Category Archives: Politics

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.

Just doing his duty

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A warning:  When we composed this examination of current events, we did not realize it would generate a second chapter.  Today, chapter one.

A lot of people are getting all hot and sweaty about President Trump’s push to get his Supreme Court nominee confirmed by the Senate before the election so she can rule on any lawsuits about the legitimacy of the election that reaches it. He is convinced the only way he can lose is if there is massive voter fraud and he has lawyered-up to file a lot of lawsuits. Addressing that demagoguery is not our purpose here today.

Let’s talk about the process a little bit because it’s been a while for most of us since our political science classes in high school or college and with all of the shouting and finger-pointing going on, a bit of a refresher course might be in order.

First, the president said last week, “I have a constitutional obligation to put in nine judges—justices.”

Well, yes and no. Article two, section two of the United States Constitution says the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint….judges of the Supreme Court.” Note that it does not say how soon after a vacancy occurs the President must act.  It also does not say an incumbent President must act.

Article three, section one says, “The Judicial Power of the United States shall be vested in one supreme court and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme court and inferior courts shall hold their offices during good behavior and shall at all times receive for their services a compensation which shall not be diminished during their continuance in office.”

Now, there’s something we don’t hear discussed often.  These judges shall hold their offices “during good behavior.”  We went to Congress.gov to see what that means because most of us, your faithful observer included, who had not observed that qualification before and wonder what that means.

For those of you who think the only thing we have to do is read the Constitution to solve all of our problems, this is an example of the flaw in that argument.  One of many.

Congress.gov says, “This standard, borrowed from English law, ensures that federal judges hold their seats for life, rather than set terms or at the will of a superior. The applicability of the Good Behavior Clause to the removal of federal judges has been the subject of debate; in particular, whether the phrase elucidates a distinct standard for removal apart from the high crimes and misdemeanors standard applicable to the impeachment of other federal officers. While this question has not been definitively resolved, historical practice indicates an understanding that the Good Behavior Clause protects federal judges from removal for congressional disagreement with legal or political opinions.”

If you think the noise we are hearing about the president’s appointment is loud, imagine what would happen if Congress had the power to remove Supreme Court Justices with whom the majority of Congress disagreed? Why would it have to be the whole Congress, even?  The Senate is the chamber that confirms nominees to these offices.   The Senate giveth; the Senate taketh away.

Nothing is written that prohibits Congress from doing that. What is written is the power of the House to impeach federal public officials (Article one, section two, clause 5).  As we know, after the House files charges (impeachment), the trial is held by the Senate (Article one, section 3, clause seven). Not all federal officials can be impeached (Article two, section four, which also defines the misconduct that can lead to impeachment).

But impeachment is not expressly mentioned in Article three, the judicial article. Instead of listing specific causes for impeachment of Supreme Court Justices, the Constitution speaks of “good behavior,” and that, says Congress.gov, “is widely understood to provide the unique nature of judicial tenure.”

One interpreter of that standard said in 1983, “The nation’s founders so insulated the job against political pressures because they believed the mission of the federal courts requires a high degree of independence in the third branch. The security of life tenure, the Constitution’s framers thought, would encourage resistance by the federal branch to popular moods of the moment not properly expressed in laws, and would promote the fidelity of federal judges to the enduring values embodied in our fundamental instrument of government.”  The observation was given in the John R. Coen Lecture Series at the University of Colorado School of Law by United States Circuit Judge Ruth Bader Ginsberg.

Your observer has diverted himself from the theme of our discussion but the diversion, we hope, has helped understand the special nature of the third arm of our government.

Back to the president’s statement that he has a Constitutional responsibility to “put” nine judges on the U. S. Supreme Court.

Not really.  The word “immediate” is not in the Constitution. The words “without delay” also are not in it.

