Supreme Court

2014 Election, Arizona, Baseball, Cenarrusa, Church, Climate Change, GOP, Human Rights, Idaho, Politics, Supreme Court, Tamarack

Heart and Soul

Posted on by christian

rs_560x415-140224091818-1024.roccos-chicago-pizzeria-arizona-legislators-022414The political and social fault lines in the modern Republican Party have been showing again for the last several days in Arizona. The Republican governor, Jan Brewer, vetoed a piece of legislation this week that was widely seen as opening a path of overt discrimination against gays. The veto came after days of increasingly negative attention focused on Arizona; attention that included corporate worries about the legislation’s impact on business and threats to cancel next year’s Super Bowl game in suburban Phoenix.

Brewer, an often erratic politician who once championed most causes of the far right of her party, took her time in doing it, but she ultimately saved the state’s Republicans from themselves. The hot button bill, pushed by conservative religious interests and passed by the Arizona legislature with only GOP votes, underscores once again the fractured nature and fundamentally minority bent of a Republican Party that vowed to renew itself after losing the White House again in 2012.

Gov. Brewer, who seems to be term-limited from running again in the fall, but still hasn’t said whether she would contest such an interpretation, underwent a full court press from the “establishment” wing of the GOP who called on her to ax the handiwork of Republican legislators. Arizona Republican Sen. John McCain and Jeff Flake both urged a veto. Apple, American Airlines, the state Hispanic chamber of commerce and a pizza shop in Tuscon that vowed to protest by refusing to serve Arizona legislators swarmed the governor. In the end it might have been the National Football League, plagued with its own image problems, that helped the governor decide to do the right thing; the right thing politically, economically, morally and for football fans.

The Republican Party’s national dilemma with issues like Arizona’s gay bashing legislation – and similar legislation in several other states with strong GOP majorities  – is neatly summed up in a comment from Mark McKinnon, the ad guy who made TV spots from George W. Bush in both of his successful elections.

“In this country, the arc of human rights always bends forward, never backwards,” McKinnon, a co-founder of the centrist group No Labels told Politico recently. “So these kinds of incidents are always backward steps for the Republican Party because they remind voters they are stuck in the past.”

Voters are being reminded of that reality in lots of places. In Oregon, some of the state’s most conservative Republicans are blasting the fellow GOP organizers of the 50 year old Dorchester Conference; denouncing them as “liberals” intent on advancing a pro-gay, pro-abortion, anti-religion agenda.

“In light of the unveiled agenda to promote and celebrate liberal causes like abortion-on-demand, pet campaign projects like ‘republicanizing’ same-sex marriage and the attack on people of faith and their religious liberties many of us do not feel that our participation in this year’s Dorchester Conference is welcomed,” one of the offended right wingers told The Oregonian.

In Idaho a conservative former Republican governor, Phil Batt, went straight at his party and Gov. Butch Otter over the state legislature’s failure to even consider legislation to add fundamental human rights protections for the state’s gay, lesbian and transgender population. Batt, with his own gay grandson in mind, wrote in an op-ed: “I would like to have somebody explain to me who is going to be harmed by adding the words to our civil rights statutes prohibiting discrimination in housing and job opportunities for homosexuals. Oh, I forgot, that might hurt the feelings of the gay bashers.”

It seems like a life-time ago that national Republicans, reeling from the re-election of the President Obama, commissioned an assessment of what the party needed to do to re-group in order to effectively contest a national election again. Like many such high-level reports, this one generated about a day and a half of news coverage and went on the shelf never to be read again. The GOP report outlined the demographic challenges the party faces and why the divisive debate in Arizona that quickly went national is so very damaging to party’s long-term prospects. Here are a couple of relevant paragraphs from the GOP’s Growth and Opportunity Book that was produced just over a year ago.

“Public perception of the Party is at record lows. Young voters are increasingly rolling their eyes at what the Party represents, and many minorities wrongly think that Republicans do not like them or want them in the country. When someone rolls their eyes at us, they are not likely to open their ears to us.”

And this: “Republicans have lost the popular vote in five of the last six presidential elections. States in which our presidential candidates used to win, such as New Mexico, Colorado, Nevada, Iowa, Ohio, New Hampshire, Virginia, and Florida, are increasingly voting Democratic. We are losing in too many places.”

In the face of this incontrovertible evidence Republicans have rolled out legislation like SB 1062 in state after state further alienating not only gay and lesbian voters, but likely most younger and independent voters. The GOP refusal at the federal level to even go through the motions of working on immigration reform seems certain to drive more and more Hispanic voters – the fastest growing demographic in the nation – away from Republicans candidates. At some not-too-distant point the political math, even in John McCain’s Arizona, becomes impossible for the GOP.

It is true that in our political history the fortunes of political parties regularly ebb and flow. The Whigs worked themselves out of existence in the 1850’s unable to find a set of positions that might bridge regional and ideological barriers and sustain them a national party. Immediately before and for years after the Civil War Democrats became largely a regional party that failed to command a national majority and elect a president in the years from 1856 until 1884. Teddy Roosevelt split the GOP in 1912 helping elect only the second Democratic president since the Civil War and his distant cousin Franklin, with the help of a Great Depression, created an enduring Democratic coalition – farmers, big cities ethnics, organized labor and the South – that lasted for two generations until moral and political battles over civil rights finally ceded the South to Republicans, a hand-off that now leaves that region as the only dependable base of the Republican Party.

In almost every case in our history when a party stumbles, as national Republicans stumble now, a unifying figure has emerged – FDR for Democrats in 1932 or Ronald Reagan in 1980 for the GOP – to offer a message that smooths over the ideological fissures. In the meantime, and lacking a unifying messenger, national Republican battles played out over the most polarizing issues – witness Arizona – will hamstring the party from moving forward.

Conservative commentator Myra Adams recently detailed ten reasons why the GOP is floundering as a national party. Adams remembered that the much maligned Millard Fillmore – he was president from 1849 to 1853 – was the last Whig Party president and she speculated that George W. Bush might well be the last Republican president. Her reason number nine for the current state of the national GOP was most telling. The party, she wrote, “is growing increasingly white, old, Southern, and male, which alienates majorities of younger voters, Hispanics, African Americans, gays, teachers, young professionals, atheists, unmarried women, and even suburban married women.”

In the end, the issues for Republicans are more serious even than the demographics. The party failure to re-cast itself by looking forward with attitudes and issues that address an America in the 21st Century is, to say the least, a risky gambit. Yet, the kind of a makeover that is needed seems increasingly unlikely, at least in the near term, when the loudest voices speaking for Republicans are constantly playing to a narrower and narrower group of true believers, while denying – as the 87-years young Phil Batt suggests – that the cultural and political world is passing them by.

Increasingly outside forces and insurgents like Texas Sen. Ted Cruz rather than sober-minded realists dominate the party’s message. The Koch brothers, aiming to keep beating the anti Obamacare drum, have hijacked the GOP message for the coming mid-term elections. Look for the totality of the GOP message this year to be about the evils of the health care law (and the “socialist” president) even as a new Kaiser Health poll shows Americans are increasingly comfortable with the much-debated law. Kaiser’s survey shows that fully 56% of those surveyed favor keeping the law as is or keeping it and making improvements. Only the GOP base is clamoring for something different and even those numbers are shrinking.

Another overly influential outside voice, the Heritage Foundation, was still trying to explain why the Arizona legislation was “good public policy” after Brewer’s veto. And the guy with the loudest (and meanest) GOP megaphone, Rush Limbaugh, always eager to double down on a lost cause, said Brewer was “bullied” into her veto position in order to “advance the gay agenda.” All that plays well tactically with the “increasingly white, old, Southern, and male” base of the GOP, but leaves much of the rest of the 21st Century United States very cold indeed.

