the state senate. During the debate, Andrus, on a signal from his friend Senator Summers, placed a call to Senator Cobbs’ desk and reminded the Republican that his important Boise State legislation was awaiting executive action. Andrus hardly needed to say he was watching how Cobbs voted on his PUC candidate. 

Later, after Bob Lenaghan took his seat on the PUC and while Andrus was signing the legislation to create Boise State University, Cobb jokingly asked: “You wouldn’t have vetoed this bill would you, governor?” Andrus smiled and said, “You’ll never know will you, Lyle?” 

Idaho Associated Press story from February 21, 1974

The two politicians had effectively made a bargain. Andrus got what he wanted; Cobbs got what he needed. They trusted each other. 

For a politician like Cece Andrus there was no higher compliment to be paid to a fellow pol than to say, “his word is good.” I heard him say it a thousand times. It was one of many reasons he got along so well with Phil Batt. They could trust each other to stay “hitched,” as Andrus would say. You make a commitment to do something you do it. You shake hands on a deal and then you never renege. You give your word and stick with it. Even if it becomes uncomfortable. 

I’ve thought a lot about this old school approach to politics as I’ve watched Senate Republicans this week literally twist themselves into partisan pretzels in order to go back on commitments they made in 2016 not to consider, let alone vote, on Barack Obama’s Supreme Court candidate in that election year. 

No matter how they try to spin it, from Lindsey Graham to Mike Crapo, from Lamar Alexander to Mike Lee they simply aren’t keeping their word. Every Senate Republican save two has now said the principle they staked out then when a Democrat was in the White House doesn’t apply when their party controls who gets nominated to the high court. All are being accused of hypocrisy, but that word hardly does justice to the lack of character that allows politicians to do one thing when they want to prevent something from happening and the exact opposite when that position become convenient in order to arrive at a desired outcome. 

Graham, the slippery South Carolinian, will become the poster boy for the current Republican double-dealing. He is actually on tape on at least two occasions saying that the pledge he made not to consider Obama’s appointee in 2016 would apply to a Republican in exactly the same circumstances. “You can use my words against me,” Graham said. And then he went back on his word. 

Crapo and Graham and so many others have done the same. You’d be right to wonder if you could ever again trust their word on anything. 

Some years ago, I wrote a remembrance of Montana Democrat Mike Mansfield, still the longest tenured majority leader in Senate history. I’d heard a story that Mansfield had once helped a freshman Republican, Ted Stevens of Alaska, as tough a partisan as ever prowled the Senate floor, get a fair shake on a piece of legislation. I wanted to confirm the story and arranged to speak to Stevens. 

Montana Senator Mike Mansfield, the longest-serving majority leader in Senate history

In a nutshell, Stevens had been promised by a senior Democrat that an amendment he wanted to offer to legislation particularly important to Alaska would be considered. But Stevens was busy in a committee meeting when the time came to offer his amendment and the courtesy of informing him was ignored. In short, a bond had been broken. 

Stevens, a man with a hair trigger temper, confronted the majority leader complaining – justifiably – that he’d been purposely snookered. As Stevens told me, Mansfield asked for a copy of the amendment the Alaskan had intended to offer, got recognized by the chair, interrupted the roll call and offered Stevens’ amendment as his own. It was adopted. Mike Mansfield, one of the most respected men to ever serve in the Senate, was not going to let a colleague down. The substance of the issue was entirely unimportant, but the principle that your word is your bond was absolutely sacrosanct. 

Ask yourself: Would you buy a used car from these guys whose word is so fungible? Would you trust a handshake deal with a Lindsey Graham or a Mike Crapo? When your word is worth so little your character is worth even less. 

—–0—–

Additional Reading:

Some additional reading you may find of interest…

Thomas Mallon has a wonderful piece in the latest New Yorker, a look back at a presidential campaign exactly 100 years ago. The election took the country from Woodrow Wilson to Warren Harding. Voters were confronted with the political fatigue of the post-World War I period and a global pandemic and Wilson’s months of incapacity.

“When considered against the electoral circumstances that exchanged Wilson, a Democrat, for Harding, a Republican, some of the tumults of 2020 appear to be a centennial reiteration, or inversion, of the calamities and longings of the 1920 campaign. Then the country—recently riven by disease, inflamed with racial violence and anxious about immigration, torn between isolation and globalism—yearned for what the winning candidate somewhat malapropically promised would be a return to ‘normalcy.'”

It’s a very good read.


The Ginsburg Tag Team

Some months before she went on the Supreme Court, Ruth Bader Ginsburg delivered the commencement speech at the Lewis and Clark Law School in Portland and she shared the assignment with her attorney husband, Marty.

Ruth and Marty Ginsburg

Maxine Bernstein had a delightful piece recently in The Oregonian on how it went.

“Martin D. Ginsburg followed his wife. He shared how he started working as a tax lawyer at a New York law firm, then gave up the practice to teach tax law. He said he learned in both the practice of law and in teaching to use humor to help make messages stick, and he emphasized the importance of a lawyer’s professional responsibility.

“He shared how a senior litigation partner once called him into his office and shared a quote he lived his professional life by: ‘If someone goes to jail, be sure it’s the client.'”

Read the entire thing.


History According to Trump

I guess it’s a good thing we always fight over history, after all there is no one settled way of looking at events in the past. History is, or should be, based on verifiable facts, documents, first hand accounts and much more. It is not a political exercise unless partisan people try to make history partisan.

Pivot to the recent White House conference on American history. A distinguished historian, Ron Radosh – he taught at CUNY and has written extensively about American history – deconstructed the “conference.” It is a fascinating read.

“There are some important questions that deserve to be asked about the teaching of history and its contribution to creating a sense of citizenship, and the ways in which those two can be in tension with one another. But such questions went unasked at last week’s conference. The White House Conference on American History was anything but what the title of the forum announced. It was a publicity stunt, and the participants, including the two historians, were played by Donald Trump and his administration.”

The full piece from The Bulwark.


Burning Down the House

Speaking of good historians: Princeton historian Julian Zelizer has a new book that I’ve been reading, the story of how Newt Gingrich totally messed with Washington and the House of Representatives.

Jeff Shesol reviewed the book in the Washington Post.

“Gingrich had little interest in ethics, except as a cudgel. His own conduct, personal and political, was far from exemplary. But as Zelizer writes, he had ‘a central insight: the transformational changes of the Watergate era . . . could be used to fundamentally destabilize the entire political establishment.’ Post-Watergate reforms, designed to open up the closed doors of the Capitol and let the sunlight in, gave Gingrich an arsenal of weapons. Public hearings were an opportunity to drag reputations through the mud. Ethics investigations were a means to portray legislative dealmaking as a venal, vaguely criminal act. C-SPAN, a product of the reform movement, became a forum for character assassination, unfiltered, in prime time.”