He can only do it if the Senate agrees to let him do it.  That’s where the Advice and Consent language kicks in.  He also is not required to make sure the court has nine justices. The number nine is not mentioned in the Constitution and the president’s fellow Republicans a few years ago had no qualms about leaving the court with eight judges for fourteen months so that the next president could make the appointment.  Did that hamstring our judicial system?

No, it did not. In fact we have found eight cases dating to 1973 in which the court tied, sometimes because of a vacancy but most often because one of the Justices did not take part in the decision for one reason or another.  Eight cases in 47 years hardly hamstrung the judicial system.  So there is no Constitutional requirement that the president appoint a ninth Justice.  He is not prohibited from doing so a few weeks before an election, either.  Nor is he prohibited from leaving a vacancy indefinitely.   But when he does suggest someone, the Senate is mandated to provide its blessing before that person can put on the robe.

In fact, there is nothing in the constitution requiring nine members of the U.S. Supreme Court, as you could see by reading the provisions at the top of this offering. We will get to that next week.  We will mention that the number of members of the U. S. Supreme Court is set by Congress, which is why we’re hearing Democrats say they’ll try to expand the court to keep it from swinging unacceptably (to them) to the right.

“Packing” the court, as it’s called, has its perils.  What happens if Congress decides a 9-3 court is too radical?  Would it raise the number of 19?  Lower it back to 9, kicking some judges off the bench in the process?

It is obvious that the contemporary situation is a dangerous one—not in terms of whether the potential new court member swings the court far to the right but whether the handling of the nomination by the president and his party will lead the Democrats to do something that spreads the chaos of the Legislative and Executive branches to the judicial branch, where calmness in determining the validity of our laws should prevail.

—at least, in a more perfect world.

We conclude by submitting that the arguments made in the Merritt Garland case are specious and do not apply in the current case. The public’s decision in 2016 to have a president and both houses of the Congress represented by one party does not give that party a license to act with impunity in the current instance, especially since that party has seen a reduction in its overall congressional numbers in the intervening election although gaining two seats in the Senate in 2018. The argument is a red herring.

The issue, created in the Garland case, is whether one party can act one way prior to an election and then four years later, act another way even closer to an election. Any discussion beyond that is political gymnastics. The people’s will seems to be changing, as seen in the change of party power in the House and concerns by Republicans that their control of the Senate after November is in jeopardy. The surveys indicating the public mood continues to change this year further weakens the argument that what was sauce for the goose in 2016 should not be sauce for the gander because of 2018.

But, let’s face it.  Senate Republicans don’t give a tinker’s dam what one old man on a quiet street in Middle America thinks.

Next week we’ll be back with some more history and a look at the court’s future, which could become worse for liberals and might not get back to 5-4 for a decade or more.

Rights

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(The public discussion of public rights is all about us, whether in the streets, on the campaign trails, or in the halls of Congress and the chambers of our courts.  Dr. Frank Crane warns that false government turns people against each other as he ponders—)

“THE RIGHTS OF MAN”

A book that ought to be studied by every young American, a book from which extracts ought to be included in every reader used in our public schools, is Thomas Paine’s “Rights of Man.”

Because of his severe criticism of conventional religion, in his “Age of Reason” and other writings, Tom Paine’s name used to be among the bugaboos for children, for long held place in that dreaded and horrific trinity of “Infidels,” Voltaire, Paine, and Ingersoll.

But this was more due to the temper of his time than to the nature of his works; for what was bold and terrible in the age of the beginnings of free inquiry may now be heard from the most orthodox pulpits. I can assure the cautious reader, however, that in the “Rights of Man” religion is scarcely mentioned and not at all attacked. So much for the odium theologicum.

Paine’s “Rights of Man” was composed as a reply to Burke’s attack upon the principles of republicanism as manifested in the French Revolution.

