Sunday, May 31, 2009

The Garden State (cont'd)

In this post, I mentioned the Republican primary for governor of New Jersey, which will be held day after tomorrow.

The two main Republican candidates are:

Christopher J. Christie, 46, who was U.S. attorney for New Jersey from 2002 to 2008. In that role, Christie had overseen high-profile prosecutions of some of the state's elected officials.

Steve Lonegan, 53, who was mayor of Bogota, New Jersey, from 1995 to 2007. Lonegan finished fourth in the Republican primary for governor, four years ago.

Christie leads in the polls, with most of those polls showing him ahead of Lonegan by ten or more percentage points.

The media are portraying this as a right vs. left race, with Lonegan on the right. But Christie opposes abortion and same-sex marriage, and favors tax cuts and school choice. I suspect that the supposed ideological difference is one more of style than of substance.

Whoever wins the Republican primary, things are not looking good for Democratic Governor Jon Corzine, who is expected to easily win his party's primary.

Corzine, 62, was CEO of Goldman Sachs, which was then an investment bank, from 1994 to 1999. He represented New Jersey in the U.S. Senate from 2001 to 2006. Corzine was elected governor in 2005.

Polls regarding the general election show Corzine trailing Christie by a significant margin, and running a close race against Lonegan. The Republican Party, desperately in search of momentum, sees an opportunity in the Garden State.

Friday, May 29, 2009

May 29

Today would have been John F. Kennedy's 92nd birthday.

What's the verdict on this much-talked-about politician, 45 years after the assassination that ended his presidency? I think he's the most overrated president in American history.

But what about the Cuban Missile Crisis? Wasn't that an example of great presidential leadership?

I agree that Kennedy showed admirable restraint in his response to the Soviet provocation. The missiles were removed, without igniting nuclear war.

But would the Soviets have pressed their luck against Kennedy in that way, if he had not appeared weak toward the Soviet Union and Cuba, earlier in his presidency? Kennedy declined to follow through on his commitment to back the Bay of Pigs invasion of Cuba, by exiles from that island country, in 1961. Later that year, he put in a poor performance at a summit meeting with Soviet leader Nikita Khrushchev in Vienna. An emboldened Khrushchev had his East German allies construct the Berlin Wall shortly thereafter, with no significant response from Kennedy.

Is it any wonder that the Soviets continued to push, until Kennedy needed to bring the world to the brink of nuclear armageddon, in order to belatedly take a stand?

On the domestic side, Kennedy advocated a tax cut, with the same rationale that his Democratic Party denigrated, when Ronald Reagan made the same case, 20 years later. Kennedy's lack of legislative acumen, demonstrated throughout his 14-year congressional tenure, was on display once more as he failed to shepherd the tax cut through Congress. That, and the first significant civil rights legislation, were left for his successor Lyndon Johnson to accomplish.

Increasing American involvement in Vietnam was another legacy to his successors. Johnson probably made more serious mistakes in Vietnam than Kennedy did. But Kennedy cannot escape blame for the mishandling of that situation.

So, why is he rated as highly as he is? He was handsome and charming. And, with his early death, he will be eternally handsome and charming.

Kennedy had high poll numbers throughout his short presidency. They were higher than his 49.7% of the popular vote, when he barely won an electoral college majority in 1960. But martyrdom is what transformed him into a demigod.

As I write this, a stone's throw away from John F. Kennedy Boulevard, in Philadelphia, I'm reminded of the rush to rename everything from Idlewild Airport to Cape Canaveral after the late president, in the immediate aftermath of his assassination.

His wife Jacqueline, a devotee of high culture, managed to make it look as though her husband shared those interests. But all indications are to the contrary. When interviewed by William Manchester, shortly after the assassination, she made the dubious claim that his favorite song was the show tune Camelot, from the musical of the same name. Thus, that title, only after the fact, was bestowed on his presidency. That Washington buzzword "spin-doctor" was not yet in use at that time, but it could definitely have been applied to Jacqueline Kennedy.

Thursday, May 28, 2009

Miffed Majesty

I have written here and elsewhere about one of the major differences between the U.S. and British political systems. Here in the U.S., we combine the roles of head of state and head of government in the same office, that of president. But, in the U.K., those roles are played by different people. The monarch, currently Queen Elizabeth II, is the head of state. The prime minister, currently Gordon Brown, is the head of government.

Consequently, there is one issue in Britain that we don't face in America: the relationship between the head of state and the head of government.

Most of their interactions occur during the prime minister's weekly "audience" with the queen. Brown goes to Buckingham Palace, and the two have an absolutely confidential discussion of current events. I wrote here about some of the strengths the queen brings to those meetings, which allow her to influence policy.

The confidentiality of the weekly audiences is respected to a remarkable degree. But, every once in a while, word of a disagreement between the two leaders leaks out.

In 1986, The New York Times carried this Reuters report about rumored differences between Queen Elizabeth and then-Prime Minister Margaret Thatcher.

Now, the Times reports that the queen's relationship with Brown is strained. According to that article, she is upset because Brown failed to get her included in ceremonies next week to observe the 65th anniversary of D-Day.

Rumor has it that underlying tensions between the two leaders have led up to the current spat. Some of the difficulty reportedly arises from Brown arriving late for some of the weekly audiences.

While the queen defers to the elected politicians on matters of policy, they must show deference to her in a formal sense. Even though Brown undoubtedly has more important things to attend to than the queen does, it's considered disrespectful for him to make her wait.

UPDATE: The D-Day anniversary has now arrived and, in what appears to be a compromise of sorts, the Prince of Wales has traveled to Normandy to represent the Royal Family at the anniversary ceremonies.

Wednesday, May 27, 2009

The Garden State

New Jersey is one of two states that will elect a governor this year (the other one is Virginia).

A few states have two major cities (or pairs of cities) that dominate the state, and define two major media markets in which candidates must buy broadcast time. Here in Pennsylvania, there are Philadelphia and Pittsburgh. In Texas, the cities are Dallas/Ft. Worth and Houston. And in California, Los Angeles and San Francisco/Oakland.

That's also true of New Jersey but, in its case, the difference is that the two major cities are outside of the state. Those cities are New York and Philadelphia. Suburbs of those two cities make up a large part of New Jersey's population (the total population is 8,682,661, the 11th highest total in the U.S.) Newark, the state's most populous city, has only 280,666 residents.

19 of the top 20 states have at least one city with a population over 400,000. New Jersey is, of course, the exception.

Two implications, one more on the practical side, the other a bit less tangible:

1. New Jersey candidates need to buy air time in two large, expensive, media markets. Historically, much of that spending was wasted, in that it reached eyes and ears in Connecticut, New York, Pennsylvania and Delaware. During my own 22 years in Pennsylvania, I have been politically courted, via television and radio, by countless New Jersey candidates for whom I could not have voted, even if I had wanted to. And, judging my the almost uniformly negative (i.e., saying bad things about the opponent, rather than good things about the candidate buying the time) nature of those ads, I probably would not want to do so.