The full review is here.

Thanks, as always, for reading. All the best.

Supreme Court

Ginsburg, the Senate and the Court

Courts are not leaders in social change. They follow after movement in the larger society. That was true with respect to racial justice. It’s true, now, with the women’s movement. It’s true with the LGBTQ movement. How long that discrimination lingered when people were hiding in closets. Change occurred only when they came out and said, “This is who we are, and we’re proud of it.” Once they did that, changes occurred rapidly.

Justice Ruth Bader Ginsburg 

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Justice Ruth Bader Ginsburg

Before the politics takes over completely – it might already be too late – let’s reflect on the person of Ruth Bader Ginsburg and her remarkable story of courage and perseverance.

“Born the year Eleanor Roosevelt became First Lady,” historian Jill Lepore wrote in The New Yorker, “Ginsburg bore witness to, argued for, and helped to constitutionalize the most hard-fought and least-appreciated revolution in modern American history: the emancipation of women. Aside from Thurgood Marshall, no single American has so wholly advanced the cause of equality under the law.” 

And as the Washington Post editorialized: “The America we inhabit today, where women fly military fighter jets, occupy a quarter of the U.S. Senate and account for half of all first-year law students, is a different and better — though still far from completely equal — nation, due in no small part to the courageous career of Ruth Bader Ginsburg.”

There is much to be said – and celebrated – in the life of the second woman to be appointed to the Supreme Court. Better tributes than I can possibly offer had been made since her death on Friday. I recommend this, and this and this

The tenor of our times, sadly, means the celebration and mourning of the legendary RBG gave way almost immediately to the rank political rush to determine who might replace her. It is an unsightly, indeed gross example of how far into crisis our democracy has fallen. 

It shouldn’t be this way, it doesn’t have to be this way. Make no mistake if the effort to fill a Supreme Court seat moves ahead as it now looks likely it will – weeks before a bitter and contentious presidential election where the majority in the Senate also stands in the balance – the outcome will almost certainly spell disaster for the Court, the Senate and the country. 

It is a moment when democracy and fairness and the future demand something that seems wholly absent from our politics – restraint. 

——-

Given the current state of our politics, it is surprising – really surprising – to recall that Ruth Bader Ginsberg was confirmed as an associate justice of the United States Supreme Court in 1993 by the astounding Senate vote of 96-3

You read that right, three very conservative Republican senators – Helms of North Carolina, Nickles of Oklahoma and Smith of New Hampshire – voted “no” on her confirmation. The rest of the Senate said, yes. 

Associated Press story from 1993

Hard core conservatives like Orrin Hatch of Utah, Larry Craig of Idaho and even Strom Thurmond of South Carolina found the diminutive judge worthy of breathing the rarified air of the Supreme Court. 

Ginsberg’s confirmation when it finally happened was a big story, but not a huge story. The New York Times featured a photo of RBG on its front page – August 4, 1993 – but the full story was relegated to page eight in the “B” section of the paper. Not exactly high profile. 

The Times cover that day was given over to Bill Clinton’s struggle to pass his budget and tax plan and the looming genocide in Bosnia. The confirmation of arguably one of the most significant Supreme Court justices in America history was, well, kind of an afterthought. No one really believed that Ginsburg – scholar, advocate, respected judge – was not fully qualified by experience, character and temperament to serve. Her subsequent years on the Court proved the wisdom of that judgment

But now the political discussion is about whether the Court will have a 6-3 conservative majority, whether an anti-abortion, anti-Affordable Health Care Act majority can be created, whether the Court will be favorable to conservatives for a generation or more. Needless to say, this does not seem like the way a democratic system selects judges who will enjoy widespread public confidence. 

Dave Leonhardt in the New York Times has an excellent rundown of Supreme Court politics since 1968 when Lyndon Johnson’s pick to replace retiring Chief Justice Earl Warren was rejected by the Senate on grounds that Justice Abe Fortas’s ethical behavior disqualified him. Richard Nixon, instead, made the appointment after the election of Warren Burger and the Court began a long-term turn to the right. 

I won’t recount all the history here but will note that both parties have played this ideological game from at least 1968. In retrospect the bruising fights that kept Robert Bork off the Court and put Clarence Thomas on deeply shook the Senate. Each subsequent fight has its roots in the previous nasty confrontation.

As a result, the confirmation spotlight has shifted over time from questions of basic competency and experience to pure ideology. That Thomas and the newest justice, Brett Kavanaugh, were credibly accused of sexual misconduct further inflamed the process, with Republicans placing the conservative qualifications of a Court candidate over any possible question of character. 

So, both parties share the guilt for where we are, but there is little doubt that Republicans have played the Court games more astutely, more ruthlessly and with what now appears will be one of the most blatant examples of political hypocrisy in modern times.

All the efforts to parse and footnote the Republican position from 2016 when Senate majority leader Mitch McConnell refused for eight months to consider President Barack Obama’s nomination of federal Appeals Court Judge Merrick Garland can be reduced to one word – hypocrisy. Of it you prefer two words – shameless hypocrisy. 

(Writing in The Bulwark, Jonathan V. Last, a conservative, offered another perhaps even more fitting description of GOP strategy. Republicans are, Last wrote, “deploying situational ethics in a nihilistic pursuit of power.”)

Yet, beyond the raw exercise of political power there are things even more important at stake. 

——

The most famous Court fight in American history took place 83 years ago this summer. Franklin Roosevelt, at the absolute zenith of his political power after a landslide re-election in 1936, decided to “pack” the Court. FDR wanted to install six new judges. The Court would have grown from nine members to 15 in one crushing example of presidential power. Roosevelt fully expected that fellow Democrats who dominated the Congress – 76 Democrats sat in the Senate – would happily go along. Many Democrats, after all, owed their political careers to the powerful man in the White House and Roosevelt seemed to command public approval for virtually whatever he wanted to do.

But rather than bend to the president’s will, a move that would have drastically remade the Court and fundamentally called into question its independence, indeed legitimacy, Democrats rebelled. 

The leader of the Senate opposition to Roosevelt’s power grab was a tough, independent progressive Democrat from Montana. 

