When you say Dana Milbank, you've said it all

I noted in this post how the White House Beer Summit seems to have been an extraordinary inspiration for puns.

Now, Dana Milbank, writing in The Washington Post, has taken that to even higher (lower?) levels.

I suppose it's too early to say whether the "Summit" (by the way, that's also a beer brand) will help either 1) race relations, or 2) President Obama's P.R. Has the humorous commentary on the event played up an image of folksiness, that Obama presumably intended? Or has it made the president a laughingstock?

One thing seems certain to me: it is the latest in a long line of presidential gestures intended to make a president look like one of the common people.

Presidents have come from families of various socioeconomic levels. But, by the time they enter the White House, they have generally reached a high level of prestige, measured by some combination of wealth and/or accomplishment in various fields of endeavor. That's a prerequisite to seeking the job, but, at least since the time of Andrew Jackson, presidents have tried to temper their high image by occasionally acting more like a regular Joe.

William Henry Harrison, a Virginia aristocrat, portrayed himself as a flinty frontiersman in his presidential campaign.

John Kennedy, whose money was a bit too new to qualify him as an aristocrat, but who was not exactly working class, once attended the major annual fundraiser of his party in Minnesota, the DFL Bean Feed. He noted the irony of a Bostonian traveling so far for baked beans. But he did not mention the irony of such a wealthy man indulging in such a plebeian repast.

George H.W. Bush, an upper-class New Englander transplanted to Texas, played up his Lone Star status by eating pork rinds and pitching horseshoes.

Now, maybe Barack Obama, when he took his Ivy League degrees to the Hyde Park enclave of South Side Chicago, and entered the world of academia, enjoyed Bud Light when cocktail hour came along. I don't know. He has never invited me for a drink. But I can't help but think that his suggestion to Sergeant Crowley that they have a beer, was intended to make the president seem like just one of the guys. Perhaps it was a spur-of-the-moment gesture, not leaving Obama time think through the media implications. Now that he's seen the reaction, I wonder whether he wishes he had structured the meeting in another way.

Cut (All Of) Them Some Slack

I agree with what Michael Kinsley has written in The Washington Post, but I would go further. He thinks we should stop picking apart every misstatement by Democratic presidents. I think we should stop picking apart every misstatement by every president. Oh, well. A minor disagreement, I suppose.

How about a great American lager?

Whatever else anyone may think about today's White House meeting between President Obama, Professor Henry Louis Gates, and police Sergeant James Crowley, there's something about the event that is inspiring punsters to their greatest heights (or is that their lowest depths?)

The headlines listed in Google news include such phrases as "Audacity of Hops", "Brew Ha Ha", "Beer Chaser for Racial Tension", and "Coalition of the Swilling". Readers of this blog will have noticed my own penchant for plays on words in my headlines, so I admire the headline writers that came up with those gems.

In addition, I heard one wag on radio speculate that the one brand of beer that will definitely not be present is Bus(c)h.

Doorman (or -woman)

As is the case with the houses of Congress, seniority defines the pecking order among Supreme Court justices.

The chief justice is automatically #1 in seniority. The associate justices are ranked according to the amount of time they've been on the Court.

Two important implications are:

• The senior justice on each of the majority and minority sides in a given case, assigns the task of writing the majority and minority opinions. That can be more than just a housekeeping matter. While, in a big-picture sense, an opinion-writer is bound to conform his or her writing to the position to which they've committed themselves, the details of the opinion can shape the case law in subtle ways. Also, assigning an opinion to a wavering justice is sometimes a tactic that a senior justice uses to keep the waverer onside.
• After the justices hear oral argument on a case, they meet in conference to discuss their opinions on the case. The justices speak in order of seniority. While everyone has a chance to be heard, those who speak earlier in the process have more power to shape the discussion than their more junior colleagues.

Those powers that are tied to seniority are the main ways in which the position of chief justice is more powerful than that of associate justice.

But, as I alluded to in the title of this post, there is another aspect of seniority, or, more accurately, the lack thereof, that is more trivial (although it perhaps doesn't seem that way if one is stuck in the junior position for a long period of time).

When the justices meet in their conference room to discuss cases, they are the only nine people in the room. No staff. No news media.

If staff need to get a message to the justices, they knock on the door of the conference room. The most junior of the associate justices is seated nearest the door, and is assigned the task of getting up and retrieving such messages.

After President Bill Clinton appointed Stephen Breyer to be associate justice, in 1994, there was an unusually long period of time before another associate justice position was vacated. Breyer remained the junior justice, until Sandra Day O'Connor's retirement became effective, in 2006. So, Breyer had the dubious distinction of having the longest tenure as Supreme Court doorman, in modern times.

If, as expected, Sonia Sotomayor is confirmed by the Senate, she will become doorwoman. Odds are she will not stay in that position as long as Breyer did. Even if all of the associate justices other than John Paul Stevens stay on the Court for another 12 years, Stevens would have his 100th birthday, before Sotomayor would have been on the Court for 12 years. Strom Thurmond served in the Senate until the age of 100, so could Stevens do the same on the Supreme Court? Is 100 the new 80?

Crown Steward and Bailiff of the Chiltern Hundreds

As I mentioned earlier, being very much an anglophile, I enjoy some of the quaint aspects of the British political system.

Along those lines, I was not fully correct, when I wrote here that Ian Gibson resigned his seat in the U.K. House of Commons. It is against the rules for a member of Parliament (MP) to resign. But the holder of an office of the Crown is disqualified from being an MP. So, as explained here by the BBC, an MP who wants to leave Parliament arranges for an appointment to such an office.

Gibson left Parliament, not because he resigned, but rather because he was appointed Crown Steward and Bailiff of the Chiltern Hundreds. Sounds like a line from a Monty Python sketch but, in this case, truth is stranger than fiction.

Apparently, that grandly-described office carriers neither duties nor compensation.

The category "office of the Crown" does not include any of the truly important jobs in British politics, such as foreign secretary, chancellor of the Exchequer, etc. The holders of those office all have seats in Parliament, usually in the House of Commons, but in some cases in the House of Lords.

