Monthly Archives: October 2020

Tinkering with the court 

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Talk by Democrats about increasing the numbers of Supreme Court Justices after the confirmation of Amy Coney Barrett—IF they gain control of the Senate—is nothing new.  The court membership has fluctuated from five to ten and the changes often have been for political reasons, not because of concerns that the court would not dispense justice.

The concern by liberals that the Court will be 6-3 for years to come is based in part on the ages of the present members of the Supreme Court.  If Joe Biden is elected president, he might have a chance to hold the court at 6-3.  A loss exposes the court to the possibility of slipping to 7-2. If Democrats hold onto the White House, for another four years after Biden (assuming Biden keeps to his early statement that he would not seek a second term) his successor could flip it back to a 5-4 court. But some things would have to happen and it is not wise to count on them falling into place.

Justice Stephen Breyer, appointed by President Clinton, is 82.  We are not aware that he has said anything about hanging on until a Democrat takes office but at 82, he might think about whether he wants to still be on the court at 86.  Clarence Thomas, the senior justice, is 72, a Republican appointee. He also hasn’t said anything about leaving—in fact it is rare for him to say anything at all publicly, and nothing says he must—but he soon will have thirty years on the court, becoming the fifteenth justice to reach that tenure.

Depending on this presidential election and the next, Breyer and Thomas might be where Justice Ginsberg was—trying to hang on until a new president of an acceptable party is elected before retiring.

Here are the ages of the present and likely future U.S. Supreme Court:

Stephen Breyer   82 (Clinton)

Clarence Thomas 72 (Geo. H. W. Bush)

Samuel Alito  70 (GWB)

John Roberts 65 (George W. Bush)

Sonia Sotomayor 66 (Obama)

Elena Kagan 60 (Obama)

Neil Gorsuch 53 (Trump)

Brett Kavanaugh 55 (Trump)

Amy Coney Barrett  48 (Trump)????

All of this is assuming everyone remains in good health.

If Democrats have the White House for the next eight years, Justice Thomas will be 80 and he will be approaching the tenure record of 36 years and 7 months set by William O. Douglas (1939-1975), the only Justice to serve more than 35 years. Would Thomas want to set a new record and in the process wait for a Republican President and a Republican Senate again?

But how about just adding new seats on the court while the Democrats are in power to neutralize the current conservative leaning or to offset it?

There is nothing sacred about the number nine in determining the size of the court. The Judiciary Act of 1789, the legislation that enabled to Constitutional provision creating the court system, established the first U.S. Supreme Court with six members—a Chief Justice and five Associate Justices.

The National Constitution Center says President John Adams and a lame-duck Congress passed a law in 1801 to reduce the court to five members. That was done to limit incoming President Jefferson from making appointments. Jefferson’s Republicans overturned that act and put the membership back to six. A seventh judge was added during Jefferson’s term when a Seventh Judicial Circuit was created.

For some time, the number of justices was tied to the number of federal court circuits. When Congress expanded the number of districts, President Jackson added two more members of the court. When the Tenth Judicial Circuit was created in 1863, Congress added a tenth Justice.

Congress did not want President Andrew Johnson, soon to be impeached, to appoint any new Justices, so the Judicial Circuits Act of 1866 reduced the membership from ten to seven with the decrease taking place as vacancies occurred. Two years later, with Johnson gone and Grant in the presidency, only two vacancies had occurred, leaving the court with eight members. The Judiciary Act of 1869 added one seat back, setting the membership at nine and there it has stayed to this day.

The number withstood President Franklin D. Roosevelt’s threat to enlarge the court because it leaned conservative and wasn’t as supportive of his New Deal policies as he wanted the court to be. His Judicial Reform Act of 1937 would have expanded the court to fifteen. The court took the unusual step of engaging in the political process when Chief Justice Charles Evans Hughes, a conservative, and liberal Justice Louis Brandeis came out against the plan. Not long afterwards, changing voting patterns on the Court and vacancies that Roosevelt could fill took care of the situation as far as he was concerned. Roosevelt’s packing proposal had gained little traction anyway.

So that is how we got to having nine members of the U.S. Supreme Court.

Here’s another interesting tidbit about the selection of new Justices. If you read the original Constitutional language in last week’s entry, you might have noticed there are no qualifications listed for becoming a member of the U. S. Supreme Court. Nothing says a Justice must be a lawyer or have previous experience on the bench. Should a President want to appoint a White House janitor to the court, he or she could do that.  The Senate with its confirmation powers presumably would not confirm a janitor. But how about—-

Justice-nominee Sean Hannity, a house painter before he started talking on the radio. Never finished college.  But under the Constitution, he could be appointed to the U. S. Supreme court.

