2012 Election, 2016 Election, Al Gore, American Presidents, Campaign Finance, Gingrich, Minnick, Obama, Pete Seeger, Poetry, Politics, Romney, Supreme Court, Theodore Roosevelt

A New Gilded Age

A System Awash in Money

If Mitt Romney wins the Florida primary Tuesday, as now seems likely, the media scrum following his every move will no doubt credit his win to his new-found aggressiveness in taking on Newt Gingrich, including his clearly superior debate performances during the week leading up to the vote. But that explanation will only be part of the story.

Additional credit for Romney’s rebound from what looked like near disaster in South Carolina must go to the faceless, if not altogether nameless, pro-Romney Super PAC – Restore Our Future. The Super PAC has lavished millions on the Sunshine State to help restore the future of Mitt’s campaign. Of course, Romney is not alone in enjoying the largess of a well-heeled Super PAC. Gingrich has come to depend for television exposure in the dispersed and expensive Florida market on the Super PAC that supports him – Winning Our Future. Other less well financed Supers are supporting Rick Santorum and Ron Paul and a Super PAC supporting Barack Obama is waiting patiently in the wings.

There are so many sleazy angles to the Super PAC story it is difficult to create a priority list of all the real and potential outrages. We are now into the second year of this new 21st Century reality of unlimited, corporate, and often secret money perverting what were our already money drunk campaigns.

Still in fact what seems like a new reality is really an old American tradition; a tradition of unlimited corporate money in campaigns that dates back more than 100 years to what came to be called the Gilded Age. So, remembering the old admonition that those who cannot remember the past are doomed to repeat it, we have effectively arrived at a new Gilded Age in the year 2012. It’s not necessary to be a good government, goody two shoes to worry that the very nature of our democracy is changing in ways that are profound and deeply troubling in this new age.

As the American Enterprise Institutes’ Norm Ornstein wrote recently in The Hill, the 2010 U.S. Supreme Court decision in the Citizens United case – that’s the now infamous ruling were the Court’s majority overturned a century of settled campaign finance law, allowed unlimited corporate and labor union money to flow to Super PAC’s and equated money with free speech – has put our politics more and more into the hands of the 21st Century captains of the new Gilded Age.

“By giving corporations free rein to meddle in politics without any accountability required, just like in the robber baron days, and by defining money as speech, the court dealt a body blow to American democracy,” Ornstein wrote. “Candidates no longer can focus simply on raising money for their campaigns against other candidates. Because corporations have almost unlimited sums they can put in with no notice, candidates have to raise protection money in advance just in case such a campaign is waged against them.”

The website OpenSecrets.org reports that the Romney aligned Super PAC has spent more than $17 million so far, most of it to attack Gingrich. Here’s where the perversion begins. Big money donors give unlimited amounts to the Super PAC’s, often attempting to conceal the real source of the cash, but nonetheless maintaining the ability to curry favor with the candidate supported by the big PAC. One has to be awfully naive to believe that a $1 million donation doesn’t buy more than a thank you note.

One example: Utah news organizations have reported that two Provo, Utah companies listed as $1 million contributors to Restore Our Future don’t really seem to be companies at all.

“Companies called Eli Publishing and F8 LLC contributed $1 million each to Restore Our Future,” Utah television station KSTU reported last August. “The companies share an address in downtown Provo and the super-PAC received the money from both on the same day.” The address listed for the companies, according to the TV report, was an accounting firm where employees said they had no knowledge of the businesses.

Other Romney Super PAC donors aren’t so obscure. John Paulson a New York hedge fund manager is in for $1 million. Forbes magazine lists Paulson as the 17th wealthiest guy in the world, worth $15.5 billion, which begs the question: why only a million bucks?

J.W. and Richard Marriott, the hotel guys, are into the Romney PAC for a half million each. Until a year ago, Romney served on the Marriott board. The CEO of New Balance athletic shoes is a half million dollar contributor, as is the managing partner at Romney’s old Bain Capital firm. That fellow’s wife shelled out her own $500,000.

Clearly the Romney-aligned Super PAC hasn’t had to look under many rocks to turn up millions. These dollars aren’t falling far from the tree, which is one reason all this Super PAC business has the real potential to be so sinister. The candidates all regularly proclaim that they have no connection to the Super PAC’s who are raising and spending so freely on their behalf. Federal law prohibits coordination between the campaigns and the PAC’s they say, but the line that separates the campaigns from the big corporate money certainly isn’t a very bright line.

USA Today reported over the weekend about the remarkable “coincidence” of the message in Romney’s speeches on the stump matching up with the anti-Gingrich television ads Restore Our Future is putting on the air. Of course, the two organizations don’t need to really coordinate since the PAC’s are run, in every case, by former close aides and associates of the candidates. But the no coordination mandate helps maintain the fiction that all this is happening at arm’s length and that there is no quid pro quo involved for the millionaire and billionaire contributors.

Gingrich’s Super PAC is, of course, mostly funded by an extraordinarily wealthy Las Vegas casino owner Sheldon Adelson and his wife Marion. Adelson says his support for Gingrich is easy to explain. He is a long-time friend of Newts and values the former Speaker’s vocal support for Israel, a cause near and dear to the Adelsons. But, of course, nothing is that simple in politics. Adelson’s international casino empire has vast interests in public policy and since early last year Adelson’s company has been under investigation by the Securities and Exchange Commission, which is reportedly looking into violations of the Foreign Corrupt Practices Act.