Lacking the re-boot that many Republicans wisely advocated after the last national election the party, as Mark Mckinnon says, will continue to be stuck in the past. The really bad news for national Republicans is that elections are always about the future.

2016 Election, Campaign Finance, Poetry, Supreme Court

The End of Spending Limits

Posted on by christian

1381180830000-XXX-McCutcheon-hdb3864Shaun McCutcheon (that’s him in the photo) is a wealthy guy; an electrical contractor from Alabama who is also a conservative political activist. The Supreme Court appears ready to give Shaun what he says he wants  – the chance to spend a great deal more of his money on candidates for federal office.

The Court heard arguments yesterday in McCutcheon v. Federal Election Commission, a sort of sequel to the 2010 Citizens United case that I’ve lamented here in months past. If the Court goes the way the questioning seemed to indicate yesterday one more big prop will be kicked out from under the American jumble of campaign finance laws and once again American democracy will most closely resemble a political version of “The Price is Right.”

Right now, ol’ Shaun is prohibited from contributing more than $123,200 to federal candidates and political parties in a two-year cycle. You might think that would be more than enough political spending for most of us and, of course, it is. But guys with lots of money, from the right and the left, like to participate in the political process because, well you know why they like to participate in the political process. If the Court rules his way Mr. McCutcheon will soon get to start writing checks to federal candidates – just buying good government, I know – for millions and millions every year.

As Charles Fried, who served as Solicitor General in the Reagan Administration noted recently in the New York Times, “Ever since the 1976 Supreme Court case Buckley v. Valeo, in which the court upheld limits on individual federal campaign contributions, every Supreme Court decision on this issue has been based on the distinction between money given to candidates — contributions — and money that individuals or organizations use for their own independent campaign-related expenditures.

“The underlying idea is that while the First Amendment prohibits the government from limiting your political speech (and the more you speak, the more you may have to spend), a contribution is money spent to help someone else speak. The government may not limit your own expression (and since Citizens United that applies to corporations and unions, too), but for almost half a century Congress has limited contributions without being challenged by the Supreme Court.”

Until now.

The Court’s efforts to further destroy limits on money in politics, at least after Citizens United, seems inevitable. Once you decide that the sky is the limit for the Koch Brothers or Bob’s Muffler Shop to spend money on independent political efforts then how can you logically – at least in the logic of the Robert’s Court – limit what Shaun McCutcheon can lavish in the way of cash on his Congressman and yours?

Two things above all stand out in this confluence of money, politics and policy. One is the unbridled willingness of the “conservative” Robert’s Court to trample on precedent and long-established law. The Citizens United decision tossed out 100 years of established law – law made by one branch of government and endorsed by a second – and substituted the wisdom of five appointed justices none of whom has ever held elected office. The expected next move will toss all or most of a law on the books for more than 40 years.

David Cole, writing in the New York Review of Books, makes the case that the current session of the Supreme Court may well see a host of established laws, including the candidate funding restrictions, upended by Roberts and his four like-minded colleagues. “In all of these cases,” Cole writes, “the real question is not whether the conservatives will win, but how they will win. (It’s conceivable that the liberal side will prevail in one or more cases, but most court observers think the odds are against it.) Moreover, in most of the cases, Justice [Anthony] Kennedy, usually the swing vote, has already aligned himself with the strongly conservative view, so the outcome is likely to turn on Roberts. If the Chief Justice and his Court proves to be Conservative, the term could end with a radical revision of established precedent in a host of constitutional areas. If the Court is simply conservative, the status quo precedents will remain intact. We’ll know by June 2014.”

So much for the notion of judicial restraint.

The second takeaway relates to the fact that no member of the current Supreme Court has ever been elected to anything. This is important, I think, because the justices – at least the five most consistently conservative justices – completely dismiss the arguments that unregulated money can and will lead to what the Washington Post’s Dana Milbank quaintly calls “legalized corruption.” Election law expert and law professor Richard L. Hasen says it just as bluntly: “The closer the money comes to the hands of members of Congress, the greater the danger of corruption and undue influence of big donors” and he say what the Court appears ready to do “will greatly increase the chances of a corrupt Congress.”

When U.S. Solicitor General Donald Verrilli suggested yesterday that the Court may have gotten it wrong in Citizens when it  dismissed “the risks of corruption from independent expenditures” Justice Antonin Scalia simply said, “It is what it is.” Very thoughtful.

What the definition of “is” is can simply be reduced to money purchasing political influence. And the bigger the purchase the bigger the influence. With the expected decision in McCutcheon it is possible that as few as 500 very, very rich Americans can finance all the costs of running for federal office for everyone running. In such a system the small $250 contribution from the retired couple or the small business owner ceases to matter. Why waste your valuable fundraising time connecting with what Justice Ruth Bader Ginsberg called “the little people” when you can raise a few hundred thousand with a couple of calls to civic minded guys like Shaun McCutcheon?

“If Scalia got out of his ideological echo chamber,” Dana Milbank writes in the Post, “he would discover that, encouraged by the court, wealthy conservatives donate to groups such as the Club for Growth and Heritage Action, which threaten to fund primary challenges to Republican lawmakers who show any ideological impurity. Because most Republicans are in safe seats (in part because of Supreme Court-sanctioned gerrymandering), the only threat to their reelection is in a primary — and so they have no choice but to obey the conservative billionaires’ wishes. The problem on the left isn’t as acute, but it’s only a matter of time before liberal billionaires execute a similar purge.”

It’s probably just a coincidence, but Politico reports today that the Koch brothers have given $500,000 to one of the shadowy outside groups that has lobbied Republicans to shutdown the government and threatened GOP “moderates” if they don’t hold fast to the defund Obamacare strategy. That kind of money going directly to candidates can’t be far away.

Reflect on this: the laws restricting the power of money and the impact on our politics of the few with “real” money were passed in the wake of serious political money scandals. The Court has already overturned one law passed in the wake of revelations that rich millionaires, like the notorious Montana Sen. William Andrews Clark, had bribed their way into the United States Senate. The law on trial in the Supreme Court this week was passed in the wake of Watergate, a case of political corruption that had at its heart political money. As sure as dawn follows the night political corruption most odorous is marshaling for the next huge scandal.

Former Solicitor General Fried reminds us that “Justice Scalia once wrote in another context, this argument is not a wolf in sheep’s clothing: ‘this wolf comes as a wolf.’ The only reason the Supreme Court would be tempted to let this wolf in is if the Court wants to see the destruction of all limits on an individual’s donations to a political candidate.”

Thanks to the United States Supreme Court more than ever the political money wolf is at democracy’s door.

2016 Election, Fly Fishing, Higher Education, Idaho, Judicial Elections, O'Connor, Supreme Court, Tucson

My Lunch with the Justice

Posted on by christian

51917203MW106_Homeland_SecuSandra Day O’Connor’s remarkable career is a testament to many things: dogged persistence, boundless ambition (of the best type), talent, good judgment, a sense of the power of history and, of course, some luck; luck of the being in the right place at the right time variety.

I did not realize until recently, while researching more deeply O’Connor’s history-making 1981 appointment as the first woman nominated to the United States Supreme Court, how determined Ronald Reagan was to put a woman on the Court. Reagan, of course, had made a campaign pledge in 1980 that he wanted to put a “qualified” woman on the Court. When he had the chance just a few months into his term he kept his promise, plucking from relative obscurity the 51-year-old Arizona Court of Appeals Judge and former state senator. So sure was Reagan that he announced O’Connor’s appointment before the FBI had completed its background check leaving then-Attorney General William French Smith to field questions from the White House press corps about whether that was a sound approach.

After a flurry of criticism and concern, most from the far right, O’Connor – imagine this – was confirmed unanimously by the United States Senate just three month after Reagan told her he wanted to put her on the Court.

“Called Judge O’Connor and told her she was my nominee for supreme court,” Reagan wrote in his diary on July 6, 1981. “Already the flak is starting and from my own supporters. Right to Life people say she is pro abortion. She says abortion is personally repugnant to her. I think she’ll make a good justice.”