In this age of cable TV, and similar technologies, the media buys can be targeted more precisely. But a lot of the money is still wasted.

2. The state has trouble establishing a geographic identity, separate from those of the Philadelphia and New York metropolitan areas. The often misattributed and misunderstood quotation "there is no there there", could have referred to New Jersey. (It did not; Gertrude Stein said it about Oakland, California.)

According to this New York Times report earlier this year, that has had an effect on New Jersey's incumbent Democratic Governor Jon Corzine.

The official gubernatorial residence is the marvelously-named Drumthwacket, in Princeton, in Central Jersey. But Corzine's personal home is in Hoboken, just across the Hudson River from Manhattan. According to that Times article, the former Wall Street magnate is seen in New York a bit too often, in the opinion of some New Jersey voters.

As is the case with other northeastern states, New Jersey has been trending more toward the Democratic Party in recent years. But Corzine's personal popularity has lagged behind that of his party. That has given hope to the two main contenders in next Tuesday's Republican primary. More about that, later.

Supreme Court 13: Reversals

As I noted here, there is no higher court to which decisions of the U.S. Supreme Court can be appealed. But, in what seems like a paradox, there is one court that can reverse the U.S. Supreme Court. Which court is that? Answer: the U.S. Supreme Court.

The Court operates under the doctrine of stare decisis. That's Latin for "to stand by that which is decided." In other words, a court decision sets a precedent, that is then applied to subsequent cases, as applicable.

But that's not an absolute rule to be applied to all cases. Sometimes, the Supreme Court changes its collective mind, over time. Two examples:

In the 1896 case of Plessy v. Ferguson, the Court ruled that separate railway cars for black and white passengers did not violate the 14th Amendment's guarantee of equality. The Louisiana statute in question provided for "equal but separate accommodations for the white and colored races".

As the sole dissenter, Associate Justice John Marshall Harlan (grandfather of the John Marshall Harlan who served on the Court from 1955 to 1971) wrote:

The arbitrary separation of citizens on the basis of race while they are on a public highway is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds.

58 years later, Chief Justice Earl Warren wrote, with the concurrence of a unanimous Supreme Court, that:

... in the field of public education, the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal.

The Warren Court dealt with the same issue of racial segregation that was addressed in the Plessy case. But, in 1954, the context was public schools, and the case was Brown v. Board of Education.

In Brown, Warren and his colleagues very specifically declared that they were repudiating their predecessors' Plessy decision. Subsequent case law and legislation extended that repudiation of segregation to areas other than education.

Another subject on which the Supreme Court reversed itself involved the so-called "sodomy laws", i.e., state statutes that outlawed sexual activity other than heterosexual vaginal intercourse.

By 1986, many states had repealed those laws. But some states, including Georgia, still had them on the books. In the case of Bowers v. Hardwick, the Supreme Court that year upheld the constitutionality of Georgia's sodomy law.

Those of us who opposed the Bowers result, despaired over the prospects for overturning the decision. We knew that African Americans had waited 58 years for the Court to move from Plessy to Brown.

But things move faster nowadays, and the Supreme Court overturned its Bowers decision in 2003, when it struck down a Texas sodomy law in the case of Lawrence v. Texas. I'll have more to say about Lawrence as I trace the development of the right to privacy, in future posts.

I'll also discuss a decision, the opponents of which have looked in vain for a reversal: the 1973 Roe v. Wade abortion decision.

Tuesday, May 26, 2009

Supreme Court 12: Amendments (cont'd)

This continues the discussion begun here, about Congress's ability to overturn Supreme Court decisions by amending the law in question. When that law is the Constitution, an amendment is not an easy remedy.

The Constitution has been amended only 27 times in its 220-year history. Even that number arguably overstates the case. If we consider the Bill of Rights to be one action of amending the Constitution, rather than 10 separate amendments, that reduces the number to 18. The same can be said of the "Civil War Amendments", the 13th, 14th, and 15th amendments, which freed the slaves, and gave them (in theory at least) civil and political rights. If we look at it that way, the Constitution has been successfully amended only 16 times.

One example of a constitutional amendment that was ratified to reverse a Supreme Court decision, is what is probably the least popular of the amendments currently in force. That is the 16th Amendment, which allows the federal government to levy an income tax. (Its main rival in unpopularity, the 18th Amendment, which prohibited alcoholic beverages, has, of course, long since been repealed.)

A federal income tax was implemented in 1861, to help cover the cost of the Civil War. That tax eventually expired, but Congress imposed another income tax in 1894. The Supreme Court ruled that tax unconstitutional, the following year.

The Constitution grants Congress the power to levy taxes. But it also provides that "direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers", i.e., their populations, as determined by the decennial census.

In the 1895 case of Pollock v. Farmers' Loan & Trust Company, the Supreme Court found that, to some extent at least, the income tax constituted a "direct tax", and therefore, because it was not apportioned among the states according to population, it violated the constitutional provision quoted above.

The 16th Amendment got around the direct v. indirect question, as follows:

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

The amendment was submitted to the states by Congress, in 1909. The ratification process was completed on February 3, 1913, 29 days before Woodrow Wilson took office as president. Wilson signed a new income tax bill in October of that year, and the tax that we all know and love has been with us ever since.

Other such efforts to amend the constitution have failed.

The 1962 Supreme Court decision in the case of Engel v. Vitale, disallowed a prayer that a public school district required to be recited in schools. A majority of the justices found that it violated the following provision of the First Amendment:

Congress shall make no law respecting an establishment of religion ...

The decision set off a firestorm of controversy, as did several additional school prayer cases that subsequently came before the Court. That led to several proposals for constitutional amendments, along the lines of:

Nothing in this Constitution, including any amendment to this Constitution, shall be construed to prohibit voluntary prayer or require prayer in a public school, or to prohibit voluntary prayer or require prayer at a public school extracurricular activity.

None of those proposals has made its way through the Congress, let alone been ratified by the states.

Proposed constitutional amendments to overturn the Court's 1973 decision in the case of Roe v. Wade, which severely restricted states' leeway to prohibit abortions, met with a similar fate.

Monday, May 25, 2009

Supreme Court 11: Amendments

In previous posts in this series, I've described some rather devious methods by which politicians have gotten around Supreme Court decisions. There's a more direct way to do that, but it is often difficult to accomplish. Those difficulties are what drive politicians toward the devious routes.

The direct method to which I refer is for Congress to amend the law on which the offending Court decision is based.