So, you might ask: what does the fact that all these very rich, very well connected, very politically interested corporate leaders have to do with a new Gilded Age? Isn’t this just the way politics has always worked? Maybe the only thing different is the amount of money involved.

Maybe the only thing different is the amount of money involved and the fact that thanks to the Supreme Court’s ruling in Citizens United these vast amounts of corporate dollars can flow unregulated into the political process. We have gone back to the future, back to the first Gilded Age at the end of the 19th Century.

University of Texas historian H. W. Brands wrote his book Reckless Decade: America in the 1890’s in 1995. In an interview with C-SPAN’s Brian Lamb, Brands nailed the essence of why corporate money in politics has such a potentially corrosive effect.

“Any capitalist economy,” Brands said in the C-SPAN interview, ” is based on the notion of economic self-interest. And, you know, if you put it another way, you can — if you’re not being too complimentary, you can call it greed. And our economy runs as much on those lines as it did back then [the 1890’s] – maybe not quite as much. There’s a government safety net now to deal with those people who were falling out the bottom of the economy during the 1890s. But, certainly, I mean, the idea of profits, and I’m certainly not going to criticize profit. But, nonetheless, the idea of economic self-interest is definitely as much a motive.”

The question to ask of our democracy in this new Gilded Age is how any candidate, no matter how well-intentioned, no matter how honest, can escape the human impact of a well-heeled friend donating a few million to help get him elected?

And granting that the casino owners, the hotel operators, the unions and the guy running the non-business businesses in Utah may truly value the particular approach and policies of a particular candidate, we also can’t deny that each has a self-interest. We all have a self-interest, but not all of us can buy so much free speech or so much access.

Justice Anthony Kennedy rather unbelievably wrote in his opinion in the Citizens case,  “[The Court majority] now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”

You wonder if Mr. Justice Kennedy has been following the campaign so far.

At a time when growing concerns about income distribution in America collide with a mounting distrust of most of our national institutions, including corporations, the Congress and the Presidency, the Supreme Court has, by opening the flood gates to unlimited corporate money in our elections, given us even more cause to doubt the fairness and sustainability of our democratic system.

As H.W. Brands noted in his history of the first reckless decade in the 1890’s, the greed and corruption that seemed to seep into every facet of America life in the first Gilded Age became so serious that only two political alternatives seemed possible – revolution or reform. Thankfully, the country took the path of reform and Theodore Roosevelt and Woodrow Wilson ushered in a Progressive Era in response to the Gilded Age.

One of T.R.’s Progressive Era reforms was to ban corporate money from political campaigns. That ban lasted for 100 years. That ban ended, and a new Gilded Age began, with a breathtakingly impactful Supreme Court decision two years ago.

As one of the beneficiaries of the excesses of the Gilded Age, Tammany political boss George Washington Plunkett, famously said, there is dishonest graft and honest graft. Plunkett went in for the honest variety. As he said, “I might sum up the whole thing by sayin: I seen my opportunities and I took ’em.”

 

2016 Election, Supreme Court

Supreme Power

Executive-Congressional Powers Square Off

The United States Supreme Court will hear arguments today in a case that has it all for we separation of powers fans. The briefing in the case also features the work of Idaho’s premier Constitutional scholar, Dr. David Adler, the Director of the McClure Center at the University of Idaho.

The case – Zivotofsky v. Clinton – involves questions of presidential power, the authority of Congress to direct the president on issues of foreign policy, the use of “presidential signing statements” made almost routine during the Bush years and a very personal question for 10-year-old Menachem Zivotofsky and his parents – where was he born.

Since 1948, when President Harry Truman recognized the new state of Israel, American presidents have carefully refused to recognize Jerusalem as part of any country. The ancient city, after all, is sacred ground for three great religions. Jews, Muslims and Christians all have a claim to Jerusalem and to keep that issue from clouding the already cloudy issue of an enduring peace in the region, every president since Truman has constructed our foreign policy to reflect the unique nature of Jerusalem.

Congress stepped into the issue in 2002 when it tucked a provision into the Foreign Relations Authorization Act – subsection 214(d) to be precise – that ordered State Department officials to record a U.S. citizen’s place of birth as “Jerusalem, Israel” if the citizen’s legal guardians so request. George W. Bush signed the bill containing subsection 214(d), but also issued one of his frequent “signing statements” saying that as the chief executive responsible for foreign policy he would not enforce the provision.

Ari and Naomi Zivotofsky beg to differ. They are U.S. citizens who live in Israel and maintain dual citizenship. They want their son, Menachem, to have a passport that states, what in their minds is clear; their boy was born in Jerusalem, Israel.

As NPR’s Nina Totenberg reported when she previewed the case: “Jewish natives of Jerusalem, who are proud of being born in Israel, may not, according to the State Department regulations, have Israel on their passports, says lawyer Nathan Lewin, who represents the Zivotofskys. The result is that the passports may only say Jerusalem.”

The Obama State Department, following the same line of argument of the Bush Administration, argues that the case is both beyond Supreme Court review since it’s clearly a “political question” and also encroaches on presidential power. The briefs for the State Department – that’s why Hillary Clinton is named in the case – say that the Constitution assigns to the president a “broad range of foreign affairs powers,” including recognizing foreign nations and accepting the credentials of ambassadors.