[Idaho’s then-Sen. Steve Symms was one who voiced early skepticism about O’Connor, but eventually supported her appointment. Symms’ call to the White House expressing disapproval of O’Connor’s nomination is detailed in Jan Crawford Greenburg’s 2007 book Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.]

O’Connor’s place in history is secure and not only as the first woman on the Court, but for her historic sense of moderation and pragmatism. She has become a remarkable role model and one hopes her careful, centrist, blocking and tackling approach to the law will one day soon serve as a model for a Supreme Court that seems determined to embrace the type of judicial activism that O’Connor so smartly rejected.

I would have liked to discuss any or all of this with what one lawyer friend called the “smart and tart” justice when I had the rare opportunity to sit next to her at lunch recently during an Andrus Center conference on women and leadership at Boise State University. But I left politics and the law aside after reading how reluctant she can be to offer up any comment, let alone criticism, of the judging of the current justices. [O’Connor did make news a while back with comments about the controversial Bush v. Gore decision, but even then her comments were very measured essentially saying the Court might have been well-advised to refuse to take the case that settled the 2000 presidential election but did little for the Court’s reputation.]

O’Connor’s latest book Out of Order, a history of sorts of the Supreme Court, has been rapped by some reviewers for not dishing  inside dope about the Court. The typically acerbic New York Times critic Michiko Kakutani, for example, said: “There are no big revelations in this volume about Bush v. Gore or the author’s thoughts on Roe v. Wade; nor are there momentous insights into the dynamics between Justice O’Connor and her colleagues on the bench, or how she felt about being the crucial swing justice, whom the legal writer Jeffrey Rosen once called ‘the most powerful woman in America.'”

While one would undoubtedly enjoy O’Connor’s unvarnished assessments of all those issues and more, I also admire her restraint, a very O’Connor-like characteristic.

Given the chance to talk with the once “most powerful woman in America” I asked her about her love of fly fishing. O’Connor is a dedicated fly caster. In fact, when then-President George W. Bush tried to reach retiring Justice O’Connor to tell her he had selected John Roberts, a judge as conservative and activist as O’Connor is moderate and careful, to replace her on the Court she was fly fishing in northern Idaho. O’Connor told me that she had little time to fish during her more than 25 years on the Court, but she is clearly making up for lost time. If you are a devotee of the fly rod then you know how easy it can be to form an immediate bond with a stranger – even a very famous stranger – when you share a passion for the pursuit of the wily cutthroat or the gorgeous rainbow.

After fishing in Idaho this month O’Connor was headed for southern Montana to float the Yellowstone with a guide she described as “on a first name basis with every trout in Montana.” To go along with the Andrus Center’s leadership award that former Gov. Cecil D. Andrus presented to the Justice in Boise on September 4, O’Connor also received an honorary doctorate from the University of Montana Law School. She indicated that she very much appreciated the awards, but the chance to fish for a few days was also a big attraction.

She said she has fished in east some, even on the Potomac, and even in Patagonia. While in Montana a couple of years ago hearing cases for the Ninth Circuit Court of Appeals, O’Connor was asked about her favorite Montana river. “Oh, this is a setup!” she replied. “Let’s start with the Big Horn.”

I take real comfort in knowing that the first woman on the Supreme Court knows about the Big Horn and the St. Joe. Who knows, perhaps knowing how to properly swing a fly helps inform the swing vote on the Supreme Court. O’Connor’s other great passions are the importance of civic education and the non-partisan selection of judges and again she is right about both.

As with her long ago critics, O’Connor still gets flack from the far right for warning that money, partisan-style judicial elections and good judging just don’t fit together. O’Connor warned in 2009 that too many state judicial elections – and Idaho has had its share – have become “tawdry and embarrassing” producing judges that are merely “politicians in robes.”

As for civic education, O’Connor quotes truly alarming statistics about American’s lack of knowledge about our history and government. “The more I read and the more I listen, the more apparent it is that our society suffers from an alarming degree of public ignorance,” O’Connor said in Boise. Fewer than a third of Americans can name even one current Supreme Court Justice and “less than one-third of eighth-graders can identify the historical purpose of the Declaration of Independence, and it’s right there in the name,” she said.

Read more here: http://www.mcclatchydc.com/2013/09/06/201376/retired-justice-sandra-day-oconnor.html#storylink=cpy
Read more here: http://www.mcclatchydc.com/2013/09/06/201376/retired-justice-sandra-day-oconnor.html#storylink=cpy

I’ve been fortunate to interview one president – Gerald Ford – and one future president – Jimmy Carter. I had orange juice and coffee in the Roosevelt Room and stood in the Oval Office for a Bill Clinton Saturday radio speech. George W. Bush invited us to the White House for dinner and I was as surprised as he should have been. I’ve worked for one great governor and interviewed a dozen others and had dinner with big time reporters like Tom Wicker, Dave Broder and Tim Egan. Each and every one a very pleasant memory. Lucky me that I can add Justice O’Connor to the list.

The country has produced few more impressive leaders than the woman from Arizona who started out her legal career volunteering her talents because she couldn’t get a law firm to hire her. Her’s is a uniquely American story and one for the history books. Ronald Reagan was right. She did make a good justice.

 

2016 Election, Civil Rights, Johnson, Religion, Supreme Court, Television

Judicial Radicals

Posted on by christian

Martin_Luther_King,_Jr._and_Lyndon_JohnsonWhen Lyndon Johnson finally decided to double-down on civil rights legislation in 1965 and push for a federal voting rights act he began the political effort by delivering one of his most eloquent and important speeches.

Having already conceded that passage of the 1964 Civil Rights Act would cause his Democratic Party to lose the south for a generation – a prediction that has turned out to be way too modest – Johnson, the former Congressman and Senator from Texas, did what politicians too rarely do. He appealed to Americans to live up to their proud ideals and then he put the power of his presidency behind voting rights for all Americans.

“Many of the issues of civil rights are very complex and most difficult,” Johnson said in a television speech on the evening of March 15, 1965. “But about this there can and should be no argument. Every American citizen must have an equal right to vote. There is no reason which can excuse the denial of that right. There is no duty which weighs more heavily on us than the duty we have to ensure that right.”

Congress debated Johnson’s proposed legislation throughout the summer of ’65 with both the president and the Democratic leaders of Congress knowing that Republican votes were essential to passage since southern Democrats were almost to a man opposed to a federal voting rights act (VRA). Senate Republican leader Everett Dirksen of Illinois is a political hero for his role in securing passage of the historic legislation. In a striking parallel to the dilemma national Republicans face today over immigration legislation, Dirksen realized in 1965 that the stakes were enormous for the GOP if it failed to secure passage of a law to help African-Americans gain full citizenship.

“This involves more than you,” Dirksen told one of his colleagues, as recounted in Neil MacNeil’s wonderful biography. “It’s the party,” Dirksen pleaded. “Don’t’ drop me in the mud.”

Dirksen eventually rounded up the GOP votes necessary to end a filibuster and the Voting Rights Act passed the Senate by a vote of 77-19. The House vote was equally lopsided – 333-85 – with virtually all Representatives and Senators from the south voting “no.” When Johnson went before Congress to press for his legislation – here’s a segment – you can catch a glimpse of southern members, like North Carolina Sen. Sam Ervin, refusing to applaud some of LBJ’s strongest lines.

(Here is one other historical footnote: Then-Idaho Congressman George Hansen, an ultra-conservative Republican, was alone among Pacific Northwest members and one of  just 85 House votes against the Voting Rights Act. Most who voted “no” contended the law was unconstitutional because it intruded on state’s rights to establish voting procedures.)