The Sotomayor Vote (cont'd further)

I perhaps overstated the case in this post, when I said that the number of senators voting to confirm Sonia Sotomayor to the Supreme Court doesn't matter, now that her confirmation seems assured.

I think it doesn't matter in the narrow sense that, once confirmed, a justice will act the same way on the Court, if he or she is confirmed with 51 Senate votes, as her or she would have acted having received 100 votes.

But it does matter in the sense that it indicates how Republicans are using their minority position in Washington, as they attempt to rebuild their support, and eventually re-take power.

Of the 40 Republicans in the Senate, my research shows that five have declared their support for the nomination, 14 have said they will vote "no", and 21 haven't declared their intentions. I suspect that Sotomayor will get no more than four votes from those 21 undecideds. So there might be a total of 31 "no" votes, rather than the 23-25 I was projecting earlier.

Her "yes" total will depend in part on whether the two ailing Democratic veterans, Robert Byrd and Ted Kennedy, make the effort required to be there for the vote. With Sotomayor seemingly having at least 63 votes in her pocket, even without those two, there doesn't seem to be much of a reason for them to go to extraordinary lengths to make the vote.

The position that most Republicans are taking against the nomination, indicates a readiness to play hardball against President Obama, with possible implications for legislation, and other nominations, down the road. And that, of course, has possible implications for the 2010 and 2012 elections.

Also, the Republicans are following the precedent that the Democrats set, with their response to George W. Bush's nominations of Justices Roberts and Alito. Many Democrats opposed those nominations, more or less because those were not the judges they would have nominated, rather than because they found significant flaws in their qualifications.

Strong arguments can be made either way, as to whether senators should take into account how they think a prospective justice would vote on important issues, as opposed to a more narrow view of how to judge a nominee's qualifications. But it seems as though the days when Republican Ronald Reagan's nomination of Antonin Scalia could be unanimously supported by a Senate that included 47 Democrats, and Democrat Bill Clinton's nomination of Ruth Ginsburg was nearly-unanimously approved (three votes against) by a Senate with 44 Republicans, are over, perhaps forever.

The Sotomayor Vote (cont'd)

Now that Sonia Sotomayor is virtually certain to be confirmed by the Senate to be an associate justice of the Supreme Court, I suppose it doesn't really matter how many votes she gets. But it's the sort of thing that political wonks like me find interesting.

I was surprised to find out that Republican Senators John Cornyn of Texas and Jon Kyl of Arizona plan to vote against Sotomayor.

When I predicted in this post that she would get at least 77 votes, I was assuming that Republican senators from states with high Hispanic populations, such as Florida, Texas and Arizona, would go along with making her the first Hispanic justice.

We'll see if there's any backlash against them in their respective states. Kyl is next up for reelection in 2012, and Cornyn in 2014.

Senator Mel Martinez, Republican of Florida, who has announced that he won't seek reelection next year, has said he will vote in favor of Sotomayor's confirmation.

As far as I know, the other Republican senators from the states listed above, John McCain of Arizona, and Kay Bailey Hutchison of Texas, are still on the fence.

Senators on the Republican right are taking a more hardline stance on this nomination than I expected. It currently seems as though Sotomayor won't get more than about 75 votes.

U.K. Labor Party: More Bad News

Labor, which has been the governing party in Britain since 1997, shows further signs of being headed for defeat.

Labor's Ian Gibson resigned his seat in the House of Commons, after being implicated in the expense reimbursement scandal that I wrote about, here. The Conservative Party won the by-election (what Americans would call a "special election") to replace Gibson.

As Irving Mills wrote, to music composed by Duke Ellington, "it don't mean a thing if it ain't got that swing." Well, this by-election had that swing.

Gibson won the seat for Labor at the 2005 general election, with a majority of 5,459. Chloe Smith, the victorious Conservative candidate in yesterday's by-election, turned that around to a majority of 7,348 for her party. (It seems to me that should be called a "plurality" rather than a "majority", but, oh well, let's call the whole thing off.) In percentage terms, that amounts to a swing of 16.5% away from Labor, to the Conservative Party.

That swing percentage is watched closely, in terms of what it might indicate for the general election that must be held by next June. There's an analysis that oversimplifies the situation, but which has some validity. It says, if the Conservatives make a 16.5% gain in every constituency across the U.K., how many additional seats will they win?

The BBC quotes a not-unbiased observer, Theresa May, a member of the Conservative shadow cabinet:

We've overturned a Labour majority of 5,500 to a Conservative majority of over 7,000. If we hold this seat at the general election, we'll have a majority of over 100.

If that prediction holds up, it will be the biggest Conservative victory since Margaret Thatcher won a third term at the 1987 general election.

Japan 4: Post-War Politics

Now that Prime Minister Taro Aso of Japan has made it official that he is calling a general election for August 30, I will continue with the history of post-World War II Japanese politics.

After the country adopted a new constitution that was largely imposed on them by American-led occupation forces, in 1947, there were two more events in subsequent years that were crucial in shaping the political structure of postwar Japan.

In 1952, the U.S. and most of its World War II allies entered into a peace treaty with Japan. One consequence was the end of the U.S.-led occupation of Japan. Before 1952, elections took place under the new constitution, the parliament met, and prime ministers were selected, but ultimate power rested with the occupiers, led by the American General Douglas MacArthur, until President Harry Truman fired him in 1951.

From 1952 onward, Japan had, theoretically at least, full sovereignty. But, in reality, that sovereignty is significantly limited by this clause in the 1947 constitution:

Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a mean of settling international disputes. In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.

This has been interpreted to allow Japan to maintain relatively small defensive armed forces. But Japan is largely under an American security umbrella. Some small countries, such as Monaco, for practical reasons rely on the military of a large neighbor (in Monaco's case France) for their defense. But I don't know of any otherwise-independent state anywhere near the size and wealth of Japan that has relinquished that degree of the right and duty of national defense.

The second big development was the 1955 merger of the Liberal and Democratic parties. That merger created what came to be perhaps the most successful party in any country that allows multi-party elections, the Liberal Democratic Party.