I wrote a chapter on this fight in my 2019 biography of Senator Burton K. Wheeler. Wheeler, like all politicians, had complicated motives for opposing the extremely popular president of his own party. He disliked Roosevelt personally and politically. Wheeler harbored presidential ambitions. He was given to waging high profile battles, even if the odds seemed long. The guy had courage and conviction. 

Still, the verdict of history gives Wheeler not only a win for stopping Roosevelt’s court packing, but also, I believe, for saving the Supreme Court. He correctly saw that by not tempering his ambitions and by exercising the political power that he clearly possessed, Roosevelt would in effect make the Court subservient to the executive. Balance of power would have been dinted or likely destroyed. 

In this cartoon from 1937, Wheeler is rolling the bowling ball of Chief Justice Charles Evans Hughes at FDR and his attorney general Homer Cummings – National Portrait Galley collection

Wheeler understood that the Court as an institution was more important than any political moment, that the integrity of the Court and the Senate were fundamental to a functioning democracy. 

Roosevelt was furious. He took out his displeasure on those who opposed him, including Wheeler. But by exercising the restraint that Roosevelt ignored, I would argue, American democracy was actually strengthened. The integrity of the Court was preserved. The Senate’s ability to restrain a powerful president was strengthened. The system worked. 

Contrast that with Donald Trump’s comments on Monday: “When you have the Senate, when you have the votes, you can sort of do what you want as long as you have it.” 

Conservative judicial scholar Adam J. White, who has heartily supported Trump’s judicial picks up to this point, puts a fine point on the moment: “Indeed, when the constitutional crisis of our time is a crisis of the failure of self-restraint, that crisis will only end when one side restrains itself at the very moment when it cannot be restrained by the other side. For Republicans, that moment is right now, and the fact that self-restraint would be so painful is itself the best evidence that self-restraint is so necessary.”

The Supreme Court has long been politicized. Judges are, after all, the products of the political process. Neither side in our politics sees the Court in anything other than starkly political terms. The atmosphere is beyond toxic, which is precisely why those in power – with the absolute “right” to act – need to step back. 

We face the political equivalent of the nuclear deterrent strategy of “mutually assured destruction.” A Republican effort to replace Ruth Bader Ginsberg in this way at this time will almost certainly prompt an equal or greater response. Democrats are already calling for “packing the Court,” adding hundreds of new ideologically chosen judges and mandating judicial term limits, among other things. 

What needs to happen – and I’m in no way optimistic it will – is a step back from the certainty that already stressed democratic institutions will be horribly damaged if this unfolds the way it appears it will. 

The word is restraint. A fundamental principle of democracy is that people in power must act in ways that preserve and protect the integrity of the institutions entrusted to their care. Having the power to act sometimes demands not acting.

In our lifetime there has never been a better moment to pause, consider and practice restraint. 

—–0—-

Johnson, Supreme Court

This Is Not Over…

My latest column that run Friday, October 5, 2018 in the Lewiston (Idaho) Tribune.

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Most Americans today won’t recognize his name. When he resigned in disgrace from the U.S. Supreme Court in 1969 he mostly disappeared from public life, remembered now only as a footnote in the evolving story of increasing partisan hostility over membership on the highest court in the land.

It wouldn’t be correct to say that the politicization of the court began with Abe Fortas – judicial nominations are and have always been inherently political – but what happened to Fortas does provide a cautionary tale for today’s Senate as it struggles with the tortured process of assessing Judge Brett Kavanaugh’s fitness for a lifetime appointment.

Justice Abe Fortas

Fortas, like Brett Kavanaugh, was not merely a creature of the political process but a deeply partisan political player who, like Kavanaugh owed his appointment to a flawed process engineered by a flawed president.

Fortas was, like Kavanaugh, a Yale Law grad, and was one of the bright young lawyers who populated the administration of President Franklin Roosevelt. In the 1940s Fortas helped found a high-powered D.C. law firm – today’s Arnold and Porter – where he represented deep pocket corporate clients and maintained his extensive and lucrative political connections.

When his friend Lyndon Johnson needed legal help to make certain his contested 87-vote victory in a 1948 Texas Senate race would hold up under scrutiny he called Fortas. After Johnson won a landslide election as president in 1964, like most presidents he wanted to put his mark on the Supreme Court. Johnson being Johnson, he literally forced Associate Justice Arthur Goldberg off the court in order to appoint his pal Fortas. He was confirmed and that decision seemed, briefly, to cement a liberal lean to the Supreme Court for a long time to come.

But, in a variation of the old line that you can make God laugh by telling him your plans, Johnson – and Fortas –overreached. Badly. When, near the end of Johnson’s presidency in 1968, Chief Justice Earl Warren announced his retirement, LBJ was certain he could replace Warren as chief justice by ramming a Fortas nomination through a Senate controlled by Democrats. Shades of the current controversy – Johnson insisted on speedy Senate action. Don’t ask a lot of questions, he said, just confirm him – quickly.

A famous photo of LBJ giving Abe Fortas “the Johnson treatment”

Conservative southern Democrats and Senate Republicans refused to go along with the hurry up process, particularly after it was disclosed that Fortas had been the beneficiary of a sweetheart deal that paid him a tidy sum to teach at American University, a deal not financed by the college, but by former clients at his old law firm. It was also revealed that the justice had been a regular advisor to Johnson, counseling the president on PR strategy regarding the war in Vietnam, attending cabinet meetings and even drafting a state of the union speech for LBJ. Fortas, with the surety of a Brett Kavanaugh, dissembled about his involvement and ultimately a Senate filibuster killed his appointment as chief justice.

But even as Fortas stayed on the court, the drip, drip of scandal would not stop. And finally when another sweetheart consulting gig involving a shady friend was unearthed Fortas’s time was up. He resigned from the court in disgrace in the spring of 1969. He died in 1982.

So play this out 50 years later with another highly partisan court appointment. Kavanaugh has left not only a vast and still undisclosed paper trail of his activities and views of the George W. Bush White House, but now has had two appearances before the Senate Judiciary Committee where, to be charitable, he has been at best guilty of less than subtle obfuscation.

The president of the United States has outsourced judicial vetting to the most extreme partisans in the community of GOP special interests who want to complete the full politicization of the court. He has, like LBJ in 1965, looked beyond talent and temperament to put a politician on the bench.

No matter what happens with the Kavanaugh nomination – let’s assume he is narrowly confirmed amid continuing controversy about his past and his truthfulness – the scrutiny, just like with Abe Fortas, will not suddenly disappear.

