2016 Election

Mr. Justice Souter

We are soon to witness the latest chapter in the by now completely predictable theatre that passes for a U.S. Senate confirmation hearing for a new justice for the Supreme Court of the United States.

In a remarkable speech recently at the Harvard commencement, retired Justice David Souter provided the most thoughtful guidebook for how we ought to consider the business of judging that I have seen in a long time. All the participants in the coming production – Elena Kagen, the nominee, the Senators who will pass judgement on her qualifications, and the media who will cover the drama – should take a few minutes and read Souter’s speech.

This was not your typical “wear sunscreen” commencement speech and may well have left the Harvard crowd thinking that they had to endure the final boring lecture. But, in truth, Souter offered up a classy essay on how judges can – if they can – think about their jobs and the Constitution. One analyst called it a speech for the books that rivals some of the legal thinking of the great Oliver Wendell Holmes.

After noting the obvious that the Constitution contains many general statements about values that are by necessity somewhat vague, Souter said: “the explicit terms of the Constitution, in other words, can create a conflict of approve values, and the explicit terms of the Constitution do not resolve that conflict when it arises.”

The former New Hampshire attorney general then said, “a choice may have to be made not because language is vague but because the Constitution embodies the desire of the American people, to have it both ways…”

Souter was, in his kindly, scholarly way, slipping a knife into the “original intent” notion of how the Constitution must be read and applied.

Long-time Supreme Court watcher, Linda Greenhouse wrote on the Times on-line that Souter carefully did not mention Justice Antonin Scalia during his Harvard talk, but that he must surely have had the outspoken Scalia in mind when he said the modern world requires a flexible Constitution that assesses the words in the document but also considers the contemporary facts of society.

If Senators Pat Leahy or Orrin Hatch want to do the country a favor when they have judge-to-be Kagen in their confirmation sights soon, they would do well to ask her if she’s read Souter’s speech and, more importantly, what she makes of his legal thinking.

Even better, here’s hoping the Senators read the speech. It would be good preparation for judging a judge. Questions based on Souter’s speech would be a decided improvement above and beyond the usual fare served up during the typical confirmation theatre. I won’t be holding my breath, but I have a notion that Souter has said some important things with real lasting value to this incredibly important debate.

Many Great Ones Weren’t, Either

The early line of attack against Supreme Court nominee Elena Kagan seems to be focusing on her lack of “judicial experience.” Senate Minority Leader Mitch McConnell, among others, voiced that concern after President Obama announced her appointment Monday.

While Texas Sen. John Cornyn was lamenting Kagan’s lack of judicial chops, someone was remembering that he thought George W. Bush’s nominee Harriett Miers lack of the same was just fine.

Lots of water to go under this confirmation bridge, but the “lacking judicial experience” line, from an historical perspective, doesn’t hold water. The history of the nation’s high court is a story of many celebrated justices who donned the black robe for the first time only after they joined the Committee of Nine.

Consider these names, just in the 20th Century:

Chief Justices Harlan Fiske Stone, a law school dean, like Kagan, and then Attorney General before going to the court. Or, Chief Justice William Rehnquist, a Justice Department lawyer, before becoming a Justice. Hugo Black a U.S. Senator. William O. Douglas, a senior federal official with no judicial experience. Louis Brandeis, Felix Frankfurter, Lewis Powell and Earl Warren, all without prior judicial experience and all who became celebrated justices of the U.S. Supreme Court.

In fact, every president from FDR to Nixon appointed at least one justice without prior experience on the bench.

Given the extreme partisanship that surrounds all judicial nominees, Kagan will have to run the confirmation gauntlet and answer questions about everything she has ever said, written or done. Fair enough. It is a life-time appointment, but not being a judge – as American history shows – certainly shouldn’t be a prime factor in the confirmation test. Until fairly recently it hasn’t been much of a consideration at all.

By the way, for students of the Supreme Court, the SCOTUSblog may be the best source around for really good information on the nominee, what she has said and done and what others are saying about her.

Nope, Not Hillary…Bill

I know, I know, the 42nd President of the United States of America totes around just a little baggage – that whole impeachment thing – but appointing him to the Supreme Court may not be as crazy as it seems at first blush.

Consider four reasons why it would make sense for Barack Obama to put the former president where no former president has been since Warren Harding put William Howard Taft on the court in 1921.

