Attacks on Sotomayor Ignore Court's History and Makeup
by Unknown | 5/31/2009 05:10:00 PM
Below the fold, my latest History News Service op-ed, currently published at HNN and perhaps elsewhere soon.



Sonia Sotomayor is too liberal to serve on the Supreme Court -- so, at least, say many conservative critics of President Barack Obama's first high court nominee. It's odd for them to protest Sotomayor's left-wing views, though, when the current Supreme Court is far more conservative than are the majority of voters.

Yet a Court that differs from public opinion is nothing new in U.S. history; in fact, disagreements between the Court and our elected officials are a natural and important part of our constitutional process. What's unusual is that conservatives are complaining about the Court at the same time they're benefiting from its rightward slant.

The Founders wanted the Supreme Court to be independent from the rest of the government. That's why they gave its occupants lifetime appointments. Since justices continue to serve long after the presidents who appointed them are gone, the Court's composition frequently lags behind the country's political mood. Justices who were popular when they took office often become jarringly out of touch before they leave. They're like a bad national hangover: we liked what we drank last night, but we wish it wouldn't stick around for quite so long.

As Obama knows, even winning the presidency doesn't guarantee winning over the Court. Chief Justice John Marshall, who served from 1801 to 1835, belonged to a political party so unpopular it actually disappeared while he was in office. That didn't stop him from making life difficult for the opposing-party presidents who served during his tenure. President Andrew Jackson, a frequent target of Marshall's legal opinions, finally pulled a stunt even Obama wouldn't get away with: he decided to just ignore Marshall altogether. "John Marshall has made his decision," an exasperated Jackson remarked at one point; "now let him enforce it."

The Court's independence means it's not obligated to vote with popular opinion even when doing so would be in the nation's best interest. In 1857, conflict over slavery was tearing the country apart, and only the fragile Compromise of 1850 stood between the United States and bloodshed. Oblivious to the precarious political situation, the Court, led by slave-owning Chief Justice Roger Taney, declared the Compromise unconstitutional -- paving the way for the Civil War.

Even the consummate political skill of Franklin D. Roosevelt wasn't enough to bring the Court to heel. Ignoring Roosevelt's friendly overtures, four right-wing justices -- nicknamed the "Four Horsemen" by liberal commentators -- proved hell-bent on striking down the entire New Deal. A panicked FDR tried to pack the Court in 1937 by adding six new justices -- but Congress rejected his proposal. A constitutional crisis was averted only when the other five justices decided to back Roosevelt's policies.

If disputes between the Court and popular opinion have a long history, so do complaints about liberal judges. Modern-day conservative attacks on the "liberal judiciary" date back to 1953, when Republican Earl Warren surprised everyone by becoming the most liberal Chief Justice in history. Over the next sixteen years, Warren and his fellow justices wrote a series of bold opinions that, among other things, struck down segregation and gave Miranda rights to accused criminals. Many Warren Court members were still around in 1973 to help legalize abortion through Roe v. Wade.

Just like today, conservatives were outraged by what they saw as the Court actively making government more liberal instead of just interpreting the law. At the time, they had a point. But since 1969, Republican presidents have appointed all but two new justices, and most of the newcomers have shifted the Court to the right. The last unabashedly liberal justice, Harry Blackmun, retired over fifteen years ago. Today's Court, led by right-wing ideologues such as Antonin Scalia and Clarence Thomas, is the most conservative since the days of the Four Horsemen.

Yet somehow, conservatives have managed to have their cake and eat it too. Despite the Court's obvious right-wing bent, the right continues to attack the judiciary as too liberal for the country. It's this popular misrepresentation of the current Court that's historically new. Slavery advocates didn't carp about abolitionist judges while Taney was Chief Justice; anti-New Dealers didn't grumble about judicial liberalism when the Four Horsemen were on the bench.

Conservatives are entitled to enjoy the fruits of a right-leaning Supreme Court in the midst of the liberal Obama administration; by lagging behind the nation's leftward turn, the Court is doing exactly what it's designed to do. But it's disingenuous for the right to whine about a liberal judiciary at the same time it benefits from a conservative one. If conservatives want their concerns about liberal judges to be taken seriously, they'll have to wait until a Democratic president or two actually tilts the Court to the left. At least then the right's attacks on the Court will mesh better with reality.

