Tag Archives: Sonia Sotomayor

Sotomayor’s Confirmation, James MacGregor Burns’ proposal

Historian James MacGregor Burns takes on the Supreme Court's authority in this provocative book.

Historian James MacGregor Burns takes on the Supreme Court's authority in this provocative book.

Whether talking about her “wise Latina” remark or contending with angry white firefighters, Sonia Sotomayor and her confirmation hearings dominated press coverage this past week.

According to critics, Sotomayor’s comment signaled a tendency to decide cases on the basis of identity politics rather than judicial merit.  Republican Senator Lindsey Graham, who played a prominent role in the hearings and now says that he is leaning toward voting to confirm Sotomayor, initially articulated the concerns of many opponents when he criticized her ideology.

This type of criticism is standard fare for opposing parties: both Chief Justice John Roberts and Justice Samuel Alito are the most recent nominees by a Republican president-in this case, George W. Bush- to have faced the same kind of commentary, only from Democrats.

Still, the judge’s confirmation by the Senate appears highly likely-a decision that would make her the first Latina in the court’s more than 200-year history.

The senatorial vote is authorized in the advise and consent clause in Article III of the U.S. Constitution.

If venerable historian James MacGregor Burns had his way, the Constitution would see significant change to how the Supreme Court conducts its business.

His radical proposal to have the electorate vote on the power of judicial review is just one part of a lively, stimulating and highly readable book, Packing the Court: The Rise of Judicial Activism and the Coming Crisis of the Supreme Court.

Now nearing the end of his ninety-first year, Burns opens the book by hearkening back to the day in 1937 when then-President Franklin Delano Roosevelt unveiled his original ‘court packing’ proposal.  Frustrated with the highest court’s thwarting of key aspects of his New Deal legislation, Roosevelt proposed to add additional justices for those who stayed on the court beyond a certain age.

The proposal, which had been developed without the knowledge of other party leaders, led to a firestorm of controversy and eventually cost Roosevelt a large amount of the political capital he had gained with his first term and resounding electoral victory over Alf Landon in 1936.

Burns, who was a sophomore at Williams College when Roosevelt made his announcement, maintains that such going against the people’s will was hardly a unique or unprecedented occurrence.  Packing the Court traces the history of the court from its inception at the end of the 18th century and both finds multiple such instances as well as a long pattern of presidents attempting to nominates justices who they believe will support their views.

The demonstration of a long history of attempted court packing is interesting enough by itself, but is hardly the most engaging feature of this work.

In a relatively brief survey, Burns reviews the history of many of the court’s key decisions and finds its acting against moves toward progress.

Among the more memorable: the Dred Scott decision, which is considered by many to be the nadir of all the court’s verdicts; Plessy v. Ferguson, which gave official sanction to the ‘separate but equal’ doctrine that undergirded American apartheid; a series of railroad cases in the late 19th century that enhanced corporate power and diminished workers’ rights;  and Hirabayashi v. U.S., which held that curfews against a group of people was acceptable when the country was at war with the country from which that group originated.

This is to say nothing of Bush v. Gore, which Burns makes clear that he considers a completely baseless decision, or Lincoln’s suspension of habeas corpus during the Civil War.

Burns’ point is that the immunity from accountability after the confirmation hearings, combined with judges’ lifetime tenure, has meant that a small bunch of individuals have ended up taking actions with momentous consequences, even when those decisions are dramatically at odds with the people’s desires.  He notes that this tendency has only increased since 1970, when judges’ tenures have increased from an average of 17 to 26 years.

Part of the value of Burns’ argument is that he does not hew simply to conservative or liberal lines.

While one senses he approves of the substance of many of the decisions issued during the Warren Court, he notes fairly that the trampling of federal, state and local statutes is another example of the same deplorable behavior of judicial activism.

In short, he maintains that justices have moved beyond interpreting rules to creating them.

The source of these creative tendencies is the concept of judicial review-an idea and legal practice developed by John Marshall, whose decisions over three decades greatly enhanced the judicial branch and federal government’s power.