That name doesn't mean what most Americans in the postwar era probably think it means. The Liberal Democrats are right of center, with heavy support from rural constituencies and business interests. Not that the Democratic Party in the U.S. doesn't have ties to business interests, but it's not generally perceived that way.

Next: a history of elections and prime ministers.

Man on the Moon!

It's an interesting coincidence that Walter Cronkite died during the 4oth anniversary of the flight of Apollo 11.

I'm old enough to remember his reporting of Vietnam, the Civil Rights Movement, Watergate, etc., but his coverage of the space program is what I most remember.

With retired astronaut Wally Schirra at his side, Cronkite described, forty years ago today, the moon landing and the moon walk (when that was done by Neil Armstrong and Buzz Aldrin, and not by the late Michael Jackson). At our house, there was no question but that Walter would be the one to bring us that news.

This past weekend, many have quoted Lyndon Johnson's supposed response to Cronkite's statement, in a documentary about the 1968 Tet Offensive in Vietnam, that the war was unwinnable. Johnson is said to have lamented that, if he had lost Cronkite, he had lost Middle America.

I wonder if the opposite effect was at work in relation to the space program. Did Cronkite's enthusiasm for space travel bolster political support for projects such as the Apollo 11 moon flight?

As Tom Wolfe described in his book The Right Stuff, America's space program was heavily tied into our Cold War rivalry with the Soviet Union. The USSR's launch of the first artificial satellite, Sputnik, in 1957, was a catalyst for an acceleration of the U.S.'s nascent rocket efforts. Wolfe compared the manned flights that began in the early '60s to the ancient tradition of single combat, whereby two warring sides would each send one warrior to fight a one-one-one battle to decide the issue, rather than engaging in all-out war between full armies.

After the 1960 election, in which John Kennedy and Richard Nixon were each out to prove that they were more hardline that the other in the Cold War, it was relatively easy to get Congress to appropriate funds for a program such as Apollo, which would demonstrate the ultimate superiority in rocketry, which was becoming so important to modern warfare.

As the '60s were ending, the Vietnam War had weakened support among the American people, for a hawkish approach to the Cold War. NASA had to fight harder and harder against other priorities, in order to maintain its budget for manned flights.

Then, once the U.S. had achieved the man-on-the-moon goal, support waned further. I was totally caught up in the space program, and would have been happy if moon landings had gone on forever, perhaps followed up by a Mars trip. It was hard for this space-obsessed 12-year-old to imagine that people would take a been-there-done-that attitude about moon landings, even before the Apollo 11 astronauts returned to Earth.

There were six more attempts at lunar landings, of which five were successful. Some planned additional flights were cancelled. And, of course, human beings have not gone beyond Earth orbit since 1972.

NASA always understood the need for a strong public relations effort. And television journalists such as Cronkite saw the potential for spectacular TV images from the manned flights. Without that PR effort, it's possible that support for the program would have eroded even earlier.

Image: NASA

Supreme Court Over There

As we in the U.S. go through the process of putting yet another justice on our 220-year-old Supreme Court, it might seem odd that our "mother country", the United Kingdom, is in the process a creating a Supreme Court for the first time, as described in this BBC report.

As you might have guessed, this will not be the first time that there will be a right of appeal in the British courts. So, who has been the ultimate appeals court up until now? The House of Lords.

But wait, isn't that the upper house of Parliament? Yes, the very same House of Lords. Certain members of that body, the "law lords", have served as Britain's highest appeals court.

That's sort of like the U.S. Senate's Judiciary Committee replacing the Supreme Court.

In one sense, it won't be that big a change. The same people who have been performing that functioning within the House of Lords, will become the first members of the Supreme Court.

But any constitutional change is likely to have consequences, not all of which can be anticipated in advance.

As time goes on, the British seem to be moving closer to the American separation-of-powers model. Until now, the legislative body, the Parliament, has also included those who perform the executive and judicial functions.

Members of the Cabinet, including the prime minister, are still members of one or the other of the houses of Parliament. But, over the last few decades, there have been complaints that prime ministers are turning their office into something more akin to the American presidency.

For instance, a prime minister was traditionally expected to announce changes in government policy to Parliament's House of Commons. Nowadays, the prime minister is as likely to make such announcements to the news media, from his or her equivalent of the White House, Number 10 Downing Street.

While the executive branch is thereby separating itself somewhat from the legislative branch, the judicial branch is now separating itself out, as well.

As I've noted in previous posts, another aspect of America's federal government might soon be introduced: an elected upper house. Membership in the House of Lords was originally based on hereditary titles, and now mostly consists of the so-called life peers, nominated by party leaders.

I suppose that, on this side of the water, we should see this as imitation being the sincerest form of flattery. But I wonder what the long-term implications will be, of changing the constitutional structure that has evolved in Britain over several centuries.

Presidential Trivia -- Followup on "John"

So far, I've received no responses to this post. You want a hint?

It's a trick question.

You want another hint?

He was the first president to be sworn into office at an inauguration that was covered live on radio.

Japan 3: Constitution

A new constitution for postwar Japan went into effect on May 3, 1947.

The Allied occupation forces (the Supreme Commander Allied Powers, "SCAP") tried to make the process of creating the constitution look, as much as possible, like a voluntary process entered into by the Japanese people. On the other hand, the conventional wisdom over many years has been that the document was unilaterally drafted by SCAP, and imposed by force on the Japanese.

It appears that the answer, as is so often the case, is somewhere in the middle. Some background:

Japan's first constitution went into effect in 1890, and is known as the "Meiji Constitution". The "Meiji Era" was the official name of the reign of the Emperor Mutsuhito, from 1868 to 1912. "Meiji" translates as "Enlightened Rule".

Every emperor has such a designation. For example, the reign of Hirohito, from 1926 to 1989, was ironically called the "Showa" era, the era of Enlightened Peace. Since his death, he has been known to the Japanese as "Emperor Showa".

The 1890 constitution makes the emperor head of state, with provisions such as:

The Emperor is sacred and inviolable.