Lawyers for the Zivotofskys argue if the issue of Jerusalem’s status is so important to U.S. foreign policy President Bush should have done the Constitutional thing and just vetoed the bill back in 2002. The case is obviously being watched closely by American Jewish groups.

Dave Adler’s work, by the way, is prominently cited in a brief filed in support of the Zivotofskys by the American Association of Jewish Lawyers and Jurists.

This case is fascinating on many levels, including the obvious tension between the powers of a president and the role of the Congress in the making of foreign policy. It’s also a useful reminder that such big questions often involve the real and personal issues of normal folks.

It will also be fascinating to see if the increasingly activist Roberts Court really get to the point of deciding this case on the details. The case only got to the Supreme Court after lower courts ruled the fundamental issues political in nature. In short, those courts told Congress and the president to go figure this out without bringing the fight to the third branch. Now the nine will decide about Menachem Zivotofsky’s passport and potentially so much more.

 

2014 Election, 2016 Election, American Presidents, Andrus, Borah, Campaign Finance, FDR, Health Care, Obama, Supreme Court

2012 Wildcard

Elections and the Court

When the Obama Justice Department announced last week that it had asked the United States Supreme Court for an expedited review of the Affordable Care Act (ACA) – Obamacare, health care reform, etc. – the government’s lawyers confidentially predicted that the current court would uphold the law. In making that claim the Justice Department cited several precedents in our history where the Supreme Court has reviewed and upheld once controversial laws that have now become established features of American life.

“Throughout history,” the Department said in a statement, “there have been similar challenges to other landmark legislation, such as the Social Security Act, the Civil Rights Act and the Voting Rights Act, and all of those challenges failed. We believe the challenges to the Affordable Care Act — like the one in the 11th Circuit — will also ultimately fail and that the Supreme Court will uphold the law.”

The Justice Department release represents more than a little wishful thinking and an even larger dose of selective historical memory. At least once before, in a case that has some striking parallels to what is unfolding with the Affordable Care Act, the Supreme Court considered and struck down major provisions of a Democratic administration’s domestic agenda. It happened in 1935 and the political fallout, the subsequent election campaign and the president’s policy response produced the greatest Constitutional confrontations since the Civil War.

Franklin Roosevelt signed the National Industrial Recovery Act (NIRA) into law on June 16, 1933. The law created, among other things, the National Recovery Administration, symbolized by the “blue eagle” that appeared on signs in store windows, in propaganda-like newsreels and in vast demonstrations staged in major U.S. cities.

The NIRA granted to the president vast powers – unprecedented really – to promulgate industrial codes of fair competition. The effect was to form industrial cartels that were not suppose to engage in price fixing, but came very close to doing just that, as well as turning the capitalist concept of competition on its head.

The code provision had been controversial, particularly in the Senate, where some legislators who abhorred “monopoly” – senators like Borah of Idaho and Wheeler of Montana – were concerned the law essentially did violence to the Sherman Antitrust Act, a law on the book since 1890.

The NIRA also established rights to collective bargaining, regulated working conditions and some wages and, in a separate section, created the Public Works Administration (PWA), the major infrastructure investment vehicle of the New Deal.

There were many problems administering the complex NIRA and the inevitable legal challenges began almost immediately. Eventually on May 27, 1935, a unanimous U.S. Supreme Court ruled major parts of the NIRA unconstitutional. Roosevelt was stunned and outraged, even though FDR’s Justice Department, like Barack Obama’s Justice Department with the health care legislation, had tried to pick the case and the timing to take the issue to the nation’s highest court.

Writing for a united Court, that like today’s Court frequently found itself sharply divided between conservatives and liberals, Chief Justice Charles Evans Hughes, zeroed in on Constitutional problems with two features of the law that FDR considered the centerpiece of the domestic agenda he hoped would lift the economy out of the Great Depression. Like the arguments around the Affordable Care Act, the issue in 1935 was the Commerce Clause of the Constitution.

As Hughes wrote, “If the commerce clause were construed to reach all enterprises and transactions which could be said to have an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of the people, and the authority of the State over its domestic concerns would exist only by sufferance of the Federal Government.” Sounds a lot like the arguments over the health care bill’s individual mandate provision.

The ruling in the Schechter Poultry Corporation case that brought down the NIRA is today generally considered a very narrow 1930’s interpretation of the Commerce Clause and FDR certainly thought so. He famously complained to a room full of reporters gathered in his office that the Supreme Court had adopted a “horse and buggy” view of the nation’s economy and particularly of interstate commerce. The Commerce Clause is at the heart of the ACA debate because critics charge a central federal government has no business mandating that individuals must purchase health insurance. We’ll see. 

It would be unfair to stretch the parallels between 1935 and 2011 too far and it is possible the Supreme Court my opt for an artful dodge to avoid deciding the health care case before next year’s election. It is also true that we live in vastly different times, although the politics around the Great Depression feel a good deal like the politics around the Great Recession.

Since 1935, the Court has vastly expanded our understanding of what constitutes interstate commerce and the ruling Roosevelt disliked so much came more than a year before he sought re-election to a second term. Barack Obama, by contrast, may get his ruling on the Affordable Care Act smack dab in the middle of his re-election effort and, while the NIRA was controversial it had little of the polarizing political impact of health care.