Burns’ book gives us entertaining nuggets on the personalities of many of the nation’s most famous justices, from the cantankerous Felix Frankfurter to the worldly Louis Brandeis.  While painting a respectful picture of Marshall, he does take square aim at the concept of judicial review that he developed and advanced without popular consent.

His final section includes a proposal to restrain the court’s power.  Burns suggests that the president should ignore the court’s verdicts unless the people pass a constitutional amendment officially authorizing the justices to strike down unconstitutional laws.

Burns acknowledges that such an action would occasion strong reaction, up to and including impeachment.  Still, he maintains that such a risk is worth taking to deal squarely with what he sees as the unwarranted expansion of the court’s authority far beyond what the framers initially intended.

It’s a provocative notion, and one that at the very least merits discussion, if not concerted action.

Some reviewers have criticized Burns for an inconsistent reading of the court’s decisions.  I saw that part of the book as more of an explanation of the intersection between individual justices, their temperament at the time and the questions they had to decide.

This reader gives Burns top marks for still publishing meaningful work that enlightens history and sparks debate.  After reading Packing the Court, I called Mr. Bradford Wright, my high school U.S. History teacher and himself a nonagenarian.  Sharp as ever, he listened to my description of the work, then said, in essence,

“I haven’t seen that book yet.  It sounds like I should read it.”

You should, too.

James Von Brunn, Resources about Holocaust Denial and White Supremacy.

Here is a picture of alleged shooter James Von Brunn and a list of resources about the Holocaust and white supremacy.

Here is a picture of alleged shooter James Von Brunn and a list of resources about the Holocaust and white supremacy.

By now, I’m sure you have heard about the shocking murder of a security guard at the United States Holocaust Memorial Museum, allegedly by 88-year-old white supremacist and Holocaust denier James Von Brunn.

It’s a hard time for white supremacists these days.  

Events like Barack Obama’s election to the presidency, his appointment of a diverse Cabinet, and his recent nomination of Sonia Sotomayor to be the nation’s third woman and first Latina U.S. Supreme Court justice embody all of what the haters oppose.

A sense of losing a battle often triggers desperate acts.

Von Brunn’s attack apparently was triggered by Obama’s recent visit to the Buchenwald concentration camp, which he called the “ultimate rebuke” to deniers. 

Here are some resources that can help give context to some of the issues raised by Von Brunn’s alleged shooting: 

To begin, Von Brunn was a failed artist, according to news reports.  Peter Cohen’s Architecture of Doom is an astonishing film that shows that many of the top Nazis, including Adolf Hitler and Joseph Goebbels, were, too. 

I wrote last weekabout Deborah Lipstadt’s book and blog, as well as  a web site, all of which are intended to counter Holocaust denial.

The Intelligence Report, a publication of the Southern Povery Law Center and where my friend Casey Sanchez works, covers hate groups in America.  The Center more generally is one of the nation’s leading authorities on the issue.

Dear friend and full professor Stephen Kantrowitz’s Ben Tillman and the Reconstruction of White Supremacy is a nimbly written and thoughtfully argued description of the re-emergence of white supremacy after the Civil War and into the 20th century as told through the life of South Carolina politician “Pitchfork Ben” Tillman.  

Kantrowitz and other historians who cover this ground are walking in the very wide road carved by groundbreaking historian and Arkansas native C. Vann Woodward, whose classic work The Strange Career of Jim Crow paved the way for other works like Kantrowitz’s to follow. 

For those people interested in the context that gave rise to the Holocaust Museum where the shooting occurred, I recommend Peter Novick’s The Holocaust in American Life.  Novick argues that the events of the Holocaust have gained importance in America more because of the organization of the Jewish community than because of any change in the genocide’s tragic nature.

James Young is one of the leading authorities of Holocaust memorials; his book, At Memory’s Edge: After Images of the Holocast in Contemporary Art and Architecture should be required reading for those intrigued by that topic.  

