"Impeach Earl Warren"

Just tweeted to Orin Kerr on the impact of the Earl Warren court on American life.

The cry of "Impeach Earl Warren" was likely more widespread in the 1960's than any slogan of more recent years.   It's memories like that which make me think we were more divided then than we are today.

The Benefits of Moderates

Who is appointed and confirmed to the Supreme Court is very significant.  My spouse is very concerned.  The senators who seem to be key are Collins and Murkowski on the Republican side, who presumably would not want an appointee certain to overturn Roe.  And on the Democratic side, the WV, ND, MO, and IN senators who might want to polish their non-partisan credentials by voting for a Trump appointee.

Ideologues on both sides want to oust the RINOs and DINOs in their party.  The more they do so (no Jacob Javits or Hugh Scott in today's Republican party) the more power the remaining individuals have. 

It's similar to the maneuvering within the Court itself.  Back in the old days, Sandra Day O'Connor was the swing vote, and Kennedy was just a slightly less conservative than his fellows on the right.  O'Connor retires, promoting Kennedy into the swing position.  Kennedy retires, and the conventional wisdom is that Chief Justice Roberts becomes the swing. 

Unions and Marketing Agreements

The Supreme Court struck down the ability of unions to charge fees to non-members for service rendered in representing them to management. 

A couple comments:

1. FSA in DC became unionized before I retired.  As a manager, it was another pain, another hoop to work through.  But it wasn't really that big of a deal, as I remember it.  My suspicion is that the union has become less effective over the years because of turnover in its members, meaning the original members who pushed to get the vote have retired and/or got tired.  That's the way humans do.  (Might be wrong, particularly as issues like Trump's attitude towards civil servants and more importantly Perdue's proposals for reorganization have come to the fore.)
2. As I've been distracted by working on a book for a relative I've not read the decision or evern detailed discussion of it.  But, not allowing that to stop me, I'd think the principles of the decision spell trouble for the agricultural marketing order/promotion system.  I'd think the argument is the same: being required to pay fees to a union or promotion fees to a promotion organization is a violation of free speech and free association.

That's not to say I like the fact.  While sometimes I lean libertarian I do think the government can appropriately encourage the formation of groups, like unions and marketing groups.

Chevron and Regulations

One of the big things about Judge Gorsuch as he tries to be confirmed by the Senate is his position on
Chevron, not the oil company but the Supreme Court case which determined how much deference, if any, should be given to an executive agency's interpretation of laws which resolve ambiguities in the language of the law. The majority opinion said courts should defer; Judge Gorsuch says "no deference" (very short summary there).

As a bureaucrat you know I come down on the deference side.  One of my reasons isn't much discussed: the reality of Congress and politicians.  For a given issue politicians have to come to some consensus, some resolution, else they'll get blasted as "do-nothing" by Harry Truman or the Dems in 2018.  But the reality is resolution is hard in a democracy--there's no magic sauce to make everyone happy.  The result is that Congress cobbles together something to show the voters.  That "something" is often a law which straddles both sides of the issue, or fuzzes the issue with vague language or lawyerisms such as "as appropriate", "reasonable", etc. etc.In other words, Congress often doesn't make decisions, it kicks them over to the poor bureaucrats in the agency who have to implement the law.

IMHO the people who agree with Gorsuch are living in a dream, one where ambiguities in legislation are mistakes by Congress, mistakes which can easily be fixed if the Court, instead of going along with the agency's fix by regulation, kicks the problem back to Congress for an easy and expeditious fix. 

In my view ambiguities aren't mistakes, they are features of the democratic process of legislation.

Ginsburg and the Election

One of the concerning things to me is the possibility of a repeat of 2000.  Trump/Clinton has changed some of the normal election dynamics and my hunch is that the changes increase the likelihood of one candidate winning national popular vote, and the other candidate winning the electoral college.  (My idea being that Trump may suppress margins in the red states but do well enough in blue and purple to squeak through.) If that happens, the lawyers will find a way to litigate.

Jonathan Adler at Volokh speculates that Justice Ginsburg has now take steps to ensure there won't be a 4-4 split in the Supreme Court on any election issue.

