This evening driving home I listened to a debate on the car radio over the president's judicial nominations, the ones that gave rise to the recent filibuster threat, nuclear option, and compromise that postponed the real shoot-out until the next Supreme Court vacancy occurs.
Why all the fuss, I wondered.
Unfortunately I know why all the fuss. That's what we study in Con-Law, only the difference between us, say, and the Iraqis now, is that while they're opposition is using IEDs (Improvised Explosive Devices) and suicide bombers (I've heard that some of these aren't quite suicides...they ask you to deliver a package and call in on this little cell phone right here, that they hand you, and when you do, BOOM! up you go, along with the whole police station, market-place or mosque). That's how Constitutional Law is practiced in Iraq.
We yell a lot, get red in the face, play games with elections, and filibuster high court nominations.
One of the speakers on the radio was saying that if you don't like the president's nominees, elect a different president and Senate. Then you can appoint someone you like as a top judge for life.
President Bill Clinton, Democrat, consulted with Orrin Hatch, Republican head of the Senate Judiciary Committee that passed on Justices Ginsburg and Breyer. Breyer had worked on that committee and Hatch knew him well, and respected him, so no battle there.
But President George W. Bush doesn't call up a leading Democrat to ask, "Hey, what do you think about me appointing Justice Janice Rogers Brown of the California Supreme Court to the D.C. Circuit?" That's the crown jewel of federal judgeships just below, and in line for, the Supreme Court.
Dirty pool, right?
Well, as another speaker pointed out, Franklin Delano Roosevelt appointed nine justices to the Supreme Court without once calling up a Republican legislator to ask what about this. He hated Republicans, according to the speaker, whose name I didn't get, but he was sharp. The Repubs hated FDR even more.
Roosevelt's court overturned 40 precedents, said the speaker, and the Republic didn't come crashing down. It just turned course, like an aircraft carrier, slowly, deliberately, and moved in the opposite direction.
The very big deal at that time, Roosevelt's time was this. The leading people of the country for generations had been white Anglo-Saxon Protestants who'd been running the show, owning the land, big business, the Ivy-League universities, Wall Street (stocks, capital), Madison Avenue (advertising), medicine, law, and politics. They were deathly afraid of something called socialism.
I don't go back quite so far, but when I was in college and law school in the '60s, socialism was still a terrible word. It still is, politically, but we've come to accept, some of us, that is, a few ideas now that were anathema earlier in the century.
In those days, the Lochner era we call it in Con-Law, the idea was that property was sacrosanct and needed to be protected by law. If you taxed the people who had money to spend it on those who had not, what did you wind up with? A bottomless money funnel from those who worked hard and earned it (or were lucky enough to choose rich parents who left it to them) flowing towards the great unwashed, the underserving huddled masses.
"Give me your poor and tired, huddled masses," was written by Emma Lazarus, who may have been Jewish and certainly had a certain sympathy with the have nots. That wouldn't have been written by a member of the WASP establishment back then. The words are on the base of the Statue of Liberty, donated to us by the people of France, who found something to admire in the 1870s and 1880s about us. I used to ride the Staten Island Ferry past her each way in law school.
When the new immigrants found their voice through the Democratic Party coalition during FDR's time, things began to happen. Labor unions, instead of being treated as criminal conspiracies, were now protected by law, federal law. This cost the property owners, i.e. capital and management, a bundle. Money that would have flowed to the owners and managers was now diverted to the workers, of whom there were a lot more than the former.
Taxes were imposed on incomes. Who had the income to tax? You guessed it, the wealthy first and foremost. Tax brackets reached 90% for the very rich. So the very rich invented a class of very smart tax lawyers working at very high hourly rates to help them structure holdings and deals to avoid this.
And, of course, each section of the very rich had representatives in Washington and other power centers, such as city, county, and state, to keep the gravy train flowing.
If you owned a banana company and arranged to have the Navy sent to Central America to protect your company from being taken over by an uprising of the natives, why that was not socialism, that was in the interests of the nation.
But if Congress imposed a minimum wage and maximum hours law on workers, that was socialism.