People seeking an overview of the Holocaust could do a lot worse than reading journalist William Shirer’s tome, The Rise and Fall of the Third Reich, or historian Sir Martin Gilbert’s  The Holocaust:  A History of the Jews of Europe During the Second World War.  

Of course, Facing History and Ourselves, where Dunreith works and where I am a consultant, does terrific work around prejudice reduction with students all over the world.  While the organization has expanded from its original look at the Holocaust as its primary ‘case study,’ it still has a tremendous collection of print and video resources on the topic.  

Elements of Time, a collection of survivor testimony, is one of my favorites, while readers of Elie Wiesel’s Night should check out The Challenge of Memory, a video that accompanies the book and has complementary testimony for numerous points in the book.

Facing History’s resource book, Holocaust and Human Behavior, also has plenty of useful information, even as it’s more of a menu than a straight historical narrative.

Unfortunately, education and memory has not yet been a completely successful antidote to haters like Von Brunn and others of his ilk.  Still, actions like his only underscore the importance of continuing to inform people about past atrocities and continue to strive for a world in which events that seemingly were impossible, like the election of a black president, eventually become ordinary.

Matt Bai breaks down the Democrats’ rebuilding after the 2004 defeat in The Argument.

 

Matt Bai chronicles the Democrats' return to political dominance in The Argument.

Matt Bai chronicles the Democrats' return to political dominance in The Argument.

Life is good for the Democratic Party these days.

In firm control of all three branches of government for the first time in more than a generation, the Democrats have seen their ranks swell with the recent defection of U.S. Sen. Arlen Specter of Pennsylvania.

Specter’s switch gave the Democrats a near filibuster-proof majority of 59 senators-something that may come in handy during the upcoming nomination process of Sonia Sotomayor, whom President Barack Obama recently put forward to be the next U.S. Supreme Court Justice and the first Latina in the nation’s history to serve on the court. 

The Democrats have had a string of successes since Obama’s inauguration in January, overseeing the passage of a $787 billion stimulus plan, starting to implement a withdrawal time line and process for the war in Iraq and moving both to close Guantanamo prison camp and repudiating the Bush Administration’s interrogation policies that many described as torture.

Meanwhile, the Republicans are struggling.  Mightily.

Each week seems to bring new headlines that suggest a party in disarray,  with an unclear voice, hierarchy or direction.  One week it’s Rush Limbaugh saying that Colin Powell is not actually a Republican. Another it’s Meghan McCain, daughter of the defeated presidential candidate, slamming conservative pundit Ann Coulter.  

In this climate, it can be easy to forget that the political scene was completely reversed less than five years ago.

After Bush soundly defeated John Kerry in the November 2004 presidential election, the Democrats seemed to some to be poised on the brink of irrelevance, or, even worse, obscurity.  Bush’s victory,  which gave him the opportunity to later appoint two Supreme Court justices, was the seventh by a Republican in the previous 10 presidential contests.  Continued majorities in both the House and Senate accompanied his triumph.  

New York Times Magazine political reporter Matt Bai remembers this dry period in the Democrats’ history.

He traces the party’s path back from the political netherlands to reclaiming the House, the Senate and the majority of governorships, in The Argument: Inside the Battle to Remake Democratic Politics.

The road to political redemption was a twisted one, with many engaging characters and twists along the way.

Bai begins the book with Kerry’s crushing, and apparently surprising defeat in 2004 (I had had a strong feeling about the race’s outcome from the point that he did not respond forcefully to the Swift Boat attacks in August and thus did not share the surprise of some of the sources Bai interviewed.  If anything, Kerry’s lack of response reminded me strongly of Michael Dukakis‘ failure to counter the Lee Atwater-conceived Willie Horton ads that had such a devastating effect on his candidacy.).

From the loss, Bai moves to explore the different level of change in party operation and vision that Democratic strategists and members felt were necessary.  Democracy Alliance founder Rob Steinn is shown as playing a key role in raising party awareness about the degree of organization the Republicans had fostered, thereby helping people understand what they confronted. 

