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.

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.

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.

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

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.