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Noted Historian Ron Takaki Passes
by AndrewMc | 5/28/2009 06:31:00 PM
Late Tuesday night the noted Asianist Ron Takaki passed away. You can find a full remembrance here.

We are now, unfortunately, entering a period where some of the great luminaries of the New Left have begun to die. Among those who influenced me, two years ago Elizabeth Fox-Genovese passed away. A few months later one of my MA advisers, Roy Rosenzweig, succumbed to cancer. Then John Hope Franklin died in March. Now Ron Takeki.



I'm not going to get into a lengthy post, except to quote a bit from AsianWeek.

To be remember in this way would be nice enough for most:

Ron Takaki was one of the most preeminent scholars of our nation’s diversity, and considered “the father” of multicultural studies. As an academic, historian, ethnographer and author, his work helped dispel stereotypes of Asian Americans.


but I think the following gets at the heart of what we do as historians and teachers:


As a Professor, Takaki hoped that his students would learn that skills of critical thinking and effective writing could be used in a revolutionary way. Epistemology, critical thinking, or in Takaki’s words “how do you know, you know, what you know about the America and the world you live in?” was a question Takaki posed to his students to challenge the way they looked at history, current policies, and even life.



Use this as an open thread.



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What Happened to the Republican Counterrevolution?
by Ralph Brauer | 5/23/2009 11:13:00 AM



A stunning photograph shows a rutted dirt road splitting rows of blooming peach trees like a thick brown knife. Against the neutral sky, the ethereal pink of the peach blossoms seems corrupted by the road; as if someone had spilled something nasty on one of those flowing, pastel-tinted dresses favored by Southern belles in Hollywood's idealization of a place and time that exist only in the American imagination. Taken on a farm in Edgefield County, South Carolina the image's contrasts unwittingly represent those of its region. Google Edgefield County images and you find bucolic rural scenes, an antebellum brick courthouse, and men posing around a dangling black corpse.

Strom Thurmond came from this place located near the Georgia border, the home of nine other state governors. It is symbolic that many surrounding towns have the suffix crossroads--Sullivan Crossroads, Millers Crossroads, Marthas Crossroads-for Thurmond also made himself a crossroad during his century-long life, in the process helping to remake America.



The Southern Manifesto and the Origins of the Counterrevolution

That crossroad lay in a singular document, The Southern Manifesto. To someone probing the American past like anthropologists probe Olduvai Gorge, the Manifesto represents the equivalent of the missing link in the evolution of the Republican Counterrevolution.

While history still associates defense of segregation with the Manifesto, not as well-recognized are its other philosophical underpinnings. What is its most famous sentence laid the groundwork for much of what was to come:
We decry the Supreme Court's encroachment on the rights reserved to the States and to the people, contrary to established law, and to the Constitution.

In her fascinating study of the Dixiecrat rebellion, historian Kari Frederickson persuasively argues that the values preached by Thurmond metamorphosed into the beliefs of the Republican Counterrevolution.
Thurmond and the Dixiecrats represented a reaction to the modern welfare state," she writes, "that over time would reach a broader audience frightened by school desegregation decisions, fair housing laws, and race riots.

There is something else about the Manifesto; it represented an intersection between the long-standing opposition of Big Business to government meddling in its affairs and the South's objection to its meddling in the affairs of the states. If the federal government could tell the South what to do even to the point of marching James Meredith through the front door of the University of Mississippi, could it not do the same at some manufacturing plant?

It is notable that Harry Dent, the Thurmond aide who held a bucket outside the Senate chambers in case Thurmond needed to relieve himself during his record filibuster against the Civil Rights Bill, should become one of the chief architects of Richard Nixon's Southern Strategy and a Nixon Presidential staff member.

While it was Nixon who first courted and cemented an alliance with Thurmond it was Ronald Reagan who truly laid the groundwork for the Counterrevolution. The most prominent photograph at the website for Clemson's Thurmond Institute of Government and Politics shows Thurmond standing with a smiling Reagan. In The Rise of Southern Republicans, Earl and Merle Black make a convincing case, backed by a daunting number of charts and tables, that it was Reagan who truly solidified the South for the GOP.