After his initial “horse and buggy” zinger had been delivered, Roosevelt generally avoided mentioning the Court, while he privately seethed about the “nine old men” who had dismantled his handiwork in the midst of a national economic crisis. Once safety re-elected in 1936 Roosevelt came down on the Court with a ton of bricks, serving up his ill-fated plan to “pack the court” by adding up to six new justices who would presumably liberalize a reactionary court. The Congress refused to go along with such an overreach and Roosevelt suffered a massive defeat right on the heels of winning a second term in a landslide.

One way or the other, Obama looks to get his chance to be pleased or disappointed by the Supreme Court in the middle of a high stakes campaign season. Most Court analysts say they count four votes in favor of upholding the controversial law and four against. Obama may think about issuing a quick invitation for a golf game to Justice Anthony Kennedy. By all accounts he’ll decide the fate of the Affordable Care Act.

There is one more historical footnote related to the 1935 case that, if he’s thought about it, might well give former law professor Obama some political heartburn. In 1935 the most liberal member of the Supreme Court was the venerated Justice Louis Brandeis, who history records as one of the all-time great justices. Roosevelt was stunned when the man he called “Isaiah” ruled against him.

Robing up before the Court delivered its decision on the NIRA, Justice Brandeis told Roosevelt aide Tommy Corcoran, “This is 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.”

 

2016 Election, Supreme Court

The Word is Ethical

Thomas and Fortas, Separated Only By Time

In a completely fascinating piece in the current New Yorker, Supreme Court watcher Jeffrey Toobin has what many will consider a surprising take on Justice Clarence Thomas:

“In several of the most important areas of constitutional law,” Toobin writes, “Thomas has emerged as an intellectual leader of the Supreme Court. Since the arrival of Chief Justice John G. Roberts, Jr., in 2005, and Justice Samuel A. Alito, Jr., in 2006, the Court has moved to the right when it comes to the free-speech rights of corporations, the rights of gun owners, and, potentially, the powers of the federal government; in each of these areas, the majority has followed where Thomas has been leading for a decade or more. Rarely has a Supreme Court Justice enjoyed such broad or significant vindication.”

At the same time, Toobin writes that Thomas and his politically ambitious and well-connected wife Ginni are becoming ever more involved with a collection of very conservative interests determined to see, among other things, Barack Obama’s health care reforms ruled unconstitutional. Thomas is more and more the champion on our badly divided Supreme Court of a judicial philosophy that places little if any importance on precedent or predictability in the law. In short, Thomas has become the ultimate activist judge; one not only willing, but seemingly eager to overturn what lawyers and most judges call “settled law.”

By this time next year it’s entirely possible Thomas and his colleagues will have heard the various appeals about the health care reforms and, one way or the other, their decision will send the Court into the middle of the next presidential election. It won’t be the first time the Court has been in the middle of a big political fight, but given the increasingly open activism of Thomas, the Court may well be subjected to a new level of scrutiny and criticism. Already the dots connect a little too comfortably between the  ethically challenged Great Society Justice, Abe Fortas, and the Justice from Pin Point, Georgia, Clarence Thomas.

In 1968 a lame duck Lyndon Johnson appointed his old friend and regular political advisor Abe Fortas to be Chief Justice of the Supreme Court. Fortas, already on the Court and increasingly, thanks to his brilliant liberal mind, becoming the intellectual leader of the gang of nine, eventually was forced to resign when his ethical lapses caught up with his liberal politics. The Senate refused to confirm Fortas sending a sharp rebuke to LBJ.

Clarence Thomas would be the last to place himself in the company of an unreconstructed New Deal liberal like Abe Fortas, so let me do it for him.

Both men, decades apart chronologically and poles apart politically, nevertheless brought to the high court a fundamental political agenda. Thomas’ life, before his appointment by George H.W. Bush, had been a life in politics, including work on Capitol Hill and in federal agencies. While it is impossible to diminish Thomas’ compelling, dramatic personal story, he’s where he is because of politics. So was Abe Fortas.

Fortas got his start in the Roosevelt Administration in a series of jobs in the Securities and Exchange Commission. He later held top jobs at the Interior Department and spent two lucrative decades in private practice with always one foot firmly planted in politics. It is a fascinating historical footnote that Fortas provided legal representation for Lyndon Johnson during LBJ’s fiercely contested first race for the U.S. Senate in Texas in 1948. Ever politician, I’d guess, feels beholden to the lawyer who helped secure their election victory. Not everyone has a chance to put that lawyer on the Supreme Court.

Fortas finally sealed his political and judicial fate when it was revealed after his nomination to be Chief Justice that he had an ethically questionable relationship with financial benefactors. He also did something unthinkable for a judge today – he actually sat in on White House staff meetings.

The New York Times reported recently that Thomas, not unlike Fortas years ago, maintains what the paper called “an ethically sensitive relationship” with Dallas real estate developer and GOP fundraiser Harlan Crow. Thomas declines to talk about the relationship or his wife’s work for Tea Party-oriented groups and causes, including groups determined to overturn the health care law. Toobin does quote the Virginia Attorney General leading the charge against the Affordable Care Act as expressing supreme confidence that he’ll have Justice Thomas’ vote when the case gets to the Supremes.