Judge – Justice – Brett Kavanaugh

There is a better than even chance that Democrats will win control of the U.S. House of Representatives in the fall and a feisty New Yorker by the name of Jerrold Nadler will become chairman of the House Judiciary Committee. Last weekend Nadler seemed to be reaching back in time when he said: “We cannot have a justice on the SupremeCourt for the next several decades who will be deciding questions of liberty and life and death and all kinds of things for the entire American people who has been credibly accused of sexual assaults, who has been credibly accused of various other … wrong things, including perjury. This has gotta be thoroughly investigated. I hope the Senate will do so. If he is on the Supreme Court and the Senate hasn’t investigated, then the House will have to.”

Based upon what the Supreme Court should be – independent, free of obvious partisan taint, above politics to the extent that is possible – it’s easy to see that Lyndon Johnson made a historic mistake in 1965 appointing an unabashed partisan to the court. Johnson knew what he was doing. He wanted his guy in there. History shows us how that turned out. Donald Trump also wants his guy on the court, a judge who has wondered out loud if constraints on presidential power are appropriate and, credible questions of past conduct aside, believes he is being put upon only as “revenge on the behalf of the Clintons.” The lesson is clear: controversial, highly partisan nominees are bad for the court and bad for the country.

In his biography of Abe Fortas, historian Bruce Allen Murphy notes that a portrait of Fortas that once hung in a prominent place in the Yale law school has now disappeared from the New Haven campus. Does a similar fate await a new justice? We’re going to find out.

Borah, Idaho, Supreme Court, U.S. Senate

Kabuki Theater Confirmation…

        Note: I’m pleased to be writing a new weekly piece for the Friday editorial page of the Lewiston (Idaho) Tribune. I’m looking forward to writing mostly about the state’s politics and history based on 40-plus years of being in and around campaigns, politicos, reporters and issues.

         The regular blog will appear here as well from time-to-time.

         I’ve long admired the Trib’s editorial page, an institution in Idaho that most of the state’s political junkies consider a “must read.” The page has long been the home of great editors and writers, including Bill Hall, Ladd Hamilton, Jim Fisher and Marty Trillhaase. I’ll hope to do my small bit to uphold that reputation.

        Thanks…here is the first piece. 

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Idaho’s two Republican U.S. senators will vote soon to confirm Judge Brett Kavanaugh for a seat on the U.S. Supreme Court helping secure a very conservative court for a generation or more. That Mike Crapo and Jim Risch would support a Republican president’s judicial nominee is no surprise. They have eagerly participated in efforts to turn judicial confirmations into just one more hyper-partisan exercise.

Court nominee Brett Kavanaugh

Kavanaugh’s elevation to the Supreme Court likely means the court will become as conservative as any since the 1930s and despite claims that a partisan like Kavanaugh will respect precedent, his appointment could well usher in a raucous period where much long settled law – Roe v. Wade and campaign finance limits, for example – will be up for reconsideration. Where a consensus selection might have reversed the partisan taint now infesting the court a polarizing choice will only make the court more political.

Meanwhile, the notion of “advice and consent” has given way to debate over process and documents. Any pretense that the Senate might actually conduct a bipartisan review of a nominee’s fitness and beliefs now seems as quaint as the concept of judges being above politics.

Both Crapo and Risch expressed support for Kavanagh well in advance of any hearings. Crapo, a member of the Senate Judiciary Committee, the committee that will assess Kavanaugh’s fitness, needed just one meeting to pronounce Donald Trump’s nominee a jurist of “fairness, judgment, and temperament.” Risch was at the White House for the announcement of Kavanaugh’s appointment and immediately said, presumably with a straight face, that the selection reflects “President Trump’s deep commitment to upholding our U.S. Constitution.”

Kavanaugh with Senator Mike Crapo

Other Republican senators, including members of the Judiciary Committee, have actually participated in mock hearings preparing Kavanaugh for his moment under the television lights. Confirmation of this type is a flagrant abandonment of the notion that a co-equal branch of government should actually conduct the type of inquiry required by our Constitution.

While it is true that high stakes judicial nominations have always involved political and partisan considerations – Democrats play the game, as well – Idaho senators in the past often exercised real independence, occasionally even against the wishes of presidents of their own party.

Idaho’s William Borah, never a get-along-go-along Republican, was a senior member of the Judiciary Committee in 1932 when he lobbied Republican President Herbert Hoover to appoint New Yorker Benjamin Cardozo to replace the distinguished jurist Oliver Wendell Holmes. Hoover was reluctant, perhaps because Cardozo, like Holmes, had a reputation for judicial independence. Hoover also hesitated because New York was already represented on the high court. Borah rejected the geographic argument saying Cardozo was a respected national figure as important to Idaho as anywhere else. Borah also wasn’t pushing for a partisan, but for a deeply respected non-political judge. He may also have impressed upon Hoover that he would use all his substantial influence in the Senate to thwart any other nominee. Borah’s independence prevailed and scholars of the court now consider Cardozo one of the greatest justices.

Nevada Senator Pat McCarran and Idaho’s William Borah, both members of the Senate Judiciary Committee in the 1930s.

There is actually a bit of a tradition of Idaho Republicans pushing back against Republican presidents and their court appointments and at times real bipartisanship has prevailed.

Borah, a remarkably independent senator, defied Hoover in 1930 and cast the deciding bipartisan vote against a Supreme Court nominee considered outside the mainstream.

Idaho Republican Senator Herman Welker bucked fellow Republican Dwight Eisenhower in 1955 when he voted against the nomination of John M. Harlan. Welker was locked in a bitter fight with the administration at the time and may have employed his vote to express irritation with Eisenhower, but by today’s standards Welker’s move was a striking example of senatorial independence.

And in 1969 Republican Senator Len Jordan, a pretty conservative guy, joined Democrat Church to oppose Nixon’s nomination of Clement F. Haynesworth. Haynesworth was denied confirmation on a bipartisan basis when evidence surfaced of the judge’s conflicts of interest.

When the Senate confirmed Eisenhower nominee Potter Stewart in 1959 on a broadly bipartisan vote Idaho’s bipartisan delegation – Democrat Church and Republican Henry Dworshak – voted for Stewart.

Nixon nominees – Harry Blackmun and Lewis Powell – received overwhelming bi-partisan support, including from Jordan and Church. Gerald Ford nominated only one Supreme Court justice, John Paul Stevens in 1975, and Church and Republican Jim McClure where part of a unanimous Senate. In the early 1990s Republicans Larry Craig and Dirk Kempthorne supported Bill Clinton nominees Ruth Bader Ginsberg and Stephen Breyer, but since then partisanship has reigned supreme and consensus candidates have disappeared.

Merrick Garland, Obama’s nominee in 2016, who didn’t even get a meeting let alone a hearing.