It is a clear, masterful, and virtuous statement of the fundamental ideas of democracy; and this is what recommends it to us. Written about the time of the birth of the United States, and dedicate to George Washington, it is now, after a century of experiment, still one of the best compendiums of democracy to be found on the library shelf. It deserves a place among the dozen epoch-making books of the race. Like Kant’s “Pure Reason,” Rousseau’s “Emile,” and Darwin’s “Origin of Species,” it is a mile-stone in human development that marks a point of progress that never can be retraced. There are few volumes that contain so many sentences all men ought to know by heart.

The whole delusion of monarchy is pitilessly exposed; it is shown how militarism is monarchy’s  natural right hand; the fallacy of punishment and governing by terror, and the injustice of inheritance and the established rule of the living by the dead are riddled by his clear reasoning.

Speaking of punishments, he says: “Lay then the axe to the root and teach governments humanity. It is their sanguinary punishments that corrupt mankind. It is over the lowest class of mankind that government by terror, instead of reason, is intended to operate, and it is on them it has its worst effect.  They afflict in turn the examples of terror they have been instructed to practice.”

He thus incisively marks the differences between a monarchy and a republic: “Governments arise either out of or over the people.” The despotic governments of Europe arose in conquest; those of France and America arose from the consent of society itself.

This for heredities: “The idea of hereditary rules or legislators is as inconstant as that of hereditary judges or hereditary juries; and as absurd as a hereditary mathematician; and as ridiculous as a hereditary poet laureate.”

Here are some other pointed sayings: “A man or a body of men holding themselves accountable to nobody ought not to be trusted by anybody.”

“When a man in a wrong cause attempts to steer his course by anything else than some polar truth or principle, he is sure to be lost. Neither memory nor invention will supply the want of this. The former fails him, and the latter betrays him.”

“Wrongs cannot have a legal descent.”

Placemen, job-holders, can find for the system or party under which they hold office “as many reasons as their salaries amount to.”

“Every war terminates with the addition of taxes. War therefore is a principal part of the system of autocracies. To establish any mode to abolish war, however advantageous it might be to the nation, would be to take from government the most lucrative of its branches. The frivolous matters upon which war is made show the avidity of governments to uphold the system of war, and betray the motives upon which they act.”

“The animosity which nations reciprocally entertain is nothing more than what the policy of their governments excites to keep up the spirits of their system. Each government accuses the other of perfidy, intrigue, and ambition, as a means of heating the imaginations of their respective nations, and incensing them to hostilities. MAN IS NOT THE ENEMY OF MAN, but through the medium of a false government

Book Club—III

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Our book club looks at Jon Meacham’s discussion of presidential leadership, or lack of it, and a single phrase that is used often.

Franklin D. Roosevelt’s statement, “We have nothing to fear but fear itself,” has been mentioned by our president as a justification for telling us we had nothing to fear from the coronavirus while knowing for some time that it is a fearsome thing.

Meacham’s The Soul of America spends a chapter on Roosevelt and the competing interests seeking power during The Great Depression.

As often happens on both side of the aisle, a noble phrase is cherry-picked from its context and used to justify an action (or inaction).  But when the quotation is seen in context, the meaning of it becomes entirely different.  Such is the case with “nothing to fear.” It hardly is an excuse to do nothing in the face of great danger.

The phrase was spoken at the beginning of FDR’s first inaugural address on March 4, 1933:

I am certain that my fellow Americans expect that on my induction into the Presidency I will address them with a candor and a decision which the present situation of our Nation impels. This is preeminently the time to speak the truth, the whole truth, frankly and boldly. Nor need we shrink from honestly facing conditions in our country today. This great Nation will endure as it has endured, will revive and will prosper. So, first of all, let me assert my firm belief that the only thing we have to fear is fear itself–nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance. In every dark hour of our national life a leadership of frankness and vigor has met with that understanding and support of the people themselves which is essential to victory. I am convinced that you will again give that support to leadership in these critical days.

The leadership message is completely different—is it not?—when the line is put back in its proper place. Knowing history, not just knowing a sentence from it, could have changed an arc of our history in 2020.