1. Obama needs a politician as much as a judge. Since he announced his retirement, much of the commentary about the long and distinquished career of Justice John Paul Stevens has focused on his remarkable ability to work the inside game on the Court, create a majority from time-to-time, provide intellectual leadership and craft the brilliant dissent that might eventually lead to a majority. Even his worst detractors would have to admit that Bill Clinton is a great politician; the smoozer in chief. You can just see him walking over the Justice Anthony Kennedy’s chambers and working his magic. Obama needs a person with Clinton’s political and personal skills to try and replace Stevens.

 

2. Clinton is a still young 64. If he lays off the cheeseburgers, he could spend a decade or more on the Court and be a huge player from the first day. We have no real tradition in America of getting value out of former presidents. We should. They leave office and are left to their own devices to find a way to put all the experience gained in the Oval Office to beneficial use. As a country, we invested a lot in the guy. Might as well get our money’s worth.

 

3. Obama will want to appoint a liberal to the court, but must be careful not to appoint too much of a liberal. Clinton would bring to the confirmation process a legitimate resume as a centrist, but with a liberal’s instinct for social justice and real sensitivity to race and class. The guy is a moderate southern liberal to the soles of his big feet. Obama would get his liberal without the obvious confirmation battle that would come by naming some liberal Appeals Court judge with a long paper trail. In spite of Monica, Clinton is emminently confirmable. Is the GOP senate really going to filibuster a guy who was the only Democrat since Franklin Roosevelt elected to two terms? His favorability late last year was 64%, a darn sight better than anyone else in public life these days. Added plus: the confirmation hearing will be must watch TV. I can’t wait for the questions from Jeff Sessions and Orrin Hatch.

 

4. Finally, being on the Court would be good for the guy and good for his wife. Clinton has established his foundation and done good work on AIDS prevention and other issues, but his portfolio as a former president is limited. Being the new guy, the new intellectual heft on the Court, might give him real purpose. Add to that the fact that more even than now, with Hillary at the State Department, he would need to mind his P’s and Q’s. Purpose for him, room for his wife. A twofer.

I’m betting Bill Clinton has never thought of Will Taft as a role model, but he should. Taft, the former president, became a hugely influential member of the Court. Of course, Taft had the advantage of being Chief Justice, but do you think for a minute that current Chief John Roberts wouldn’t be taken aback – intimidated even – by Justice Bill Clinton, every bit his intellectual equal, sitting in conference with him. It might be enough to open the Court to C-SPAN. With his political knowledge, international reach and good ol’ boy smarts, Clinton will quickly become the intellectual force in the Committee of Nine that is the Supremes.

I won’t be holding my breath for this appointment to happen, and its much more likely that a Clinton on the Court would be named Hillary, but if Obama really wants to make his mark on the Supreme Court for a long time to come, he won’t find a bigger or more effective justice than Elvis, the former president that is.

The Liberal Seat on the Court

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

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

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

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

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

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

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

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

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

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

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

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

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

Is It Time to Rein In the Court?

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

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

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

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

Citizens United v. FEC

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

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

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

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

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

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

An Activist Court

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

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

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

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

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

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

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

More Power to the Court

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

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

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

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

Criticising the Court Has a Long History

The curious ritual that has become a feature of a president’s State of the Union speech – the black robed justices of the United States Supreme Court sitting rigid, formal, unsmiling and strictly non-partisan in the front row of the House Chamber – assumed a good deal more relevance last week. President Obama looked down on the justices, at least the six who attended his speech, and let them have it over the Court’s recent decision to unshackle corporate money in American politics.

The cameras caught Justice Samuel Alito mouthing the words “not true” as Obama used the biggest stage in politics to tell the court to its many faces that it was wrong.

The encounter, if that’s indeed the right word, ginned up plenty of commentary. The reaction generally ranged from one extreme – “Obama was out of place” openly criticising the court – to the other – Alito’s reaction was only slightly less bad mannered than Rep. Joe Wilson shouting “you lie” to the president during an earlier speech on health care reform.

In truth, presidential – or for that matter legislative – criticism of the nation’s highest court is almost as old as the Republic and why shouldn’t it be? The court holds enormous sway over American life and, as we witnessed recently, the confirmation of a new justice has become the biggest vetting process in politics outside of the grueling primary gauntlet we put our would-be presidents through.

A little history.

In 1935, Franklin Roosevelt was so exasperated with the then-Supreme Court lead by Chief Justice Charles Evans Hughes that FDR spent more than an hour at a news conference berating the Court for its decision overturning most of the National Industrial Recovery Act (NRA), the centerpiece of the president’s legislative effort to combat the Great Depression. The Court ruled that the NRA had improperly attempted to regulate interstate commerce.