Crapo and Risch opposed Barack Obama’s nominations of Sonia Sotomayor in 2009 and Elena Kagan in 2010 and both supported the unprecedented decision by the GOP controlled Senate in 2016 to not even hold hearings on Barack Obama’s nomination of a well-regarded moderate, Merrick Garland. Neither senator deigned to even meet with Garland. And after eliminating the filibuster on judicial nominees last year Crapo and Risch were part of the Republican majority powering through Trump’s nomination of Neil Gorsuch.

Sadly confirmation hearings have become a kind of ritualized kabuki theater where all participants play a pre-determined role and where everyone knows the outcome before the opening gavel drops. That is not what the Founders envisioned. The current approach – obsequious deference by Republicans to any Republican nominee and an overwhelming emphasis on partisan consideration – debases the idea of “advice and consent” and will only further erode the independence of the Senate and the Court.

 

Mansfield, Supreme Court, Trump, U.S. Senate

The Decline of National Governance…

     “We need to restore the norms and traditions of the Senate and get past this unprecedented partisan filibuster.” 

Senator Majority Leader Mitch McConnell


One wonders what some of the great figures in U.S. Senate history would make of the events of the last several days. And what would they make of the hypocrisy?

Senator Robert A. Taft of Ohio.

Think about Robert A. Taft, a Republican conservative of the old school, shaking his head in disbelief at senators in both parties again ignoring their political and moral responsibilities, while genuflecting in praise of Donald Trump’s arguably unconstitutional missile strike on a Syrian airbase. This is the same Senate that refused to authorize military action in 2013 after Barack Obama insisted that Congress debate and vote on launching a strike against yet another Middle Eastern nation.

Oh, the Hypocrisy…

To read the justifications for stiffing the president in 2013 and to compare those words to the cheerleading for Trump’s action now is to see (again) in the starkest terms the intellectual bankruptcy – not to mention the hypocrisy – of the modern Republican Party. And now they have pulled the United States Senate down to a new low.

Republican after Republican has rushed in front of the cameras to praise a president who could scarcely find Syria on a map last year and who most serious people know will be unable to fashion a coherent strategy in the wake of his hair trigger launch order. But, no matter. Donald Trump may be a fool, but he’s a Republican fool and we support our president – at least while he remains popular with the Tea Party base.

The ugly little truth is that Congress has systematically frittered away, at least since the early 1950s, its solemn responsibility to provide checks on a president in matters of foreign policy, especially a president’s power to launch a war. This has happened as

White House released photo of Syrian airbase hit by U.S. missiles

Republicans regularly pledge fidelity to a Constitution they simply ignore when it proves politically convenient to do so. Never mind that only Congress can declare war. Forget the hypocrisy of dismissing his predecessor as “feckless,” while offering a blank check to a guy who had to fire his National Security Advisor less than a month into office, who has dismissed the intelligence committee as “Nazi-like, and who can’t get organized enough to appoint key deputies all across the national security apparatus.

Never has the abdication of Congressional responsibility in the area of foreign affairs seemed more serious than now. Never have checks on a dangerous president been more in the national interest.

In a nutshell senators, and I don’t confine this critique exclusively to Republicans, want to praise a one-off missile strike as amounting to tough action, but still provide themselves, for purely political reasons, plausible deniability that they had anything to do with the decision. Make no mistake we have opened a new war in Syria and not a war directed at the stated enemy – ISIS. The target of the missile strike was the murderous regime of Bashar Assad. We didn’t destroy ISIS aircraft with 59 missiles. It was the Syrian air force we were after and perhaps for very sound reasons. If so, Congress must get involved.

If, and almost certainly when, things take a turn for the worse with increasing American involvement in Syria the sunshine patriots in Congress won’t have to justify a difficult vote. That is their real aim. Their hands will be clean if not their conscience. It is a shameless posture and it is not what the Constitution demands, but it works – at least for the moment – to tighten the grip on power of the Senate majority leader and the man in the White House that he further enables.

Mitch McConnell is the perfect leader for the modern Senate. In the same week he is able to protect his caucus from having to make a tough vote on Syria and he manages the Senate rules to placate the 40 percent of Americans who want the Supreme Court to revisit everything from the New Deal to Roe v. Wade.

The Senate Changes…Forever

Imagine the reaction of Mike Mansfield of Montana, perhaps the greatest majority leader in Senate history, to the Senate changing its rules merely to put a very, very conservative judge on the Supreme Court. And the majority set about changing the rules after refusing for nearly a year to even consider the nomination of a moderate jurist, a judge appointed by a president of the opposing party.

The Senate as a political institution, while never close to perfect, has frequently in our history transcended the petty partisanship of the moment in order to provide genuine leadership that reflected the broad public interest. Not any more.

One day historians will look back on this period and find fault, I suspect, with small-minded leadership in both political parties, but they will reserve their greatest contempt for the Senator from Kentucky.

The Atlantic’s James Fallows, hardly a blind partisan, but a long-term and nuanced observer of American politics, recently did his own Twitter summation of what I’ll call the Reign of the Partisan. Fallows said we would look back on the current time and mark the “decline in national governance” to Mitch McConnell’s actions beginning in 2006.

While in the minority then McConnell “routinized the filibuster in [an] unprecedented way.” It is a modern myth that the filibuster, the need for a super majority of 60 senators to cut off debate and bring an issue to a vote, has always and routinely been invoked in the Senate. It hasn’t. McConnell made the filibuster routine.

Majority Leader Mitch McConnell

Now in one of the rawest displays of partisan political power in the history of the Senate McConnell engineered a change of the filibuster rules in order to push through Donald Trump’s Supreme Court pick. And, of course, the action was taken in the wake of McConnell unilaterally refusing to consider any Court nominee from Obama.

I know, I know, Democrats earlier changed filibuster rules for other judicial positions and a guy named Chuck Schumer has used the filibuster on judicial nominees for purely partisan reasons. As lamentable as that action was when Democrats did it McConnell’s action now is of an entirely different degree of seriousness and partisanship. Invoking the so called “nuclear option” will change the Senate permanently and for the worse – and yes it can get worse – will deepen tribal partisanship and has finally settled the question of whether the Supreme Court has become just another partisan branch of the government. It has.

U.S. Senate chamber

Yet changing the Senate rules is hardly all that McConnell hath wrought. After Obama’s election in 2008 McConnell said his own “measure of success,” as Jim Fallows says, “would be denying [Obama] a second term.” From day one he was all about obstruction by any means in order to thwart the Obama presidency. The idea of compromise, any notion of working together on national priorities was cast to the winds in favor of raw partisanship and a GOP majority.