Counter-Clerks: What Scalia Got Right

A former law clerk for Justice Scalia writes about Scalia's "counter-clerks".  Usually each year he'd hire one of his four law clerks as a liberal, a devil's advocate whose mission was to keep his arguments honest.  Seems to me it's the sort of thing each Justice should have.  And not a bad thing for everyone.

Court Gamesmanship

Having just seen my prediction for the Presidential elections go up in flames with Rubio's withdrawal, I forge ahead with commenting on the Supreme Court.

I seems to me that Obama has this strategy:
  

• taking the Senate Republicans at their word--they won't vote to confirm any appointee now.
• Clinton is going to be the Democratic nominee and she's likely to beat Trump.
• if she beats Trump, there's some chance a nominee who's not a liberal icon and who's a little older will seem more palatable to the Republican Senate after election day.  That's particularly true if the new Senate has a Democratic majority.   

Paul Meringoff at  Powerline, a conservative with whom I almost always disagree, seems to support my theory, writing this morning: " Things might look different in September, if Hillary Clinton is 25 points ahead of Donald Trump in the polls and the Republicans are headed towards losing the Senate. In that event, Garland might look a lot better."

A Tear for Justice Douglas

Nathan Yau at Flowing Data has a chart of the liberal/conservative scores of all justices since 1937.  The point is to show how replacing Scalia will make a big change in the median justice.  It's fine for that.

But for me, a person who remembers the days of "Impeach Earl Warren", it's fun to look toback over history.  Liberals today are more tightly grouped than in the last 50 years.  But look at the outliers over time.  Justice Thomas is one, but the real outlier is Justice Douglas.  The metrics used run from -6 to +4 with minus being liberal and plus being conservative.    So, during the years shown (1937-2015) the outliers are:

• Douglas (-6)  (eyeballed) who wanders ever more "liberal" until the end
• Rehnquist (-4.5) who's most conservative in 1975 but grows more and more moderate, particularly after becoming chief.
• Marshall (-4.3) who becomes more liberal
• Brennan (I think) (-3.9) who becomes more liberal
• Thomas (+3.5) who's pretty consistent, a bit more moderate in recent years
• Scalia (+3.5) who's amazingly changeable, starting off at +1.2, going to +3.5 in 2000 and back to +2

The conservatives get frustrated with the Court.  A clue to why might lie in an eyeball comparison of liberals and conservative justices since Nixon--the conservative paths seem to be more scattered and variable than do the liberal ones (particularly after discounting Brennan and Marshall).  The variability probably means they're less effective in joining to form a majority.

[updated--the reason for the title of the post--Justice Douglas was talented, but he became seriously odd in his later years.)

Hypocrisy, Thy Name Is Human

Some more on Scalia:

• a Post piece by a liberal who clerked for him.  At least during the first 20 years, he usually had a liberal clerk.  I guess as a Catholic he believed in the devil's advocate (the post in sainthood proceedings).
• politicians are by nature hypocrites--a good way to persuade people is to make them believe you agree with them, and the only peaceful way to resolve conflicts is to persuade people.
• the fight over his replacement is occasion for a lot of hypocrisy on both sides.
• prognostications on the importance of the replacement process forget we have several senior justices, anyone of whom might kick the bucket at any moment, which would decidedly upset current calculations.

Republican Dominance of the Supreme Court

In the wake of this week's Supreme Court decisions, some Republicans/conservatives are bemoaning the Court and its membership. 

I had an idea, but I was surprised to find these facts, from wikipedia:

Years since Democratic appointees were last a majority on the court: 43  (Nixon in 1972 )

Years there were at least 7 Republican appointees on the court: 1976-2012

Raisins and Vaccines

I've been active in commenting at Volokh Conspiracy on a post concerning the raisin marketing order case which went before the Supreme Court yesterday.

For some reason the issue raises my emotions; partly because I dislike free riders and that's how I view this cases.  It's ironic that the chattering class has been vocal about the measles vaccine, and the problem the anti-vaxers cause while they're united in support of Mr. Horne's free riding on the raisin producers.