Reagan's genius lay in taking Thurmond's states' rights philosophy and dressing it in respectable clothes, turning it into opposition to "big government." Employing anti-government rhetoric that mirrored Thurmond, the GOP reversed the country's perceptions about government as a force for equity and turned it into the enemy of the people.

Reagan remade what had been a Southern movement into a national one, creating a new version of the old New Deal coalition by uniting the old laissez-faire business types who had characterized the party for most of the twentieth century, Thurmond's converted Southerners, and the social conservatism of the religious right. From the election of Ronald Reagan to the defeat of John McCain this coalition dominated American politics even during the Democratic Presidency of Bill Clinton.

At its heart lay the beliefs of the Manifesto which in part grew from Thurmond's long-standing opposition to the reforms of the New Deal. Running in his last campaign he would proclaim:
I shall not give up on our mission to right the 40-year wrongs of liberalism.

The Growth of Suburbia

What helped to make the Counterrevolution possible was the most unprecedented, government-sponsored mass social movement in American history--the growth of the suburb. By deliberately condoning the creation of all-white communities that prohibited people of color, the federal government created a fertile environment for the ideas of the Manifesto and later the Reagan Counterrevolution.

Suburbanites became the fourth, and in many ways the most crucial, element of the Counterrevolutionary Coalition. Racist housing policies enabled the Southern Strategy to assume not merely a regional but a national base. Elements of Thurmond's Southern Manifesto that became gospel for the Counterrevolution now had a far-reaching appeal.

An influential 1992 Atlantic article by William Schneider, currently a member of the conservative Hudson Institute who serves as political commentator for CNN, captured it with the title, "The Suburban Century Begins." Schneider cited impressive statistics to bolster his argument. In 1960, the suburbs provided one third of the national vote, voting slightly more Republican than Democratic. By 1988 they accounted for 48% of the vote, with 28% for the Republicans and 20% for the Democrats.

Eerily echoing Strom Thurmond, Schneider described suburban voters as
Suspicious of programs aimed at creating social change rather than providing public services.

The Unraveling of the Coalition

The mortgage crisis stimulated the dissatisfaction of the crucial suburban portion of the coalition. Suddenly as For Sale signs sprouted like dandelions up and down suburban streets the suburbanites who had formed the glue that held the Reagan coalition together began to have doubts.

On top of this were the budget cuts made at both a national and state level that the GOP consciously designed so they put control of government expenses at the local level--a position, by the way, long advocated by one Strom Thurmond. As local school districts and cities were forced to either raise taxes or cut services, suddenly suburbanites saw the consequences of the Counterrevolution at first hand. It was one thing when government cut welfare and other social programs for people of color, but another when it was white suburban schools, police and fire departments.

The first rumblings of this came with the momentum-shifting 2006 election. As the results came in the pundits began to notice that Democrats were making gains in what once had been ceded as Republican territory. USA Today published the relevant data:

Democrats carried nearly 60% of the U.S. House vote in inner suburbs in the nation's 50 largest metropolitan areas, up from about 53% in 2002, according to the analysis by the Metropolitan Institute at Virginia Tech.


They received nearly 55% of the vote in the next ring of "mature" 20- and 30-year-old suburbs, with 45% going to Republicans and third-party candidates. In 2002, the last midterm election, Democrats received 50% of the vote there.



Ironically at the time, many in the GOP fell for the liberal Democratic explanation that this shift was due to the Iraq War and once that was over the Republicans would again be in control. That theory was blown to smithereens by the election of Barack Obama.

Strom Thurmond would have been rolling his eyes at the thought that an African American should capture the suburbs and make inroads into what had once been known as the Solid South.

The Defection of the South

Half a century ago, Fannie Lou Hamer and others had a dream that African Americans could truly become a political force in the South because other than in the Northern inner cities, the main areas where they are a majority or near majority lie in the South. When Hamer and others organized the Mississippi Freedom Democratic Party, they did so with the idea of creating similar parties in other states that would seize the South from the segregationists.

In November, 2008 Hamer's dream came true in way not even she could have imagined--the election of the first African-American President. Southern states were critical in securing the presidential nomination for Obama. It was in the South that he piled up some of his most impressive primary victories including Thurmond's home state of South Carolina.