[McConnell, we now know, was also the main hold out in Congress that prevented an earlier and stronger pre-election response to Russian interference in the presidential election. You have to ask why he was reluctant to send a strong signal about all that, but I think you know the answer.]

I listened closely to the arguments advanced by both sides in the run up to the change in Senate rules that paved the way for Judge Neil Gorsuch to slip comfortably into Antonin Scalia’s old seat on the high court. I came away stunned by the shallowness of the logic on both sides. What neither side could say, but what is demonstrably true is that there is simply no middle ground left in American – or Senate – politics. Partisanship rules on absolutely everything. If our guy does it that’s fine. If the other guy does it, well that’s an outrage.

The filibuster, or more correctly the idea of “unlimited debate,” exists for two basic reasons: to protect the rights of the minority and to force compromise and political accommodation on contentious issues. Was the practice abused before McConnell weaponized it? Of course it was, but until relatively recently the idea of seeking some degree of political consensus on something as serious as going to war or giving lifetime tenure to a Supreme Court judge wasn’t as unthinkable as it has now become. If you are looking for someone to blame for this disgusting toxicity you can start with Mitch McConnell.

As the Washington Post’s Dana Milbank put it: “By rights, McConnell’s tombstone should say that he presided over the end of the Senate. And I’d add a second line: ‘He broke America.’ No man has done more in recent years to undermine the functioning of U.S. government. His has been the epitome of unprincipled leadership, the triumph of tactics in service of short-term power.”

Trump and McConnell: The Clueless and the Cynical

The cynicism of McConnell and his commitment to raw power is actually most clearly on display in his response to Donald Trump as president. McConnell is not stupid and he is certainly smarter than the current occupant of the White House. McConnell knows Trump is an arrogant fool, not a conservative and clueless on anything like real policy. But Trump is also, to use the old Communist putdown, “a useful idiot,” a means to an end for the Senate leader.

McConnell enables and encourages a man he knows to be unfit because Trump means power, particularly to remake the Court. And, of course, McConnell’s wife is in the Cabinet in a useful position at the Transportation Department where, should there be a big infrastructure bill in the future, the money will flow. McConnell is deeply cynical, but he knows an opportunity when he sees it. He’s going to make the most the Trump presidency for as long as it lasts.

Ironically, McConnell’s final wrecking of the Senate as a functioning institution fits perfectly with the near complete destruction of the old conservative Republican Party that Trump has engineered. This point was well made by Princeton historian Sean Wilentz in a recent piece in Rolling Stone. That article dissected Trump’s obvious and extreme case of narcissistic personality disorder, but also touched on the political crisis that McConnell and Trump have created and now preside over.

“It’s a sign, actually, of how severely we need functioning parties,” Wilentz said. “Because when they work, they are in fact a check on the emergence of this kind of character [Trump]. You can’t get where Trump is now in a functioning party system. It took this particular political crisis, which was a political crisis, to produce a president who has this trait. Normally, we can weed them out.”

Mitch McConnell has consistently played to the worst instincts of the Republican base. He’s never missed a chance to deepen the partisan divide. His strategy is all about the next election, never about the next generation. McConnell – and Trump for that matter – are the perfect characters to stand at center stage while national governance disappears faster than factory jobs in the Rust Belt.

Bob Taft and Mike Mansfield would not recognize the place we inhabit or the Senate Mitch McConnell has made. In fact one suspects they would be appalled. But no matter. McConnell is winning even if the country isn’t.

2016 Election, Supreme Court

Waiting for President Trump

 

    “I believe the overwhelming view of the Republican Conference in the Senate is that this nomination should not be filled, this vacancy should not be filled by this lame duck president.” 

Senate Majority Leader Mitch McConnell

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Barack Obama has confounded his political foes by nominating a moderate, consensus-focused, precedent-deferential federal judge to the United States Supreme Court as a replacement for the late Justice Antonin Scalia.

Judge Garland and President Obama
Judge Garland and President Obama

Federal Circuit Court of Appeals Judge Merrick Garland is, in short, just the kind of justice we should want on the Supreme Court. With the Court increasingly becoming just another venue to practice a judicial version of our toxic partisan politics, the Garland nomination should be an antidote that begins to correct the broad impression that judges are just politicians in robes. But Mitch McConnell and Company have ruled that out on the completely specious grounds that Obama’s term ended last year and any nomination to the Court is just politics, nothing more or less.

Not that most politicians would waste a split second thinking about what rank partisanship does to public confidence in the judiciary, it is worth nothing that confidence in the Court has been steadily eroding for thirty years according to data from the Pew Center. Those declines correlate nicely – or depressingly – with the partisan battles over the Court that stretch at least back to Robert Bork.

Even Chief Justice John Roberts thinks the confirmation “process is not functioning very well.” Call that a judicial understatement.

All the players have the judicial blood of petty partisanship on their hands. Politicizing the Court is one thing Republicans and Democrats agree upon, even as McConnell and his not-so-merry band lead us into a wholly new judicial confirmation cul-de-sac. Both sides have mined the depths of confirmation history to try and find any weak precedent on which to hang the current partisan fight, but the Republican logic – that the “people” need to be heard and no nominee can be considered until after the election – is particularly devoid of intellectual honesty. In his newfound role as a Republican truth-teller, South Carolina Senator Lindsey Graham admitted as much.

“We’re setting a precedent here today, the Republicans are, that in the last year — at least of a lame-duck, eight-year term, I would say it’s going to be a four-year term — that you’re not going to fill a vacancy on the Supreme Court, based on what we’re doing here today,” Graham said. “That’s going to be the new rule.”

Even if the late Justice Scalia often ignored precedent that didn’t correspond with his personal views of the Constitution, don’t count on the U.S. Senate to ignore in the future the path they have now set for themselves in 2016. The Court becomes one more partisan pawn. It wasn’t always so, or at least it wasn’t always as bad as it is now.

Searching for Precedent…

Republicans have correctly pointed out that it was one hundred years ago when a president of one party had a justice confirmed by a Senate controlled by the other party. The president was Democrat Woodrow Wilson, who actually made two appointments in 1916 – an election year – and both were confirmed. One of those appointments, Louis Brandeis, was controversial. Brandeis was not only the first Jewish member of the Court, but a renowned progressive who had made his career opposing monopoly and the abuses of unregulated capitalism. Still, Brandeis was confirmed by a Republican controlled Senate and went on to become, by most every measure, one of the greatest justices in the history of the Court.