This much is true: no one gets to the United States Supreme Court without political connections and a certain political orientation. It is the way our system works and once on the Court the temptation to put in place through the law one’s own political philosophy must, at times, be overwhelming. But, tempting or not, that’s not the job of a judge. You want to make the law, run for Congress.

At the same time, judges are only able to maintain a certain level of public trust and confidence if they conduct themselves, in public and private, in such a way as to be nearly as pure as Caesar’s wife. Abe Fortas failed the test in 1968. Clarence Thomas is close in 2011.

Ironically, both Thomas and Fortas graduated from Yale Law School, a fact that Thomas now considers one of his great mistakes in life. He tells associates, according to Jeffrey Toobin, that when it comes to speaking at law schools, “he doesn’t do Ivies,” which he considers the unhealthy domain of the nation’s “elites.” Thomas even refuses to sit for a portrait that his law school could display in its hall of fame.

I did notice in perusing this fall’s course offerings at Yale Law that among all the classes on torts, contracts and the Constitution is something called the Ethics Bureau at Yale. The Bureau helps provide practical experience for law students who in turn help clients who can’t afford to pay. In part, the course description reads: “Impecunious clients and the lawyers who serve them are in need of ethics counseling and legal opinions on a regular basis.”

Apparently some judges who are not “impecunious” also need “ethics counseling” on a regular basis. And that Yale course, it should be noted, has no prerequisite.

 

2016 Election, Baseball, Climate Change, Human Rights, Medicare, Politics, Supreme Court

A Tipping Point

Law Firms, Gay Marriage and Civil Rights

I once heard Sherman Alexie, a gifted writer who also happens to be Native American, have some fun at the expense of those who maintain that there is something inherently evil about homosexuality. To drive home his point that homosexuality is as old as humankind, that gays live and work with us everywhere and that the creative class – writers, composers, actors, etc. – are disproportionately represented in the gay community, Alexie challenged his audience to go home and look at the titles in their bookcase.

Chances are you’ll  find on that book shelf, Alexie good naturedly said, writers who are “gay, gay, gay, Hemingway, gay, gay…”

I thought about Alexie’s humor recently as I read accounts about the big, white shoe law firm of King and Spalding dropping out as legal counsel for the U.S. House of Representatives, which intends to defend, now that the Obama Administration won’t, the so called Defense of Marriage Act (DOMA).

King and Spalding’s then-partner Paul Clement, a former Solicitor General in the Bush Administration, had signed on to handle the DOMA case for the House of Representatives for a fee of $500,000. But apparently Clement either hadn’t vetted the representation carefully enough or the leaders of the big firm decided the high-profile gay rights case represented too much controversy. For whatever reason, the firm backed out. Gay rights groups immediately claimed creditfor getting the firm to abandon the controvesial case, editorials and politicians blasted the firm for caving in to such pressure and the firm has refused to say much beyond a terse statement from the managing partner to the effect that the representation hadn’t been adequately reviewed by the firm. Meanwhile, Clement resigned in protest and took the DOMA case with him to another firm.

At least two things are going on here. One potentially involves a fundamental principle of legal representation, the other may signal a tipping point in the long-running public debate over same sex marriage. First, the legal issue.

If King and Spalding, a 125-year old, international law firm with 800 lawyers, that represents, according to its website, clients as diverse as Coca Cola and Goldman Sachs, withdrew from the DOMA case under pressure then it deserves all the flack it’s taking. If, as seems more likely for a firm that has had partners like Sam Nunn and Griffin Bell, the firm had a breakdown in assessing a potential client (and assessing how, for example, the law firm’s commitment to diversity might be impacted by taking the case) then they get a black eye for process and public relations rather than for displaying questionable legal ethics. It’s worth noting, just to make this a bit more complicated, that two of King and Spalding’s partners are representing Guantanamo detaineeson a pro bono basis.

Everyone, it is said, from the suspected murderer to the white collar criminal, deserves legal representation. However – since I’m not a lawyer I can say this – not every lawyer has an obligation to every potential client. In fact, I’ve heard lawyer friends say it, and I’ve said it in the public affairs business, “everyone is entitled to good representation, but not everyone is entitled to my representation.”

In a New York Times op-ed piece last Friday, a Minnesota law professor made a compelling case that law firms have led society’s way in creating equal opportunities for gays and minorities. Dale Carpenter wrote, “Gay-rights supporters have transformed the law and the legal profession, opening the doors of law firms, law schools and courts to people who were once casually and cruelly shut out because of their sexual orientation.” This process has been slow, but steady not unlike the larger civil rights movement that since the 1960’s has transformed the attitudes in the professions – the law particularly – regarding opportunity and equality.

This controversy also may represent a larger societial tipping point. As Supreme Court reporter Adam Liptak writes in the Times, we may be near a point where the nation’s thought-leading “elites” – including big-time law firms, the corporate community and the media – are “racing ahead of popular opinion and shutting down” what many still believe to be a worthwhile debate.” When firms like King and Spalding spend real time, money and effort on diversity in hiring and promoting, its hard not to conclude that broad public opinion is going to follow – and pretty quickly. And that is exactly what seems to be happening.

The Pew Center for the People and Press recently reported that its surveys indicate that public support for same sex marriage continues to grow with virtually the same percentage of Americans now supporting as opposing. This trend of growing support has been evident for some time, Pew notes, while the partisan divide over the issue remains deep.