The Emperor is the head of the Empire, combining in Himself the rights of sovereignty, and exercises them, according to the provisions of the present Constitution.

The Diet was a bicameral parliament, with an elected House of Representatives, which was, in effect, little more than an advisory body. The upper house, the House of Peers, consisted of members of the nobility; it was similar to the original composition of the British House of Lords.

MacArthur and his occupation force considered that constitution to be responsible for the rise of the military class that led the Japanese to aggression against their Asian neighbors and, eventually, against the United States. In 1945, he told the Japanese government to come up with a replacement, in line with the Potsdam Declaration's democracy clause.

When the Japanese drafted relatively minor amendments to the Meiji Constitution, American lawyers responded with their own draft of an entirely new constitution. But Lynn Parisi of University of Colorado argues that the American draft was not as unilateral as it seems at first glance; it incorporated several suggestions that emerged from elements in Japanese civil society outside of government.

Also, Japanese leaders successfully resisted the unicameral parliament that was called for in the original American draft. Both houses of the new bicameral Diet would be elected. In a major change, the bulk of the power was given to the lower house, still called the House of Representatives. The upper House of Councillors would have a limited scope of powers, similar to those of upper houses in other parliamentary democracies.

What about that sacred and inviolable emperor, with his rights of sovereignty? He morphed into:

The Emperor shall be the symbol of the State and of the unity of the people, deriving his position from the will of the people with whom resides sovereign power.

There has been much commentary to the effect that, in the runup to World War II, the emperor was not the innocent victim of the military establishment, that he has been portrayed as. This revisionist point of view paints Hirohito as an active supporter of his country's aggression against Asian countries and the United States.

The World War II allies found it expedient to keep the emperor in place, during and after their postwar occupation of Japan. And, by extension, they found it expedient to downplay any role on Hirohito's part in leading his country to war.

Whatever the truth about that, it's clear that, after 1945, Hirohito, and his son and successor Akihito, have played the role of constitutional monarchs, with even less impact on their country's politics than, for example, Queen Elizabeth II of the United Kingdom.

Sotomayor Confirmation Hearings (cont'd)

Robert Bork gained recognition as a major constitutional law scholar, when he taught at Yale Law School in the 1960s and '70s. He was increasingly mentioned as a prime prospect for a Supreme Court appointment by a Republican president.

When Ronald Reagan appointed Bork to the Court of Appeals for the District of Columbia, in 1982, many assumed that Reagan was making Bork the on-deck batter for a future Supreme Court vacancy.

Associate Justice Lewis Powell retired in 1987, and Reagan appointed Bork to replace him.

It was clear that Bork was in for a fight. The Democrats had reclaimed control of the Senate in the 1986 mid-term elections. Bork's judicial philosophy of interpreting the Constitution according to the original intent of the framers, rather than by evolving judicial interpretation, runs counter to the basis for many decisions of the Warren and Burger courts. Exhibit A is the Roe v. Wade abortion decision, which Powell supported. Most Democrats, and some Republicans, wanted to preserve Roe.

Associate Justice Antonin Scalia, whose judicial philosophy is similar to Bork's, was easily confirmed in 1986. Republicans still controlled the Senate that year, but both parties unanimously supported him. What was different in Bork's case?

For one thing, I suspect that, as Reagan made more Supreme Court appointments (he would end up appointing three associate justices, and promoting William Rehnquist to chief justice) the pro-choice side became more fearful about the future of Roe. Even though Reagan's first appointee, Sandra Day O'Connor, later voted to uphold Roe, they had reason to expect that the fiercely pro-life Reagan would try to sway the Court his way.

But, aside from such substantive issues, much has been said about the way Bork presented himself at his Senate hearings. He and the Reagan White House were seemingly unprepared for the media event that confirmation hearings had become. The hearings were televised, and Bork did not make a favorable impression via that medium.

Edward Lazarus writes of Bork that:

On television, he came across as smug and contemptuous - in a word, injudicious - though in real life, he could be quite charming. As things turned sour for him, he simply could not muster the kind of charisma and humor that might have disarmed his opponents, rallied public support, and seen him through the rough patches.

Some even said that Bork's unconventional beard made him appear sinister.

Whatever the causes, Bork's nomination was rejected by the Senate, by a vote of 42 to 58. Anthony Kennedy was eventually confirmed as Powell's successor.

Fast forward to 2009, and there has been much talk about Sonia Sotomayor being unusually reserved in her exchanges with the senators on the Judiciary Committee. In this New York Times report, Sheryl Gay Stolberg wonders where the judge's passion disappeared to.

Judges nominated by presidents of both parties are now much more careful about the impression they make on the TV audience. In a lesson similar to one that had previously been learned by principals in the political branches of government, potential Supreme Court justices have come to realize that their acting skills have become just about as important as their legal experience.

In that Times piece, Stolberg makes an interesting comparison between Sotomayor and Chief Justice John Roberts:

Chief Justice John G. Roberts Jr. arrived at his confirmation hearings four years ago with a reputation as brainy but detached, and had to demonstrate his humanity. Judge Sotomayor arrived at Tuesday’s proceedings with the opposite problem: a reputation for too much feeling. Her task was to demonstrate restraint.

To summarize the point concisely: nominees don't want to get borked. Bork has the dubious distinction of joining the likes of Charles Boycott and Elbridge Gerry, as people whose proper names have been turned into common nouns.

The Sotomayor Vote

How many senators will vote to confirm Sonia Sotomayor, when the full Senate votes on the nomination?

She seems to be able to count on all 60 votes of the Democrats and their Independent allies, barring any skeletons making a late emergence from her closet (keep in mind the sequence of events in the 1991 Clarence Thomas confirmation).

According to several reports, including this one in The New York Times, Senator Lindsey Graham, Republican of South Carolina, "signaled that he intended to vote for her."

Based on his membership in the "Gang of 14", a group of senators who tried to find middle ground regarding Bush judicial nominations that were blocked by Democrats, Graham has a history of being less hard-line about such nominations than other Republicans. Without much specific evidence of the intent of individual senators, my quick-and-dirty count comes up with about 23 Republican senators who I'm guessing would be less likely than Graham to support the nomination.

