Leonard Link

Packing the Supreme Court.... Yet Again

Every president tries to do it, but few succeed.  I just finished reading "Packing the Court," a marvelously gossipy political history of the U.S. Supreme Court by James MacGregor Burns, the eminent historian.  Burns has an axe to grind here.  He thinks that judicial review, the process by the which the Supreme Court declares unconstitutional federal and state statutes, is illegitimate, not intended by the framers as part of the authority of that Court, and drawn pretty much from thin air by the great Chief Justice John Marshall as a means to assert judicial primacy on behalf of the Federalists once the political branches of the government had been taken over by the new Republican Party of Jefferson and Burr.  (That Republican Party, as it was then called, evolved into the Democratic Party that we know today, the name Republican being later taken up anew by the remnants of the Whig Party in the decade prior to the Civil War.)

Burns shows in amusing detail how presidents have sought to control the direction of judicial development by putting on the court judges whose views they expect to reflect the presidents' policy preferences.  This has been the case throughout our history.  Reading this book is a salutary lesson as we prepare to witness the confirmation hearing this week of 2nd Circuit Judge Sonia Sotomayor for a seat on the Court.  Whatever the Senators says, any attempt to claim that President's Obama's nominee should be judged unqualified because she would bring her background, ethnicity, sex, etc., into play as she judges cases would be totally ahistorical.  Presidents have selected judges for precisely that purpose since the founding of the Republic.  Anyone who claims that Bush didn't select Roberts and Alito for precisely that purpose is lying through their teeth...  The occasional exceptions are so extraordinary as to be almost unique - I'm thinking of Hoover's appointment of Cardozo, a rare occasion when the President used no litmus test other than quality.  Coming a close second would be Ford's appointment of Stevens.

Presidents have always tried to put on the Court justices who would, they hoped, reflect their views on the hot issues of the day.  The problem, of course, is that Supreme Court Justices tend to serve for a long time, and relatively quickly the hot issues of the day change, so that the Justices are deciding issues as to which their appointing Presidents had no ken at all when appointing them.  For example, abortion was not seen as a hot Supreme Court issue when any of the justices who decided Roe v. Wade was appointed.  Only after Roe did Presidents come to treat an appointee's likely view on abortion rights as important.  Abortion has actually come to dominate the process, but in appointing Justices who they thought would embody their view on abortion, Presidents have ended up putting people on the Court whose views on other topics were unpredictable.  And, of course, since Presidents know they can not get away with actually securing commitments to vote a particular way on any question, a string of presidents have been disappointed to have appointed justices whom they hoped would overrule Roe but who ended up refusing to vote that way.  

Years ago, I wrote a law review article contending that the confirmation process had gotten totally out of hand.  My suggestion was that nominees should not testify, because anything they might say of substance on any questions that might come before the Court would be a gross violation of judicial ethics.  Instead, my view was that candidates should be judged solely on the basis of their reputation their record of achievement.  On that basis, some of the appointments of recent decades should not have happened, because the nominees were obscure enough not to have the kind of substantial record that would merit appointment to the US Supreme Court.  I'm thinking here of Clarence Thomas, for example, whose credentials for the appointment were quite thin.

Looking forward to the Sotomayor hearings, it seems to me that the questioning strategy that has been discussed by the Republicans of focusing on her opinions with which they disagree is rather besides the point.  As a judge on a federal court that was bound by Supreme Court precedent, she was not a free agent to vote her own views.  And it seems that her most controversial votes were in line with existing precedents, thus belying the charge that she is some kind of "judicial activist."  A judicial activist, by my reckoning, is a judge who departs from precedent to make new law...  And by that token the biggest activists on the current Supreme Court are the Republican appointees, whose appointing President's extolled them as strict constructionist, non-activists, a lie if ever there was one.

To get back to the purpose of this posting.... Burns's book is a marvelous read and a marvelous resource, and anybody who reads it with an open mind will be left with quite a bit of cynical acid for observing the confirmation process that will unfold in the weeks ahead.