“As has been the case since 1996, there is a wide partisan division on the question of same-sex marriage. Currently 57% of Democrats favor making it legal, while only 23% of Republicans agree. Independents (at 51% in favor) are more similar to Democrats than to Republicans, in part because 46% of Republican-leaning independents are supportive of same-sex marriage, along with 58% of independents who lean Democratic.”

Ten countries, including Canada and Argentina, now recognize same sex marriage and 15 other countries, including many nations that form our military coalitions in the Middle East, recognize civil unions. It’s hard not to conclude that the course on this issue is set and, whether intended or not, that King and Spalding’s decision not to represent the Congress in the Defense of Marriage Act case could further move the debate in the direction it is already clearly heading.

There seems to be a certain historical pattern to such issues. Opponents of same sex marriage, politicians and religious leaders, invoke spiritual teachings and cultural norms as the basis of their opposition. You often hear that same sex marriage will “weaken the institution of marriage.”

In a fascinating piece in the Times Magazine recently, the author of a new book on Ann Durham, President Obama’s Kansas-born white mother, notes that when Ann married Obama’s Kenyan father she did so at a time when “nearly two dozen states still had laws against interracial marriage.” It wasn’t all that long ago – 1967  in the case Loving v. Virginia – that the U.S. Supreme Court outlawed state prohibitions against interracial marriage. Incidentally, many of the same arguments advanced today against same sex marriage were used then to oppose interracial marriage.

Not surprisingly, Obama – like more and more Americans – admits that his views on same sex marriage “are evolving.” If you talk to younger Americans you’ll find little toleration for discrimination based on race or gender. They’re way beyond such things and generally can’t understand what all the controversy is about.

In his unanimous opinion in the 1967 Loving case, Chief Justice Earl Warren, the former Republican governor of California and 1948 running mate of Thomas Dewey, concluded with these words: “Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.”

Warren repeatedly referred in his short opinion to “basic civil rights,” guaranteed under the Constitution. The Court, Warren said, has “consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”

It is undoubtedly some distance in the future, but it’s not difficult to imagine a Supreme Court justice writing the same sentence Earl Warren wrote in 1967  substituting the word “sex” for “race” and “gender” for “racial.” 

The simplest of all explanations – the logical principle of Occam’s Razor– is almost always correct. Perhaps the big, prestigious law firm of King and Spalding simply didn’t want to be on the wrong side of history.

But let’s give Sherman Alexie the last word on this subject. To those who say that gay marriage is a threat to the heterosexual, one-man, one-woman institution of marriage, Alexie says, not true. “Gay marriage does not threaten my marriage.  Beautiful, easy women with no boundaries threaten my marriage.  I don’t need anyone else’s help.”

 

2016 Election, Campaign Finance, Health Care, Supreme Court

The Judges Decide

The Supremes and Health Care Policy

As the first anniversary of the controversial national health care reform legislation – or more correctly health insurance reform legislation – came and went a while back there was increasing acceptance of the notion that the U.S. Supreme Court will get the last word on the issue that continues to shape our politics.

That word will likely be handed down across the street from the U.S. Capitol right in the middle of the next presidential election campaign.

One of the most vocal defenders of the controversial law, New York Rep. Anthony Weiner, admitted recently what many are thinking: the Supreme Court will overturn the law, or at least the portion that mandates individual coverage. “If lightning strikes, and it turns out that as many of us believe, the Supreme Court turns out to be a third political branch of government and they strike down the mandate — big deal,” Weiner said. “Big deal!” Weiner argues that rejection of the individual mandate requirement will re-open the debate about the so called “public option.” We’ll see.

It will be fascinating if, as Weiner and others predict, the nine justices of the nation’s highest court enter this political thicket. There was for a time in our history a self-imposed reluctance on the part of the court to stick its nose far into the “political” territory of the Congress and the president. Barring a sharp question of Constitutionality, judges once thought it the “conservative” position to defer to the elected branches of government on questions of broad policy.

Conservatives would argue that those days of real judicial restraint became sand through the hour glass during the “activist” days of the Warren Court in the 1950’s and 1960’s. Liberals argue, on the other hand, that it has been “conservative” courts, beginning most importantly during the Reagan Administration, that have ranged far and wide over the political territory that some suggest is better left to legislators and to the one person in our system who is elected by all the people – the president.

But whether you consider it “activist” that the Supreme Court, almost eagerly it seemed, stepped into the Florida recount in 2000 and ultimately ruled in a way that put George W. Bush in the White House, or that Chief Justice Earl Warren worked hard to engineer a unanimous Supreme Court decision in 1954 to overturn state laws allowing racial segregation, the fact is that the Supreme Court – and particularly the very conservative majority on the Roberts Court – is poised to impact the political narrative of 2012. It has happened before. The Brown v. Board of Education decision on segregation, and subsequent Congressional efforts to enforce and expand on the decision, were arguably a catalyst for the systematic and still continuing swing of the southern United States from the Democratic to Republican parties. Richard Nixon’s now famous – or infamous – “southern strategy” in 1968 successfully capitalized on the sense that “activist” liberal judges were remaking the country in a frightening way.