In the election he shattered the Solid South winning North Carolina and Virginia. On the eve of the election the Institute for Southern Studies was still classing Georgia and Florida as swing states. In an influential essay "A New South Rising," the Institute spelled out the new realities in the South:
The 2008 elections provided two important lessons about the South, clear to any willing to see them: First, the South is rapidly changing in a way that makes it a more -- not less -- politically competitive region.

And second, despite the fevered hopes of certain wings of the Northern intelligentsia, the South's political clout is rapidly growing -- making the South a centerpiece of any strategy for national political power.

The Institute attributed this to the growing urbanization of the South, a new generation of white voters who no longer bought Thurmond's values, and the realization of Fannie Lou Hamer's dream.
In fact, African-American voters are the biggest reason why this map from The New York Times -- which includes counties which voted more Democratic -- looks like it does, with a strong band of blue running through the South.



This map highlights the ultimate irony in the Counterrevolution, for by embracing the ideology of the Manifesto it now finds itself facing the very real danger of becoming a regional party.

The Religious Right

Ironically this may aid the one element of the Counterrevolutionary Coalition that many people had written off--the religious right. Although GOP arch-conservative Rush Limbaugh avoided any mention of the religious right or the so-called social issues that drive it in his jeremiad to conservative Republicans, they are the main source of strength for the candidate many believe has the inside track for the next election--Sarah Palin.



This February the Pew Institute hosted a forum on the "Religious Vote in the 2008 Election." Reviewing the exit polling data, the Institute concluded:
Weekly attending white evangelical Protestants were the strongest Republican group in 2008, as in 2004.

Barack Obama won a solid victory, particularly compared with the 2000 presidential election. But it shouldn't surprise us that changes were not that large within many religious groups because there just wasn't that much overall change.

If the religious vote did not change, where were all the pundits who had written overwrought pieces about "values voters" as the key to 2004? They did not get it then and they do not get it now. The power of the religious right--and its Achilles Heel--has always stemmed from its bleak view of human nature, that human beings are by nature sinful creatures without grace that will wallow in degradation, perversity, and depravity.

Former GOP leader Tom DeLay captured this quite well:
Simply put, the problem is within ‑ rather than outside of ‑ us, because as the Judeo‑Christian tradition has always taught we enter this world flawed and inclined to do the wrong thing. If one accepts this perspective, then one is also likely to recognize that, as one author recently phrased it, only two forces hold the sinful nature in check: the restraint of conscience or the restraint of the sword. The less that citizens have the former, the more the state must employ the latter.

This view seemed to grip many people after 9/11, but I believe what turned the country around was Katrina. Many on the religious right saw Katrina as God's judgment on this country, which made them seem not only more out in left field than usual but also more cold-hearted. With Katrina it was as if this country were shocked awake from a deep slumber and awoke to realize what had become of their country.

The Future

How can a map like the one above change so dramatically in so short a time? One answer is that the map is only temporary and that the Counterrevolution will reassert itself. One way that could happen might come from the fourth member of the coalition--Big Business, but right now Big Business is none too popular.

In many states the GOP is falling back on an old mantra, "Tax and Spend," accusing the newly resurgent Democrats of really being what they used to call "big government liberals." This element in the Republican Party believes that they can regain the advantage by showing that the Democrats' answer to the current economic crisis is an old one of more government programs and more taxes.

The problem with this approach is that it is not for anything, but merely fighting what has always been a straw effigy. They had people believing the effigy was real for many years, but that will not be as easy twenty years after Ronald Reagan said government was the problem because right now for many people government appears to be the only hope.

Political parties have disappeared before in America and the main reason has always been economic or that the party was a splinter group with a narrow agenda. The natural impulse now for Republicans is to take to heart Rush Limbaugh's message and circle the wagons, becoming more ideological. If they do that they will become a minority.

Instead they might draw inspiration from one of their own who in a time of similar economic upheaval won two terms in the White House--Theodore Roosevelt. They might also draw inspiration from another GOP two-termer whose middle-of-the-road philosophy also won him two terms--Dwight Eisenhower.