That would indicate at least 77 "aye" votes, and I wouldn't be surprised to see more than that. Compare that to 78 votes for Chief Justice John Roberts, and only 58 votes for Associate Justice Samuel Alito.

Sotomayor Confirmation Hearings

There are two themes that I find interesting in the Senate Judiciary Committee's hearings on the nomination of Sonia Sotomayor to the Supreme Court:

1. Republicans are attacking Sotomayor quite strongly, even though they admit they can't derail her nomination.


2. Sotomayor is being very cautious in what she communicates, verbally and otherwise, to the committee and, by extension, to the country.

This New York Times article speculates on Republicans' strategy. Peter Baker and Charlie Savage write that the opposition is sending a message that President Obama will get into trouble if he submits nominees who are too far to the left, for any future Court vacancies that might arise during his presidency.

Republican senators are signaling that they won't roll over and play dead in response to a nomination by Obama. Also, they are establishing a hearing record in which Sotomayor has committed to traditional concepts of how judges apply the law, and whether the Constitution can change by judicial interpretation, as well as by amendment. They can throw that record in the face of any future nominee who varies from it.

But I think there's something more basic going on: Republican senators are keeping faith with their right-wing base. Opposition to liberal activist judges has been a battle cry among that base, since Earl Warren's tenure as chief justice during the 1950s and '60s.

More specifically, looking toward Senate elections in 2010 and 2012, as well as the 2012 presidential election, Republicans seem to be preparing to make the case that the electorate needs to send more Republicans to Washington, in order to guard against a leftward shift of the Judicial Branch.

If Sotomayor is confirmed, and she then joins in any Supreme Court opinions that are perceived as being to the left of the mainstream, Republican senatorial candidates can point to those as a danger against which the election of more of their party is a safeguard.

But they'll need to be careful in executing that strategy, so as not to alienate centrist Latino and female voters.

I doubt whether any of the 60 Democrats-and-Independents in the Senate will vote against Sotomayor. I'm guessing she'll win a few Republican votes, although perhaps a minority among the 40 members of that caucus. So, this one is a foregone conclusion but, like chess players, the politicians are planning a few moves ahead.

Presidential Legacy

As I noted here, Supreme Court justices have what is, in effect, a lifetime appointment. Therefore, they tend to be any president's most long-standing legacy, in terms of appointments to major offices.

Along those lines, President Obama, in a statement today, said that "there are few responsibilities more serious or consequential than the naming of a Supreme Court Justice". The numbers prove him right.

The longest such legacy, i.e., the longest period between a president's departure from office, and the end of the tenure of his last remaining nominee on the Supreme Court, is that of John Adams. Chief Justice John Marshall died in office, 34 years after Adams left the White House.

Gerald Ford, who holds a record that belonged to Adams for over two centuries, that of being the oldest ex-president, has a chance to surpass Adams's Supreme Court legacy record, as well. If Associate Justice John Paul Stevens, a Ford appointee, remains on the Court until May of 2011, Ford will posthumously win the Supreme Court legacy record. If Stevens survives until then, he will be 91 years old, surpassing the record for the oldest active justice, currently held by Oliver Wendell Holmes, who retired at the age of 90, in 1932.

Eight presidents have had a legacy of 30 years or more (rounded to the nearest year). 21 presidents are beyond the 20-year mark. So, yes, those appointments are certainly consequential.

At the other end of the scale, four presidents never appointed a justice: William H. Harrison, Zachary Taylor, Andrew Johnson and Jimmy Carter. Of those four, Carter was the only one to serve an entire four-year term. However, Johnson was close, having served more than three years and 10 months, when he completed the term during which Abraham Lincoln was assassinated.

Japan 2: Postwar Rebirth

On July 17, 1945, the Allied "Big Three" met for a conference at Potsdam. Germany. That phrase referred to the national leaders of the three main countries who had been allied in the recently-won war against Germany: the United States, the United Kingdom and the Soviet Union.

The cast of characters was in flux throughout that year. Franklin Roosevelt, the American president who had represented his country at previous wartime conferences, died three months before the Potsdam Conference. Roosevelt's successor, Harry Truman joined the Soviet dictator Joseph Stalin, and the British Prime Minister Winston Churchill, at Potsdam. Then, Churchill's electorate threw him out of office and, while the conference was going on, he was replaced by Clement Attlee.

Aside from the European matters that required discussion, the conferees discussed plans for bringing the war against Japan to an end. While he was at Potsdam, Truman was informed of the successful atomic bomb test in New Mexico. He told Stalin about it, but it's generally believed that the Soviet leader was already up to speed on the project, via his spy network.

The U.S., U.K. and China issued the Potsdam Declaration, which was an ultimatum to Japan, demanding its surrender. That document hinted at, but did not specifically describe, the atomic bomb:

The might that now converges on Japan is immeasurably greater than that which, when applied to the resisting Nazis, necessarily laid waste to the lands, the industry and the method of life of the whole German people. The full application of our military power, backed by our resolve, will mean the inevitable and complete destruction of the Japanese armed forces and just as inevitably the utter devastation of the Japanese homeland.

But, more to the point of this discussion, the Potsdam Declaration included the following statement describing plans for Japan's postwar domestic political structure:

The Japanese government shall remove all obstacles to the revival and strengthening of democratic tendencies among the Japanese people. Freedom of speech, of religion, and of thought, as well as respect for the fundamental human rights shall be established.

Allied military occupation of Japan, led by the American General Douglas MacArthur, enforced that intent. With the Soviet Union playing a minor role in Japan, democracy was virtually immediately introduced there. That is in stark contrast to Germany, where Soviet involvement delayed the complete implementation of democracy until 1990.

Next: Japan adopts a new constitution, under the watchful eye of the occupying forces.

Image: Truman Library

Japan

Prime Minister Taro Aso of Japan has reportedly decided to call a general election for the lower house of the Diet (parliament), to be held on August 30.

Aso leads the Liberal Democratic Party (LDP), which has had a near-continuous hold on power for half a century. I don't know that any party has put together a similar record of hegemony in any country with as well-functioning a democracy as post-World War II Japan.