When a Supreme Court decision is based on its interpretation of a congressional statute, Congress's remedy is to amend the statute. One such example is the Lilly Ledbetter Fair Pay Act of 2009. It was designed to overturn the Supreme Court's interpretation of the Civil Rights Act of 1964, in the 2007 case of Ledbetter v. Goodyear Tire & Rubber Co.

Lilly Ledbetter sued her employer, Goodyear, because male coworkers were more highly paid than she was. Goodyear successfully defeated her claim, on a procedural point. The Supreme Court found that the statute of limitations (a limitation on the period of time following an occurrence, during which a plaintiff can bring a lawsuit arising out of that occurrence) had expired. A minority of justices were of the opinion that the time limit cannot run out, as long as the disparate compensation is still being paid out.

Most Republicans supported the point of view that it would put an undue burden on employers to force them to defend themselves against claims brought long after the initial compensation decisions were made. But, with Republican power in Washington vastly reduced by the 2008 election, congressional Democrats passed the Ledbetter Act in January of this year, and President Obama signed it, nine days after his inauguration.

The 2009 legislation wrote into law the rule that Associate Justice Ruth Bader Ginsburg advocated in her minority opinion in the Ledbetter case, i.e., that the statute of limitations in such cases resets with each pay period. In a not-very-subtle conclusion to that opinion, Ginsburg noted that, "once again, the ball is in Congress’ court. As in 1991, the Legislature may act to correct this Court’s parsimonious reading of Title VII." Congress followed her suggestion.

Reversing a statutory interpretation is relatively simple. But what about constitutional cases? Stay tuned.

Supreme Court 10: Let Him Enforce It

Chief Justice John Marshall, in his opinion in the 1803 case of Marbury v. Madison, wrote that "it is emphatically the province and duty of the judicial department to say what the law is."

But Article II, Section 3 of the Constitution provides in part that the president and, by extension, the Executive Branch, "shall take Care that the Laws be faithfully executed".

The Supreme Court has no resources with which to enforce its decisions. Therefore, another way of reversing Supreme Court decisions is for the Executive Branch to refuse to enforce them.

Conventional wisdom has it that that happened in response to the Court's decision in the 1832 case of Worcester v. Georgia. But, in the opinion of many observers, that point of view oversimplifies the story.

The case is often described along these lines: The Supreme Court, still led by Marshall, prohibited President Andrew Jackson from forcibly moving Indians from southeastern states to the western territories. Jackson refused to obey, saying "John Marshall has made his decision; now let him enforce it!" That's an inaccurate description, but it's not 180 degrees opposite to the truth.

Samuel Worcester was a white missionary working among the Cherokee tribe in Georgia. In violation of state law, Worcester had not secured Georgia's permission to live among the Cherokees. He was convicted in state court, and appealed that decision to the federal courts on the basis that a treaty between the U.S. and the Cherokee tribe has the same status in federal law as a treaty with, say, Britain or France.

The Supreme Court sided with Worcester. Marshall's opinion read in part:

The Cherokee Nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter but with the assent of the Cherokees themselves or in conformity with treaties and with the acts of Congress. The whole intercourse between the United States and this nation is, by our Constitution and laws, vested in the government of the United States.

In a narrow sense, the Court's decision was obeyed. Georgia released Worcester from prison.

But the Cherokee people were eventually forcibly removed from Georgia under the Jackson Administration's policy of "Indian Removal". That seems to run counter to the Supreme Court's interpretation of the Cherokee treaties. But the removal was supported by new treaties, albeit of questionable validity, so that apparently was the legal basis that was not effectively challenged in the courts.

So, did Georgia and the federal Executive Branch defy the Court? Sort of.

What was Jackson's actual reaction to the Worcester decision?:

The decision of the Supreme court has fell still born, and they find that it cannot coerce Georgia to yield to its mandate.

It lacks the drama of "let him enforce it!", so it's understandable that that apparently apocryphal version is still widely quoted.

Sunday, May 24, 2009

Supreme Court 9: Final?

Associate Justice Robert Jackson once said of the U.S. Supreme Court:

We are not final because we are infallible, but we are infallible only because we are final.

In one sense, that's true. There is no court to which Supreme Court decisions can be appealed.

But, in another sense, they're not necessarily final. There are ways of reversing Supreme Court decisions. In the next few posts in this series, I will discuss some of those methods. The first of those is "court packing".

As I noted here, the Constitution did not establish the size of the Supreme Court. By act of Congress, it has been established that there are nine justices on the Court. That number was smaller in the early history of the Court.

When Democrat Franklin Roosevelt became president in 1933, the Republican Party had held that office for 12 consecutive years, and for 28 of the previous 36 years. Seven of the nine Supreme Court justices had been appointed by Republican presidents, one by Taft, two by Harding, one by Coolidge, and three by Hoover. That lineup remained unchanged through Roosevelt's first term.

During that first term, the Supreme Court found parts of the Roosevelt's "New Deal" program to be unconstitutional. The main issue was whether to read Article I, Section 8, clause 3 of the Constitution narrowly or expansively. That so-called "Commerce Clause" reads as follows:

The Congress shall have Power ... to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

Roosevelt was miffed that the Court declined to interpret that clause liberally enough to allow the expansion of federal power that the president and the Democrat-dominated Congress had enacted in response to the Great Depression.

At the beginning of Roosevelt's second term, he proposed the creation of new associate justice positions on the Court. That "court packing" plan was disguised as an effort to aid older justices in keeping up with their workload. There would be one additional justice for every incumbent justice over the age of 70 who declined to retire, subject to a maximum of six additional justices.

But the real impact was obvious. It would have allowed Roosevelt to immediately appoint six additional justices, thereby reducing the seven Republican appointees to a minority on a 15-member Court. With 76 Democrats in the Senate, FDR's nominees would probably easily have been confirmed.

The Senate rejected the court-packing plan, but Roosevelt is generally seen as having lost the battle, but won the war. The justices seem to have taken the hint. They began allowing greater government regulation of the economy. And the older justices began to retire.

By the end of Roosevelt's record tenure as president, in 1945, he had appointed seven of the justices, and had promoted one of the others to chief justice.

Saturday, May 23, 2009

Supreme Court 8: Developments

As I wrote here, one of the issues for the U.S. Supreme Court, early in its existence, was not having enough work to do. In a small country, with a decentralized political structure, the caseload was minimal.

By the latter part of the 19th century, the country had grown, and the scope of federal law had grown. A series of actions were taken to help the Supreme Court deal with its increased caseload.

In 1891, Congress established the federal Courts of Appeals, organized into nine "circuits". Today, there are 13 judicial circuits.

The circuit courts hear appeals from lower courts. Consequently, the Supreme Court's role has largely been reduced to considering issues on which different circuits have issued contradictory opinions.