In 1970, again in 1975 and then in 1982 and again in 2006 four Republican presidents – Nixon, Ford, Reagan and George W. Bush – signed extensions of the Voting Rights Act. In each case Congress voted overwhelmingly to keep the Act in place, including the controversial “preclearance” provision that was at the heart of the recent Supreme Court decision that effectively ruled the law invalid.

So extensive was the Congressional work on the Voting Rights Act extension back in 2006 that Justice Ruth Bader Ginsberg cited the record in her recent dissent in the court’s 5-4 decision.

 “The House and Senate Judiciary Committees held 21 hearings, heard from scores of witnesses, received a number of investigative reports and other written documentation of continuing discrimina­tion in covered jurisdictions. In all, the legislative record Congress compiled filled more than 15,000 pages,” Ginsberg wrote. “The compilation presents countless ‘examples of fla­grant racial discrimination’ since the last re-authoriza­tion; Congress also brought to light systematic evidence that ‘intentional racial discrimination in voting remains so serious and widespread in covered jurisdictions that section 5 preclearance is still needed.’”

Ginsberg also noted pointedly that the 15th Amendment to the United States Constitution, ratified in 1870 in the wake of our bloody Civil War, specifically grants to Congress “the power to enforce this article by appropriate legislation.” The Voting Rights Act was that “appropriate legislation” in 1965 and remained so until Chief Justice John Roberts and the other conservatives on the Court substituted their judgment for that of the U.S. Congress.

From the days of Earl Warren’s tenure as Chief Justice of the Supreme Court, through every presidency from Johnson’s to Bill Clinton’s, conservatives have railed against the scourge of “activist judges,” who “legislate from the bench.” Countless speeches have made from the local Rotary Club to the floor of the Senate condemning “liberal” judges who did not merely interpret the law, but “make the law.” It was good political rhetoric and arguably, at least once in a while, it was true. But the recent split decision on the Voting Rights Act should once and forever put the lie to the charge that  it is only liberal judicial activists who wear the black robes.

Chief Justice Roberts opines in the case Shelby County (Alabama) v. Holder that America “has changed” since 1965 and that continuing to apply the same standards to evaluate voting fairness for African Americans in the states of the old Confederacy (and a couple of others) fails to take into account those changes. What the very conservative Chief Justice does not confront is the political process, the hearings, the testimony, the reports and first-hand experience that informed the Congress first in 1965 then in four subsequent sessions to keep the landmark law – and the precleareance provision on the books.

There is no nice way to say what Mr. Justice Roberts did other than to admit that he, and his four like-minded conservative colleagues, substituted their judgment for that of the Congress and a conservative Republican president. That action should forever re-write the definition of “judicial activism.”

“When confronting the most constitutionally invidious form of discrimination,” Justice Ginsberg wrote, “and the most fundamental right in our democratic system, Congress’ power to act is at its height.” An eloquent way of saying – leave the lawmaking to the lawmakers.

Regardless of how individual members of Congress feel about the Voting Rights Act, and we can assume based upon the legislative history that the vast majority of members support the Act, any Congressman or Senator should be taken aback by the level of  judicial activism of the Roberts Court. (One wonders what Idaho’s two lawyer-senators think of this ruling both on political and Constitutional grounds. I have yet to see them questioned on the subject.)

Rare in modern times has the expressed will of Congress been so manhandled as in Shelby County decision. In light of the Trayvon Martin tragedy, President Obama’s recent remarks on race in America and the fact that several once-covered jurisdictions – Texas, for example – have already moved to change voting requirements in a way that many experts believe will make it more difficult for many Americans to vote, it is worth remembering more words from Lyndon Johnson on that night in 1965 when he spoke so profoundly about the right to vote.

“There is no Negro problem. There is no southern problem. There is no northern problem. There is only an American problem,” Johnson said. “And we are met here tonight as Americans—not as Democrats or Republicans—we are met here as Americans to solve that problem.” Progress has been made, but we have more distance to go to solve that problem and again, as in 1965, Congress must act.

 

2016 Election, Baseball, Climate Change, Human Rights, Law and Justice, Music, Politics, Supreme Court

Inevitable

Posted on by christian

Chief Justice John Roberts cousin will be sitting in a seat reserved for family members when the United States Supreme Court hears arguments on the California same sex marriage case tomorrow. Jean Podrasky is 48, a resident of San Francisco and has been in a committed relationship for four years. She hopes to get married. It may well take the vote of her cousin, the Chief Justice, to allow Jean to marry her partner Grace Fasano because Ms. Podrasky is lesbian.

As to whether her being gay might impact cousin John’s reading of the complicated California ban on same sex marriage, Podrasky told the Los Angeles Times that she couldn’t predict, but then added the inevitable, “Everybody knows somebody” who is gay, “It probably impacts everybody.” Indeed.

Whether the Supreme Court takes civil and human rights a step forward this week in two separate cases – the California case on Tuesday and a hearing on the Constitutionality of the Defense of Marriage Act (DOMA) on Wednesday – seems almost beside the point. The country has changed, indeed continues to change, and before long the law will catch up with public opinion on the acceptance of gay marriage. The latest public opinion research shows the dramatic change in attitudes about what was, less than two decades ago, a litmus test issue for many politicians. Fully 58% of Americans, and a much higher percentage of younger Americans, support gay marriage, while about one-third still oppose.

As Frank Bruni wrote recently in the New York Times, more and more Americans have come to the conclusion that finally granting full civil rights to gay Americans is not a zero sum game. One side need not lose, while the other wins. “The legalization of same-sex marriage takes nothing from anyone,” Bruni wrote, “other than the illusion, which is all it is and ever was, that healthy, nurturing relationships are reserved for people of opposite sexes.”

All this is not to say that the Supreme Court’s action on the cases at issue this week doesn’t matter. It does. But even if the Court delays the inevitable for a while longer the politics, at least in most places, has moved on. How else to explain politicians from Barack Obama and Hillary Clinton on the left to Sen. Rob Portman on the right publicly charting the evolution of the issue. The Portman case is one of the most interesting and also most human. The conservative Ohio Republican, a man vetted by Mitt Romney for the vice presidency, came to his new position on same sex marriage after his college age son acknowledged his own sexual orientation. Portman, in the language of politics, came to possess “new information” about just how a contentious issue can work in real life. His comments about his son and wanting to support him is the language of any father who loves his kid and wants to see him happy.

Portman has said that he told the Romney campaign the full story about his son during the vice presidential vetting and he thinks the issue was not decisive in his not being picked. Well, there are no coincidences in politics, so take Portman at his word or be more cynical – and realistic – and imagine how that issue might have played with the GOP base last fall. Portman is already being threatened with a primary challenge in Ohio from the same crowd that once fought to the last lunch counter against civil rights in another era.

The sooner Republicans follow the darling of the neo-cons Dick Cheney and get on the right side of politics and history on this issue the sooner the grand old party can find its way back to national presidential relevance. Democrats who still worry about changing their views on gay marriage should listen to Missouri Sen. Claire McCaskill, a skillful politician in a conservative state, who has acknowledge the inevitable. “I have come to the conclusion that our government should not limit the right to marry based on who you love,” McCaskill said over the weekend.

Still one has to wonder whether a state like Idaho where the legislature can’t bring itself to even hold a hearing on legislation to add the words “sexual orientation” and “gender equality” to the state’s human rights law will again be pulled kicking and screaming into another new era of civil rights protection. Idaho was among the last to adopt Dr. Martin Luther King, Jr’s. birthday as a state holiday and only did so after pressure from human rights activists and threats of boycotts in other states made such a small and symbolic move inevitable and necessary.

There is rich irony in the fact that ultra-conservative Idaho now finds itself more or less in the same boat on gay marriage as Socialist France, where public opposition to same sex-marriage and adoption legislation is encountering fierce resistance from the political and religious right. Holdouts make strange bedfellows. Even the new Pope, while serving as the Archbishop of Buenos Aires, a Catholic country where same sex marriage is legal, is reported to have quietly favored civil unions for gay Argentines as an alternative to full civil rights.