Would Senator McConnell fast track that one?

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A good man, a statesman

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We usually are silent in this space on Tuesdays but today we must note the passing of former state legislator Wayne Goode.  His kind has been missing from our General Assembly far too long.  Wayne was from St. Louis and St. Louis County. He and John T. Russell (who died several years ago) served 42 years in the House and the Senate. Only Senator Michael Kinney, who represented St. Louis for 56 years served longer.

He died Saturday of leukemia. He was 83. He was one of the finest people I knew in four decades as a reporter at the Capitol.

Wayne is a prime exhibit in discussing the evils of term limits.  Last year, the Missouri Historical Society in St. Louis presented him with its highest honor, The Thomas Jefferson Award.  I was asked to talk about him.

Some people, it seems, are born for public service and if there ever was one of those people it is Wayne Goode. I will not even try to list all of the boards and commissions on which Wayne has served. 

Wayne always was one of the “white hats” in the general assembly.  In today’s sometimes irrational political world there would be critics who would say he was just a darling of the left wing fake news media, I suppose.  But they’d be wrong.

Wayne wasn’t very good at political rhetoric.  But he was great at common sense, sound reasoning, and persuasive credibility.  People listened when he talked. 

I remember him especially from his work in shaping state budgets.  Until he came along, the state budget was pretty much written by the chairman of the House Appropriations Committee.  But Wayne got the job and decided that if there was a committee, the committee should do the work and state officials as well as common citizens should participate.  There were some folks in the Capitol who didn’t know what to make of that process at first, but the process is still used today. 

He co-sponsored a resolution to have Missouri ratify the Equal Rights Amendment….only to see the Speaker of the House and the Majority Floor leader introduce one, too…..The leadership resolution went to a committee where the chairman refused to hold a hearing and the Speaker refused to put the hammer down and get one…and the issue died that year.  After that, Phyllis Schlafly was in the way and the best chance of Missouri to ratify the ERA was lost.

His love of the outdoors led him to observe great damage was being done to it in the post-war industrial age…which led him to sponsor a hazardous waste bill that was the first major environmental cleanup legislation to pass.  We are grateful for that in our household because my wife, Nancy, worked for many years in the Department of Natural Resources Hazardous waste section.  I think she still has her big green boots in which she clomped around hazardous waste sites.  There is no truth to the rumor that the boots were black before she started clomping around.  

He got a bill passed that ended the legal dumping of hazardous wastes down wells. 

But one thing he could not stop was the construction of the Callaway Nuclear Plant.  I remember hearing Wayne and some other legislative colleagues protesting the plant’s construction.  Wayne and three other House colleagues proposed legislation that would have put some strict controls on nuclear plants. The issue made it to a statewide ballot. Union Electric outspent Wayne and Kay Drey and the legislators behind the bill by 3-million dollars to 100-thousand dollars; voters said no, big time, to the anti-plant proposal in 1984 and Callaway was built.  I saw an article a few years ago where Wayne admitted the plant was being operated about as well as a nuclear plant can be operated….although the industry still lacks a final solution to its nuclear waste problem.

It was his legislation, of course, that led to the creation of the University of Missouri at St. Louis, for which there is a statue of him on the campus. It’s a good statue. It captures Wayne fully engaged in straightening out a colleague on the bill Wayne holds in his hand. 

(Wayne, on the right, poses with sculptor Jay Hall Carpenter and Carpenter’s statue of Goode on the UMSL Campus. UMSL)

There is nothing angry about the debate that is portrayed in this statue. In fact, Wayne is enjoying himself.  There is a joy of earnest discussion. There is no animosity. No posturing. This is the Wayne Goode I remember.  It is an example of what collegial lawmaking should be. Unfortunately it also is a contrast to what too much of our lawmaking has become. 

University students will benefit for years to come because of the Senator Wayne Goode Scholars Program.  Goode Scholars, they’re called.  The recognitions are handled though the University’s Scholars and Fellowship program.  It’s a shame that the Wayne Good Scholars Program isn’t considered a fellowship…..because students happy to win one of those could be called Jolly Goode Fellows.