After RGB 

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Ruth Bader Ginsburg didn’t make it to the end of the Trump administration as she had hoped.  Her dying wish reportedly dictated to her granddaughter was that she not be replaced before the election.  It appears that’s not going to be realized either.  Our president has belittled her last opinion, in fact, claiming without evidence that it was something composed by Adam Schiff or Nancy Pelosi, or Chuck Schumer, three of his favorite Democratic punching bags.

Your observer of the three branches of government for most of his life fears a 6-3 U. S. Supreme Court, regardless of any perceived partisan tilt, and thinks a 5-4 court is best regardless of any such tilt.  The law is a matter of constant fine-tuning, often on small points of difference. Progress under the law is best accomplished with a surgical instrument rather than with a hammer.  The length of time members of the court are allowed to serve is a crucial factor in whether equality under the law is balanced for the long-term welfare of the country. Rulings from a 5-4 court seem more likely to represent arguments based on law rather than decisions based on ideology.  And when ideology shapes the legal standards under which we all much live, the opportunity for Inequality seems more likely to grow.

It is clear that Senate leader Mitch McConnell’s desire for an immediate vote on an immediate appointment is more focused on ideology than on the law, more focused on power than on principle.  Our nation is best served when the differences between conservative and liberal are narrow, forcing participants to focus on principle rather than power, more on law than on ideology.  It is as true in our appellate court system as it should be true in our legislative halls.

Super-majorities breed arrogance, distract from the principle of service, and place value on power.  And unchallenged power is inimicable to a republic.

Senator McConnell, who argued in February, 2016 that President Obama’s choice for the U.S. Supreme Court, Merritt Garland, should not get a hearing, let alone a vote, because court vacancies should not be filled during an election year, now has constructed some gymnastics to justify contradicting his argument against Garland.

Whether the process can be rushed to completion before the election is held is unclear. The process usually takes longer than the time between now and voting day. But it appears Senator McConnell will push that process.

The filling of this vacancy has instantly changed the presidential campaign and can instantly change campaigns for the U. S. Senate, including McConnell’s.  When the confirmation vote nears, we’ll see if some senators facing close contests might want to wait until after the election rather than rush to a vote before.

As if we voters don’t have enough to think about.

“May you live in interesting times” is a supposedly ancient Chinese curse—although scholars have found no such expression in Chinese.  There is, however, a Chinese phrase from a 1627 collection of short stories: “Better to be a dog in times of tranquility than a human in times of chaos.”

It appears we’re going to have a 6-3 court.  That doesn’t guarantee that the most conservative issues will be rubber-stamped, as we have seen from time to time when the court has surprised us with a ruling when a swing judge develops. Now, however, it’s going to take TWO swing judges when the court’s liberals prevail, a mountain too steep to climb most of the time. But the court’s own history indicates 6-3 is not always going to be a given.

Sometimes, however, being a dog, especially in times of chaos, is appealing, too.

Our application

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We have not been posting comments on current affairs on any day but Wednesday for some time but Nancy, the insightful wife of your loyal correspondent, asked a question yesterday that prompts this rare Tuesday inquiry.

A few days ago we received in the mail—and maybe you did, too, if you live in Missouri—a “Missouri Vote-By-Mail Kit.”  It was not sent to us by our county clerk although it is to be sent to that person.  It was not sent to us by the Secretary of State, the state’s top election official, who is facing a lawsuit filed by a voting rights group accusing him and local election officials of violating the rights of voters by making them do extra things and risk their health to vote in November.  Whether that is an appropriate or accurate allegation is for the courts to decide.

The point is: This “kit” does not come from anybody who will be administering our November elections.

It comes from Uniting Missouri Political Action Committee, an organization that supports Governor Parson’s re-election.  It includes vote-by-mail applications for Nancy and her husband to finish filing out—a few check marks here and there, a telephone number, an email address and a signature line.  All we would have to do is fill in those blanks and send the application to the county clerk.

But Nancy noticed the address on the “kit.”  It was addressed to “The Priddy Household or Current Resident.”