Leave it to a young American to put it all in perspective. Yale undergrad Will Portman has written eloquently in the school’s newspaper about his own struggles with his sexual identity and the possible impacts on his dad the Senator. Here’s part of what he said: “I support marriage for same-sex couples because I believe that everybody should be treated the same way and have the same shot at happiness. Over the course of our country’s history the full rights of citizenship have gradually been extended to a broader and broader group of people, something that’s made our society stronger, not weaker. Gay rights may be the civil rights cause of the moment, but the movement fits into a larger historical narrative.

“I’m proud of my dad, not necessarily because of where he is now on marriage equality (although I’m pretty psyched about that), but because he’s been thoughtful and open-minded in how he’s approached the issue, and because he’s shown that he’s willing to take a political risk in order to take a principled stand. He was a good man before he changed his position, and he’s a good man now, just as there are good people on either side of this issue today.”

I still recall with pride those Idaho state legislators who had the courage to take a political risk to support tough human rights legislation back in the 1980’s when the state’s reputation as a haven for white supremacists presented a genuine threat to Idaho’s reputation. With the perfect vision that comes with hindsight it’s now clear those decisions (and votes) were no-brainers. Some day, perhaps even sooner than many think, votes on granting full civil and human rights to gay Americans will be viewed in the same way. Makes you wonder how long some folks will cling to the “illusion” that people who love and care for each other and happen to be gay don’t deserve the same rights and responsibilities as the rest of us. Here’s hoping Idaho isn’t again among the last to take a step that is both inevitable and morally correct. Being a hold out with, of all people the French, many be really uncomfortable.

 

Baseball, GOP, Johnson, Politics, Religion, Supreme Court

It’s the Demographics, Stupid

Posted on by christian

The modern Republican Party has a major problem with Hispanic voters and watching the party struggle to address that problem increasingly reminds me of the great Muhammad Ali’s “rope-a -dope” strategy during his bruising fight in Zaire in 1974. In this case Barack Obama is playing Ali and the GOP is cast as George Foreman, the guy who punched himself out of contention, swinging wildly while Ali crouched against the ropes and survived.

On the very day the GOP issued a highly critical 100-page report on its performance during the 2012 election and what it might do to get back on track, Republican Senators, including Chuck Grassley of Iowa and David Vitter of Louisiana, indicated that they will oppose Obama’s pick to be Secretary of Labor. That pick, of course, is Thomas Perez currently the Assistant Attorney General in charge of the Civil Rights Division of the Justice Department and a man with a classic personal resume that includes being the son of Dominican immigrants and a Harvard Law PhD.

Alabama GOP Sen. Jeff Sessions must not have gotten the memo about Republicans wanting to reach out to Hispanic voters after the party’s dismal showing in the last election with that rapidly growing demographic group. Sessions termed the Perez nomination “unfortunate and needlessly divisive.” Ali couldn’t have done a better job of setting up the rope-a-dope. As Republicans prepare to throw wasted punches at the highest ranking Hispanic Cabinet appointee, Obama pivots to his talking points about inclusion, living the American dream and finding a place in the vast ocean of American politics for everyone – especially the demographic group that will increasingly decide elections in the 21st Century.

Here is just one telling statistic about the GOP Hispanic problem as compiled by The Washington Post’s Chris Cillizza: in the 2012 election just one in ten Republican voters were non-white. That is a remarkable number. At the same time, the percentage of the electorate that is white has steadily fallen from nearly 90% in 1980 to just over 70% now. Little wonder that the GOP has lost four of the last five national elections as its base – older white voters – decreases as a percentage of the overall voting population. These numbers also help explain why some in the GOP seem so hung up on making it more difficult, particularly for non-whites, to vote and why the party’s national base has dwindled to a few very conservative western states and the south of the old Confederacy.

Take a look around the west to gauge the GOP’s challenge with the changing demographics of the electorate. Arizona’s population is now 30% Hispanic, Idaho’s Hispanic population is more than 11%, while Oregon’s is 12% and all are growing rapidly. Oregon’s Hispanic population, for example, has grown by 64% since 2000. Similar numbers exist in Colorado, Nevada and Texas. California’s demographics likely mean the state is out of play for the GOP for the foreseeable future.

The left cross that follows the right jab on these demographic numbers signals even more long-term worry for the national GOP. While Mitt Romney, the champion of “self deportation,” gathered in 27% of the Hispanic vote last year – the lowest percentage in modern times for a Republican – the party has actually been losing Hispanic voters for years. Seventy percentage of Hispanics now firmly associated with the Democratic Party, a number that has shown an almost unbroken upward trend for more that the last decade.

The heart of the problem for the GOP is, of course, immigration policy. “If Hispanics think that we do not want them here, they will close their ears to our policies,” the GOP’s new post-election report states. “In essence, Hispanic voters tell us our party’s position on immigration has become a litmus test, measuring whether we are meeting them with a welcome mat or a closed door.”

But in true rope-a-dope fashion one of the party’s best connections to Hispanic voters former Florida Gov. Jeb Bush, while trying to navigate the choppy waters to his right and left, recently sent wildly conflicting messages about his own position on whether real reform includes a “path to citizenship” for people who have come to the U.S. illegally. The party’s two highest ranking Hispanic elected officials – Senators Marco Rubio and Ted Cruz – are so beholden to the Tea Party wing of the GOP that they can’t get on the same page regarding immigration policy.

In the final analysis, however, the rope-a-dope comparison really doesn’t work for one basic reason. In his famous 1974 Rumble in the Jungle Muhammad Ali absorbed tremendous punishment from George Foreman before Foreman finally wore himself out and lost the fight. When it comes to cementing the Democratic hold on Hispanic voters Barack Obama really isn’t taking any punches, or perhaps more correctly the GOP isn’t landing any. Obama can set back and watch as old, white GOP Senators like Jeff Sessions and Chuck Grassley wear themselves out over the appointment of an Hispanic to run the U.S. Department of Labor. Such opposition sends a powerful message that the old, white party just isn’t interested in the new, emerging majority. In the end Obama wins even if he loses on a Cabinet appointment as it becomes more and more obvious where the fastest growing demographic group in nation feels most at home.

History will record that 31 Republican Senators – Sessions and Grassley included – voted against the confirmation Justice Sonya Sotomayor, the first Hispanic appointed to the U.S. Supreme Court. The vast majority of those Republican “no” votes came from the South and West; from places like Texas, Arizona, Idaho and Nevada were before long that kind of vote will become a litmus test of whether you have put out the welcome mat or slammed the door shut. Here’s a guess that failing to cast an historic vote in 2009 to put the first Hispanic woman to the Supreme Court won’t look so good in the history books.

In 1967 when Lyndon Johnson nominated the great civil rights lawyer Thurgood Marshall to become the first African-American on the high court only 11 Senators voted against his confirmation. Ten of those Senators were white southern Democrats who made the raw political calculation that they couldn’t risk the home state political backlash that would follow a  vote to put a black man on the Supreme Court. Nevertheless, Democrats fundamentally changed as a national party as a result of Johnson and civil rights in the 1960’s and, as Johnson correctly forecast, that change cost Democrats the South. But it also helped guarantee that African-American voters would remain solidly in the Democratic camp in every subsequent national election.

The question for current Republicans is whether they are willing to make such a fundamental shift; a shift that will rile the Tea Party and the aging, white base of the GOP?  It is worth noting that the lone Republican vote against Thurgood Marshall in 1967 was Sen. Strom Thurmond of South Carolina, a fellow who would find himself right at home in the current very conservative, very white Republican Party. Enough said.

 

2016 Election, Campaign Finance, Health Care, Supreme Court

Historic

Posted on by christian

Roberts: The Chief Makes History

There will be days and days of analysis – some of it even important – of today’s historic Supreme Court decision on the Affordable Care Act, or as those who hate the law say – Obamacare. We’ll hear every possible interpretation and then some.