Now, the LDP looks set for the first extended period out of power in its history. The main opposition party, the Democratic Party of Japan, has already taken control of the relatively-weak upper house of the Diet, and holds a substantial lead in opinion polls for the impending election.

In an upcoming series of posts, I plan to trace the political history of post-1945 Japan, to show how the country, and its imperilled governing party, got to this stage.

Japan has traditionally been called "The Land of the Rising Sun".

The country has suffered economic stagnation for the past two decades. It is faring worse than most, in the current worldwide recession. There has been political instability, with its political system now heading further into uncharted waters. It faces geopolitical challenges from a resurgent China, and from instability in the nearby Korean Peninsula.

In light of all that, I'm reminded of something that Benjamin Franklin said, at the American Constitutional Convention that was held here in Philadelphia in 1787. An image of half of the sun sat atop the back of the presiding officer's chair. As the Convention was wrapping up its business, Franklin told his fellow delegates:

I have often ... in the course of this session ... looked at that ... without being able to tell whether it was rising or setting; but now at length I have the happiness to know that it is a rising and not a setting sun.

Perhaps Japan's general election will help decide whether or not that troubled country becomes "The Land of the Setting Sun".

Supreme Court -- Sotomayor (Privacy)

The most controversial subject that involves the constitutional right to privacy that has been established in case law for more than four decades (as I discussed in this and subsequent posts) is abortion.

Judge Sonia Sotomayor, President Obama's nominee for the Supreme Court, has not, as a judge on lower federal courts, dealt with the abortion issue, in as direct a manner as she addressed racial discrimination issues in the case I discussed in this post.

Since the Court's Roe v. Wade abortion decision of 1973, abortion (specifically, the question of whether Roe might be substantially altered, or completely overturned) has received much attention during Supreme Court confirmation proceedings in the Senate. The Sotomayor nomination is not an exception to that rule.

At first glance, one might assume that a nominee of the pro-choice Obama, would defend Roe. But one of Obama's predecessors, George H.W. Bush, thought the opposite of David Souter, one of Bush's Court nominees. Bush guessed wrong, and Souter voted to uphold Roe. Might Obama be surprised in the opposite direction?

Both sides in the abortion debate have scoured Sotomayor's record, to try to discern clues from cases dealing indirectly with the issues that were involved in the Roe case. This New York Times article from May 27 discusses the uncertainty across the spectrum, about her views on abortion issues.

I'm sure that, in the Senate hearings that begin this week, Sotomayor will follow the example of previous nominees, and decline to directly state how she would vote on any future case involving those issues.

Supreme Court: Sotomayor (Race)

The debate about Judge Sotomayor's record on racial discrimination issues has been very much dominated by one case: Ricci v. DeStefano.

If you've been following the Sotomayor debate, you may already have heard all about the case. But I'll briefly recount the facts. The city of New Haven gave a test to firefighters who were seeking promotion. When no African American candidates passed the test, the city decided not to promote anyone on the basis of the test. White and Hispanic firefighters who passed the test, sued the city, claiming reverse discrimination.

A panel of judges on the federal Second Circuit Court of Appeals (which included Sotomayor) ruled that, because the tests "had a disproportionate racial impact", New Haven acted within the law, when it declined to award any promotions on the basis of the test.

By a vote of five to four, the Supreme Court reversed the circuit court's decision, and upheld the plaintiffs' charges of reverse discrimination. Associate Justice Anthony Kennedy wrote the following, in his majority opinion:

We conclude that race-based action like the City’s in this case is impermissible under Title VII [of the Civil Rights Act of 1964] unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute. The respondents, we further determine, cannot meet that threshold standard. As a result, the City’s action in discarding the tests was a violation of Title VII.

Kennedy was getting at the central issue in the case. The City of New Haven was between a rock and a hard place. Had they promoted those who passed the test, they would have been subject to a discrimination lawsuit by African American firefighters. On the other hand, they were sued for reverse discrimination because they denied the promotions.

The Supreme Court, unlike the Second Circuit, found that the reverse discrimination claim was sufficient to counter the disparate impact standard.

On behalf of the four dissenting justices, Associate Justice Ruth Bader Ginsburg wrote:

This case presents an unfortunate situation, one New Haven might well have avoided had it utilized a better selection process in the first place. But what this case does not present is race-based discrimination in violation of Title VII. I dissent from the Court’s judgment, which rests on the false premise that respondents showed “a significant statistical disparity,” but “nothing more.”

The question that all of this poses for the U.S. Senate is: Can this be characterized as Sotomayor having made the wrong decision, and needing to be corrected by the Supreme Court? If so, does that reflect badly on her qualifications to be an associate justice?

Here is a Slate article by Emily Bazelon, criticizing Sotomayor's handling of Ricci.

Linda Greenhouse has led the charge for the pro-Sotomayor point of view. Greenhouse reported on the Supreme Court for many years, for The New York Times. She now teaches at Yale Law School.

In this op-ed piece in her former paper, Greenhouse argues that the circuit court properly applied the law as it existed when they heard the case. According to her interpretation, the Supreme Court's decision was an example of what I wrote about here, i.e., a reversal of prior case law.

The Supreme Court can go against established precedents, but needs to tread that path carefully. The lower courts are much more constrained than is the Supreme Court, in following precedents. Therefore, according to Greenhouse's analysis, Sotomayor did not err in joining in the Second Circuit's decision.

Curiouser and Curiouser

The strange culture of New York's state government, which I noted here, seems no less strange after yesterday's developments. Governor David Paterson has appointed Richard Ravitch to fill the office of lieutenant governor, which has been vacant since Paterson became governor when Eliot Spitzer resigned.

Sounds plausible. Except that the state constitution does not provide for such an appointment.

The office has been vacant for over a year. What's the hurry now? A Democratic defector has thrown the partisan balance in the state Senate into a 31-31 tie. As a result of that, the parties disagree about who holds the Senate's presidency. The president of the Senate is the heir apparent to the governor, when the office of lieutenant governor is vacant.