I never quite understood, myself, when it was okay to send troops out to fight and die for bananas, canals, oil, or whatnot in some cases that protected private investments, but it was socialistic to enact a plan like social security. Corporate welfare was good, but welfare queens were not, especially if they were black and had six kids with different fathers. I certainly knew the driving attitudes, but no one ever quite explaine the theory in a way that I could understand. Like where do you draw the line? I never knew.
The reason this comes up is because Janice Rogers Brown of the California Supreme Court is on record as saying some things that seem to reflect a world view that defined the Lochner era. But the Lochner era went out in 1937 and the nation didn't look back. Now it's looking back.
Brown, who is anything but white and Anglo-Saxon, except perhaps in select beliefs, is reported to have decried the FDR era, known as the New Deal, which ran out of gas by 1941, except for a few structural ideas such as social security, labor protection, fair labor standards, minimum wage, food and drug laws, and a hostility to child labor in industry, as a socialist revolution.
Well, it was a socialist revolution and thank goodness for it.
I don't know what Brown wants to repeal, but I wouldn't want to give her a chance to try.
But President Bush was elected president and I wasn't, so that leaves me out.
Part of the radio discussion this evening was on the recent filibuster. The filibuster is this parliamentary tool that lets the minority tie up the Senate in knots. No constitution-maker in his right mind would ever include a guarantee of the right to filibuster, but there it is, sitting there like a hand-grenade, just waiting to be picked up and used to close down the Senate. Filibuster is our own version of an IED or suicide bomb. It halts government.
But it also halts this thing we call the "tyranny of the majority."
What, pray tell, is that?
Well, slavery and Jim Crow, for one thing. Those were huge examples of the tyranny of the majority. Since that's too much to write, I'm going to start calling it TOM, not as in Uncle Tom, just Tom.
Back when we had a lot of lynchings of blacks for stepping out of line (being "uppity" it was called, and could get you killed), Congress was prevented from enacting legislation making it a federal crime to murder a person because of being black. There would've been ample authority to outlaw federally this particular "badge and incident" of slavery, wouldn't there?
Such legislation, often proposed, never stood a chance of getting through the Senate because of something called the Southern Bloc of senators, led by Richard Russell of Georgia. Passed by the northern liberals in the House, such legislation died in the Senate, killed by the South, which threatened to filibuster if it came up. If the president needed to fund the Army, or pay the troops, his Appropriations Bill would die in the Senate if a civil rights bill protecting blacks came up. See Caro's bio of LBJ, Master of the Senate, for the story.
That was an example of a real tyranny of the majority, oops, TOM.
Since the president was handcuffed by the Senate, and the House was handcuffed by the Senate, and the Senate was handcuffed by the filibuster, there was no hope that this country could get past its racist past.
That's why the Warren "Impeach Earl Warren" Court is so important. It got us past that without the kind of shooting war like they had in Bosnia. Well, maybe a little like Bosnia, but without all the ethnic cleansing.
You see, the Warren Court was immune from the filibuster and the president. Eisenhower, elected president in 1952, appointed Earl Warren, the governor of California who delivered the state to Ike in that election was owed a Supreme Court seat. The one that opened was Chief Justice. Ike tried to weasel out of the deal but Warren stuck to his guns. The next vacancy is mine, he was promised, and Ike had to come through, which he did. "Worst mistake I ever made," he said, appointing Warren. Ike was not big on civil rights. Blacks could fight for the nation, just not go to school with whites or vote. Aside from that, we were all taught that this was the land of the free, the home of the brave, with justice for all. Under God was inserted in 1954 during the Cold War to distinguish us from the Godless Communists (socialists). God was really on our side, thank God.
So my question is this.
In a democracy such as ours, when one party wins an election, that party is supposed to be able to make the laws, right? The majority rules. Isn't that the watchword of democracy? Isn't that why we have elections? If Gore won, we'd have socialism, but if Bush wins we can have the Lochner era all over again, right?
Or is that the tyranny of the majority?
How do we know when majority rule has become the tyranny of the majority?
Is it a tyranny because I don't like something but have to do it anyway? I like to drive at about 80 mph when I'm on the freeway because otherwise I get caught from behind and I don't want to get run over. I can tell it to the judge when the CHP, who has a faster car, pulls me over.
Is that the tyranny of the majority, who made that traffic law, or is that majority rules?
I never know where to draw these lines.
Maybe someone can tell me.