I addressed two changes in the first half of the 20th century, in this post. During William Howard Taft's tenure as chief justice, he advocated two changes to which Congress agreed. One was to allow the Supreme Court to decide which appeals it would consider, and which it wouldn't. Another was to build a separate building in Washington for the Supreme Court; before the completion of that building in 1935, the Court met in the Capitol.

The Supreme Court building is designed in such a classical style, it's easy to believe that it goes back to the original plan for Washington, DC, along with the headquarters of the other branches, i.e., the Capitol and the White House. But it was built more than a century after those buildings.

Thursday, May 21, 2009

Expense Accounts

With at most a year to go until the next British general election, that country's political debate is dominated by a scandal involving the expenses that have been submitted for reimbursement by members of Parliament (MPs). MPs representing constituencies outside of London are eligible to submit certain expenses that arise from their need to maintain two homes, one in London and one in the constituency. Widespread abuses have been reported.

Even though MPs of all of the major parties have been implicated, most of the political damage seems to be accruing to Prime Minister Gordon Brown, the leader of the Labor Party.

This is, of course, the type of story about which politicians want a minimum of publicity. But they lost all hope of that, when it was disclosed that a leading member of Brown's Cabinet had submitted the expense of an online pornography service to which her husband subscribed.

Brown's standing in the opinion polls, and that of his party, have been on a roller-coaster ride, since he replaced Tony Blair in the top job, in 2007. The latest polls show a large lead for the Conservative Party, which is led by David Cameron.

The Speaker of the House of Commons, Michael Martin, has resigned, on account of the scandal. I can understand placing responsibility for the scandal on the person responsible for administering the House. But it seems a bit hypocritical for MPs, among whom are those who sought the improper expense reimbursements, to place the blame on Martin.

Some say that Martin has been made a scapegoat. There seems to be some truth to that. And in thinking about the origin of that word, it strikes me how close this example comes to the original meaning.

Hebrew scripture (Leviticus 16:20-22) describes a procedure whereby a priest places all of the sins of the community onto a goat, and then sends the goat out into the desert, thereby purifying the community.

Martin is being cast out into the political desert. British politicians will find out in due course how effective their ritual of purification has been.

Monday, May 18, 2009

Supreme Court 7: Civil War (cont'd)

Around the time of the Civil War, the Supreme Court considered the issue of civil liberties in wartime. As they (whoever they are) say, the more things change the more they stay the same.

In the case of Ex Parte Milligan, in 1866 the Supreme Court overturned the conviction by a military court of Lambdin Milligan. Milligan, an Indiana resident, was opposed to the U.S. going to war against the Confederacy.

The late Chief Justice William Rehnquist wrote about Milligan's case in his 1998 book All the Laws But One: Civil Liberties in Wartime. Rehnquist notes that civil courts were available, but the decision to instead go to a military court was seen as "the more expeditious mode". That procedural decision was pivotal in the Supreme Court case.

Rehnquist describes the relative lack of defendants' rights in military trials. For example, the charges against them were stated in more general terms than would be allowed in the civil courts. The defendants were not notified of the specific acts they were alleged to have committed.

Milligan was found guilty of treason in 1864, and was sentenced to be hanged.

The Supreme Court, in considering Milligan's appeal in 1866, the year after the Civil War ended, noted the different climate in which they were operating:

During the late wicked Rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question. Then, considerations of safety were mingled with the exercise of power, and feelings and interests prevailed which are happily terminated. Now that the public safety is assured, this question, as well as all others, can be discussed and decided without passion or the admixture of any element not required to form a legal judgment. We approach the investigation of this case fully sensible of the magnitude of the inquiry and the necessity of full and cautious deliberation.

The Court was thereby acknowledging that it doesn't operate in a vacuum. It takes notice of events such as wars, and the ending of wars, when considering cases.

The Court decided that the military court had no jurisdiction to try Milligan because he was a civilian, and the state (Indiana) in which he was tried was one in which the regular federal courts were operational, and was not in rebellion.

The Supreme Court has repeatedly acknowledged the need to suppress certain civil liberties in wartime, but has never given the Executive Branch a blank check in that regard. Litigation arising from the current undeclared war on Al Qaeda fits in with that tradition.

The title of Rehnquist's book comes from a statement to Congress by Abraham Lincoln, early in the Civil War. Justifying the suspension of the writ of habeas corpus (the type of legal action by which a prisoner can seek to be freed if unlawfully detained) Lincoln said he would not allow "all the laws, but one, to go unexecuted, and the government itself go to pieces, lest than one be violated."

Sunday, May 17, 2009

India 13: Result

The Congress Party will lead the next coalition government in India.

As I described here, in the first few elections after India's independence in 1947, Congress routinely won a large overall majority in the Lok Sabha, the lower house of parliament. By contrast, the almost-completed vote count for this year's election shows Congress winning only 206 of the 543 seats. However, with the increasing scattering of votes among small parties, that gives them a significant lead over their rivals.

The United Progressive Alliance, a coalition of parties led by Congress, has won a total of 260 seats. Observers expect Congress to easily be able to find enough coalition partners to constitute a majority. India's political system resembles that of its former colonial ruler, Britain, in that the leader (or the leader's designee) of either the majority party, or the leading party in a majority coalition, becomes prime minister.

That means that Manmohan Singh will continue in that job. The Congress Party's leader, Sonia Gandhi, has preferred Singh as prime minister, since the party returned to power in 2004. Sonia Gandhi's son, Rahul Gandhi, 38, is expected to take over at some point, from the 76-year-old Singh. Rahul Gandhi's great-grandfather, Jawaharlal Nehru, was India's first prime minister.

The Bharatiya Janata Party (BJP), which led India's coalition government from 1998 to 2004, won 116 seats. With other parties in its National Democratic Alliance, it will have at least 159 seats. The BJP has, to some extent, succeeded in establishing a two-party system in India, which was lacking during the country's first half-century. But it continues to find it difficult to break Indians of their habit of returning Congress to power.

A coalition of smaller parties, called the Third Front, proved themselves not ready for prime time, with only 78 seats.

The result could mean that economic reforms, which were begun by a Congress-led government almost two decades ago, will be continued, and perhaps strengthened. After previous elections, the party needed to reach far to the left, including to communists, to build a coalition. That limited its ability to extend free-market policies. With its relatively strong result this time, Congress can bypass the communists, and construct a more centrist coalition.

Friday, May 15, 2009

Donkey Diversity

This Politico report gives further evidence of a phenomenon that I've described in this and other posts. In order to increase their numbers in the Senate, the Democrats have had to extend themselves beyond their hard-core base.

New Democratic senators from such states as Alaska and Virginia cannot be expected to support the entire agenda of veteran Democrats from states such as California and Massachusetts.