Bai spends a lot of time in the book talking about the ascending role of technology-a development that led to the surprisingly successful candidacy of Howard Dean and his later selection as party chairman, the emerging power of organizations like Eli Pariser’s MoveOn.org and the potency of bloggers like Markos Zuniga, creator of the wildly popular DailyKos.

Technology also is a lense through which one sees some of the major conflicts between, on the one hand, the 1990s, Clinton-era establishment, who modernized and moved the party toward the political center and who fashioned two presidential victories by traditional methods of fundraising and politicking, and, on the other hand, the more progressive and technologically oriented new guard embodied by Zuniga and Pariser.   

The resulting conflicts are often messy. 

At one party gathering, the former president loses his temper when questioned about his wife Hillary’s vote to go to war in Iraq, and proceeds to rant about all kinds of right-leaning policies and directions he says were ascribed to him.  Bai also shows the ongoing and occasionally public struggles between current White House majorduomo Rahm Emanuel and the then-party chairman about Dean’s 50-state strategy-an approach, which Emanuel felt diverted valuable resources from battleground states. 

In the end, the Democrats swept to victory. Each of the groups and people listed above, and a host of others could claim some share of the triumph, if not the spoils. 

The question about the argument was less clearly answered.  Bai ends the book with a lion in winter-like address from former New York Governor Mario Cuomo, who reminds the exultant Democrats that, despite their smashing electoral victories, they still “have no big idea.” 

The Argument has a number of the strengths and weaknesses that characterize much of Bai’s work that appears in The New York Times magazine.  His intelligence, writing skills and thorough reporting are apparent throughout the work, and yet one often leaves his pieces, and, in this case, the book, feeling like you’ve not actually learned much new or different. 

The Democrats’ need to articulate a vision greater than “We are not the Republicans” has been known for a long time. So, too, has the Republicans’ superior ground level organizational capacity, forged during the late 70s and 80s by people like Richard Viguerie, strategist Grover Norquist and strengthened in the 90s by Christian Coalition leader Ralph Reed.  His explanation of the rise of blogging is engaging and not particularly informative to the tens of millions of people who have clicked onto DailyKos during the past decade.   

Bai does not explore the mixed legacy of the Clinton presidency as fully as he could, and Ned Lamont’s primary victory over Joe Lieberman, which Bai seems to herald as the triumph of the new way, seems a bit hollow given Lieberman’s ultimate triumph.  

One gets the sense while reading The Argument that Bai is writing for those people who were among Rob Stein’s target audience-Democrats who did not get why their party was being consistently clobbered in elections, yet did not think that drastic action or rethinking needed to be taken to stop the slide.  

Which brings us back to Obama and the Democrats’ current strong position. 

Obama appears in The Argument as a skilled writer who unsurprisingly adopts a both/and position toward traditional party stalwarts and the emerging online progressive movement.  He contributes a spirited articulation of his position in a lengthy blog post which he urges people not to demonize Republican, affirms the establishment’s importance and uses available technology to share his views.  

Bai writes tThe afterword was written during the throes of Obama and Clinton’s fight for the Democratic nomination. The section includes the following somewhat prescient thought: 

“Should Obama win the nomination, though, and perhaps even the White House, he will face a choice where the powerful progressives in his party are concerned: whether to attempt, through the power of his personality and argument, to lead the new movement away from the limited politics of hostility and toward some modern vision of liberalism, or whether to become, like so many political leaders before him, a reflection of the movement he inherits.  If Obama can’t change the trajectory of the new progressive movement, then the movement will very likely change him.” 

Obama has not been president long enough to definitively answer the questions Bai or Cuomo pose, and the answers to those questions may go a long toward predicting whether his victory is a blip on the screen of Republican dominance or augurs a new era in liberal thinking. 

For posing those questions, and for providing an enjoyable read along the way, Bai deserves credit, even if The Argument does have a number of flaws.