I saw Wayne in the pose frozen by that statue many times, never outwardly angry, never flustered, always knowing legislation better, sometimes, than the sponsors.  I never saw him try to slip something into a bill secretly.  I also never saw him stand still as long as he has since being cast in bronze. Wayne likes to be in motion—whether it’s hiking or riding a bike or going about doing—good(e).          

I was curious the other day and looked back at some of the people Wayne served with in the House and Senate. I dug out the Blue Book—the official state manual that has not always been blue. The list gives an idea of the eras that he spanned in his 42 years in the Missouri legislature.

When Wayne began serving in the House, Theodore McNeal was a State Senator from St. Louis, the first African-American state senator. The first African-American to serve in the House, Walthall Moore of St. Louis, served in the 1920s, BG (Before Goode)

Senator Michael Kinney was still there, the man who served 56 years in the Senate, the only man in the history of Missouri who served more years than Wayne in the legislature. Kinney had succeeded his brother who had died in 1912, toward the end of his second term.  So that part of St. Louis was represented by these two brothers for 64 years. Thomas was serving in the Senate when the Capitol burned in 1911 and Mike served in the temporary capitol while the present building was going up. 

The Kinney family, incidentally, apparently believed in naming children after Biblical figures…Michael and Thomas.  Thomas’ nickname also was Biblical—Snake. 

Here are some of the other people Wayne served with during his time in the House:

William C. Phelps, Melvin Carnahan, James Spainhower, James Conway, Harold Volkmer, John Buechner, Wendell Bailey, E. Thomas Coleman, Karen McCarthy, Alan Wheat, Betty Hearnes, Claire McCaskill, William Webster, Todd Akin, and Robert Holden.

In the Senate, he served alongside Patsy Danner, Roger Wilson, Jeremiah Nixon, William L. Clay Junior, Sam Graves, Joe Maxwell, Peter Kinder, and Steve Ehlmann. 

There were hundreds of others but the ones I’ve just mentioned have special distinctions.

Ten of these folks became members of the United States House of Representatives—Harold Volkmer,  Tom Coleman, Jack Buechner, Wendell Bailey, Karen McCarthy, Todd Akin, Alan Wheat, Pat Danner, William Lacy Clay, and Sam Graves. 

One, Claire McCaskill, became a U. S. Senator—after she had been state auditor.

There were four who became governors: Mel Carnahan, Jay Nixon, Roger Wilson, and Bob Holden.

Betty Hearnes was a first lady when Wayne showed up in Jefferson City and later became the only former First Lady to serve in the legislature.

Five of these names were Lieutenant Governor—Mel Carnahan, Fulltime Bill Phelps, Peter Kinder, Roger Wilson, and Joe Maxwell.

Three were state treasurers: Carnahan, Bob Holden, and Jim Spainhower.

Two served as Attorney General—Jay Nixon and Bill Webster.

James F. Conway became Mayor of St. Louis.

And Steve Ehlmann runs St. Charles County government. 

What I can’t figure out is why we are here tonight.

We’re honoring the guy who went nowhere—except to Jefferson City and back…and to Jefferson City and back….and to Jefferson and back…for 42 years.  

Wayne, you coulda been somebody!  

But for some reason, it’s you, a man of low ambition, that we’re honoring tonight..   

However, this stay-at-home, low-ambition guy is, I think, the only one of the 24 people I have just mentioned who has a statue of himself. That’s pretty special.  Not even James S. Rollins, who is considered the “father” of the whole University system has a statue.  A bust, but not a statue. 

Wayne served in a far different Senate and a far different House during his 42 years.  There were filibusters every now and then but they weren’t the self-serving filibusters that we see so much today.  Filibusters in Wayne’s time, were often funny, and often had a purpose of forcing two sides to find some middle ground that would let the Senate move ahead.  Today, in the days of supermajorities, filibusters aren’t funny; they’re often futile efforts by a weak minority; and quite often are not just ways to force two sides to work out a troublesome issue.  They’re unfunny and they’re boring. I know.  I was there for many of them and found laughter helped stay awake. 

A few weeks ago I asked some capitol staffers who remain from the Goode Old Days to share some thoughts about Wayne.  Most talked about how hard he worked—and in the process how hard he sometimes worked THEM.   One comment that I enjoyed was that Wayne was always careful with what he ate during legislative sessions.  I was told that he didn’t like potatoes…and often had rice with his meals.  

You might have noticed potatoes were not on our plates tonight.