Here is my initial take on one sliver of the story; the fact that Chief Justice John Roberts authored the majority opinion upholding the law, went against four other conservatives on the Court with whom he often finds compatibility and maybe – just maybe – wrote himself firmly into the history books.

I think most Court watchers would say that a Chief Justice – any Chief Justice – always wants to be in the majority. Roberts worked hard to get there even while taking pains to throw a rhetorical political bone to those who will see him as an updated version of former Justice David Souter, an appointee of the first George Bush who served to infuriate many conservatives.

As Roberts famously said during his confirmation hearing, “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire… I will remember that it’s my job to call balls and strikes and not to pitch or bat.”

Today he made good on his umpire statement and admittedly, while it is way too early to make definitive judgments, Roberts has likely also influenced his place in history. In the same way that Chief Justices Charles Evans Hughes in the 1930’s and Earl Warren in the 1950’s ultimately led their Court’s in a series of landmark rulings; rulings that generally supported a more expansive view of federal power, Roberts has parted company with the right wing of the Court and perhaps charted a new course for himself.

Roberts has clearly antagonized conservatives and permitted, at least in one very important case, a more expansive role for the government in health care. He also did it without affirming a more expansive interpretation of the Commerce Clause, which really would have wounded the right.

It’s fun, but ultimately futile, to speculate about the inner dynamics of a Court of such sharp divides and strong personalities, but I can speculate that it would have been interesting to overhear the conference where the Chief told Antonin Scalia, Sam Alito, Clarence Thomas and Anthony Kennedy that he would write the majority opinion siding with the Court’s four liberals.

The health care story, with all of its political and policy dimensions, is far from a finished story. There is much more to come. But speculating again, when the history of this decision is ultimately written it may well describe John Roberts as the guy who cast a deciding vote on a law that, with all its faults, was aiming to provide health insurance coverage for every American, a goal of many Americans since at least Teddy Roosevelt. Fifty years from now Roberts’ opinion may well be seen as putting him on the right side of history.

Roberts is obviously a serious man and no one reaches the pinnacle of judicial power in the United States who does not appreciate the unique role in our system played by the Chief Justice of our Supreme Court. Roberts has surely read the history and knows we can count the truly great Chiefs on three fingers – Marshall, Hughes and Warren.

History treats that trio well because each led the Court in new ways during tumultuous times and with a determination to break new ground. Each was a highly political judge and passionately independent. Each evolved over time on the bench and ultimately each rejected the notion that the Constitution is a purely static document that can be applied in 2012 the same way it was in 1787.

If nothing else, Chief Justice Roberts may find – he’s a young and energetic 57 with many years left to lead a Court – that his historic decision in NFIB v. Sebelius is a liberating moment for him. Roberts may now have the liberty to find his own path to history, separate from either the four liberals or four conservatives on his Court, and that journey may have begun today.

P.S. – I predicted in passing earlier this week that the Court would strike down the Affordable Care Act. Like Winston Churchill said, I have often had to eat my words and always find it a wholesome diet!

 

2012 Election, 2016 Election, Campaign Finance, Minnick, Poetry, Supreme Court

Endless Money

Posted on by christian

Corporations Really Are People

While the nation holds its collective breath over the fate of Obamacare (hint, it’s going down) the conservative judicial activists on the U.S. Supreme Court have affirmed their original controversial decision that its just fine to have unlimited and often undisclosed corporate money flow into our political system.

At issue in the case summarily disposed of Monday was a Montana Supreme Court decision that attempted to uphold the Treasure State’s 100-year plus ban on corporate money in state elections.

The Court’s five man majority reversed the Montana court decision and reminded all of us of the essence of its earlier ruling in the now infamous Citizens United case.  “Political speech does not lose First Amendment protection simply because its source is a corporation,” the majority said in an unsigned, one-page ruling.

Turns out that Mitt Romney was right, corporations are people, at least when it comes to spending political money that the Court equates with free speech protections under the First Amendment.

The Montana Attorney General, among others, had argued that the state’s special, if not unique, history of corporate influence – and in the early 1900’s corporate control – over Montana politics required a special remedy, namely banning corporate money from state races. The law dates back to when Copper King William A. Clark literally bought himself a seat in the United States Senate using the vast wealth he accumulated from his mining interests in Montana. Fast forward a hundred years and Karl Rove and others are using the opening created by Citizens United to use their free, if not inexpensive, speech rights to try and buy a president, a United States Senate and a few governors for good measure.

Remarkable how history has a way of repeating itself.

More interesting than the one-pager from the “conservatives” on the Court who show such respect for precedent that they overturned 100 years of settled law in the Citizens case is the dissent from Justice Stephen Breyer, who apparently has been reading the newspapers.

Breyer wrote: “Montana’s experience, like considerable ex­perience elsewhere since the Court’s decision in Citizens United, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do
so.”

Justice Breyer’s concern about the corrupting influence of money, even if it is only the appearance of corruption, is at the cold heart of this issue and the evidence is everywhere to be seen.

Mitt Romney invited a few hundred of his biggest donors over the weekend to a closed-to-the-press gathering in Park City, Utah. The donors were treated to the kind of face-time with the candidate that Joe and Jill Six-Pack could never hope to get. Also in attendance was the head of the pro-Romney Super PAC Restore Our Future. Our Swiss cheese-like campaign finance laws say Charlie Spies, the Super PAC leader and a D.C. lawyer, can’t legal “coordinate” with the campaign even as the television spots he is paying for mirror the campaign’s messages. But, apparently it is alright for Mr. Spies to camp out in the lobby of the hotel were the Romney event was taking place to see and be seen by those coming and going.

It brings to mind the great line from the movie Casablanca. The Vichy French police official Captain Renault, played by Claud Rains, announces that he is “shocked, shocked” that gambling is going on in Rick’s Cafe just as a croupier hands him his winnings for the night. The Super PAC’s will be the real story of the 2012 election and no one should be shocked that the charade of separation of candidates from PAC’s is as much a fiction as the Easter Bunny.

And, of course, Democrats do it, too. Republicans may just be better at attracting the kind of donors who will spend a few billion on a campaign. Both parties share the guilt for allowing this money in politics situation to spiral completely out of control.

Following the political money scandal that grew from the Watergate break-in just 40 years ago, the Congress, responding to popular outrage, made a stab at reforming campaign finance laws. (It’s worth remembering that Watergate, arguably the greatest political scandal in our history helped reveal the extent to which corporate money was being utilized by Richard Nixon to maintain his hold on the White House.)

The U.S. Supreme Court has sent a clear signal with its refusal to reconsider Citizens United that the sky is the limit when it comes to money in politics. Six billion is the estimate for this cycle and at the rate this trend is expanding it will be $12 billion in four more years.

Ironically, its not really the money that individuals give to candidates that is the major cause of worry in this case. But rather the unregulated, often unreported, no-limits funding of causes and candidates by those with the deepest pockets. That is what casts grave doubt, as Justice Breyer says, on the very essence of a democracy. Do the people chose the leaders or do the most well-to-do individuals and corporations chose?

Nothing succeeds like excess, they say, and by that standard the unregulated, uncontrolled campaign finance system in the United States is succeeding like never before.

As Captain Renault would say, “Round up the usual suspects.”

 

2012 Election, 2016 Election, American Presidents, Campaign Finance, Health Care, Minnick, Obama, Supreme Court

Supreme Power

Posted on by christian

Courts, Controversy and Conservatives

There is an old and respected approach to judicial review of controversial and essentially political issues that holds that judges should do almost everything possible to avoid wading into the dense thicket of politics.