Earlier in the 20th Century, another unanimous Supreme Court, this time in 1935 and with a conservative majority, happily overturned the cornerstone of Franklin Roosevelt’s New Deal reforms by rejecting much of the National Industrial Recovery Act. FDR was livid, particularly with “liberal” judges like Louis Brandeis who were willing to reject his reforms that enjoyed broad public and Congressional support. Roosevelt contended the “nine old men” on the 1930’s Court were intent on imposing on the country a “horse and bugging” definition of interstate commerce, while rejecting the needs of small business and individuals. Safely re-elected in 1936, Roosevelt tried to get even by “packing the court.” He lost badly and the political bitterness and impact of that fight lingered for years.

In a splendidly provocative and highly entertaining new book, The Conservative Assault on the Constitution, Erwin Chemerinsky, the founding dean of the UC Irvine Law School, and a widely respected Constitutional scholar, argues that it is conservative judges, at least since the days of Nixon, who have done the most to change the way we think about – and judges apply – the 21st Century Constitution. “

Since 1968,” Chemerinsky writes, “conservatives have sought to remake constitutional law and they largely have succeeded. They initially set out to overturn the decisions of the Warren Court, but soon began to aggressively pursue a vision of constitutional law that consistently favors government power over individual rights … and the interests of businesses over individual employees and consumers. Because decisions come one at a time over years and because the Court never overruled the Roe v. Wade abortion decision (though it came within one vote of doing so), it is easy to underestimate how successful the conservative assault on the Constitution has been.”

Professor Chemerinskey cites numerous cases, involving everything from the rights of criminal defendants to what he calls the “re-segregation” of American schools, to buttress his point. Perhaps the highest profile recent example – Citizens United – found the Roberts Court, apparently with little hesitation, overturning a century of settled law when it allowed, on First Amendment grounds, unlimited and unregulated corporate money to re-enter American politics.

Whether you agree or not that “conservative judges” have become the real judicial activists, it’s indisputable that “liberals” have lost the battle to frame broad political battles around the court’s make-up and decisions. Richard Nixon drew the political lines that have defined more liberal justices as the activists, while conservatives talk almost exclusively of Justices like Roberts, Scalia and Thomas as staunch defenders of the Constitution, motivated by real “judicial restraint.”

We will soon see how well that framing hangs together when a conservative Roberts Court overturns the liberal health policy reform of a Democratic Congress and president. Barack Obama already had his mini-FDR moment when he directly criticized, to the justice’s faces, the Court’s Citizens decision. The president may soon have reason, in the middle of his re-election campaign, to take on the “activist Roberts Court” again and once again the Supreme Court – appointed for life and presumably insulated from the daily grind of partisan politics – could dramatically impact American politics.

2016 Election, Supreme Court

First Monday in October

supreme courtOur Least Understood Institution

The new term of the U.S. Supreme Court opens today with a new justice, for the first time ever three women sit on the high court and, for the first time since 1970, no Justice John Paul Stevens.

Tomorrow night – October 5 – I’ll be talking about some of the most significant history of the Supreme Court at the Library at Cole and Ustick in Boise. The event, free and open to the public, begins at 7:00 pm.

The focus of the talk, presented under the banner of the Idaho Humanities Council’s Speakers Bureau, is the huge fight over the summer of 1937 that resulted from Franklin Roosevelt’s sweeping plan to enlarge the courtpack it his critics said – and turn the Court in a dramatically new direction. As I’ve researched the story – Idaho’s William Borah was deeply involved in the fight – I have come to believe there are still echoes of that long ago fight in the way the Court operates today.

The modern confirmation process was, in many ways, born of that fight in 1937 and the raw political implications of who sits on the Court and why came sharply into focus. Still, even when its actions are in the news constantly, the Court remains perhaps the least understood of our government institutions.

I’ll look forward to the chance to talk about the Supreme Court Tuesday evening and answer questions. Please come by if you can.

2016 Election, Baseball, Baucus, Politics, Supreme Court, U.S. Senate

Byrd, Kagan and the Senate

byrdA Monday Morning in Senate History

The news that the longest serving member of Congress in the nation’s history, Robert Byrd of West Virginia, had died got me to thinking about all that the silver maned “dean of the Senate” has seen since coming to Washington, D.C. in 1952. Think about it: Korea, McCarthy, the Cold War, Eisenhower, Kennedy, LBJ, Vietnam, civil rights, Nixon, Watergate, the rise of China, the end of the Soviet Union, radical Islam, Iraq and Afghanistan. What a time and what a career. Byrd was 92 and he loved the Senate.

Byrd, with his courtly demeanor and three piece suits, was a throwback in many ways. Before his declining health, he was one of the Senate’s great theatrical orators. Byrd was also a respecter of tradition and rules, one of the Senate’s champion appropriators – it seems like half of the bridges and buildings in West Virginia carry his name – and a fierce defender of the Senate’s role and responsibility as an institution in our system; particularly the Senate’s role in limiting executive power. His has not been a career free of controversy, either.

In the early 1940’s, Byrd organized a Ku Klux Klan chapter in his hometown, Crab Orchard, and was chosen the chapter’s “Exalted Cyclops.” The Klan connection followed him all the rest of his life. In his memoir, Child of the Appalachian Coal Fields, published in 2005, he called joining the Klan a serious case of “bad judgment” driven by the naivete and ambition of a young man.

