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Tag: "Supreme Court"

Erik Visits an American Grave, Part 107

[ 42 ] July 18, 2017 |

This is the grave of Potter Stewart.

Born in Jackson, Michigan in 1915, Stewart was a member of a powerful Ohio Republican family. His father was mayor of Cincinnati and then served on the Ohio Supreme Court. Stewart went to Yale and graduated in 1937. He then went to Yale Law School, finished that degree in 1941. After a stint in the Naval Reserve during World War II, he went into private practice back in Cincinnati, but he was ambitious like his father. He was elected to the Cincinnati city council but the Eisenhower administration tapped him for a slot on the Sixth Circuit in 1954. He didn’t last long there either, because Eisenhower named him to the Supreme Court in 1958, at the age of 43. He won confirmation 70-17, with all the no votes coming from Dixiecrats.

I am not a legal historian nor expert like some readers, so let me summarize Stewart the best I can and others can make revisions in comments. Stewart belived himself a centrist but his jurisprudence was quite conservative in his early years on the Court. He dissented in Griswold v. Connecticut because he rejected the right to privacy as a constitutional element. He did the same in Miranda v. Arizona. But when Warren Burger replaced Earl Warren, Stewart did become the swing vote in many cases. He voted with the majority in Furman v. Georgia, which invalidated all state death penalty laws. He also moved to the left on the right to privacy, rejecting his previous ruling in Griswold to go with the liberals in Roe v. Wade. He was also personally disgusted by the Vietnam War and wanted to use the Court’s power to act against it and was part of the majority in ruling that most of the Pentagon Papers should be released. Perhaps most famously, he came up with the famed phrase about pornography, “I know it when I see it, and the motion picture involved in this case is not that.” Given that it was Louis Malle’s The Lovers, he was right. He opposed discrimination based on race but also opposed affirmative action programs. He was a critical player in many other cases over his long tenure; have at it in comments.

Stewart retired from the Court in 1981 and Reagan nominated Sandra Day O’Connor to replace him. He was only 66 and hoped for a long, healthy retirement but he had a stroke and died in 1985.

Potter Stewart is buried on the confiscated lands of the traitor Lee, Arlington National Cemetery, Arlington, Virginia.


Is Our Democrats Learning, Part the Infinity

[ 94 ] April 10, 2017 |

charlie football

It’s a real wonder that the Democrats never actually kick the football.

Sen. Ed Markey (D-MA) said Monday that, if Democrats regain control of the Senate and the White House, they will reverse Republicans’ change to the filibuster rules for Supreme Court nominees.

On Thursday, the Senate voted on party lines to change those rules so that votes to confirm high court nominees could proceed without what previously was the 60 votes necessary to end debate on the nominations.

In 2013, Democrats voted for the same rule change, but only for lower court and executive branch nominees.

“When the Democrats return to the majority and capture the presidency, which we will, that day is going to arrive, we will restore the 60-vote margin,” Markey told MSNBC’s Katy Tur. “We will ensure that, for the Supreme Court, there is that special margin that any candidate has to reach because that is essential to ensuring that our country has a confidence in those people that are nominated, rather than just someone who just passes a litmus test.”

Great idea! 60 votes for a Democratic nominee and 51 for a Republican is a sure ticket for success!!

The investment of liberals in process places them at a severe disadvantage in dealing with an extremist party like the modern Republicans.

Democrats and Gorsuch

[ 68 ] March 20, 2017 |


Democrats don’t seem to be united on how to deal with the nomination of Neil Gorsuch, which is “no way, no how.” Richard Blumenthal gets it:

Sen. Richard Blumenthal (D-CT) said Sunday that he would filibuster Supreme Court nominee Neil Gorsuch and “use every tool that we have” if Gorsuch fails to disavow litmus tests on abortion and guns, among other things.

Gorsuch’s multi-day confirmation hearing is scheduled to begin at 11 a.m. ET on Monday.

Blumenthal, a member of the Senate Judiciary Committee, began by saying on MSNBC Sunday that Gorsuch would have to tell the committee that a ban on any religion is unconstitutional. Judges have said that religious bias motivated President Donald Trump’s recently blocked travel ban.

“Even if he can’t comment on the specific immigration case, he has to at least show that he respects the principle that the government can’t discriminate on the basis of religion; that a Muslim ban would violate the Constitution,” he said.

Blumenthal said he would hold Gorsuch to the same standard on Roe v. Wade, which set a precedent establishing abortion as a fundamental right, and gun control laws.

Michael Bennet on the other hand:

Supreme Court nominee Neil Gorsuch will get some bipartisan cover at his confirmation hearing next week — even if for just a few minutes.

Gorsuch, a Denver native, will be introduced by both Colorado senators — Michael Bennet, a Democrat, and Cory Gardner, a Republican — before he delivers his opening testimony to the Senate Judiciary Committee on Monday. It’s long been tradition that a nominee’s home-state senators give the introduction during the high-profile confirmation hearings. The third person who will introduce Gorsuch is former Obama acting solicitor general Neal Katyal, who has written op-eds and letters to the committee endorsing Gorsuch’s nomination.

Aides to Bennet, who has faced political pressure to vote for Gorsuch, stressed that his introduction has no bearing on whether he will support President Donald Trump’s first Supreme Court nominee. Indeed, the late Sen. Frank Lautenberg (D-N.J.) introduced then-nominee Samuel Alito before the Judiciary Committee in 2006, but ultimately voted to filibuster him.