The peach blossoms are blooming again in Edgefield, which provides a temptation to throw in an outrageous pun about the current outlook for the Democrats, but that pun would neither be accurate nor wise. Democrats should not be so smug about this state of affairs.

The Counterrevolution achieved many of its victories because of the collusion of Democrats. What is still one of the most influential groups in the Democratic Party--the Democratic Leadership Council was created by Southerners who wanted to take the party to the right. Tax cuts, the Iraq War, the Patriot Act, and the repeal of Glass-Steagall were all passed by Democrats as well as Republicans. To some people the Counterrevolution has only been handed off from one party to another. Let us hope this is not the case.

Democrats should also take caution from another reason for the current state of the Republican Party--its hubris. The Party had preached for so long that it was the "real majority" that it began to believe by mistakenly assuming it spoke for the American people.

The Republicans need to decide if they will allow themselves to become a regional and/or narrow ideological party. The Limbaughs and the Sarah Palins may believe the religious right and the raucous right hold the map to the future, but that map leads off a cliff into political oblivion or into a box canyon with no way out and starvation a real possibility. The party of Abraham Lincoln deserves a better fate.

 
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Radioing Open Thread
by Unknown | 5/21/2009 10:11:00 PM
I'll be on this internet radio show today (Friday, 5/22) at some point between 6-7 PM to explain my statement of a few days ago: "I'm angrier at Obama right now than I ever was at Bush." I'll be identified as "Nonpartisan," my primary blog handle at political blogs. If you miss the show, you can listen later on archive at the same link.

Please note that the show features extremely far-left hosts and a fair amount of profanity; if that's not your style, you might want to sit this one out.

What's on your mind?

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Investigating Torture: An Interview With Former Federal Prosecutor Elizabeth de la Vega
by Robert Ellman | 5/18/2009 08:59:00 PM
The topic below was originally posted on my blog, the Intrepid Liberal Journal.

Former federal prosecutor Elizabeth de la Vega has recently made news urging that we don’t rush into appointing a special prosecutor to investigate crimes of torture during George W. Bush’s presidency. In a provocative April 20th post entitled “Of Black Holes and Radio Silence,” Ms. de la Vega wrote:
“There is no doubt that sometime in 2002 - if not before - Bush administration officials and their lawyers began orchestrating a torture campaign, which they calculatedly attempted to justify through specious legal memos. They continued to abuse prisoners, and to conceal that mistreatment from Congress and the public, through at least 2008. In all of this conduct, they have committed grave crimes for which they must be held accountable. I believe this to be a national imperative of the highest order.”




However, she also argues that,
“First, the bottom line: From the perspective of anyone who wants Bush and Cheney and their top aides to be held accountable for their crimes, the designation of some sort of independent prosecutor right now would be the worst possible eventuality. It's a move that has so many downsides - and holds so few real benefits - that I would be more inclined to question President Obama's motives if he appointed a special prosecutor than if he did not. There is a reason why former prosecutor Arlen Specter - a Republican senator from Pennsylvania - has voiced support for a special prosecutor, while former prosecutors Patrick Leahy and Sheldon Whitehouse - Democratic senators from Vermont and Rhode Island, respectively - would prefer a public inquiry.”
Please note that Ms. de la Vega’s post was written prior to Pennsylvania Senator Arlen Specter becoming a Democrat.

Overall, Ms. de la Vega contends that appointing a special prosecutor now would undermine the cause of truth and accountability. It is her contention that transparent and public hearings would facilitate more popular support for prosecuting wrong doers than currently exists. As she wrote on April 20th:
“What we continue to need, in sum, are unwavering spotlights, even more civic education, and, most importantly, an irrefutable and cohesive factual narrative - comprised of direct and circumstantial evidence - that links the highest-level officials and advisers of the Bush administration, ineluctably, to specific instances and victims of torture. What we will surely have, however, if a special prosecutor is named, will be precisely the opposite: The initiation of a federal grand jury investigation right now would be roughly the equivalent of ceremoniously dumping the entire issue of torture into a black hole. There will be nothing to see and we will be listening intently to radio silence, trying to make sense of intermittent static in the form of the occasional unreliable leak. For years. There may never be any charges and we will almost certainly never have the unimpeachable historical narrative that we need.”
On May 10th, she posted a followed up piece entitled “Prosecuting Torture: Is Time Really running Out?”and argued that the statutory clock in section 2340A, otherwise known as the “torture statute” didn’t start ticking until Bush’s presidency ended on January 20, 2009 – when President Obama reversed our policies. Her May 10th post was in response to those who are clamoring for the immediate appointment of a special prosecutor because they claim the statute of limitations for torture crimes that began in 2002 were scheduled to expire in 2010.