From the other end of the Capitol comes a familiar characterization of the Senate. Representative John Conyers, the Michigan Democrat who chairs the House Judiciary Committee, says “if you have 60 cats, you got to get them all together in the same place to get something done ... herding senators and herding cats have a lot in common.”

That's somewhat more true on the Senate side than it is in the House. But even in the House, things have changed since legendary Speaker Sam Rayburn, Democrat of Texas, supposedly would tell junior congressmen, "if you want to get along, go along." House members may still be easier to herd than senators, but members of the lower house have increasingly developed an independent streak in recent decades.

It's a difficult question. Members of both houses of Congress are answerable to their constituents. But the party leaders in each house need to influence their membership, in order to get anything done. An ability to carefully apply carrots and sticks is a key part of a congressional leader's job description.

That Politico report reminds me of a story that my favorite political science professor liked to tell. When John Kennedy was elected president in 1960, his Democratic Party had large majorities in both houses of Congress, 263-174 in the House and 64-36 in the Senate. But Kennedy was stymied in trying to get legislation through the Congress, largely because those party numbers masked the clout of the Conservative Coalition.

In the 1962 midterm congressional campaign, Kennedy advocated the election of more congressional Democrats, in order to get his legislative program adopted. With those large Democratic majorities already in place, Senator Everett Dirksen of Illinois, the Republican leader, supposedly responded by asking "how many Democrats does he need?"

Well, the current Senate majority leader, Harry Reid, Democrat of Nevada, is hinting at a message similar to Kennedy's, for the 2010 elections. Given the realities of Senate rules, and the lack of party discipline in that legislative body, Reid might need more than the 60 he'll have when/if Al Franken is seated as junior senator from Minnesota.

Monday, May 11, 2009

Supreme Court 6: Civil War

Chief Justice John Marshall's tenure finally came to an end, with his death on July 6, 1835. President Andrew Jackson appointed Roger Taney (pronounced TAH-nee) to succeed Marshall.

Taney served as a state and federal attorney general, and as the federal secretary of the treasury. He then had a 28-year tenure as chief justice. A very active public career over many years. But I would venture a guess that at least 99% of everything that has ever been written about Taney involves only one of his Supreme Court opinions.

That was the 1857 decision in the case of Dred Scott v. Sandford.

Dred Scott was an African American slave, owned by John Emerson, a Missouri physician. During Emerson's service in the Army, he brought Scott with him to the free state of Illinois, and to territory that would later be included in the state of Minnesota.

After Emerson died in 1843, Scott initiated a series of legal actions, seeking his freedom. That process finally culminated in a Supreme Court decision in 1857.

The Court found that Scott was not a "citizen" in the sense in which Article III of the Constitution allows citizens to sue in the federal courts. In the opinion of the Court's majority, that was true of all people of African ancestry, regardless of their status as enslaved or free.

In his opinion for the Court, Taney presented evidence that none of the states who were the original parties to the Constitution would have recognized African Americans as citizens at the time Article III was written. Basing his decision on that criterion is an example of the doctrine of Original Intent, that has been championed in recent years by Associate Justice Antonin Scalia. Of course, by Scalia's time, the 14th Amendment had specifically reversed that supposed original intent, so the doctrine would not lead Scalia to the same result that Taney reached.

(That's not to paint Scalia as a supporter of the Dred Scott decision. In his dissenting opinion in the Planned Parenthood v. Casey abortion case of 1992, Scalia called Dred Scott "an erroneous and widely opposed opinion".)

The Court's interpretation of "citizen" was bound to be controversial at that time when tensions over slavery were continuing to build, and would lead four years later to Civil War. But another part of the Court's decision was even more incendiary in that respect. They found parts of the Missouri Compromise of 1820 to be unconstitutional. That compromise was part of what had kept the lid in place on the boiling slavery controversy up to that time.

The Missouri Compromise allowed that slave state to enter the union, in exchange for the admission of free Maine, and a limitation on the extension of slavery to territories north and west of Missouri. Striking down that compromise struck a raw nerve in the 1850s political arena. Abraham Lincoln, and other politicians in the new Republican Party, were not abolitionists, per se, at that time. But they strongly opposed the extension of slavery into any new western states.

The notion that someone such as Dred Scott could be held as a slave in those territories, and that the legislative protection against the extension of slavery no longer applied, made the status quo less tenable, and moved the country closer to Civil War.

Supreme Court 5: More Marshall

I'm picking up the story from here, after Chief Justice John Marshall successfully asserted his court's power of judicial review, i.e., the power to void acts of Congress that violate the Constitution.

In so doing, Marshall contributed to sorting out the boundaries of the three branches of the federal government, in the separation-of-powers and checks-and-balances systems established by the Constitution.

The Constitution also addressed the issue of the balance of power between the federal government and the states, and Marshall subsequently weighed in on that question.

The political history of the United States has involved, for better or worse, an almost continuous movement toward stronger central government. From the Continental Congresses, to the Constitution of 1787, to the post-Civil War constitutional amendments, to the Supreme Court's belated acceptance of New Deal federal activism, every major move has been in the direction of centralization.

Certain decisions of the Marshall Court in the early 19th century contributed to that trend. One such case is McCulloch v. Maryland, in 1819.

Congress chartered the Bank of the United States, in 1816, and James McCulloch headed up a branch of that bank in Baltimore. The state of Maryland did not take kindly to the imposition of an outside bank within its boundaries. Maryland imposed a tax on operations of the bank, and then sued McCulloch when he refused to pay.

The Supreme Court struck down the state tax, in a decision that set two important precedents:

The first involves the Court's defense of Congress's authority to charter the Bank. Article I, Section 9 of the Constitution lists several specific powers allocated to Congress. The Constitutional Convention placed at the end of that list, a paragraph that is sometimes called the "Elastic Clause", which empowers Congress:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

The Court interpreted that clause to give Congress the power to take actions not specifically described in that section. While chartering a bank was not specifically allowed, such an action was "necessary and proper for carrying into Execution the" powers to tax and spend.

The second precedent prohibited states from interfering in the operations of the federal government.

Article VI, clause 2 of the Constitution provides that:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.

The Court found that Maryland's tax constituted an assertion of supremacy over the federal government. In a case such as this where, in the Court's opinion, the federal government had properly acted within its constitutional authority, federal law trumps state law.

Sunday, May 10, 2009

India 12: Now

India's month-long general election process will come to an end this week. Now that I've filled in the history leading up to this election, I will describe three possible types of outcomes:

1. A continuation of coalition government led by the Congress Party. Prime Minister Manmohan Singh, who has headed up such a coalition since the 2004 general election, is leading Congress into this election, as well. However, as I noted here, another generation of the Nehru/Gandhi family seems to be waiting in the wings, to replace the 76-year-old Singh before too long.