“(Klan membership) has emerged throughout my life,” he wrote, “to haunt and embarrass me and has taught me in a very graphic way what one major mistake can do to one’s life, career, and reputation.” Byrd goes on to note, not without irony, that organizing the Klan chapter in the 1940’s served as his stepping stone to politics.

He was mentioned as a presidential or vice presidential candidate more than once, rose to become Senate Majority Leader and has been a genuine scholar of Senate history. His book – The Senate: Addresses on the History of the United States Senate, 1789-1989 – is wonderful reading for a political history buff.

In his day, Byrd could play a pretty fair fiddle. I remember seeing him in action in a stiflingly hot Boise High School auditorium during a campaign event for Sen. Frank Church in the fall of 1980.

Byrd has also been a passionate advocate for better teaching of American history and when the Federation of State Humanities Councils presented him some years back with an award for his advocacy and support, he pulled out tattered copy of a history text he had read as a child in those Appalachian coal fields. The book, now mostly long forgotten, was An American History written by a Columbia University historian, David Saville Muzzey, and first issued in 1911. Muzzey’s work was a standard American history text in the early 20th Century and Byrd praised it to nines; repeatedly referring to “his Muzzey.”

In 2004, Byrd authored another book; a slim and well-reasoned volume entitled Losing America. With the book he lamented the steady rise, during what was then his nearly 60 years in Washington, of the power of an American president to commit our military to action with little if any questioning by the Congress. The book was written in the wake of 9-11 and George W. Bush’s invasion of Iraq; a action Byrd had courageously and very openly opposed.

He wrote: “The awesome power to commit this nation to war must be taken back from the hands of a single individual – the president of the United States – and returned to the people’s representatives in Congress as the framers intended. No president must ever again be granted such license with our troops or our treasure.”

At a time when there is so much talk about threats to the Constitution from – take your pick – President Obama, the Democratic Congress, a conservative Supreme Court or talk radio it is interesting that those doing the denouncing on both the left and the right hardly ever – OK, Ron Paul is an exception – mention Byrd’s point about Article 1, Section 8, Clause 11 – “The Congress shall have power…To declare war.”

Bob Byrd knew “his Muzzey” and his Constitution. He has always carried a copy of the founding document in his coat pocket. His Senate career is one for the record books and the history books and the Senate could use his historical perspective as it takes on another Supreme Court confirmation this week.

And Now, Judging Kagan

Elena Kagan’s confirmation hearings open today and the Senate’s increasing inability to comprehensively, carefully and civilly carry out the “advise and consent” function may be as much on trial as the nominee.

Republicans on the Judiciary Committee were threatening over the weekend to boycott the hearings unless they got access to more Kagan documents. Ranking GOP member Jeff Sessions even suggested a filibuster might be in order.

Almost all of this, along with unbelievable talk about Kagan’s wardrobe and looks, is little more than political theatre. The real questions that need to be asked, and probably won’t be, are much less theatrical and much more important.

Is she competent? Supreme Court clerk, White House Counsel’s Office, Harvard Law dean would argue for a yes. My question: what did she learn from those experiences and how might it apply to the Supreme Court?

Has she done anything in her professional or private life that might disqualify her – or anyone with similar history – from service on the high court? Nothing we know of.

So, ultimately, does she understand the role of a judge? While we’ll hear a good deal about her “judicial temperament” and whether she is an “activist” or a “liberal.” I’d like some member of the Senate committee to ask her who she thinks has most affected American judicial thought since 1789, or in the 20th Century? Does she know anything about Holmes and Brandeis, Marshall and Taney? What opinion of Chief Justice Rehnquist’s does she most admire? What has she read lately? How does she see the job of lawyer to the president? How will she work with Roberts and Scalia? Does she think she has any responsibility to explain herself – and her opinions – if she gots to wear the robe?

You can bet the White House has equipped Kagan with 110 ways to say “I couldn’t possibly comment on that since it is an issue that may well come before the Court.” So, maybe we could have the Senate engage her in a conversation about how she thinks, what she knows about history and the Constitution and how she will apply her experience.

I’m not holding my breath. The nineteen members of the Judiciary Committee – assuming the Republicans show up – will each need plenty of C-SPAN time. Why waste any of those precious moments on a real question that might really tell us something about the nominee when a partisan speech is possible – and expected?

Bob Byrd and Elena Kagan are joined in history this Monday morning; the history of the United States Senate. Let’s hope the current Senate is up to playing something approaching a useful role in writing one more chapter in that history, because with two problematic wars raging, a stagnant economy and millions out of work, the country hardly needs the sideshow of an unproductive fight over who should join the Supreme Court. The White House and the Senate have a stake in making things work, and work better. Why not start today?

In his massive history of the Senate, Byrd wrote lovingly about the great Majority Leader from Montana Mike Mansfield and quotes the Montanan – the longest serving leader in history – as saying: “In moments of crisis, at least, the President and the Congress cannot be adversaries; they must be allies who, together, must delineate the path to guide the nation’s massive machinery of government in a fashion which serves the interests of the people and is acceptable to the people.”

That is the Washington we need right now and can’t seem to get.

2016 Election, Supreme Court

Should Judges Think?

souterMr. 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.

2016 Election, Supreme Court

But She Isn’t a Judge

kaganMany 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.