Ms. de la Vega’s position stems from her longtime experience as a federal prosecutor. She served as a Justice Department Attorney under Presidents Reagan, Bush I, Clinton and Bush II. She is the winner of numerous Attorney General's and community awards, including the prestigious Director's Award for Superior Performance. For over twenty-years, Ms. de la Vega targeted violent gangsters and sophisticated white-collar criminals in Minneapolis where she served as an Assisted United States Attorney and San Jose, where she was Branch Chief and a member of the Organized Crime Strike Force.

Since retiring from government service in 2004, Ms. de la Vega has been among the most vocal in pushing for accountability on a broad range of crimes allegedly committed during the Bush administration. In 2006, her book, the United States vs. George W. Bush, et al was a New York Times best seller. A year ago, Ms. de la Vega wrote an incisive piece supporting Ohio Congressman Dennis Kucinich’s thirty-five articles of impeachment against President Bush.

She has also contributed to numerous print and online publications, including the Los Angeles Times, Christian Science Monitor, Nation magazine, Chicago Sun-Times, Mother Jones, Common Dreams, TomDispatch, Truthout and Alternet.

Ms. de la Vega agreed to a telephone podcast interview with me about her views with respect to investigating torture and support for public transparency. Special thanks to Vern Radul, known in the blogosphere as Edger where he manages Antemedius.com for persuading Ms. de la Vega for doing the interview. Our conversation was just under twenty-minutes as I posed numerous devil’s advocate questions. Please refer to the flash media player below.



This interview can also be accessed at no cost via the Itunes store by searching for either “Robert Ellman” or the “Intrepid Liberal Journal.”

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The Next Justice: An Interview With Legal Scholar Christopher L. Eisgruber
by Robert Ellman | 5/17/2009 08:23:00 PM
The topic below was originally posted on my blog, the Intrepid Liberal Journal.

President Obama will soon announce his nominee to replace retiring Justice David Souter on the Supreme Court. It’s a critical nomination with long-term ramifications for civil liberties, executive power, management-labor relations, the environment and consumer rights. Hence, it is vital the public know whether the judicial philosophy and ideology of any prospective nominee to the court is compatible with their sensibilities and values. Ideally, all nominees would be forthcoming about their philosophy as the senate either confirms or rejects them with full knowledge of the sort of justice they’re likely to be.

Regrettably, that hasn’t occurred since the 1987 Senate confirmation hearings for Robert Bork. At the time, Bork scared the hell out of me and I’m grateful his nomination was not approved. Even so, I always respected how Bork was upfront about his ideology and judicial philosophy. Bork didn’t hide what he was and the American public and the Senate had a clear picture of what sort of justice he would be.



Sadly, since the Bork nomination fight, our Supreme Court appointments process has become a Kabuki dance existing in an alternate reality. Nominees are conditioned to reveal as little as possible about their judicial philosophies or even avoid acknowledging they have one. A pitiful example is Chief Justice John Roberts who famously compared Supreme Court justices with baseball umpires during his 2005 Senate confirmation hearings:
“Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.”
Contrary to John Roberts’ testimony, a Supreme Court justice has a unique and expansive role in our society. The Constitution contains too many abstract references and clauses for any justice to merely adhere to the rules based on a strict interpretation of the text. An example is the Constitution’s Equal Protection Clause. As the highly regarded legal scholar, Christopher L. Eisgruber, observes in his 2007 book, The Next Justice: Repairing the Supreme Court Appointments Process (Princeton University Press) the Equal Protection Clause reads,
“’No state shall deny to any person within its jurisdiction the equal protection of the laws.’