“What if somebody else was living here?” she asked.

A Current Resident.

That makes us a little nervous.  What if the Priddy Household had re-located?  What if the people at this address filled out this form and signed our names to it?   What if the email address didn’t have our names in it—many don’t.  What if the signatures were close enough to the signatures on file with the clerk’s office that an employee there decided “close enough” was good enough?  If the signature by Current Resident doesn’t match and a clerk’s employee calls the phone number listed (which would not be our own) the Current Resident could apologize and say it’s the best they could do since breaking their wrist last week.

We wonder if this mailing won’t just make the Cole County Clerk’s job more difficult.

What if we were to later re-register and go to our regular polling place on November 3 and be told we already had voted?

We worry that this “kit” could lead to confusion at best and voter fraud at worst.

We wonder how this political action committee can encourage a voting process that its party’s presidential candidate constantly blasts as already rife with fraud.

Perhaps those presidential concerns are neutralized by a message on the outside of the kit: “Our Republican candidates up and down the ballot are counting on you to cast your vote this year.  Liberal Democrats hope you’ll let fear stop you from voting. Don’t let the Democrats win!”

It also reminds us to “Stay Safe. Vote by Mail.”

Us.   Or the Current Resident.

Of course, if the Current Resident (who might not be us) were to vote by mail, we couldn’t “stay safe” in OUR voting, could we?

Well, it’s kind of academic in our case because we are the Current Resident and we plan to risk our lives, if you will, by FEARLESSLY donning our masks, going to our voting place on November 3, and casting our ballots.  Who we vote for is none of your business. But fear won’t keep up us from voting.

Will this piece of mail lead us to bear any kind of a grudge against Governor Parson?  No. Our perceptions of candidates are not based on what we get from them in the mail but are based on what we learn and what we know about them. We suggest that is a course for all responsible voters.

In fact, as we have noted before in some of these entries, it’s a good thing that we don’t base our votes on the crap we get in the mail from their campaigns.

Current resident might.  But not The Priddy Household.

 

 

 

Book Club II

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We continue our book club meeting

Jon Meacham’s The Soul of America recalls times similar to our own as proof that our nation can rise above events and recurring trends to establish new levels of greatness.  One of the heroes of his narrative is a president we don’t think about very often.

Calvin Coolidge, a Republican who served 1923-29, is sometimes referred to as “Silent Cal” because he supposedly was a man of few words.  But he was a man of many words when he spoke to the national convention of the American Legion on October 6, 1925.  In an era when the Ku Klux Klan had been revived and when it had claimed just two years earlier to have 227 of its members in the House of Representatives, 27 in the Senate, and that President Harding had been sworn in as a member in the White House Dining Room (a claim dismissed by the following Coolidge administration as “too ridiculous to discuss”) Silent Cal was vociferous in his repudiation of the KKK and its “100% Americanism,” part of which appears in Meacham’s book. We are going to look at a longer excerpt today.

Whatever tends to standardize the community, to establish fixed and rigid modes of thought, tends to fossilize society. If we all believed the same thing and thought the same thoughts and applied the same valuations to all the occurrences about us, we should reach a state of equilibrium closely akin to an intellectual and spiritual paralysis. It is the ferment of ideas, the clash of disagreeing judgments, the privilege of the individual to develop his own thoughts and shape his own character, that makes progress possible. It is not possible to learn much from those who uniformly agree with us. But many useful things are learned from those who disagree with us; and even when we can gain nothing our differences are likely to do us no harm.

In this period of after war rigidity, suspicion, and intolerance our own country has not been exempt from unfortunate experiences…But among some of the varying racial, religious, and social groups of our people there have been manifestations of an intolerance of opinion, a narrowness to outlook, a fixity of judgment, against which we may well be warned. It is not easy to conceive of anything that would be more unfortunate in a community based upon the ideals of which Americans boast than any considerable development of intolerance as regards religion. To a great extent this country owes its beginnings to the determination of our hardy ancestors to maintain complete freedom in religion. Instead of a state church we have decreed that every citizen shall be free to follow the dictates of his own conscience as to his religious beliefs and affiliations. Under that guaranty we have erected a system which certainly is justified by its fruits. Under no other could we have dared to invite the peoples of all countries and creeds to come here and unite with us in creating the State of which we are all citizens.