Hot News--No Marketing Quota

Ironically, given the prominence of Wickard v. Filburn  in the arguments over the constitutionality of the PPACA (healthcare), USDA just announced there will be no marketing quotas for 2013 crop wheat.  (Because the 2008 farm bill only covered through 2012, the 1938 AAA comes back into effect for 2013 wheat.  If the Secretary thought quotas were needed to balance production and demand, he would have announced they were in effect and called for a referendum of wheat producers to vote on whether the quotas would be implemented.  If the producers approved quotas, then we would be back in the situation which created Wickard v Filburn.

Walmart and Pigford

The Supreme Court decided a case involving Walmart yesterday.  Ann Althouse has a summary of the case which is clearer than what I've seen or heard elsewhere.

I thought of Pigford.  

I wonder if it would have been recognized as a class action lawsuit if the Walmart case had been decided before Pigford.  To me, though not a lawyer, the cases seem similar.  In both a national organization is being sued for discrimination. In both cases there's some decision making done at the national level and some at the local (regional or store for Walmart, state or county for FSA).

If Walmart had been decided first, USDA/FSA could have argued that there was no national discriminatory policy in effect, therefore there was no "class" to file a class-action suit.  That would have required the aggrieved parties to file suits at the state or county level.

Of course, Congress could have stepped in, I guess.  They stepped in to extend the statute of limitations because Pigford hadn't been filed timely so I guess they could have waived their wand and said that black farmers/potential farmers were a class.

Of course, if Walmart had been raised back in the early 90's, Sandra Day O'Connor would have been on the Court and so the verdict likely would have been 5-4 the other way.  Does the different result yesterday reflect 8 years of Republican Presidents or a change in the national climate of opinion, or maybe just chance? 

Best and Worst of America

Side by side in today's Washington Post.  First its coverage of the Supreme Court hearing of the Rev. Phelps demonstration near the funeral of a soldier.  Second an article on the death of a food cart vendor in DC, who over 20 or so years developed an extensive network of friends among the people who bought from him.

Why the "best and worst"?  The activities of Rev. Phelps are disgusting and disgraceful.  They also, IMHO, should be legal if I understand the situation correctly, i.e., that while close to the funeral, the demonstrators weren't at the funeral.  Meanwhile, Carlos Guardado was making friends on K street, a site not known for its public-spirited and outgoing denizens.  Starting as an illegal immigrant, he became legal.  As a book by Harry Golden once said: "Only in America".  (Golden coined the "Vertical Negro Rule" and inspired Calvin Trillin to coin the Harry Golden rule:  "in present-day America it's very difficult, when commenting on events of the day, to invent something so bizarre that it might not actually come to pass while your piece is still on the presses." 

"Originalism" and the Israel Court

This Politico story on Kagan and the chief justice of Israel's Supreme Court mentions that Israel doesn't have a (written) constitution.  Nor, for that matter, does Britain.  I wonder how the "originalists" see the role of a judge in such a nation?

Klobuchar for SCOTUS? or President?

Via Volokh, a long post by Tom Goldstein predicting what happens in Supreme Court positions.  (Short answer: Stevens retires, Ginsburg doesn't.)  He runs through the possible candidates, ending with Sen. Klobuchar. From what little I've seen of her, I was mentally tipping her for POTUS.  When you ask, who will run for the Dems after Obama, and who might be the next female candidate, she seems to me to stand out.  Remains to be seen whether she would want either job.

[Updated: I Googled "Klobuchar for President" and found I'm out-of-date.  Here's a discussion--apparently she has too much of a sense of humor to be President.  Not a disqualification in my eyes--our most humorous President was also our greatest.]

Understanding America, II

I'm most of the way through the book. Two points that occurred to me, which may be related:

• there's no mention so far of Baker vs Carr, which was the big Supreme Court decision enforcing "one man, one vote". (Actually, it seems to have said the Supreme Court would have a say in reapportionment of legislative districts, with subsequent decisions actually saying one man, one vote.) Chief Justice thought these cases the most important set of decisions of his term. The significance was that both in the House of Representatives and in the State legislatures rural areas had a disproportionate representation. If memory serves, in some States the ratio was as bad as 1 to 10 (i.e, a rural voter had the same representation as 10 urban voters).
  
