July links

Travel ban ruling. A careful look at the travel ban (from some Muslim majority nations) and the issues involved. The Supreme Court decision and the dissent are haunted by the decision in the 1940s to intern Japanese-Americans. None of the justices want to make a mistake like that again. But there are other interesting issues, like whether waivers are being granted to those with clearly legitimate needs to visit the US. Definitely eye-opening and different from the usual partisan screamfest.

A history of the politics of Supreme Court nominations. A clear, easy read. I prefer the times when competence was the issue. However, the Bork nomination and anger over it eroded that. This prompted me to look into Bork again, and I found this strong statement of opposition to Bork--that he had no problem with discrimination and segregation as a personal choice of a business owner. Nor did he have any sympathy for the accidentally pregnant. It was the right thing to defeat this nomination. (I've written about before about the history of the Supreme Court.)

Poor standards at Fox News again. This time, Fox reported, Trump tweeted and both were wrong. This isn't actually news, but someone should keep score of how bad news orgs are.

Inside look at land management issue. This is a rare topic, but important for the future. Good choices on land management are a boon. Bad choices are a blight. I've seen it first hand on the Outer Banks of North Carolina.

Why is congress such a circus? There's actually an answer to that question. Gods be praised, and count me surprised. The answer is--messaging is still very important in Congress, but policy isn't. The number of pragmatic policy staff have been greatly reduced, but not the 'communications' people.

The latest winner in Syria... Is Israel. Read about the power plays between Israel, the US, Syria, Russia, and Iran. Fascinating. Seems coherent and solid to me. Will I still think so in a few years?

Image: economist.com

The political history of the Supreme Court

I'm not a great student of American history. The last American history course I took was, embarrassingly, in high school. There is one surprising advantage to not having studied a lot of American history--I haven't formed a lot of prejudices that are set in stone. I have a superficial knowledge, but I know it's only superficial, so I'm ready to question all those standard theories that float around.

So, what is the real history of the Supreme Court? I started wondering because of suggestions (among liberals) that the GOP might not confirm a Supreme Court nominee for the rest of Obama's term. Looking back at information about the Supreme Court (mostly from Wikipedia), I saw a number of interesting trends.

FDR through Nixon

Supreme court nominees used to be much closer to the president and much more political. For example, Hugo Black was a senator. Franklin Roosevelt (FDR) tapped him because he was young, from the south, and a strong legislative supporter. Luckily he was also a great fit for the job. He was extremely interested in constitutional questions and developed "textualism," a conservative school of thought on how to interpret the Constitution. This is almost all news to me, and quite fascinating.

Another interesting factoid is that president always tried to push the court toward their political side. FDR did it big time because his first New Deal programs were struck down by a conservative court. FDR made a lot of appointments to the court over his 13 years as president, and he was successful in his goal. The court was fairly liberal due to his selections. Eisenhower wanted to reverse this trend, but his choices weren't so effective. He aimed for conservative (but presumably not Jim Crow conservative), but ended up with Earl Warren.

So even after Eisenhower, the court was fairly liberal. Kennedy and Johnson together appointed four judges, but two resigned after a few years. The balance on the court didn't move much because of their presidencies. Nixon, like Eisenhower, wanted a more conservative court yet didn't get what he hoped from his appointees except for his last appointee, William Rehnquist.

Reagan

By the time Reagan was president, the conservatives in the country were quite fed up with the liberal slant of the court. Per my memory, the biggest complaints were over abortion legalization, the end of school prayer, and limitations on evidence collection and police tactics. However, Reagan didn't give the conservatives what they wanted immediately. For the first vacancy, Reagan nominated the first woman on the court, Sandra Day O'Connor. I wonder how angry his conservative supporters were over that.

His next appointee, Antonin Scalia, probably pleased the conservatives mightily. For the next vacancy, Reagan went with the ultra-conservative Robert Bork. In doing this, Reagan ignored all the buzz that this was going too far. This is just speculation, but I'm guessing that in 1987 (the year of the nomination), Reagan was no longer fully in control of his decision-making. The choice backfired. Democrats were successful in painting Bork as too conservative. The replacement nominee, John Paul Stevens  Anthony Kennedy, was considerably less conservative, to the chagrin of the conservatives.