2. A return to a coalition led by the Bharatiya Janata Party (BJP), similar to the coalition government from 1998 to 2004. Subsequent to the 2004 election, L.K. Advani took over the leadership of the BJP. Advani will be unable to make an issue of Singh's advanced age, because Advani is 81 years old. Narenda Modi, the 58-year-old chief minister of the state of Gujarat is sometimes mentioned as a potential candidate to be the BJP's next leader.

3. A coalition of smaller parties, without the big two. Some observers expect Congress's and BJP's combined share of the total vote to shrink to a level where a viable coalition might be formed without them. A group called the Third Front has emerged as such an alternative. It includes the Communists, who had previously supported Congress, and several regional parties. The Third Front has not designated a candidate for prime minister, but one name that has been frequently mentioned is that of Mayawati Kumari. She is the chief minister of Uttar Pradesh, and would be the first Dalit, or member of the low Hindu caste sometimes called the "untouchables", to be prime minister.

A Third Front government appears to be a long-shot possibility.

India's economy is still growing, but at a slower pace. The recession in its export markets, such as the United States, is having an effect. That could diminish the popularity of the free-market reforms that launched India onto a fast track of economic growth during the past two decades.

The BJP seems more ideologically committed to those policies. But a reelected Congress government would probably continue its pragmatic support of free markets. That strategy on the part of Congress has been somewhat hampered by pressures from some of its more leftist coalition partners.

In foreign policy, the U.S. will probably continue to maintain cordial relations with either a Congress government, or one led by the BJP. The main difference might be that the BJP, with its strong identity as a Hindu nationalist party, could have more difficulty than Congress, in relating to Pakistan and other Muslim countries. But international relations are funny that way, and I suppose there could be a "Nixon went to China" effect, whereby the party more confident in its support from Hindus could conceivably open up more to Muslims.

The election results are scheduled to be announced May 16, but the full details of the next government will probably have to wait until protracted coalition negotiations are completed.

Friday, May 8, 2009

Heartbreak Ridge

Former Governor Tom Ridge, Republican of Pennsylvania, said yesterday that he will not run in the primary that his party will hold next year, to choose a candidate for the Senate seat held by Capitol Hill's newest Democrat, Arlen Specter.

Earlier this week, I wrote about speculation regarding a potential Ridge candidacy, in this post.

On another topic in that post, Specter has been named chairman of the Subcommittee on Crime and Drugs of the Senate Judiciary Committee. That's a bit surprising, on the heels of the Democrats' decision not to recognize Specter's seniority.

But it's not all that far out of the ordinary. A freshman among the 435 members of the House of Representatives usually must wait a while before getting a leadership position. But in the Senate, with its smaller membership, there's less of a waiting line. Therefore, it's not unprecedented for a freshman senator (which is the status that his new party has, in effect, bestowed on Specter) to chair a subcommittee.

Nate Silver, in the 538 blog, speculates about whether Ridge is keeping his powder dry for an attempt to get on his party's national ticket in 2012. Seems to me a bit unlikely, but the Republican field will be about as wide open as can be, so I suppose no one can be ruled out.

Wednesday, May 6, 2009

India 11: Us and Them, Continued

I wrote here about the complicated relationship between the U.S. and India, during the first quarter-century after that latter country became independent in 1947.

From the late 1970s onward, the relationship improved. Three factors influenced that:

The Soviet Union's influence on India waned. Even before the USSR disintegrated in 1991, there were signs of a tilt toward the American side, late in the Cold War. When Indira Gandhi returned to power in 1980, she refused to condemn the Soviet invasion of Afghanistan. But she got along well personally with Ronald Reagan and, for the most part, the bilateral relationship was better than it had previously been. And, of course, after 1991, no country any longer had the option of playing the U.S. off against the Soviets.

India, and later Pakistan, went nuclear. India tested a nuclear device in 1974. By that time, India's rival Pakistan had begun developing its own nuclear capability. But Pakistan did not get to the stage of test explosions until 1998. The U.S. has tried economic sanctions to discourage such proliferation, but strategic considerations intervened. Seeking allies, first against the Soviet Union, and later against islamist groups, the U.S. has moderated its stance toward India and Pakistan.

India's economic growth over the past two decades has also changed the picture. For one thing, its increased dedication to capitalism puts it more ideologically in synch with America. Also, on a more concrete level, the greater the trading relationship, the more each country has at stake in its relationship with the other. Therefore, each side is more hesitant to put itself at odds with the other over any given issue.

All of these developments led to the Civil Nuclear Cooperation Agreement between India and the U.S. That agreement was reached in 2005, between Indian Prime Minister Manmohan Singh, and then-President George Bush. The U.S. Congress completed its approval process in 2008.

The agreement allows India to import materials from the U.S. for India's nuclear power plants. That is an extraordinary step for the U.S. to take with a country, such as India, that is not a party to the Nuclear Non-Proliferation Treaty. The Council on Foreign Relations provides more details here.

A horrible cliché of the current recession, "too big to fail", is applied to banks and other financial institutions. I suppose it can be adapted to the national level, by saying that, for the U.S., India has become too important to oppose.

Supreme Court Diversity

Politico has reported on two openly lesbian legal scholars, who are on some of the lists of potential successors to Associate Justice David Souter.

I'm ambivalent about identity politics. Not pretending to be more high-minded about this than I actually am, I suppose I embrace identity politics when I want to, and don't when I don't.

As a gay man, I would see it as a victory for our Cause, to have an openly-LGBT person on the Court. That's the case, even though, being toward the right-wing end of the LGBT political spectrum, I would probably disagree with such a person on a lot of issues.

I'm not sure what chance, if any, these candidates have. I'm still back in the 19th century, with occasional forays into the 20th, in my history of the Court. So I haven't yet focused on 21st century candidates.

Low Man On The Totem Pole

Pennsylvania Senator Arlen Specter's switch to the Democratic Party is looking a bit different than when he announced his intention, last week.

The full Senate, in passing a resolution realigning committee assignments, has placed Specter last in seniority among the Democrats on his committees. That's quite a come-down for the senator who chaired the Judiciary Committee for four years, overseeing, among other matters, the Supreme Court nominations of John Roberts and Samuel Alito.

As Specter tells it, at least, that violates a promise that Senate Majority Leader Harry Reid made to Specter, to the effect that his seniority would be equal to that of a sixth-term Democrat.

It also goes against the precedent that was set when Reid made way for then-Senator Jim Jeffords of Vermont to immediately chair the Environment and Public Works Committee, when Jeffords left the Republican Party in 2001.

It looks as though Specter will face opposition in the Democratic primary, in his reelection bid next year. Expressions of support from leading Democrats, from President Obama on down, cannot guarantee him the nomination. However, I still consider Specter a heavy favorite to win the primary.