The White House worked differently in those days and a president’s news conference was “off the record,” meaning reporters could not quote him directly without express permission. The White House press corps was so astounded by FDR’s tirade against the Court that they badgered press secretary Steve Early until he agreed to let them use just one of FDR’s choice lines that has since gone down in history. The Court, Roosevelt said, was returning the country “to the horse and buggy era” of interstate commerce.

This was the Court that, among others, the flamboyant Louisiana Senator Huey P. Long referred to as the “nine old men.” When Long learned that the Court had finally taken up residence in its elegant new building across the street from the Capitol, and that the cost of the grandly columned structure was $9 million, he sneered, “a million dollars a piece for nine old men.”

During the Civil War, the great Lincoln assumed vast war powers and virtually ignored the Supreme Court, defying and marginalizing Chief Justice Roger Taney. Lincoln was so unconcerned about the sensitivities of the Court that while the Chief Justice was gravely ill he aggressively promised Taney’s job to his own problematic Treasury Secretary Salmon Chase.

In an earlier day, Thomas Jefferson fought openly with the Court and referred to the Constitution becoming “a mere thing of wax” in the hands of judges.

Dwight Eisenhower is remembered more and more as a “near great president,” not least for his appointments to the Supreme Court of Earl Warren and William Brennan, but he was fierce critic of the Court. Eisenhower fumed privately over the Court’s landmark Brown v. Board of Education desegregation case in 1954 and spoke bitterly of his disappointment in Warren. Ike also refused to speak out publicly in the aftermath of the Brown case, unmistakably leaving the impression that he disagreed with what is now considered one of the greatest rulings in the history of the high court.

Out of the White House in 1961, Eisenhower was asked if he made any great mistakes as president, to which he replied, “Yes, two, and both are sitting on the Supreme Court.”

In 1937, the the very eve of rolling out his unbelievably controversial plan to enlarge the Court as a means of liberalizing it, Franklin Roosevelt had seven of the nine justices to dinner at the White House. Only the president and a few of his closest aides knew that FDR was planning a direct, frontal assault on the Court by “packing” it with as many as six additional judges hand picked to do his bidding. It was widely reported at the time that the president completely enjoyed the idea of entertaining the “old men” all the while knowing he was shortly to attempt to politically cut their throats.

Presidents have been going after the Court for a long time.

In a provocative book published last year – Packing the Court – the eminent American historian James MacGregor Burns argued that we need more debate, not less, about the role the Supreme Court has assumed in American life. Burns goes so far as to argue that the Court has over two centuries grabbed power far beyond what the separation of powers and a striving for balance call for in the Constitution. In fact, Burns predicts a coming crisis in which the Supreme Court will be the centerpiece in rethinking whether the American people, through their elected representatives, or those unsmiling justices in the House Chamber will finally determine what the Constitution really says.

Without regard to that ominous prediction, a couple of facts seem obvious. The current Court is split 5-4 on many, if not most, issues fundamental to the left. At the same time, the very conservative Roberts Court, as evidenced by its most recent ruling, has turned the old argument about activist judges on its head. Should the Roberts Court willingly continue an aggressive posture, a kind of judicial activism of the right, and overturning 100 years of precedent is by any measure some type of judicial activism, it could signal many new fights over many new rulings in the years ahead.

Given this landscape, it is not a risky prediction to forecast many more rhetorical jabs directed at the Court from the White House and a lot more “not trues” floating back.

Such is our history.

George Sutherland is the only person from the state of Utah to ever serve on the United States Supreme Court. Nominated by President Warren Harding in 1922, Sutherland still holds the record for the fastest confirmation in court history. The entire process – nomination, no hearings and Senate confirmation – took one day.

After being defeated in his bid for a third term in the United States Senate, Sutherland established a Washington, D.C. law practice and developed a friendship with Harding. That close relationship lead to his court appointment.

Sutherland spent 16 years on the high court faithfully opposing almost all expansion of government power. He became the intellectual leader of the “four horsemen,” the conservative bloc on the court that before 1937 rejected much of Franklin Roosevelt’s New Deal legislation. Sutherland retired in 1938.

Supreme Court confirmations have certainly changed since 1922. New justice Sonia Sotomayor’s nomination was announced by President Obama on May 26. She was confirmed today. By my count her confirmation process lasted 72 days.

By the standards of the modern Senate confirmation ordeal the Sotomayor process was speedy, but no threat to George Sutherland’s record. Like Joe DiMaggio’s record of hitting safely in 56 consecutive major league baseball games, the Utahan’s record will never be broken.