How should judges interpret this clause? Presumably, they must ask what it means for the laws to protect people equally. Yet that question takes judges straight to the nerve center of American ideological controversy. Liberals and conservatives disagree passionately about what it means for the laws to protect groups equally and about when it is appropriate for the laws to treat one group better than another.”
Overall, Eisgruber argues that due to the Constitution’s many vague abstractions, a Supreme Court justice is disproportionately influenced by their individual values and ideology in determining when it’s appropriate for the court to intervene and even overrule our country’s prior laws. How could it be otherwise when the Constitution’s text is frequently subject to broad interpretation as with the Equal Opportunity Clause? Hence, it is imperative the senate determines if the judicial philosophy of a Supreme Court nominee is representative of the country.

Some legal scholars such as Yale law professor Stephen Carter have argued that nominees to the Supreme Court should simply stay home because their testimony has ceased to contribute anything substantive. There is definitely merit to Carter’s point of view. Nominees since Robert Bork typically speak only in vague platitudes about practicing “judicial restraint” and are ultimately voted up or down based upon their reassuring television appeal.

Eisgruber however argues in his book that the senate should ask more open-ended questions of prospective nominees about their judicial philosophies. Too often senators attempt to trap nominees with “gotcha” questions or ask about specific issues such as abortion that that can easily be deflected to “preserve their integrity” prior to joining the Supreme Court. Ultimately, little is learned and unless opposition interest groups get any traction or a scandal emerges, the nominee is likely to sail through without defending or explaining their ideology.

One example of the sort of question Eisgruber suggests asking is,
“The late Chief Justice William Rehinquist wrote that ‘manifold provisions of the Constitution with which judges must deal are by no means crystal clear in their import, and reasonable minds may differ as to which interpretation is proper.’ Could you tell us something about the values and purposes that will guide you when you interpret provisions like the Equal Protection Clause? How do those values and purposes distinguish your approach from those taken by other justices?”
Eisgruber contends this approach has a better chance of determining the sort of justice a nominee is likely to be. He also argues that it will facilitate more moderate nominees and discourage stealth extremists.

Eisgruber, who previously clerked for U.S. Court of Appeals Judge Patrick E. Higginbortham (a conservative) and Supreme Court Justice John Paul Stevens (a liberal), agreed to a podcast interview with me over the telephone about his book. Among the topics discussed were the insights he gained clerking for two ideologically different judges, the importance of justice’s philosophy about judicial review, President Obama’s desire for a justice with “empathy” and whether we might have a justice who did not serve in the appellate courts. I also asked him numerous questions from my liberal perspective, including whether ideological balance on the court would be better served by appointing assertive liberals instead of moderates.

Please refer to the flash media player below.



This interview can also be accessed at no cost via the Itunes store by searching for either the “Intrepid Liberal Journal” or “Robert Ellman.”

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The American Kadima
by Unknown | 5/16/2009 02:12:00 PM
Like Kadima in Israel or Labor in the UK, Obama's administration now has more in common with the moderate wings of both parties than it does with the progressive wing of its own party. The nomination of Republican John Huntsman as Ambassador to China is just the latest in a series of appointments that prove this fact. Let's crunch sone numbers:

Number of Cabinet-level positions filled by members or former members of the DLC: 9 (Hillary Clinton, Rahm Emanuel, Ken Salazar, Tom Vilsack, Kathleen Sebelius, Gary Locke, Janet Napolitano, Ron Kirk, Joe Biden)

Number of Cabinet-level positions filled by former Clinton Administration officials: 7 (H. Clinton, Tim Geithner, Eric Holder, Emanuel, Peter Orszag, Larry Summers, Leon Panetta)

Number of Cabinet-level positions or high-ranking Ambassadorships filled (or intended to be filled) by Republicans: 5 (Huntsman, Ray LaHood, James Jones, Judd Gregg, Robert Gates)

Number of positions filled (or intended to be filled) by individuals who voted to impeach Bill Clinton: 2 (LaHood and Gregg)

Number of Cabinet-level positions filled by movement progressives: 1 (Hilda Solis)

The upshot: there is no longer a political party in the United States that caters to progressives, except for the Green Party.

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School's Out Open Thread
by idiosynchronic | 5/13/2009 06:11:00 PM
Iowa blogger John Deeth posts a link today about Post columnist Dana Milbank and former president Carter's testimony on the Hill for Kerry's Senate Armed Services Committee.