A new name has surfaced on the Republican side, as a possible general-election opponent for Specter. That name is Tom Ridge, former congressman and governor, and the first secretary of the Department of Homeland Security. Ridge would probably give Specter his toughest general-election battle in a long time.

Still, I don't suppose Specter has reason to regret his switch. The fact remains that he faced long odds in a Republican primary for the reelection that he seems to crave very much, without caring whether he's considered an opportunist.

What's In A Name?

A German court has ruled on a question I've been wondering about for quite a while. That may say at least as much about me as about the court, but that's as may be.

The case involves the trend toward couples combining their surnames and creating a hyphenated last name. The question is: if that trend were to continue over multiple generations, wouldn't the names eventually become too long?

For example, if George Walker Bush's grandparents and parents had done that, he could be George Robinson-Pierce-Walker-Bush. The former president has, of course, been called many things over the past few years, but never that.

The German court decided: two names joined together, and that's it.

However, the Times article on this subject notes that German aristocrats have traditionally carried long names.

As is so often the case, I'm reminded of the British TV show Monty Python's Flying Circus. They parodied that German tradition with the story of a composer named Johann Gambolputty de von Ausfern- schplenden- schlitter- crasscrenbon- fried- digger- dingle- dangle- dongle- dungle- burstein- von- knacker- thrasher- apple- banger- horowitz- ticolensic- grander- knotty- spelltinkle- grandlich- grumblemeyer- spelterwasser- kurstlich- himbleeisen- bahnwagen- gutenabend- bitte- ein- nürnburger- bratwustle- gerspurten- mitz- weimache- luber- hundsfut- gumberaber- shönedanker- kalbsfleisch- mittler- aucher von Hautkopft auf Ulm.

Ever the iconoclasts, I'm sure the Python troupe are glad to find themselves seriously in violation of German law.

Supreme Court 4: Partisan or Not

In Chief Justice John Marshall's groundbreaking opinion in the case of Marbury v. Madison, he ruled against his own Federalist Party. The immediate result of that opinion was that Marshall's fellow Federalist, William Marbury, would not be able to take office as a federal justice of the peace.

However, his party may have lost the battle, but won the war. By asserting the power of judicial review, the Federalist Marshall guaranteed that he would have significant influence over the Republican-controlled executive and legislative branches of the federal government, even after the 1800 election, in which his party had suffered a repudiation from which it would never recover.

The judicial branch has often sidestepped issues that it has deemed to involve political questions. In his Marbury opinion, Marshall stated that "questions, in their nature political ... can never be made in this court." But cases, including that one, have political implications. And the political-question doctrine has been weakened in recent times, e.g., by the legislative reapportionment cases in the 1960s.

Two cases come to mind, in which justices have ruled against the interests of the political party of the president who appointed them.

The first is the Supreme Court's 1974 decision in the case of U.S. v. Nixon. The court unanimously required the Republican President Richard Nixon to reveal tape recordings of conversations related to the Watergate scandal. That decision was the straw that broke the camel's back, forcing Nixon to resign shortly thereafter. Two justices who had been appointed by the Republican President Dwight Eisenhower, plus three justices appointed by Nixon himself, ruled against the president. A fourth Nixon appointee, William Rehnquist, then an associate justice, took no part in the decision, because he had worked in Nixon's administration.

That's an extreme example, being a unanimous opinion. Even Republicans in Congress had begun to turn against Nixon, so it's no surprise that Republican-appointed justices joined in the unanimous opinion.

A more interesting example is one of the most controversial 5-4 decisions in Supreme Court history. I refer to the 2000 case of Bush v. Gore. The decision halted recounts of the Florida presidential vote, thus ending Democrat Al Gore's hopes of erasing Republican George W. Bush's slim lead for the decisive Florida electoral votes. Two of the four dissenting justices (i.e., those favoring Gore's position) had been appointed by Republican presidents. John Paul Stevens was chosen by Gerald Ford. And David Souter had been nominated by candidate Bush's own father, George H.W. Bush. There was some talk at the time of Souter betraying the Bush family, but that point of view runs counter to the independence that the Constitution provides to the judiciary.

Aside from these questions that have direct partisan political implications, presidents are frequently disappointed in the positions that their appointees take, once they're on the Supreme Court.

Souter, who is in the process of retiring, has caused bigger headaches for Republicans than just his dissent in Bush v. Gore.

I've written, in a series of posts that began here, about how slippery the words "liberal" and "conservative" are, when applied to the political branches of government. My opinion is that it's even more difficult to apply those labels to judges but, of course, people do.

Souter is generally considered to be part of the liberal faction on the court, as is Stevens. What angers many Republicans most, is Souter's role in upholding the Roe v. Wade decision on abortion.

One of George H.W. Bush's Republican predecessors, Dwight Eisenhower, also regretted at least one of his Supreme Court appointments. There was a vacancy in the position of chief justice, early in Eisenhower's first term. Eisenhower made what must at the time have seemed a safe choice, appointing the Republican governor of California, Earl Warren.

According to some reports, Eisenhower later called that nomination "the biggest damn fool mistake I ever made". That view seems, at least in part, to have arisen from the Warren Court's 1954 Brown decision on school integration. However, Warren's record on such issues as criminal procedure, school prayer, legislative redistricting, interracial marriage, etc., may have contributed to Eisenhower's view.

By the time of the Brown case's 50th anniversary in 2004, politicians of both parties were ready to heap praise on Warren and his colleagues. But Eisenhower's negative view of that decision reflects how controversial the court's decision was in the 1950s and beyond.

Another Eisenhower appointee, Associate Justice William Brennan, was long considered a bulwark of the Supreme Court's "liberal wing", and that was probably another nomination Ike would not make, if he had it to do over again.

Tuesday, May 5, 2009

Supreme Court 3: The Marshall Court

It is emphatically the province and duty of the judicial department to say what the law is.

That is one of the most quoted sentences from any U.S. Supreme Court opinion in American history. The case was Marbury v. Madison, decided in 1803, early in John Marshall's long tenure as chief justice. That decision established a power that is not explicitly given to the court by the Constitution, that of judicial review, i.e., the power to decide whether a statute is void because it's incompatible with the Constitution.

The circumstances of the case were similar to those of Marshall's own appointment to the Supreme Court. As was the case with Marshall, William Marbury was appointed to federal office in 1801 by the lame-duck President John Adams of the Federalist Party. The difference was that, in Marbury's case, the subsequent Republican administration, specifically Secretary of State James Madison, refused to follow through and implement Marbury's appointment by issuing him a formal commission.

Marbury was appointed a justice of the peace in the District of Columbia. That was one of several judicial offices that were created by an act of the Federalist-controlled Congress, after they lost the 1800 election. Madison's boss, President Thomas Jefferson, ordered Madison not to deliver commissions to the so-called "midnight judges", because Jefferson deemed the creation of those office by his political opponents to be illegitimate.