Judge Sotomayor is one of the best qualified persons to be nominated to the Supreme Court in a long time, by virtue of education and training, practice and judicial experience, careful attention to precedent and legislative intent, and her judicious manner of operation.  Comparing her credentials to those of many of the others appointed in our history suggests that she is in the upper echelons of Supreme Court nominations.

Wolffe's "Renegade" - History of the Obama Presidential Campaign

Just finished reading this, after seeing a strongly positive review in last week's NY Times Book Review.  I found it to be fascinating.

Wolffe responded positively to a suggestion from candidate Obama back at an early point in the campaign to consider writing a Theodore-White-style "making of the president" book about the Obama presidential campaign.  The suggestion came at an early enough point that Wolffe could catch up on what had happened so far and then do the kind of close reporting necessary to support such an effort, but far enough along that Wolffe could feel at least some confidence that he wouldn't be wasting his time -- i.e., that there was a good chance Obama would win the nomination and the general election so that such a book was a feasible project.  Even if Obama had ultimately lost, of course, there was a good book in the first really credible race for the presidency by an African-American candidate.  (Jesse Jackson's race, while seriously meant to raise issues, was never close enough to succeeding to be considered the first really credible race for the presidency by an African-American candidate.  As a person who had held office as a state senator and a U.S. Senator, Obama brought more credible credentials for the presidency to the table.  Also, he had more credible educational credentials for the position....)

I followed the presidential election rather closely in the media and on-line, especially voracious reading of fivethirtyeight.com and realclearpolitics.com, and yet there was much in this book that was new to me, not only in terms of the background reporting, which went beyond Obama's books to speak to people from his earlier life, but also in terms of some overview of the strategies and their execution, and of how the election campaign process affected the candidate and his family. 

I do have one criticism, however.  I find the constant jumping back and forth between different periods of time to be very confusing, and would have preferred a book that adhered more closely to straightforward chronology.  But that is really my only criticism.  I found this quite absorbing, and I think that reading it will be both entertaining and enlightening for anybody who wants to understand how this historic campaign was waged, and for a deeper view of the man who has become our president.  I highly recommend it.

A novelist treatment of the life and death of pianist Mewton-Wood

Noel Mewton-Wood, an Australia-born pianist who made his career based in London from shortly before World War II until his suicide in the early 1950s, has had a small revival of interest among classical music antiquarians with the recent reissues in the UK of many of his recordings and some concert broadcasts on CDs (and downloads from Pristine Audio).  On the evidence of these recordings, he was a very talented pianist who had not yet graduated to the point of recording with first-rank orchestras and conductors when he ended his life, although his career was trending in that direction.  Sonia Orchard, an Australian writer, has produced a novel centered around Mewton-Wood's career, titled "The Virtuoso."

Given the time and place, one might surmise that this was a gay man caught up in police entrapment or the like who ended it all rather than face the embarrassment and enormity of adverse publicity and jail.  But that's not the case.  Mewton-Wood seems to have killed himself out of remorse and guilt after the sudden death of his domestic partner from a treatable malady that was ignored - partly because Mewton-Wood, who fancied himself a medical expert, had not recognized the seriousness of his condition.  The pianist poisoned himself with a chemical he had lifted from a friend's laboratory at Cambridge.

Now an Australian writer has produced for her first published work a novelist treatment of Mewton-Wood's adult life as seen from the perspective of a fictional musician-writer who developed a crush on the pianist while attending his debut appearance with orchestra (Beecham-London Philharmonic-Beethoven 3rd Concerto), had a brief affair with the pianist, and then carried a torch for him the rest of his life.  Since M-W had the reputation of having lots of affairs before forming the domestic partnership attachment that lasted the rest of his short life, this is at least a credible conceit about which to construct a novel.  By making the unnamed narrator a musician, the author makes credible the insights into Mewton-Wood's artistry that play a major role in the novel. 

In default of an actual biography of Mewton-Wood (somebody, please....), this novel provides an engrossing introduction into the life of this fine musician, and stands on its own as a well-written study of amorous obsession.  Unfortunately for potential American readers, the book is not released directly in the U.S.  I learned about it from a review in a British magazine.  The fastest way to get it is to import it from Australia.  There are several websites based there that offer mail-order service.  It is a paperback original and not very expensive to obtain.