Janice Rogers Brown doesn't like Social Security. It's socialistic. Well of course it is. Any time your government does something for you, like protect oil because I like to drive cars that use oil, its socialistic. That's what socialism is, government doing something for you that costs money, like doling out welfare to prevent children and old people from starving. And where does this welfare money come from? It comes from people who earned it but had some of it stolen by government to pay the likes of me and you.
I really don't get this socialism-is-evil bit.
If I were a Republican farmer from Kansas, Iowa, and Nebraska, instead of a city kid from New York and San Francisco, would it be bad for me to take money from the government not to grow crops, or to support sugar or beef? This is socialistic, isn't it? How come Republican socialism is find and dandy, but Democrat socialism is not?
Maybe a kind reader will 'splain me that, 'cuz I sure don't get it.
But Janice Rogers Brown is a sink-or-swim type who wants to go onto the top federal courts so that she can tell us what we're doing wrong, I guess. If she wants to repeal the New Deal (the parts that survived 1941 when it died politically) she'll get her chance, if she's nominated and clears the Senate. But if you think the recent filibuster fight was bad, wait 'til you see the next one if she or someone like her is nominated, and there are a few being lined up as we speak.
When I was in high school and college, a favorite debate topic was whether this country should have socialized medicine. Doctors back then were some of the most conservative people in the country. The AMA, the big doctor's union (although they didn't like to be called that) had a big lobby in Washington and in state capitals to make sure that doctors and patients had this wonderful relationship where the doctor told you what to do, you did it, and you paid him (almost always it was a him). If government paid, government might tell the doctor what to do, like not to perform that abortion or expensive surgical procedure when his kids had tuition payments coming up so he could be a doctor too.
So we rejected socialized medicine. Until LBJ came along and introduced something called Medicare, which has been around for close to four decades and is very expensive. Back then they left out coverage for medicines, as that was small potatoes. Today medication is big-time and driving big companies towards bankruptcy. GM is in a fix over health care for its thousands and thousands of retired auto workers, all those guys and women who worked on assembly lines for years and years turning out cars, Jeeps, and tanks, you know, the ones we win wars with, for the good of the nation and to keep the money flowing in the direction it is supposed to.
Have you ever wondered how we make law?
Well, we start with an outline called a Constitution which we say is now law. It is six thousand words that will govern 300 million people in 250 years, plus or minus.
How would you, now, knowing how the story has turned out so far, like to rewrite the thing so as to avoid some of the problems we've had, such as the Civil War, for example, that cost 600,000 lives, or Jim Crow, which treated people like dirt for so long. Now we think that slavery and Jim Crow (racism encouraged by law and by custom, called de jure and de facto, respectively) is just plain wrong and immoral. Previously we must've thought it just fine, otherwise we wouldn't have had them for so long, would we. Ministers and civic leaders said it was all right. Now we don't believe that any more, do we. Most of us, at least, I think, or at least hope. But I wouldn't want to take anything fought so hard for to obtain for granted, would you?
We were asking where our law comes from.
We make it up as we go along, of course.
It doesn't come from God.
If it did, we wouldn't need the city council or the municipal utility district or the school board, would we? Or Congress or presidential elections.
So we have this system whereby we vote for representatives who we think are going to do the right thing for us. But what is the right thing? One year the right thing was segregation and the next it was integration. One year segregation commanded a majority in this country, I guess, and then the Supreme Court said forget that and over the next decades the country slowly came around, I'm pretty sure, in most parts, even the South. The North may still be lagging behind, but that's people for you.
One man's tyranny of the majority is another man's democracy in action, and vice versa, I suppose I must say.
I don't understand that any more than I understand where to draw the line between capitalism and socialism.
You would think that by now I would have a clue, but I'm sorry to say I only know the way things seem to be, and how things are reported to have been, but not what is right in theory. I have a sense that when people are screwed over because they're weak and defenseless, or being called down because of things over which they have little or no control, such as who your parents are, that this is either bad or wrong and we shouldn't pick on the little guy, especially when he's down.
But what about the rich guy, do I want to play Robin Hood and rob the rich to pay the poor? No, I don't want to do that. But isn't taxing the haves to support the have nots exactly this?
Maybe it is, if you're rich and getting soaked too much.