Paterson is correct that it is in the interest of the state to have an orderly gubernatorial succession plan in place. But, if that were his only concern, that could be satisfied by the appointment of a less partisan figure than Ravitch. Paterson's move seems intended, at least in part, to help his Democratic Party regain control of the state Senate.

It's interesting to note that the state's attorney general, Andrew Cuomo, a Democrat, has joined with Republicans in questioning the legality of this appointment. All other things being equal, Cuomo would probably want to see his party control the Senate. But Cuomo's statement seems to further confirm his intent to challenge Paterson in next year's gubernatorial primary.

UPDATE: Albany Democrats have reportedly all but sealed a deal for the defector to undefect, and give them back their majority in the state Senate. That would end the dispute about partisan control of the Senate. Will that induce Paterson to drop his questionable appointment of a lieutenant governor?

Supreme Court: Sotomayor (Federalism)

My main purpose in my recent Supreme Court history lessons has been to provide context for the upcoming hearings on the confirmation of Judge Sonia Sotomayor, President Obama's nominee to succeed David Souter as associate justice.

Let's first look at the issue of federalism, i.e., the relationship between the federal government and those of the states. As I discussed here, the Supreme Court has dealt with that issue since its earliest days.

In the current debate, federalism is often discussed in the context of the following guarantee given by the Second Amendment:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The question is whether gun-control laws enacted by state and local governments violate that part of the Bill of Rights, and can therefore be nullified by the courts. I wrote here about a recent Supreme Court decision on that issue.

In this article, Steve Chapman defends Sotomayor's record on Second Amendment jurisprudence. Among other points, he mentions a concept that I plan to discuss more fully in a future post regarding racial issues, i.e., that an appeals court judge is more constrained to follow precedents than is a Supreme Court justice. Chapman argues that, while he and others might not like the results of some of Sotomayor's cases, she has consistently applied existing law in deciding those cases.

Here is a contrary opinion on that question, from Jan LaRue.

One bit of background that I haven't described in much detail: The Bill of Rights was originally construed only to restrain the federal government. For example, no action was taken against some states that maintained official religions, well into the 19th century. It was only after the Civil War, when the 14th Amendment provided for equal protection of all citizens by their states, that the Bill of Rights began to be applied to the states.

The courts have selectively applied constitutional rights to the states, and Second Amendment-based gun rights are one area where that's still up in the air. That's an issue that Sotomayor could well face on the Supreme Court, if the Senate confirms her appointment.

Novice Running Mates

Robert McNamara was a significant figure in America's 20th-century history. He was perhaps the only person to hold what is still the relatively young title of secretary of defense, who was more controversial than Donald Rumsfeld.

So leave it to me to ignore all that, and zero in on a quotation in McNamara's New York Times obituary that can serve as a springboard for a point of political trivia.

McNamara is quoted as saying that he turned down an offer to be Lyndon Johnson's running mate in 1964 by telling the president “You shouldn’t start your elective career running for the vice presidency.” That sparked a series of questions in my mind.

Who was the most recent vice president who had not previously run for elective office? Henry Wallace. Franklin Roosevelt appointed Wallace secretary of agriculture in 1933. But, when Roosevelt made Wallace his vice-presidential nominee for his unprecedented run for a third term in 1940, that was Wallace's first time running for office (he and Roosevelt won). Wallace later ran for president on a third-party ticket, as I described here.

Who was the most recent person to lose the vice presidency in his first run for elective office? Sargent Shriver. George McGovern, the 1972 Democratic presidential nominee, was seeing his already long-shot candidacy fall further down hill, when his first choice as running mate, Thomas Eagleton, withdrew from the race after disclosing that he had been treated for depression. Several big names were reluctant to take Eagleton's place. Finally, Shriver agreed to run with McGovern. They lost to Richard Nixon and Spiro Agnew in a massive landslide. As was the case with Wallace, Shriver later sought the presidency; he failed to win the Democratic nomination in 1976.

Who was the most recent Republican running mate in this category? Frank Knox. He was another landslide loser. Knox was running mate to Alfred Landon, the Republican presidential nominee in 1936, when Franklin Roosevelt won his second term, with the largest margin of victory of any of his four wins. There's a connection with McNamara. Knox went on to serve as secretary of the navy under Roosevelt. That position was later combined with that of secretary of war, to form the office of secretary of defense.

Funny Fly-Over State

Many people on the coasts tend to think of my native state of Minnesota as just another fly-over state. Dull farmers stuck, not only in the middle of nowhere, but in the middle of cold nowhere.

Having lived in the East for more than 20 years, I've heard that message quite often. Of course, I know about its vibrant arts scene, high-quality educational institutions, natural beauty and Minnesota Nice people. My career has led me elsewhere, but my heart and soul have never left South Minneapolis.

Every time that supposedly-dull state makes an odd political move (and they have frequently done so), outsiders are caught off guard. Now, Al Franken is about to complete his transition from silly late-night comedy, to the often sillier, but rarely deliberately humorous, U.S. Senate. On Independence Day, David Carr put that event in historical perspective in The New York Times. I will add some further notes:

During the 1930s, Minnesota voters ceded near-complete control of state government to the socialist Farmer-Labor Party, which I described here.

They reversed that trend when they elected a 31-year-old Republican, Harold Stassen, as governor in 1938. Stassen was a major candidate for his party's presidential nomination in 1948. But, having lost that bid, he went on to declare presidential candidacies so often, that he became a national laughing-stock.

After the Democratic and Farmer-Labor parties merged in 1944, Hubert Humphrey emerged as the leading figure in the combined DFL. By the time of his death in 1978, Humphrey had come to be seen by many as a major statesman (although post-mortem revelations of just how beholden he was to international agribusiness interests somewhat tainted his reputation).

But, especially early on in his Senate career, Humphrey was widely perceived as somewhat of a buffoon. He needed to be told that his speeches did not need to be eternal to be immortal. Also, he was derided as someone who had more solutions than there were problems.