Charles Evans Hughes
Charles Evans Hughes

But consider for a moment the other vacancy Wilson filled in 1916, the seat vacated by the resignation of Associate Justice Charles Evans Hughes. Hughes, the former Republican governor of New York, resigned his Supreme Court seat in order to run for president against Wilson, arguably one of the most partisan acts by any member of the Court in our history.

Hughes narrowly lost that election and then slipped easily back into Republican politics. He served as Secretary of State under Presidents Harding and Coolidge, represented Wall Street and big business interests as an attorney – Hughes argued more than 50 cases before the Supreme Court – and might have been a presidential candidate again in 1928 had he not declined citing his age.

As more proof that the current Senate politics of rejection by inaction is truly unprecedented, consider Hughes’ return to the Supreme Court in 1930, as the nominee to become chief justice, appointed by the beleaguered President Herbert Hoover. With the catastrophic impacts of the Great Depression settling over the nation, Hoover appeared more and more like a one-term president, even two years before another election and his appointment of a partisan Republican, not to mention a big-time corporate lawyer like Hughes, was too much for a bipartisan group of Senate progressives. They determined to oppose Hughes, perhaps the most broadly qualified person ever appointed to the Court.

Still, there was no talk or apparently even any thought to not bringing Hughes’ nomination to a vote and certainly no hint that senators who opposed his appointment would filibuster. Instead the Senate did what the Constitution calls for – it offers advice and consent (or if it doesn’t like the nominee for whatever reason it withholds its consent).

Idaho Republican William E. Borah led the Senate opposition to Hughes. While admitting that Hughes was “a man of high standing” and a person “of wide reputation and acknowledge ability,” Borah said he was also an unreconstructed big business Republican whose views should not be made “a permanent part of our legal and economic system.”

Hughes: An Example of the Sweet Irony of Politics 

Hughes was confirmed and served with great distinction until 1941. When Franklin Roosevelt attempted to “pack” the Supreme Court in 1937, Hughes quietly and effectively made common cause with Borah and others who had once objected to his confirmation. Hughes’ role in those pivotal events, as well as his often progressive record on the Court is a prime example of the sweet irony or unintended consequences that can occasionally grace the grubby business of politics, and judicial appointments.

Benjamin Cardozo
Benjamin Cardozo

Herbert Hoover made another Court appointment in 1932, a decision made much closer to the election of 1932, which he subsequently lost to Roosevelt. That appointment, suggested by Borah – talk about advice as well as consent – was of Benjamin Cardozo, a brilliant legal mind who Hoover initially thought was too liberal to be considered. Borah convinced the president of Cardozo’s merits and he also turned out to be a great justice.

Politics can never – and perhaps should never – be completely removed from any president’s decision about any Supreme Court appointment, but for the process to work as the Founders envisioned everyone has to play their role, and play it responsibly. Obama has made a superlative choice in an awful time of political upheaval – a judge of proven ability, upmost integrity, not a political choice, but rather a nominee who would normally be seen as a moderate, consensus-demanding choice. In other words, just the kind of person we need on the Court, The Senate should rush to confirm him.

The political commentator Ezra Klein puts it more starkly. By edging ever closer to the nomination of Donald Trump and playing blatant partisan politics with the Supreme Court, the GOP has adopted a position “that they will refuse to confirm any nominee, no matter how qualified or appealing, until the next president is inaugurated. In practice, what this means is they are hoping to hold the Supreme Court vacancy so it can be filled by … President Donald Trump.”

Klein quotes the prescient observations of Congressional scholars Norm Ornstein and Thomas Mann. “The GOP has become an insurgent outlier in American politics,” as they wrote in an important 2012 book. “It is ideologically extreme; scornful of compromise; unmoved by conventional understanding of facts, evidence and science; and dismissive of the legitimacy of its political opposition.

“When one party moves this far from the mainstream, it makes it nearly impossible for the political system to deal constructively with the country’s challenges.”

Those who follow Mitch McConnell blindly into this dark partisan political thicket are playing with fire and one suspects many of them know that. They will live to rue the day they refused even to consider a demonstrably qualified and moderate appointment. They may think it can’t get worse. They would be wrong.

The November election will determine the shape of the Supreme Court for a generation or more. Mitch McConnell is betting the country on Donald Trump. Would you bet even a Starbucks latte that Trump has any clue about what a Supreme Court appointee ought to look like?

 

2016 Election, Civil Rights, Cold War, Eisenhower, Film, Idaho Statehouse, John Kennedy, Johnson, Judiciary, Nixon, Russia, Senators to Remember, Supreme Court, Vice Presidents

The Rules Matter…

Director Steven Spielberg’s latest offering – Bridge of Spies – works on several levels as his best films tend to. In fact, it may be one of his very best films.

Mark Rylance as Soviet spy Rudolf Abel and Tom Hanks as his attorney James B. Donovan
Mark Rylance as Soviet spy Rudolf Abel and Tom Hanks as his attorney James B. Donovan

The movie is a classic big screen thriller with adequate action and suspense. It’s a finely tuned period piece (mid-century modern) complete with old cars, vintage billboards, and “duck and cover” filmstrips.

Bridge of Spies is also an actor’s movie with superb performances by Tom Hanks and Mark Rylance, perhaps the world’s most acclaimed stage actor, and a talent that will be new to many movie goers.

And since this is Spielberg, the film is also an American history lesson.

When the Cold War Was Really Cold…

Hanks, who seems to hit his stride when working with Spielberg, plays New York attorney, James B. Donovan, who improbably becomes the key player in arranging a celebrated Cold War prisoner swap between the United States and the Soviet Union. The action is set at the end of the Eisenhower Administration and continues on into the Kennedy years – days of the Berlin Wall, the Bay of Pigs, the Cuban Missile Crisis, and spy versus spy.

The key figures in the prisoner swap – again all true – were the young American Air Force lieutenant Francis Gary Powers, who is appropriated to fly spy planes for the CIA, and the notorious Soviet spy, Colonel Rudolf Abel.

Francis Gary Powers with a model U-2 spy plane after his release from a Soviet jail in 1962
Francis Gary Powers with a model U-2 spy plane after his release from a Soviet jail in 1962

Powers became a Soviet prisoner in May 1960 when his U-2 spy plane was shot down in the Ural Mountain region of the Soviet Union during a photography run. Powers survived the crash – great scene in the movie – and was captured by the KGB.