I planned to bring Wayne a gift from Jefferson City tonight.  I suspect, Wayne, you’re not a fan of bumper stickers and it wouldn’t fit on your bicycle anyway. But I wanted you to have this bumper sticker that says “Eat More Rice. Potatoes Make Your Butt Big.”  But the one I have that I was going to give you is in a box that I have filed too far away.  Be watching for it in the mail, though.   

In his closing years in the General Assembly, Wayne was increasingly concerned about term limits and the loss of institutional memory that they would cause—among other concerns.  In the years since their adoption we have seen his fears of term limits—and similar fears voiced by many others who have served in the legislature—come true. 

I watched it happen from the House Press Gallery and from the press table on the Senate floor. I can tell you from personal experience all of the negatives we were warned about have come true…and there are darned few positives. 

There are three portraits that hang in the Senate Lounge at the state capitol.  One is Senator Kinney.  Another is Senator A. Clifford Jones who was from Ladue and was known for his humor, his tight-fistedness (he didn’t like spending money to redecorate his office, for example), and for not suffering fools gladly during debate.  The third is Senator Richard Webster, who was the last Republican Speaker of the House before Catherine Hanaway arrived, and who became one of the most powerful men in state government as the minority leader in the Senate.

I have suggested, always to deaf ears, that two more portraits should be in that Lounge—two men who served in the legislature together for 42 years.  One is a strong-conservative Republican from the city of Lebanon, in southwest Missouri, John T. Russell, and the other is Wayne Goode, a strong-liberal Democrat.   I don’t recall, as I mentioned earlier, ever hearing Wayne raise his voice. I heard him speak firmly at times, but I don’t remember that he ever showed a temper.  Russell was different.  He had a resonant voice and there were times—brief ones—when he could thunder.

The legislative session in the year that Republicans took control of the Senate, began with some vacancies, leaving Republicans and Democrat with the same numbers.   For a few weeks there were co-presidents pro tem, for example.  And for a short time, Wayne Goode—the dedicate liberal—was the co-chairman of the Senate appropriations committee with John T. Russell, the dedicated conservative.  

When Republicans won enough of the special elections to take the majority in the Senate, Russell became the stand-alone chairman.  But he and Wayne, as the ranking minority member, worked together on the state budget, respecting the experience and the knowledge and the shared legislative history that each brought to the process. 

To those of us who watched them, they represented the best that government can be.  Two men of widely-different political loyalties showed what statesmanship means.  We lost both of them at the same time because of term limits.  Both served the people in Jefferson City for 42 years—not just THEIR people, but THE people.  

In 1892, Maine Congressman Thomas B. Reed, who also served three terms as Speaker of the House, received a letter from a citizen who asked him, “What is a Statesman?”  Reed wrote back, “A statesman is a successful politician who is dead.”

Harry Truman embroidered that comment in 1958, after he’d been promoted back to private citizenship, as he liked to say, by saying, “A statesman is a politician who’s been dead ten or fifteen years.”  

But both Thomas B. Reed and Harry S Truman were wrong.  Politicians can be statesmen in their lifetimes….and we have living proof with us tonight of the goodness that comes from that living statesmanship. 

Term limits robbed the legislature of the influence of people such as Wayne Goode.  Time now has robbed all of us of this good man.

Dr. Crane on lying

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(In a time when accusations of lying are common, we turn to a column by Dr. Frank Crane published about 1917, the year of the Bolshevik Revolution in Russia, and the publication of the diaries of Russian writer Leo Tolstoy. Tolstoy had died in 1910. Although nominated for the Nobel Prize for Literature five consecutive years and nominated for the Nobel Peace Prize three times, he never won. Dr. Crane uses Tolstoy’s diary to talk about—-)

LYING TO YOURSELF

The private diary of Leo Tolstoy was recently published in Paris by his daughter, the Countess Alexandria Ivovna. One of his views therein expressed is:

“Lying to others is much less serious than lying to yourself.”

To know this is the beginning of wisdom.

Self-deception is the starting-point of moral decay.

Lying to others may be but a harmless amusement, but lying to yourself is sure to mean inward deformity, the germ-laden fleck that spreads disease throughout your whole character.

Yet it is the commonest, easiest, most subtle of sins.

If you talk with the inmates of the penitentiary, with the crime-wrecked and drug-soaked of the slums, you will find that every one of them is living like a spider in a web of delusions he has woven out of his own substance.

The profligate has told himself that “the world owes him a living” until he believes it.

The criminal lays his downfall at the door of society.

The prostitute can glibly prove that she is not to blame, she is the victim of injustice.

Every down-and-outer labors to justify himself and trace his misfortune to others.