After a few years, Humphrey was joined in the Senate by a DFL colleague, Eugene McCarthy, a rather odd politician. He had briefly worked as a college professor, and was obviously more interested in big ideas, than in the tedium that constitutes so much of political work. McCarthy was so unable to concentrate on the things that bored him, that his opponent when he ran for reelection in 1964 unsuccessfully attempted to skewer him with the slogan "Minnesota needs a full-time senator!"

After McCarthy lost the Democratic president nomination to Humphrey in August of 1968, he abandoned the fall campaign, to instead briefly become a sports journalist, covering the World Series for Life magazine.

Carr describes some of the more eccentric characters in subsequent Minnesota politics. Although he omits the Republican gubernatorial candidate who had to drop out of the race in October, after he was accused of acting improperly toward underage girls among his daughter's friends.

In light of all that history, it's strange that some people are still surprised by an event such as Franken's election. It's a fun state! Some time when you're flying over, why don't you stop in for a while?

Supreme Court 19: Privacy (Lawrence -- additional thoughts)

To me, it felt as though the U.S. Supreme Court's 2003 decision in the case of Lawrence v. Texas was, for those of us who are lesbian or gay, what that Court's 1954 Brown v. Board of Education decision was for African Americans.

An alternative interpretation would be to instead equate Brown with Romer v. Evans, in that both of those decisions addressed, directly or indirectly, discrimination in the areas of education, employment, housing, etc.

Along those lines, Lawrence can be compared to the 1967 case of Loving v. Virginia, which established a constitutional right to interracial marriage, because they both involve sexual relationships.

Discrimination issues faced by LGBT people are, to some extent, similar to those that affect African Americans. But there are definite differences.

Most state sodomy laws (although not the Texas statute that was directly at issue in Lawrence) prohibited activities that could be engaged in by either same-sex or opposite-sex partners. But they prohibited all homosexual activity, and only some heterosexual activity.

Therefore, those laws had a symbolic meaning that went beyond their specific prohibitions (which were rarely enforced, anyway). The broader message was that it's wrong for us to be who we are. That attitude has been gradually disappearing from American society in recent decades. But, by repudiating that notion in a legal context, Lawrence constituted a major step toward full acceptance of LGBT people in society.

For African Americans, segregated schools, the issue directly addressed by Brown, was one of the most visible symbols of discrimination. LGBT people face issues in the educational realm, but the sodomy laws were more of a central issue for us.

Lawrence is also our Brown in the sense that it does not mark the end of the struggle. There is more that needs to be done, but no one should discount the great progress that has been made, because of the results of referenda on same-sex marriage. In opinion polls, the younger age cohorts support LGBT rights more strongly than the older ones. Therefore, it seems inevitable that the remaining battles, including marriage, will be won eventually. Some of us who are already a bit advanced in age might want to quote from Rev. Martin Luther King Jr.'s final public speech:

I may not get there with you. But I want you to know tonight, that we, as a people, will get to the promised land!

Whither Barracuda?

Sarah Palin's explanation of her resignation as governor of Alaska seems to have been coyly crafted, so that it could be read in either of two very divergent ways.

Is she abandoning elective office entirely, or is she shedding the impediments that the gubernatorial office places in the way of her path toward seeking the 2012 Republican presidential nomination?

Two of her major potential opponents for that nomination, if they go ahead with their candidacies, would also be running as former governors. Mitt Romney has not held public office since he left the governorship of Massachusetts in 2007. And Tim Pawlenty will end his tenure as governor of Minnesota in 2011.

How is the blogosphere looking at this?

On the right, John Hinderaker, who is a strong Pawlenty supporter, seems to kinda-sorta lean toward the notion that she's not planning to run for president.

In the center, Andrew Sullivan also seems unsure. But his tentative conclusion appears to be that this is a move toward a presidential candidacy on Palin's part.

On the left, Daily Kos will never pass up a chance to go overboard in criticizing/ridiculing the governor. No sign there as to an opinion about her future intentions (assuming that they don't really expect her to pick lettuce in Yuma).

I've made no secret on this blog of my opposition to Palin, and my support of Pawlenty. Be that as it may, I suspect she is still planning to run for president. If she really were planning to withdraw completely from electoral politics, I would see no reason for her to be as coy as she was, in talking about it.

The type of vague language that she has used, is typical of potential candidates at this stage of the cycle. She would look too ambitious, if she announced a presidential candidacy 3 1/2 years in advance. Also, presidential hopefuls who have not fully declared their intentions, have a face-saving out if they later find it necessary to withdraw from the race.

Imitation is the sincerest form of flattery

Just after I wrote about the U.S. Supreme Court's Lawrence decision, an Indian court has issued a similar ruling, decriminalizing adult consensual homosexual acts.

This BBC report says the decision "is likely to be challenged". I confess total ignorance of the Indian judicial system, so I have no idea what that entails. I would welcome any comments to this post, that would shed light on that (subject to the comments guidelines I listed here).

The BBC's correspondent adds:

Gay rights activists all over the country welcomed the ruling and said it was "India's Stonewall".

That seems an inapt comparison, at least in one sense. In the U.S., many states continued to maintain sodomy laws on their books for decades after Stonewall (i.e., the 1969 riots that followed a police raid on the Stonewall gay bar in Greenwich Village, which are generally considered the beginning of the gay rights movement in this country).

But in another sense the comparison seems to fit. I have heard anecdotal evidence from gay Indian-American acquaintances about hostility toward LGBT (lesbian, gay, bisexual and transgendered) people in India. Perhaps, until now at least, conditions there have been comparable to those in the U.S. in 1969.

If so, India seems to have leapfrogged the process we followed in America over the last four decades, achieving their equivalent of both Stonewall and Lawrence in one fell swoop.

How close was I?

Now that the 2008 Senate election results are finally complete, it's time to revisit the predictions I made on November 2.

I correctly predicted 34 of the 35 races. My only miss was in Minnesota, which I called in favor of Norm Coleman. We now, of course, belatedly have found out that that was not the case.

My overall prediction of 58 Democrats (and Independent allies) was off by two, however, because I failed to anticipate my own senior senator's switch to the Democratic Party.