Chief Justice John Marshall: Not Enough "Experience"?

The one thing supporters and opponents of Elena Kagan’s nomination to the Supreme Court should agree on is this: it’s about time we had some non-judges on the high court…again.

The history of the Supreme Court is one filled with brilliant (and some not-so-brilliant) members who had never been judges before being confirmed. That was once considered not only normal, but a good thing. The non-judges have been some of the most remarkable names in the Court’s long history: Marshall, Brandeis, Frankfurter, Rehnquist, Warren. Thirty-seven other justices were part of the “not-a-judge” club. They brought a different view from that forged by a career in robes and, whether you agreed with their reasoning on individual cases, you could not argue that their perspectives were valuable.

Some, like Alabama Senator Hugo Black, President William Taft, and California Governor Earl Warren brought the political experience of elected office. Their frame of reference was not a narrowly legalistic one but rather one that incorporated the give-and-take of the public will. Others, like Attorney General Harlan Stone, corporate attorney Lewis Powell, and NAACP chief counsel Thurgood Marshall saw the law in ways that were deeply informed by their varied careers.

This was once considered a benefit — the idea that the nine (men) would deliberate and debate using the experiences they brought to the Court was thought to be the essence of the uniquely powerful and independent American judiciairy. Oliver Wendell Holmes wrote:

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become.

Currently all nine members of the Court were not only circuit court judges but appellate court judges as well. They’re all steeped in the Federal judiciary, for better or worse. Amidst the predictable arguments from Kagan’s opponents — she’s a nutty liberal anti-military lesbian — her lack of judicial experience seems a pretty dumb thing to pick on. That didn’t stop the president of the conservative Ethics and Public Policy Center Ed Whelan from going in whole hog:

Kagan may well have less experience relevant to the work of being a justice than any justice in the last five decades or more. In addition to zero judicial experience, she has only a few years of real-world legal experience. Further, notwithstanding all her years in academia, she has only a scant record of legal scholarship.

All of which is true…of Kagan and the late William Rehnquist. Rehnquist — arguably the first justice to vigorously push a newly-developoing hard-right legal philosophy into the Supreme Court’s deliberations — was a darling of conservatives. But his resume was as “thin” as Kagan’s and arguably more troubling if “real-world” experience is what you’re after.

Out of Stanford Law in 1952 Rehnquist clerked for Supreme Court Justice Robert Jackson. It was there he wrote a controversial brief arguing that Plessy v Ferguson was “right and should be affirmed.” You may recall from 8th grade history that Plessy was the 1896 ruling in which the Court declared that racial segregation was perfectly constitutional under the theory that “separate but equal” accommodations were enough to satisfy the law. And that was pretty much that in terms of Rehnquist’s judicial legal experience.

He moved to Phoenix and was a private practice attorney who worked with the state’s Republican Party including Presidential candidate Barry Goldwater. When Richard Nixon was elected he brought Rehnquist to Washington and installed him in the Attorney General’s office as essentially the AG’s legal counsel. Two years later Nixon placed him on the Court. While 26 Senators voted against him — including two Republicans — no one said he didn’t have enough judicial or legal experience.

The truth is Supreme Court nominations are now primarily political battles. Certainly Nixon faced something similar when his first two picks for the Court were rejected by the Senate but his next choice — Lewis Powell — was confirmed 89-1. That kind of vote wasn’t so rare all the way into the early 90s. As incredible as it seems now, uber-conservative Antonin Scalia was confirmed 98-0. Not one Democrat voted against the most provocatively conservative nominee in a generation. (OK Robert Bork was probably more provocative but still, 98-0???).

And so it should surprise no one that conservatives are bust trying to define the nominee just as they tried to do with Sonia Sotomayor and liberals did with Bork. The game is well known and it is on. The right is gonna have to do better than “she’s not been a judge” though. I’m betting they run with the gay thing. Let’s see how that works for them….

Lost amidst the appropriately non-stop coverage of the failed car-bombing in Times Square, the predictably masturbatory coverage of the White House Correspondent’s Dinner (“Morning Joe” was particularly nauseating), and the other news of Obama’s first visit to the burgeoning enviro-cataclysm on the Gulf Coast, was Saturday afternoon’s commencement address by the President.

Obama, like others before him, chose to use the address not only to speak to a group of graduating college seniors, but to the rest of us as well. His topic was the media and his focus was one very close to this blog’s heart (can a blog have a heart? if it can have an oft-vented spleen, then why not…) — the vanishing importance of facts in journalism and in America.