The Eisenhower Administration originally tried to pass off the incident as a wayward weather aircraft, but the Soviets produced wreckage of the super-secret U-2 and Soviet Premier Nikita Khrushchev reaped an international propaganda windfall. A summit meeting in Berlin was cancelled and efforts to improve U.S.-Soviet relations were temporarily derailed. It was a major international incident that also had the human dimension of a young American with a head full of secrets about U.S. spy activities sitting in a Russian jail.

Earlier, in 1957, after a long string of events that read, appropriately enough, like something out of John Le Carre, the FBI and Immigration and Naturalization Service identified Colonel Abel as a Soviet spy who had been operating in the United States for some time. Abel was arrested in Brooklyn, tried, and convicted of espionage. The New York lawyer, Donovan, was appointed by the federal court in New York to defend him.

The film mangles some of the timeline and a few things are invented out of whole cloth – this is Hollywood after all – but the real power of the story and its great relevance today is in the courtroom scenes where Abel is first convicted and then loses an appeal before the U.S. Supreme Court.

After seeing and completely enjoying the film, I got to wondering what really happened in the U.S. justice system during the height of the Cold War when the government tried a man thought to be a Soviet spy.

Does a Soviet Spy Deserve Due Process…

The film understandably compresses a good deal of the story, which played out over several years, but makes some powerful and important points in the telling.

A basic question is raised early on when attorney Donovan (played by Hanks) has to confront the dilemma of an upstanding attorney, a pillar of the New York Bar, signing on to do his best to defend a Russian spy. What are the implications for his career, his law firm, his family? I immediately thought about the private attorneys who continue to represent Guantanamo detained terror suspects.

The real Rudolf Abel
The real Rudolf Abel

The film makes us confront whether it is merely enough to give Abel a defense that goes through the motions of due process or whether he deserves a no-holds-barred defense, including appeals on grounds that his hotel room and apartment were improperly searched.

At one point a CIA operative shadows Donovan in order to question him about what his client has been saying. Donovan, in one of the film’s best moments, tells the CIA fellow that he won’t – indeed can’t – talk about what his client is telling him since it is protected by attorney-client privilege. There are rules, Donovan says, most importantly the Constitution that make our system different than the system that is detaining Gary Powers.

Abel’s case, both in the film and real life, eventually reaches the Supreme Court over the question of the lack of a proper warrant that specifically authorizes a search the defendant’s rooms. Give Spielberg credit, he even gets the Supreme Court courtroom correct. Abel’s case was argued, actually twice, in 1959 and the courtroom has since been remodeled.

The case turned on a complex question about whether a warrant for an “administrative arrest” – Abel was actually arrested by the immigration service after being detained and questioned by the FBI – allowed the subsequent FBI search of his rooms. The celebrated Justice Felix Frankfurter wrote the rather technical 5-4-majority opinion upholding the legality of the search and Abel’s conviction stood.

This is a notorious case, with a notorious defendant…

As is often the case, the dissents in such cases make for better reading and offer more insight into the workings of our justice system. Justice William O. Douglas wrote one of the dissents in the Abel case and Justice William J. Brennan another.

Mr.  Justice Douglas
Mr. Justice Douglas

“Cases of notorious criminals—like cases of small, miserable ones—are apt to make bad law,” Douglas wrote in his dissent, which was joined by Justice Hugo Black.

“When guilt permeates a record, even judges sometimes relax and let the police take shortcuts not sanctioned by constitutional procedures. That practice, in certain periods of our history and in certain courts, has lowered our standards of law administration. The harm in the given case may seem excusable. But the practices generated by the precedent have far-reaching consequences that are harmful and injurious beyond measurement. The present decision is an excellent example.”

Douglas was saying sure this Abel is a Soviet spy – a notorious criminal – but the rules apply to him just as they apply to “small, miserable” law breakers.

“If the F.B.I. agents had gone to a magistrate, any search warrant issued would by terms of the Fourth Amendment have to ‘particularly’ describe ‘the place to be searched’ and the ‘things to be seized,’” Douglas wrote. “How much more convenient it is for the police to find a way around those specific requirements of the Fourth Amendment! What a hindrance it is to work laboriously through constitutional procedures! How much easier to go to another official in the same department! The administrative officer can give a warrant good for unlimited search. No more showing of probable cause to a magistrate! No more limitations on what may be searched and when!”

Brennan was just as pointed: “This is a notorious case, with a notorious defendant. Yet we must take care to enforce the Constitution without regard to the nature of the crime or the nature of the criminal. The Fourth Amendment protects ‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ This right is a basic one of all the people, without exception…”

Real American Exceptionalism…

The court case and the film also make the fundamental point that Abel, not a U.S. citizen, still enjoyed the full protections of the country’s justice system, a point worth pondering as the terror suspects sit year after year in Cuba.

President Kennedy with James B. Donovan who also negotiated return of Bay of Pigs captives
President Kennedy with James B. Donovan who also negotiated the return of Bay of Pigs captives

Rudolf Abel languished in U.S. prisons until early 1962 when the Donovan-brokered exchange took place on a bridge dividing East and West Berlin. That bridge gives the film its title. The New York attorney was publicly acknowledge by the Kennedy Administration as having helped make the arrangements.

The negotiations over the swap are some of the best moments of the film and, intentionally or not, Spielberg shows that the New York insurance lawyer who became an Cold War negotiator turned out to be a lot better high stakes deal maker than his CIA minders.

The film is already getting some Oscar buzz – it is certainly worthy – if only for its deft storytelling and the great performances. Mark Rylance’s portrayal of Rudolf Abel is nothing short of brilliant. And the script by the Cohen Brothers is first rate. A typical Cohen touch is the reoccurrence of Abel’s response when his lawyer asks him if he’s worried or afraid: “Would it help?” That has become my new mantra.

As good as the movie is as entertainment here’s hoping a few enterprising high school (or college) teachers use the film in class to make the more important points about our justice system and our history.

The hero in the film is, of course, attorney Donovan, a man mostly lost to history whose role in Abel’s trial and in the spy swap may now finally enjoy some long overdue recognition. Donovan, who died in 1970, spent years working on the Russian spy’s defense and appeals and donated half his $10,000 fee to Fordham University and split the rest between Harvard and Columbia. Setting aside the Abel case and the spy swap, the rest of Donovan’s career – naval officer, Nuremberg prosecutor, New York board of education member, U.S. Senate candidate – was truly incredible. A great American story.

Even though he lost at every level Donovan said after the Supreme Court ruling, “The very fact that Abel has been receiving due process of law in the United States is far more significant, both here and behind the Iron Curtain, than the particular outcome of the case.”

That one sentence says a lot about why we won the Cold War.