Marbury followed the procedure that the Congress had established in the Judiciary Act of 1789, which was to ask the Supreme Court to order Madison to deliver the commission. But that court, in its Marbury decision, ruled that it did not have that power, because Congress had contradicted the Constitution by establishing such a procedure.

Article III of the Constitution includes the following parameters regarding the Supreme Court's jurisdiction:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.

The Court found that the section of the Judiciary Act in question, attempted to give the Court original (as opposed to appellate) jurisdiction in an area that was outside of those constitutional parameters. Therefore, they declared that part of the Act to be unconstitutional, the first time the Supreme Court had done so in relation to any act of Congress.

There's nothing in Article III that explicitly says the Supreme Court can invalidate a law passed by Congress. But Marshall argued that it "is of the very essence of judicial duty" for a court to resolve a conflict between two laws. And, if the Constitution is to have any meaning, a conflict between a congressional statute and the Constitution must be resolved in favor of the latter.

Thus was judicial review born.

After Marshall established the place of the judicial branch in relation to the other branches of the federal government, he went on to map out federal authority vis-à-vis that of the states. More about that coming up but, first, some thoughts about Supreme Court decisions and partisan politics.

Sunday, May 3, 2009

Tax Cut Quarterback

Jack Kemp, to me one of the most interesting politicians of late-20th-century America, died yesterday at the age of 73.

In some ways Kemp could be seen as an orthodox Republican politician of his period. But perhaps that was because he defined a new Republican orthodoxy by putting tax cuts at the center of our party's platform, even if that meant abandoning the traditional Republican priority of budget balancing.

But Kemp did not blend into the background of Republican politics. The politician to whom he is perhaps most often compared is that arch-Democrat Hubert Humphrey. In this PBS interview regarding his debate with Al Gore when the two were running for vice president in 1996, Kemp said of himself, "it was a very formal setting, and looking back at it, that's not my style. I'm more of a preacher, an evangelist, a - you know, I'm the Hubert Humphrey of the Republican party."

Aside from their shared loquacious speaking style, Kemp, like Humphrey, was fond of offering new policy ideas. It was said of Humphrey that he had more solutions than there were problems. But many of us in the Republican Party thought Kemp had appropriate solutions.

On the policy front, Kemp is best known for the tax-cut plan that bore the names of himself and Senator William Roth, Republican of Delaware. That formed the basis of the tax cut that was signed into law by President Reagan in 1981. But, as HUD Secretary in George H.W. Bush's administration, Kemp was also an evangelist for enterprise zones, a plan to promote urban development by cutting back on taxation and regulation in distressed areas.

Having been a professional athlete, it was said that Kemp had showered with more African Americans than many Republicans have ever met. However, his efforts to increase black support for his party, largely fell flat.

As noted in the New York Times obituary to which I've linked above, Kemp was largely self-taught in politics and economics. Having already compared him to one Minnesotan, Humphrey, I can now compare him to another: Jesse Ventura. Although Ventura was a different type of "athlete" than Kemp, they both did a lot of serious reading on plane flights, and during other down time. That's how they both were able to emulate the Hollywood actor who signed Kemp's tax bill, by belying the low expectations that greeted their entry into the political arena.

Saturday, May 2, 2009

Supreme Court 2: John Marshall

I wrote here about America's first two-party system, between the Federalists and the party that were variously called Republicans, Democratic-Republicans or Jeffersonians. After Thomas Jefferson's victory over Federalist John Adams in the 1800 presidential election, Jefferson's party dominated American politics until the emergence of the Whig Party by the 1830s.

The Federalists were a spent force in federal politics after 1800, but one of their leaders continued to wield power in Washington until his death in 1835.

John Marshall, a Virginia lawyer, had long been active in that state's politics, including his service as a delegate to the Virginia convention that ratified the federal constitution of 1787. He was a supporter of ratification.

When the first parties emerged, Marshall aligned himself with the Federalists. He briefly served in the House of Representatives and as secretary of state, during the presidency of the Federalist John Adams. Adams, as a lame duck president in early 1801, appointed Marshall as chief justice of the United States. The Senate, in the waning days of the last session in which the Federalists had a majority, confirmed the appointment.

The Constitution provides that federal judges "shall hold their Offices during good Behaviour". In practice, that means that there is no set time limit on their tenure; they continue to serve until death, resignation, or removal through the impeachment process.

For example, one of the current associate justices, John Paul Stevens, continues on the court, 32 years after the president who appointed him, Gerald Ford, left the presidency. Stevens replaced William Douglas, who had stayed on the court another 30 years after Franklin Roosevelt, the president who appointed Douglas, died in office. In a personnel sense, presidents' judicial appointments tend to be their most enduring legacy.

Such was the case with Adams and Marshall.

During Marshall's 34 years as chief justice, a significant body of federal case law began to develop in the recently-formed federal judiciary. That gave him the chance to set his imprint on American law in a way that perhaps no other American jurist has been able to do.

Next: Some significant cases of the Marshall Court.

Image: Library of Congress

Friday, May 1, 2009

Supreme Court

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.

That excerpt from Article III of the U.S. Constitution is typical of that document's statements about the structure of the federal government. It provides a broad outline, to be fleshed out by acts of Congress, and by custom and practice. There's a bit more to Article III than just that, but the whole thing is only six paragraphs.

In the wake of reports that Associate Justice David Souter plans to retire soon, which would again plunge Washington into the process, increasingly complicated in the last few decades, of choosing a new justice, I will write a series of posts about the Supreme Court and its history. My plan is to show how those six paragraphs drafted in 1787 have evolved into the federal judiciary that we know today.

The First Congress enacted the Judiciary Act of 1789 which, among other things, established the original number of Supreme Court justices at six, a detail that the Constitution had not addressed. Congress has changed that number over the years; it has been set at nine since 1869.

Then, as now, federal judges, including Supreme Court justices, were appointed by the president, subject to confirmation by a simple majority in the Senate.

Once the court was staffed, a major issue was not having enough to do. With very limited exceptions, the Supreme Court is set up to consider appeals from lower-court decisions. By their nature, such cases take some time to work their way through the system. So, an appellate court is not going to start hearing cases on day one.

But, the realities that the country was still small, and federal law did not yet reach into all of the areas it does today, were bigger factors. Government in general was smaller, and the balance between state and federal power leaned much more toward the states, than is currently the case.

One implication was that the first chief justice, John Jay, had so much time on his hands, he was able to sail to London, and spend several months negotiating what came to be called the Jay Treaty with Britain.

Also, the justices used up some of their spare time by "riding circuit", i.e., going out to hear cases in the lower federal courts, in conjunction with the judges appointed to those courts. That practice continued until 1891.

Next: John Marshall's impact on American law.