Get Real has been, from the start, an attempt to separate the wheat (facts) from the chaff (opinion) when it comes to mainstream media reporting. We’ve taken on the NY Times and the NY Post — MSNBC and Fox News Channel. The point has not been to simply point fingers and move on but to get people to start thinking about the consequences of a media filled with people talking about the news instead of reporting the news. The distinction is important because without the reporting, the often expensive and painstaking work of gathering facts, highlighting mistruths, and giving the rest of us a baseline understanding of what’s actually going on, there will be no actual news left to talk about. The scary thing is how quickly we’ve moved in that direction.

And so on Saturday afternoon Obama chose to discuss this very topic.

Today’s 24/7 echo-chamber amplifies the most inflammatory soundbites louder and faster than ever before.  And it’s also, however, given us unprecedented choice.  Whereas most Americans used to get their news from the same three networks over dinner, or a few influential papers on Sunday morning, we now have the option to get our information from any number of blogs or websites or cable news shows.  And this can have both a good and bad development for democracy.  For if we choose only to expose ourselves to opinions and viewpoints that are in line with our own, studies suggest that we become more polarized, more set in our ways.  That will only reinforce and even deepen the political divides in this country.

Of course Obama has a political motive to talk about this. He won as the “uniter” by appealing to independents who told pollsters they didn’t like the tone in Washington. A year later the tone is uglier than ever and Obama knows he will never succeed by jumping into the swamp. But it was interesting the see the reaction to his speech of those around me. I was with a die-hard conservative and seated near some people who’d loudly talked about how they’d wished the university had picked someone other than “that socialist” to give the commencement. What did they think of all this? Obama continued.

If we choose to actively seek out information that challenges our assumptions and our beliefs, perhaps we can begin to understand where the people who disagree with us are coming from. Now, this requires us to agree on a certain set of facts to debate from.  That’s why we need a vibrant and thriving news business that is separate from opinion makers and talking heads. That’s why we need an educated citizenry that values hard evidence and not just assertion. As Senator Daniel Patrick Moynihan famously once said, “Everybody is entitled to his own opinion, but not his own facts.”

That last bit had everyone, including the conservatives around me, clapping their hands and shaking their heads in agreement. So Kumbaya, right? If only life were so easy. Without resorting to an instant polling session (made impractical by the fact that the ceremony continued on for another hour) I couldn’t find out if everyone really in agreement or just agreeing that the other side should stick to the “facts” more. It would be great if the former was true but I fear it’s more likely the latter.

Several polls (notably the Pew Poll) have shown a deepening of the partisan news divide and an increase in American’s dependence on cable news networks for information. Since two of the three major cable news networks have abandoned almost any sense of objectivity (that afternoon a Fox News anchor teased an upcoming segment, “A new move to ban toys in Happy Meals: Is this another example of the nanny state? A fair and balanced debate next!”) it’s fair to say that more and more of us are seeing less and less actual journalism. The result, like that following our move towards a fat and sugar-laden fast food diet, is obesity — in this case an intellectual obesity in which people have no hunger for, nor interest in, anything they aren’t already consuming.

Obama’s plea for a healthier news diet was truly non-partisan because many liberals seem just as righteous in their certitude as conservatives (compare the Daily Kos with Red State and you’ll see what I mean). But will anybody actually act on the good doctor’s advice? Will the media actually spend a second to reflect on its responsibility for any of this? And if this is really so serious, shouldn’t Obama have repeated this address (or at least the substance of it) later Saturday when he flew back to Washington to speak at the White House Correspondents Dinner instead of giving a predictable, mildly amusing, totally inside-the-beltway dinner speech? That certainly would have garnered some headlines.

Instead it’s Monday, and everyone’s returned to their roles. On the kooky Fox and Friends co-anchor Brian Kilmeade looked at the surveillance video released by the NYPD showing the suspect in the Times Square car bomb attempt and said, “What I was surprised at is that right away they say he’s a forty-ish white guy…. I don’t know if they’re just placating the public but that doesn’t look like a white guy necessarily.” Check out the travesty here.

This morning all of our smartphones and email inboxes were filled with alerts from the papers — the economy is growing and the recession really seems to be over. Of course it “officially” ended six months ago but we long ago lost any belief in economists or their data. But note what the stories this morning said — consumer spending led the charge. Look at the Wall Street Journal’s lead graph:

The U.S. economy’s expansion slowed at the start of 2010, but the rise in consumer spending which drove it bodes well for the future.