But having invited them here, having accepted their great and varied contributions to the building of the Nation, it is for us to maintain in all good faith those liberal institutions and traditions which have been so productive of good.

The bringing together of all these different national, racial, religious, and cultural elements has made our country a kind of composite of the rest of the world, and we can render no greater service than by demonstrating the possibility of harmonious cooperation among so many various groups. Every one of them has something characteristic and significant of great value to cast into the common fund of our material, intellectual, and spiritual resources. The war brought a great test of our experiment in amalgamating these varied factors into a real Nation, with the ideals and aspirations of a united people. None was excepted from the obligation to serve when the hour of danger struck. The event proved that our theory had been sound. On a solid foundation of a national unity there had been erected a superstructure which in its varied parts had offered full opportunity to develop all the range of talents and genius that had gone into its making. Well-nigh all the races, religions, and nationalities of the world were represented in the armed forces of this Nation, as they were in the body of our population. No man’s patriotism was impugned or service questioned because of his racial origin, his political opinion, or his religious convictions. Immigrants and sons of immigrants from the central European countries fought side by side with those who descended from the countries which were our allies; with the sons of equatorial Africa; and with the Red men of our own aboriginal population, all of them equally proud of the name Americans.

We must not, in times of peace, permit ourselves to lose any part from this structure of patriotic unity. I make no plea for leniency toward those who are criminal or vicious, are open enemies of society and are not prepared to accept the true standards of our citizenship. By tolerance I do not mean indifference to evil. I mean respect for different kinds of good. Whether one traces his Americanisms back three centuries to the Mayflower, or three years to the steerage, is not half so important as whether his Americanism of today is real and genuine. No matter by what various crafts we came here, we are all now in the same boat. You men constituted the crew of our “Ship of State” during her passage through the roughest waters. You made up the watch and held the danger posts when the storm was fiercest. You brought her safely and triumphantly into port. Out of that experience you have learned the lessons of discipline, tolerance, respect for authority, and regard for the basic manhood of your neighbor. You bore aloft a standard of patriotic conduct and civic integrity, to which all could repair. Such a standard, with a like common appeal, must be upheld just as firmly and unitedly now in time of peace. Among citizens honestly devoted to the maintenance of that standard, there need be small concern about differences of individual opinion in other regards. Granting first the essentials of loyalty to our country and to our fundamental institutions, we may not only overlook, but we may encourage differences of opinion as to other things. For differences of this kind will certainly be elements of strength rather than of weakness. They will give variety to our tastes and interests. They will broaden our vision, strengthen our understanding, encourage the true humanities, and enrich our whole mode and conception of life. I recognize the full and complete necessity of 100 per cent Americanism, but 100 per cent Americanism may be made up of many various elements.

If we are to have that harmony and tranquillity, that union of spirit which is the foundation of real national genius and national progress, we must all realize that there are true Americans who did not happen to be born in our section of the country, who do not attend our place of religious worship, who are not of our racial stock, or who are not proficient in our language. If we are to create on this continent a free Republic and an enlightened civilization that will be capable of reflecting the true greatness and glory of mankind, it will be necessary to regard these differences as accidental and unessential. We shall have to look beyond the outward manifestations of race and creed. Divine Providence has not bestowed upon any race a monopoly of patriotism and character.

Meacham writes that after the speech, Rev. Henry Hugh Proctor of the First Congregational Church of Atlanta and a graduate of Fisk College (now a Historically Black College or University) called the speech “the bravest word spoken by any Executive in threescore years. It wounded like Lincoln.”