If Chief Justice John Roberts and his fellow conservatives on the U.S. Supreme Court were really conservative they would rule on the controversial Affordable Care Act (Obamacare) on the narrowest possible grounds. They might even seriously considered not ruling on the merits of the law under the old and accepted principle that the case is simply “not ripe” for adjudication since no one – at least not yet – has been “harmed” in the legal sense by the health insurance mandate and other aspects of the still new law.

Hardly anyone thinks either of those approaches is likely from the Roberts Court, particularly after last week’s marathon hearings. You will get even money today that Roberts will lead his thin 5-4 conservative majority in the direction of at least ruling the mandate unconstitutional. The odds are a bit longer that the Court will throw out the entire law. As they say, time will tell.

What interests me today is what President Obama, the former constitutional law professor, will do if the high court strikes down all or part of his signature accomplishment? A little history may be instructive; history I suspect Professor Obama knows well.

The most striking parallel to the current situation happened in 1935. The then conservative dominated Supreme Court declared unconstitutional the signature domestic piece of President Franklin D. Roosevelt’s legislation to battle the Great Depression. Chief Justice Charles Evans Hughes, every bit as much if not more a politician than Roberts, assembled a unanimous Court – including three real liberals – to deep six key features of FDR’s National Industrial Recovery Act.

Roosevelt was brought low by a famously modest case –Schechter Poultry Company v. United States – a decision that prompted the great liberal Justice Louis Brandeis to remark to an FDR associate that the case marked the end of “this business of centralization, and I want you to go back and tell the president that we’re not going to let this government centralize everything.” Given that sentiment, Brandeis, were he on the Court today, might just be a vote against Obamacare.

Roosevelt’s reaction was, of course, to blast the Court as living in “a horse and buggy” era with regard to the Commerce Clause of the Constitution and after his re-election FDR attempted, with disastrous consequences, to enlarge the Supreme Court. Roosevelt’s ideas about “judicial reform” were so outrageous that no president since has dare even suggest action to limit the scope or change the make-up of the Supreme Court. Instead we now fight epic battles over every new justice who is appointed and partisan political considerations, never far removed from judicial nominations, is now guaranteed to be front and center.

Obama will not, I predict, pull a Roosevelt. He knows, as the wise Jon Meacham wrote recently, “Justified or not, the Supreme Court has a kind of sacred status in American life. For whatever reason, Presidents can safely run against Congress, and vice versa, but I think there is an inherent popular aversion to assaults on the court itself. Perhaps it has to do with an instinctive belief that life needs umpires, even ones who blow calls now and then.”

Obama could, in theory, dust off some really old ideas and suggest a Constitutional amendment, as the great Wisconsin Sen. Robert La Follette did in the 1920’s, that would allow Congress to overturn Court decisions or, under certain circumstances, put Supreme Court decisions up to a popular vote. Of course, President Obama won’t do anything of the sort.

Obama is then really only left with the power of persuasion. He might suggest, as one wag did, that when the opportunity for insurance coverage for millions disappears they take their complaints to Antonin Scalia. Better yet, Obama could begin a real national conversation – including involing United States Senators who approve Supreme Court nominees – about the kind of Supreme Court the nation needs in the 21st Century.

You have to hand it to Republicans, they have been running against the Court for years. What prominent GOP lawmaker doesn’t have the talking points down regarding “activist, liberal judges” who legislate from the bench? That line of political positioning has been enormously successful in positioning a very conservative majority on the current Supreme Court to get away with precisely what conservatives have been critical of for years – legislating from the bench.

Set aside for a moment the merits of the Affordable Care Act and merely consider what some of the justices from the left and right said last week. As columnist E.J. Dionne noted, Justice Samuel Alito sounded like a House subcommittee chairman quoting Congressional Budget Office figures and wondered whether the government could mandate that we all have burial insurance, while Scalia went off with a weird analogy about the government mandating broccoli. The liberals didn’t comport themselves much better with some commentators noting that they tried to come to the rhetorical aide of the Obama Administration’s Solicitor General who had trouble at times articulating the best arguments in favor of the law.

But judges aren’t supposed to be super legislators, they shouldn’t care about policy or vote counting (beyond counting to five) and they have no business trying to bail out a lawyer who is fumbling his case. Such behavior paints the entire Court with an activist brush. What is needed with the current case, and I would suggest with the money in politics case Citizens United and the who will be president case Bush v. Gore is real, reasoned judicial restraint.

The Court has a legitimate role in the health care case in defining – or refining – the scope of the Commerce Clause, but the justice could also acknowledge the obvious. We’ll have an election in a few months where Obamacare will be one of the fundamental issues. All the Republican candidates say they want to repeal the law. Democrats will fight to keep it. That is the kind of messy and important debate we have elections to resolve. Real judicial restraint would find the Supreme Court – conservatives and liberals – searching for a super majority way to rule narrowly and leave the politics to those who are elected to vote on policy questions.

If the Court overturns the health care legislation, the president will undoubtedly take issue with the decision, but he ought also to use the moment to educate more broadly about how judges should approach their jobs, the Court’s sacred status notwithstanding.

 

2014 Election, 2016 Election, Andrus, Borah, FDR, Prostate Cancer, Supreme Court, Wheeler

FDR’s Great Blunder

Posted on by christian

As Court Showdown Looms, an Anniversary of Note

Two years ago in his State of the Union address, Barack Obama called out the Supreme Court of the United States for its ruling in the Citizens United case involving campaign financing.

With most members of the Roberts Court looking on from their seats in the well of the House of Representatives, Obama told the country that the Court had “reversed a century of law to open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.”

With perhaps the exception of his reference to “foreign corporations” – it’s hard to tell the source of much of the new money flooding campaigns – Obama explained exactly what has happened in the subsequent two years. And predictably, the president was roundly criticized in the aftermath of the speech for an “unprecedented attack on the Court. Justice Samuel Alito, one of the five judges in the majority in Citizens, could be seen mouthing the words “not true.”

In retrospect, not only was the president right on the substance of his criticism of the Court – Obama did teach at one of the country’s great law schools – but he had the guts to deliver his critique right to the faces of those in the black robes who hold so much sway over the policy and priorities of American life. It was hardly an unprecedented attack, either, particularly in the context of an anniversary of, what I would argue, was a defining moment in the evolution of the modern U.S. Supreme Court.

Just over 75 years ago – February 5, 1937 to be precise – the president to whom Obama is so often compared and contrasted, Franklin D. Roosevelt, took a decidedly different tack with the high court he took issue with. FDR didn’t just criticize the justices, although he certainly did criticize, he attempted – and came reasonably close to succeeding – to fundamentally remaking the Court in his more liberal image. Roosevelt’s “court packing scheme,” as it quickly became known, turned out to be his greatest single blunder as president. It also presented the country with the greatest Constitutional crisis since the Civil War.

Now, with the Supreme Court poised to hear, in unusual detail, the arguments for and against Obama’s health insurance reform initiative – the Affordable Care Act – it’s worth reflecting on the history of the court over the last 75 years and considering what might have been and what has become.

The normally surefooted Franklin Roosevelt made misstep after misstep with his plan to enlarge the Court in 1937 and when his efforts at a judicial power grab finally ended he reaped the political whirlwind. Never before, after the court packing fiasco, would Roosevelt command a working majority in the Congress for his domestic agenda. With one ill-considered move, FDR squandered his massive 1936 re-election mandate – Democrats held 76 seats in the Senate after that election – he shattered the myth that he was politically invincible and, it seems, Roosevelt forever took off the policy table any effort by any president to “reform” the nation’s highest court.

Roosevelt’s tools in attempting to enlarge the Court were secrecy and subterfuge and each got him in trouble. With the encouragement of his Attorney General, Homer Cummings, FDR hatched a secret scheme to add one additional justice to the Supreme Court for each justice over 70 who refused to retire. He consulted with no one on the idea except his politically tone deaf attorney general and then sprung the idea on unsuspecting Congressional allies. They were first stunned and then outraged.