If consumers are spending more they are by definition feeling better about the economy and that generally translates into feeling better about the current people in power. Not always, but generally and that bodes well for the Dems. Not that you’d know it from the news. While we can fully expect Maddow and Olbermann to point this out it’s unlikely we’ll be hearing anything from Fox or CNN any time soon about this because it doesn’t fit their narrative.

The political spin cycle now runs 24/7 and the cable nets have become video versions of the blogosphere — fast, furious and fundamentally useless as sources of journalism. Unless by journalism you mean the minute-by-minute chronicling of the rumor mill. So the storyline for now is set — the Democrats are headed for disaster in November, Obama is on a roll (until he isn’t), the Republicans are having an existential crisis and the Tea Party brigade holds all the cards. Nice story if any of it held water. Like much of what passes for news on these “news” networks, this story has shreds of truth that have been repurposed to build a simplistic, almost fictional, tale of political intrigue. The problem is people actually believe it’s based on reporting and facts, when it’s pretty clear it is not.

For junkies it’s fun to get caught up in the daily drama but let’s see what all these polls say in September. If the jobs picture is improving then as the GDP is now (and jobs are almost always a lagging indicator of economic conditions), history indicates that Democrats will probably lose seats in Congress, but not control over either or both chambers. So instead of watching the blowhards on cable, check in each month with the jobs report. It’ll tell you way more about what November holds than the ferocity of the Tea Baggers.

Is this what they mean by "Tea Party"?

From the Department of Inescapable Conclusions comes this: the Tea Party movement is basically racist. That little gem is pointedly NOT included in the New York Times’ analysis of their own poll on the TPers — the paper’s focus is instead on the more “surprising” (to Upper East Side liberals anyway) finding that the people who identify themselves with the movement are educated. Can’t wait to see Fox have a field day with that one….

The new poll  comes hot on the heels of a Gallup Poll released last week that also looked at Tea Party supporters (different from people active in the movement as defined by the Times) and how it’s supporters stack up ideologically and demographically with the rest of America. Both polls give a similar demographic snapshot but the Times poll went far deeper into what TPers actually think and believe. The result is strong support for the argument that while the TP movement is ostensibly driven by anger and fear over the economy and government, the elephant in the room is race. The President is a black guy. That’s the problem.

The Times poll has lots of interesting data sprinkled throughout its 110 questions (who actually agrees to sit through all those questions?) including much that is predictable: TPers are better educated, whiter, older, richer, more Republican and vastly more politically conservative than the average American. There are also some telling surprises like the fact that the economic downturn seems to have effected the TPers less than the average American even though Tea Party members are far angrier about t

Let’s start with question 52.

Favor whites                  Favor blacks                   Treat equally                   Don’t know

U.S.                              2                                   11                                   83                                  5

Tea Party                     1                                   25                                   65                                  9

Once Upon a Time in Boston (REUTERS/Brian Snyder)

Ten years ago when I was doing a story on same-sex marriage, an advocate for gay rights said legal gay marriage would take time but would eventually become commonplace in America. It’s beginning to look like he was right and if prior highly-charged civil rights struggles are any indication it’s happening very quickly by historical standards.

Amidst the arguments for and against the central battle comes down to whether America is a country where the majority rules. The Founding Fathers certainly did everything they could to prevent that from happening with their rules to limit public participation in the sausage-making of government but there has always been a strong appeal to the notion that our laws ought to reflect public sentiment — even when public sentiment is off-the-tracks.

Which brings us to the case of courts conveying the right to marry upon same-sex couples and the countervailing push to have the public overrule or preempt the judges. Last November it worked in California. It did not work in Arizona. Now Iowa and Vermont have joined the club and present major difficulties for the anti-marriage forces. Iowa makes amending it’s constitution difficult and time-consuming. The earliest the Iowa court could be overruled would be 2012 and Massachusetts showed what can happen when people see gay couples getting married and the bedrock of civilization not crumbling.

Vermont is even tougher since, for the first time, the Legislature voted for same-sex marriage while overturning the governor’s veto. That’s an uphill battle, even for well-funded Mormons.

Both sides should look back to the century-long fight over interracial marriage for a lesson in how far public opinion can lag behind what courts deem fundamentally right — and how those strong feelings dissipate.

Hint: When people argue such-and-such will happen over “my dead body” they are right. It does happen as older voters with older notions of right and wrong die off.

Watch the video for more.

Gay Marriage Tipping Point from Jay DeDapper on Vimeo.