Reagan's legacy on the Supreme Court were two swing justices and only one solid conservative. The anger and disappointment of conservatives must have been huge. George H.W. Bush had two appointees--another mixed bag of one swing vote and one solid conservative. Clinton, following the established pattern, appointed two liberal-leaning justices.

21st Century - Fully Political

With George Bush II, the conservatives finally got more than lip service. Bush II appointed two solid conservatives. Obama has appointed two solid liberals. At this point, there is barely a swing vote on the Court. Occasionally Anthony Kennedy sides with the liberals, but generally there are five conservative votes.

What I learned in all this:

• Presidents have always tried to nudge the Court into their corner. 
• Conservative presidents have often failed to get conservative judgments out of their appointees. I wish I understood why this happened so often. 
• The pressure to appoint clearly conservative or clearly liberal justices has grown. Both sides dearly want to own the majority on the Court. This may indicate that the Court has become ever more important in political outcomes in the country.
• Professional experience as a judge became more important after Johnson and Nixon--due to some embarrassing nominees and appointees. This allowed the presidents to pretend that they were nominating someone neutral. However, this veneer of neutrality is a sham--nominees fulfill political goals. They aren't neutral legal arbiters, as most judges are supposed to be. 
• The sham is still active and seems to be demanded of both politicians and nominees, so it will continue.

Image: cagle.com

Reflections on partisanship

Partisanship is more the norm, but bipartisanship also has a robust history. I was asking myself the question: is it really worse now than it was in the past? Yes, I think so. In the past 3 years, Congress has negotiated virtually no bills. A few measures have been so popular that they passed easily, most recently a jobs bill for veterans, but that it isn't the hard work of negotiating a compromise. All the compromises in the past year have occurred as time ticked down to a shutdown or a hard expiration date.

A welfare reform bill or education bill worked on by both Bush and Kennedy would be unthinkable today. There had been camaraderie among senators in past years, but not now.

Not So Small Beginnings

I tried to think back to when this nearly constant animosity started, and I think it was during Reagan presidency. There won't be any proof of this, but I think there was a near constant barrage of disagreement and belittling critique of the man, his intelligence, and his policies. It wasn't surprising, because Reagan was an existential threat to the liberal-leaning status quo. He wanted to roll back a scary number of the gains liberal had made: welfare, abortion, tax-free student loans, decreased military spending, women's liberation.

One of the most blatant of the liberals' attacks was on Robert Bork, Reagan's nominee to the Supreme Court. Republican neither forgave or forgot, and Supreme Court nominations have been generally been contentious ever since. (To be clear, I agreed with the fight against Bork. He was a frighteningly persuasive reactionary, and I don't use those terms lightly.)

 "I'll see you and raise you five."

This form of partisanship, with constant attacks, became even more pronounced during the Clinton administration. The tools--congregational hearings, constant news leaks, rumors, special prosecutors (blessedly defunct now)--had all been used before by Democrats out to embarrass a Republican administration. Perhaps the Republicans added a few new tricks, such as finding PACs or think-tanks that would  financially sponsor accusers on press junkets (though it's possible that wasn't a new twist).

The Republicans really upped the ante with their impeachment proceeding against Bill Clinton. Even a strong electoral repudiation of the Republicans didn't deter the House Republican leadership, who commenced impeachment proceeding after losing a significant number of seats in the 1998 off-year election. Since then, the partisanship has barely had even a Christmas truce, except perhaps Gore's altruistic concession of the disputed 2000 presidential election. Each president has been accused so often of being "the most polarizing figure ever" that it could be a title equivalent with 'Mr. President.' I'm so tired and cynical about all this partisanship that I don't want to chronicle any more of it in this post. Suffice to say that it continues unabated.

I don't have a hopeful note to end on. No pithy quip. I still pray for an end to this partisanship, but without any spirit of hopefulness. Sorry to be such a downer.

 ... just another day at the beach

Extras
Google counts:

• "Impeach Carter"   - 5140 results, none contemporaneous.
• "Impeach Reagan" - 10,700 results
• "Impeach Clinton"  - 62,900 results
• "Impeach Bush"       - 2.2 million results
• "Impeach Obama"  - 1.0 million results

Supreme partisan Jon Kyl