So I suppose this is one of those things where no matter what you do is wrong, theoretically, carried to extremes, so the best thing is to try to find a middle ground where, as the tax professors like to say, you pluck enough feathers from the goose to make him squawk, but not enough to kill him. It's a matter of degree, not theory.
But if the reports are true that Janice Rogers Brown is this big ideologue, then I would fear that she's the opposite side of the same coin as a socialist, only she would be seen in the FDR days as a reactionary member of the Old Court of Sutherland, Van Devanter, McReynolds, Butler, and their like, all in favor of big business and nothing for the working stiff.
That doesn't look any better to me than the fellow on the other end of the rope in the tug-of-war over who is right. Neither one of them is right in my book. When I see two ideologues tugging in opposite directions over their theories, instead of fighting about where the middle oughta be, that's when I start thinking, "A plague on both your houses." I don't even enjoy the fight. No matter who wins, the country loses.
I seem to favor incremental change. A little this way and a little that. Let's see how it works. Is the goose still alive and getting fat? Wonderful. I'd like to be a fat goose myself someday when I grow up and become a success financially. We sure don't want to kill the goose that lays the golden eggs, do we. No, let's protect the rich and give them every incentive to increase more wealth for more people.
You may think I'm joking, but this is very serious. Do you know that in many poor foreign countries there are some extremely wealthy people at the top who skim the cream off the economy and run things politically? Surely you do.
What do you think they do with their money, invest it back home? Of course not. A change of administration, like an overthrow by socialists, as in Cuba, might result in their property being taken away (expropriated is the legal, diplomatic, term) and redistributed to the have-nots. I don't want to see that here, even though I've been told that some 20% of the population controls some 80% of the wealth. As long as I'm making a living I'm happy with Bill Gates, who, I've read, owns as much as all of the black people in the country combined. I wonder if that could be true.
I don't want Bill Gates getting worried that anyone is going to touch a dime of his hard earned wealth. I want him keeping it right here, not hiding it in Switzerland or on some island. I want him to plow it right back into our economy, not someone else's. There's plenty of room here for both me'n'Bill. I don't want any Supreme Court making old Bill sweat over his dough. But I also think that since Bill made that pile here under the protection of our law and economy he shouldn't squawk too loud if we shake a few feathers loose once in awhile, either, do you?
See, it's not about socialism or capitalism, as I see the argument. Anyone can argue the extreme and be wrong. But it takes a certain amount of judgment to find that nice balance somewhere around the mid-point where both sides can live. We can't all live like Bill Gates, perhaps, but if our economy and laws are good enough to allow Bill and Warren Buffett and Donald Trump and Mike Bloomberg, who paid $60 million to get elected mayor of New York City, to soar like eagles, I'm here to cheer them on, in full voice and in good faith. I LOVE to see guys like that. And I hope they don't get too pissed off if I vote for a tax and spend bill once in awhile. President Bush made a few bucks of his old man's friends? TERRIFIC! Go George, I love you. But let's don't break the rice bowl of the little guy, either, not that I'm suggesting you'd do that.
But if you put people on the Supreme Court who are tugging in what seems to be that direction, you won't be surprised to find yourself in a big struggle, just like FDR had back in the 'Thirties in the other direction.
Well, we know that Congress makes laws, and the president has a legislative program, plus all the administrative agencies, and that they make laws, but what about the Supreme Court?
What's all this about activist judges acting as super-legislatures?
Well, that's what the Court has the power to do. The only real problem is in which direction they want to pull the rope. You could take their rope away, I suppose. That would be the power of judicial review. Without that, the Court would have nothing to say. The justices would be no better than nine law professors writing screeds like this.
But give them the power to put their judgments into laws, such that Congress and the President and the whole country must heed, and suddenly you've got something important going on. Nine people, of whom four may pull one way and the other four in the other direction. That leaves one person as the tip-weight who can turn the whole country, or keep it moving in the direction it happens to be going.
That's power.
That's why it's important who gets appointed to that high Court. That fifth vote gets to turn the whole aircraft carrier in the direction of his or her choice, this way or that.
I just hope that you can't steer an aircraft carrier off the edge of the world.
When it goes too far in one direction, I want someone tugging the other way.
Maybe you've got a better idea.