• the end of "blue laws". Don't rely on wikipedia--it's not a good summary. These were laws restricting the times stores could open (like only Thursday night and never on Sunday). I'd also include the "fair trade" laws, which required merchants not to discount their merchandise.

These two changes, IMHO, were not only interrelated, because the rural people were more concerned with restricting the aggressive advance of commercialization and the undermining of local stores by competition from the big city, later to be Walmart and Target, but also accelerated lots of the other changes in the culture we've seen since my childhood.

I'm prompted to write this because Dirk Beauregard, at the end of his post on the Miracle Weekend in France, observes that new French laws will legitimize Sunday openings.

Wisdom and Experience and Backwards in High Heels

What is wisdom? I'm referring of course to Judge Sotomayor's "wise Latina" comment.

But what makes for wisdom? Is the person with the wider variety of experiences more likely to be wise than the bureaucrat who sticks to the same cubicle for all his life? I suspect most of us would say: "yes". One of the common themes of fiction and drama is: "seize the day"--search out the new and different. Mostly the logic is it's the road to a richer and fuller life, self-realization and all that. But some of the time the corollary is that varied experiences is wiser, and leads to wisdom. (The journey of self-discovery, as in Harry Potter's journey.)

So maybe I'm a wise old man--wise because old, not particularly because of diverse work experiences. Or maybe not--maybe I've just keep relearning the same thing over and over. I'd tentatively agree that, all things being equal, living longer and more widely leads to wisdom And, therefore, Sotomayor has a better opportunity to be wise than her close counterpart, Justice Alito, simply because a woman in a man's world has more varied experience than a man in a man's world.

Seems to me there is another issue than the basis of wisdom: does wisdom always lead to the same answer--Justice O'Connor's original statement seemed to say it did: a wise man and a wise woman would reach the same decision. But I don't think so--there are many decisions where only history will say whether they're wise, and many others where even history doesn't say.

Supreme Court Speculation

I find it fun to speculate how Ms. Sotomayor's confirmation to the Court might work out. We know Ginsburg and Scalia are the best of friends, which is totally surprising and counter-intuitive, so let me guess:

• Sotomayor and Thomas might well get on. He seems shy, she seems not, they share a background in that their opponents diss their appointments and careers as affirmative action babies.
• Roberts, Alito, and Sotomayor are of an age, so there might be a generational divide. It might be hard for Sotomayor to show Stevens, Ginsburg, and Breyer the deference which they might expect from their seniority. Sotomayor, Roberts, and Alito might form a "new boys [sic]" club.
  
• Obviously Ginsburg and Sotomayor would share the gender experience.
• Alito graduated from Princeton before she did, and didn't like the idea of women undergrads, but old alums might share a bond.
• There seems to be little common ground between Sotomayor and Stevens or Kennedy, which might be bad news for us liberals.

Of course, the other lesson from the Ginsburg/Scalia bond is that justices can perfectly well separate their opinions and their personal feelings.

Wisdom and Sex and Race, and Age

Many on the right have attacked Judge Sotomayor for a quote from a 2001 speech. I was going to blog on it, then stumbled on the "whole thing", which I finally read. Here's a link. I like it. And recommend it.

But for anyone too lazy to check it out, here's the infamous quote, which the White House says is poorly worded: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

Let me rephrase it: "I would hope that a wise old man with the richness of his experiences would more often than not reach a better conclusion than a wise young man who hasn't lived that life."

My point: I hope I'm wiser now at 68 than I was 20 years ago, much less 40. I'm sure I'm losing brain cells and slowing down. I've probably developed new blind spots and am less able to judge some things (like current popular music) than I was 20 years ago. But on the whole, I think I'm wiser. And that's because of added experiences, experiences which a wise Latina wouldn't have, but which I didn't have 20 years ago. And I'm willing to stipulate a Latina operating in a white male's world is likely to have a broader set of experiences than a comparable white male. So, given that logic, I'd concede my hypothetical Latina twin sister would be wiser than I.