Roosevelt compounded his “born in secrecy” problem by dissembling about the real reasons behind his proposal. Clearly he wanted to liberalize a court that had come to be dominated by former corporate lawyers and Republican appointees, but he let Cummings peddle the fiction that he was trying to improve the Court’s efficiency. The “nine old men” on the Court had fallen behind in their work, it was alleged. That argument never gained traction and simply wasn’t true.

Had Congress adopted his audacious idea, Roosevelt could have immediately added six new justices to the Supreme Court, as well as a slew of other federal judges. The Supreme Court would have gone from nine members to 15 and, of course, the president would have the chance to appoint justices who held out the prospect of liberalizing the Court that had shot down so many of Roosevelt’s New Deal initiatives.

[On one particularly Black Monday in May 1935, the Court struck down three important New Deal initiatives, including much of the centerpiece of Roosvelt’s domestic agenda – the National Industrial Recovery Act.]

In a rare rebuff for Roosevelt, the Congress simply wouldn’t buy his court packing. Republicans, of course, rebelled, but so did many Democrats. Montana liberal Burton K. Wheeler, a fierce foe of concentrated power in government or the economy, was chosen to lead the Senate opponents of FDR. Ironically, Wheeler had been among the very first to encourage Roosevelt to seek the presidency having publicly done so in 1930. By 1937 Wheeler had enough of what he saw as Roosevelt’s accumulation of personal power and made common cause with Republicans like Idaho’s William E. Borah and Oregon’s Charles L. McNary to battle the president.

As the battle was fully joined in the summer of 1937, Wheeler collaborated with Justice Louis Brandeis, ironically the greatest liberal on the Court, to obtain a letter from the patrician Chief Justice Charles Evans Hughes. Hughes’ letter, quickly drafted over the weekend prior to Wheeler’s Senate committee testimony, completely demolished FDR”s argument that the Court was behind in its work.

Borah further complicated Roosevelt’s plans when he prevailed upon his neighbor, Justice Willis Van Devanter, one of the most conservative members of the Court, to strategically announce his retirement to coincide with the release of the Hughes letter. The combination was a classic political one-two punch, but Roosevelt still refused to compromise or fold.

The American Bar Association opposed Roosevelt, as did most of the nation’s editorial pages. Still, through the hot summer of 1937, Roosevelt soldiered on with his proposal, driving an ever deeper wedge into the Democratic Party. Roosevelt was offered a compromise. If he backed off, one or two additional members of the Court would quickly retire and he could have his more liberal appointees. He refused. Seeking another route to compromise, some senators suggested the president might get two or three new seats rather than six. He refused.

Even the 10-8 vote in the Senate Judiciary Committee against the president’s bill – the committee was dominated, of course, by Democrats – failed to move the president. Incidentally, Borah wrote much of the committee report; a report that has been characterized as one of the harshest denouncements of a presidential initiative in the history of the Senate.

Ultimately, it took a dramatic Senate tragedy to bring an end to Franklin Roosevelt’s biggest blunder. FDR’s loyal lieutenant, Senate Majority Leader Joseph T. Robinson of Arkansas, while no fan of the court packing plan, still believed that loyalty to “the boss” demanded that he try to get something passed in the Senate. Robinson worked himself into a lather debating the court bill and managing the president’s expectations and in the stifling mid-July heat in Washington – the days before central air conditioning – the Majority Leader grew red in the face, announced he was done for the day and stormed off the Senate floor.

Senator Royal Copeland of New York, a physician, had warned Robinson that he was working too hard and that no bill was worth killing himself over. Robinson retreated to his apartment close to the Supreme Court building to rest. On the morning of July 14, 1937, his maid found the gruff, but much respected and well-liked Senate leader, dressed in his pajamas and slumped on his bathroom floor. Robinson was dead of heart attack. Nearby he had dropped his copy of the Congressional Record. Robinson had been reading the debate over the court bill.

Joe T’s death stunned the Capitol, in part because it was an open secret that FDR had promised the loyal Robinson the first vacancy on the Court, even though as a conservative southern Democrat Robinson was unlikely to become a liberalizing force on the Court. Senators took to calling Robinson, Mr. Justice, as they anticipated that any day FDR would name Joe to the high court.

Roosevelt hesitated. Had he made that appointment it might well have paved the way for a compromise on the court bill, or at least presented the president with a face saving exit strategy. But Roosevelt took no action and, with Robinson dead, hard feelings toward the president grew even worse in the Senate. Wheeler even went so far as to claim God himself seemed opposed to packing the court.

On the train that carried most of Robinson’s colleagues back from his funeral in Little Rock, Vice President John Nance Garner counted noses for the White House. When ol’ Cactus Jack arrived back in Washington he went directly to see Roosevelt and told him that he was beaten. The Senate when it voted, Garner said, would defeat Roosevelt’s plan to expand the Court. FDR was stunned. He continued until that moment to think that he could work his will on the Congress as he had so many times before. He reluctantly asked Garner to negotiate the best exit possible.

Garner went to Wheeler’s office in what is now the Russell Senate Office Building and told the Montanan that he “could write his own ticket” with regard to the court bill. As legend has it, the two old pols had a drink of bourbon and decided that the bill would be recommitted to the Judiciary Committee, in effect killing the proposal. Seventy senators eventually voted to recommit the court bill and Roosevelt had lost an epic battle over the Supreme Court. The whole contest had lasted for a mean 168 days.

Had FDR been willing to compromise, even a little, he might have modestly enlarged the Supreme Court in 1937 and we can only speculate as to what the long-term impact of that political act might have been. It seems safe to conclude that had a political compromise over the makeup of the Court occurred we would think somewhat differently about the Supreme Court today.

Roosevelt would later argue that he lost a battle over the Court, but eventually won a war and there is truth in that statement. Alabama Sen. Hugo Black was soon appointed to fill Van Devanter’s seat. Black, it was widely noted, had supported the court packing legislation and opposed the vote to recommit in the Senate. Black turned out to be one of the Court’s great liberals and a staunch defender of civil liberties. In time, Roosevelt also appointed Justices like William O. Douglas and Felix Frankfurter, who helped define American jurisprudence until the time of the Ford Administration.

Perhaps in an even more important way, Roosevelt’s efforts to expand the Supreme Court 75 years ago removed any possibility that any president could realistically hope to change the court simply because he disagreed with its rulings. It’s unthinkable today that a Roosevelt-like idea could be seriously considered. Instead, the fights over the direction and role of the Supreme Court are fought out each and ever time a president nominates a new justice. These confirmation fights, increasingly nasty and partisan, are still no where near as nasty as the 75 year ago fight over whether the Supreme Court would be fundamentally changed.

The great historian William Leuchtenberg has written: “FDR’s [court proposal] generated an intensity of response unmatched by any legislative controversy of this century, except possibly the fight over joining the League of Nations. Southern Democrats feared that an expanded liberal Court would give rights to blacks; progressives saw an assault on the branch responsible for protecting civil liberties; moderates who had always mistrusted Roosevelt now had proof of his treachery.”

It wasn’t as if Roosevelt hadn’t been warned. At one point Wheeler told the president that with many Americans the “Supreme Court is a religion,” and, Wheeler said, it is never smart to get in the middle of a religious fight.

This much seems certain, when the current Supreme Court issues its decision on the health insurance reform law later this summer there will, no matter how the decision goes, both glee and gloom. Still, when the smoke clears, the country, the Congress and the president will accept the verdict of the Court. Some folks, grumbling all the way, will not like the verdict, but just like the controversial decision that ended the 2000 election – Bush v. Gore – we’ll grumble and move on.

We don’t always like what we hear from the pulpit at church, but Burt Wheeler had it right in 1937. The Court may not always be right, but we accept the higher authority nevertheless.

In a way, we can thank Franklin Roosevelt and his furious fight exactly 75 years ago for that now enduring feature of American political life.