Milbank:
The I-told-you-so theme recurred during his nearly 90 minutes with the panel. "When I became president, the average gas mileage on a car was 12 miles per gallon, and we had mandated, by the time I went out of office, 27.5 miles per gallon," he said, as his wife, Rosalynn, and daughter, Amy, listened from the first row. "But President Reagan and others didn't think that was important, and so it was frittered away."
There's a lot of snark in both the original Milbank post and in Deeth's follow up comparison to a completely hysterical Onion editorial. But let's ignore the caucus upheaval and craziness that the Onion was really addressing & Milbank's snide coverage of a fairly important point.

Can anyone in the readership remember another politican's legacy dominated by moments of I Told You So, either by the politician or by historians and journalists? Considering Carter's moment in history and how spectacularly the nation turned away from his legacy only to keep fighting different facets of the same problems, I can't imagine how Carter's legacy will not have some great element of, "the nation chose to ignore what had to be done."
 
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Some Specter Silliness
by Unknown | 5/08/2009 09:19:00 PM
Not a knock on HNN, but this piece by David Greenberg is the most idiotic thing I've read there since I began reading the site three years ago.

The gist of Greenberg's argument is that the defection of liberal Republican John Lindsay to the Democrats in 1971 was a warning sign that the GOP couldn't govern without representing a broad range of ideologies, and that Arlen Specter's recent party switch should be seen as a similar warning sign. So -- let's look at the GOP's record since Lindsay made that switch. In 1972, they won one of the most lopsided Presidential races in history. In 1976, they came within a point and a half of victory despite a deeply unpopular President and a virtual civil war within Republican ranks. In 1980, 1984, and 1988, they dominated the electoral map as few parties in American history had done before. In 1994, they dramatically retook both houses of Congress. Meanwhile, as Greenberg himself notes, Lindsay quickly fizzled out and retired from politics. Contrary to Greenberg's assertions, Republicans have proved that they can govern just fine without Lindsay and his ilk.

Greenberg is so busy being disproved by his own evidence that he misses the real significance of the Specter switch -- which is precisely the opposite of what he suggests. Rather than being a warning sign for Republicans, Specter's move threatens to undermine the fragile coalition that brought Barack Obama to power. The prospect of a prominent left-wing grassroots primary challenge to Specter -- likely from Congressman and two-star Admiral Joe Sestak, though there are other potential candidates -- should terrify Obama because it would pit his various constituencies against one another. Obama succeeded in November because his big tent included grassroots progressives, big labor, and free-thinking independents in addition to the Clintonian centrist Dems. But in a Specter-Sestak battle, Obama would be on the side of the Beltway, while progressives, unions, the netroots, and even some independents would line up against him.

Obama's engineering of the Specter switch is going to go down in history as one of the most idiotic political moves ever made by a sitting President -- and it's because Obama has surrounded himself with hacks like Greenberg who think the only people who matter are the enemies you can get to cross over to your side, however opportunistic their motives. Meanwhile, Obama is poised to lose a number of his friends over this whole situation, and he doesn't seem to understand the electoral consequences of that loss. Perhaps a better comparison than the Lindsay switch would be Franklin Roosevelt's handling of Huey Long, which almost resulted in Roosevelt's electoral loss in a three-way race.

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Open Thread
by AndrewMc | 5/04/2009 06:03:00 AM
Historians, for the most part, aren't like normal people.

Most people organize their year by a 365-day, 52-week calendar. Most historians organize theirs into a pair of fourteen, fifteen, or sixteen week blocs. The other twelve weeks are spent hibernating in caves around the world called "archives."

As we prepare to end one of our blocs our blood pressure rises, we tune out the rest of the world, we become forgetful, and our tempers often become frayed.

I hope your semester ends well.

Unitary Moonbat is on the Rec List at Daily Kos.

If you aren't a regular watcher, you might try to catch a repeat of CSI:New York's recent episode "Yahrzeit" [link contains spoilers if you click through to the episode] is about as good a treatment of the Holocaust as one could find on a fictional TV show. Ed Asner's performance was incredibly moving, I thought.

What's on your mind?





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