As a matter of fact, no person since the world began was ever compelled to do wrong.

No rotten stone or cracked beam was ever laid in the edifice of any man’s character that he did not put there with his own hands.

When I say that another made me do an evil thing I lie to myself.

Others may have threatened, cajoled, tempted, pushed, or bribed me, but the fatal final step was never taken except by the consent of my own will.

You may offer me a habit-forming thing, you may argue with me that it will do me good, you may urge me by ridicule, and lead me on by example; and my appetite may second your efforts. I may crave the glass, my nerves may clamor for it, and my imagination may lure me to it; BUT I DO NOT HAVE TO DRINK.

Whatever excuses I may give, there is one thing I do not have to do, and I do only because I will do it, and that is to swallow the stuff.

And that is true of every injurious deed. If I do an act of fraud, or uncleanness, or cruelty, there is just one person guilty—it is myself.

The world is full of blubbering whiners, whimperers, and weaklings. Overfull.

That we do wrong is not so disgusting. We are all human, and perhaps all a little perverted. But having erred, let us be down-right and manly and honest about it. Let us acknowledge our guilt, admit that our lusts and greeds and selfishness, which other people or circumstances may have deftly played upon, are no valid excuse, and that the responsibility for our evil rests absolutely upon ourselves. We may be sinners; but at least we can play the man.

Don’t lie to yourself. Don’t wallow in self-pity. Don’t hunt extenuating circumstances. Don’t justify yourself by comparing your own with others’ wrongdoings.

The wickedness of others may bring pain or loss to you through no fault of yours. Each of us must  bear a portion of the vicarious burden of the world’s evil. But mark this; you never did wrong for any other reason than that you chose to do it.

Not to have committed the wrong deed may have meant suffering to y9ou or to those you love, may have meant humiliation, or calamity, or even death. BUT YOU DIDN’T HAVE TO DO IT. You could have died.

You may have to suffer, to be humiliated, to endure tragedy, to die; nor you,  nor any human being, ever had to do wrong.

So don’t lie to yourself.

Honesty toward yourself is the key that will open to you the New Life.

Book Club IV

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In The Soul of America, Jon Meacham’s chapter on “The Confidence of the Whole People” begins with a quote from our own Harry S Truman: “The people have often made mistakes, but given time and the facts, they will make the corrections.”

He notes that “Truman was no saint on matters of race…But as president of the United States, he saw his duty whole.” After a returning black soldier was badly beaten by police in South Carolina, he told leaders of his party, “Whatever my inclinations as a native of Missouri might have been, as President I know this is bad. I shall fight to end evils like this.”

And he did with his Special Message to the Congress on Civil Rights. We offer excerpts from that February 2, 1948 message:

…This Nation was founded by men and women who sought these shores that they might enjoy greater freedom and greater opportunity than they had known before…These ideals inspired the peoples of other lands, and their practical fulfillment made the United States the hope of the oppressed everywhere. Throughout our history men and women of all colors and creeds, of all races and religions, have come to this country to escape tyranny and discrimination. Millions strong, they have helped build this democratic Nation and have constantly reinforced our devotion to the great ideals of liberty and equality. With those who preceded them, they have helped to fashion and strengthen our American faith—a faith that can be simply stated:

We believe that all men are created equal and that they have the right to equal justice under law.

We believe that all men have the right to freedom of thought and of expression and the right to worship as they please.

We believe that all men are entitled to equal opportunities for jobs, for homes, for good health and for education.

We believe that all men should have a voice in their government and that government should protect, not usurp, the rights of the people.

These are the basic civil rights which are the source and the support of our democracy…

We shall not, however, finally achieve the ideals for which this Nation was founded so long as any American suffers discrimination as a result of his race, or religion, or color, or the land of origin of his forefathers.

Unfortunately, there still are examples—flagrant examples—of discrimination which are utterly contrary to our ideals. Not all groups of our population are free from the fear of violence. Not all groups are free to live and work where they please or to improve their conditions of life by their own efforts. Not all groups enjoy the full privileges of citizenship and participation in the government under which they live.

We cannot be satisfied until all our people have equal opportunities for jobs, for homes, for education, for health, and for political expression, and until all our people have equal protection under the law.

…If we wish to inspire the peoples of the world whose freedom is in jeopardy, if we wish to restore hope to those who have already lost their civil liberties, if we wish to fulfill the promise that is ours, we must correct the remaining imperfections in our practice of democracy.

We know the way. We need only the will.

That was then.