Gorsuch comes from a Colorado power elite family and his mother was Reagan’s absolutely nightmarish EPA director. So he is getting a lot of pressure from the Colorado political class. But who cares. He was just elected to a second term. Come 2022, no one is going to care how he voted on Gorsuch on the right because they aren’t going to support him anyway. Colorado is moving pretty rapidly to the left and voting to confirm is only going to hurt him with his base. Moderates won’t care either way in five years. While I realize Bennet has not said he will vote for Gorsuch, he’s also been fairly favorable in his public comments. He needs a lot of pressure to vote no. Gorsuch will almost certainly be confirmed. Given that it is a stolen seat, it needs to happen with zero Democratic votes which forces Republicans to blow up the filibuster.


[ 136 ] February 27, 2017 |

#!dcdisplay fp\b0\i0\fs10Source~WARNER_BROS; Shoot_Date~19.10.1999; Type~COLOR;  ÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐ fs16\bNo Titlefs12\b0 (GANNETT PHOTO NETWORK) TV-SHEEN: Martin Sheen playing President Josiah Bartlett in "The West Wing." A scene from the show including (l-r) Allison Janney as Press Secretary C.J. Cregg, Richard Schiff as Communications Director Toby Ziegler, John Spencer as Chief of Staff Leo McGarry, Martin Sheen as President Josiah Bartlett, The West Wing airs Wednesdays on NBC (9-10 p.m. ET) (GNS Photo by Warner Bros.) fp\b0\i0\fs10ÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐÐ fp\i0\b\fs16Copyright 1998 The Cincinnati Enquirer fp\b0\i0\fs10Copyright=OTHER; Photographer~Kevin_Foley;  Aspect=WARNER_BROS; Aspect=19.10.1999; Aspect=COLOR; Aspect=OTHER; Aspect=Kevin_Foley;

Aaron Sorkin truly is the Broderite wankertastic gift that keeps on giving.

Sen. Tom Udall (D-N.M.) is floating the idea of simultaneously confirming both Neil Gorsuch, President Trump’s nominee, and Merrick Garland, former President Obama’s nominee, to the Supreme Court.

The New Mexico Democrat told reporters Monday that he pitched moving the two judges during his meeting with Gorsuch, according to multiple reports.

“[Trump’s] got a book that’s widely acclaimed in terms of ‘The Art of the Deal.’ This is a deal that makes sense for the country,” Udall said, according to CNN. “It’s a deal that heals the real deep wounds we’ve had in this election.”

Under Udall’s pitch, Trump would meet with justices considering retiring.

If he promised to nominate Garland — whom Republicans refused to give a hearing or a vote — a justice would submit their letter of resignation. The Senate would move both Gorsuch and Garland’s nomination simultaneously.

What? Who would this resigning judge be? And how would Tom Udall or anyone else make this happen? But then, well, I should have known.

Udall’s proposal is similar to a 2004 episode of “The West Wing.”

In the TV show, the Democratic president needs to fill a Supreme Court seat left vacant by the death of a GOP-appointed justice.

As part of a deal to preserve the balance of the court, the president and his staff convince the chief justice to retire and nominate a younger conservative judge to serve on the Supreme Court, as well as a judge considered too liberal to otherwise be confirmed, to be the chief justice.

But an aide for Udall told CNN that the Democratic senator’s plan isn’t ripped from the “West Wing” plot and that he’s only seen a few episodes of the TV show.

I might believe Udall on that last part, but clearly he has a staff member taking The West Wing seriously enough to put this idea in the senator’s ear.

The long-term impact of this show on the thinking of people who are legitimately not stupid and politically minded is way, way too strong.

Erik Visits an American Grave, Part 72

[ 39 ] February 26, 2017 |

This is the grave of Joseph Story.


Born in 1779 in Marblehead, Massachusetts, Story graduated from Harvard in 1798 and was admitted to the bar in Salem in 1801. In 1805, he was elected to the Massachusetts legislature as a Jeffersonian, a difficult victory in this Federalist stronghold. He very briefly served in Congress, from December 1808 to March 1809, and then returned to the Massachusetts legislature, where he was elected Speaker in 1811. In November 1811, James Madison selected him to serve on the Supreme Court. He was only 32 years old. He would remain there until his death. He is still the youngest person ever selected to the Court.

As a justice, Story would develop into a conservative defender of property rights during an age of industrialization. He became closely aligned with John Marshall, even though he had been a Jeffersonian before this. He fought hard for the supremacy of the Supreme Court over the state courts, not an established fact at this time. It was the Virginia courts that rejected Story’s rulings, again an irony given his background. Overall, his view was one of expansive federal powers, particularly in Martin v. Hunter’s Lessee. And in later cases such as Charles River Bridge, when Roger Taney and the Democrats had taken over the court, Story became the chief dissenter, supporting the rights of nascent corporations consistently. Today, he is most famous for ruling for the self-emancipated slaves in the Amistad case. In 1829, he also took a job teaching at Harvard. There, he wrote Commentaries on the Constitution, one of the most important early books on interpreting the Constitution. He died in 1845, the last old-school Early Republic figure in government.

Although you don’t get a lot of obscure Supreme Court justices appearing in film, retried Supreme Court justice Harry Blackmun played Story in Amistad.

Joseph Story is buried at Mount Auburn Cemetery in Cambridge, Massachusetts, where he spoke at the dedication cemetery in 1831.

This Day in Labor History: January 6, 1909

[ 8 ] January 6, 2017 |


On January 6, 1909, oral arguments before the Supreme Court concluded in the case of Moyer v. Peabody. The decision by the Court on January 18 gave official approval for the state militia or National Guard imprisoning people without the benefit of habeas corpus during a time of insurrection, the definition of which was of course left vague. This was one of many anti-worker Supreme Court decisions of the Gilded Age that made it extremely difficult for unions to operate with any sort of effectiveness.

In 1902, the Western Federation of Miners was organizing mill workers in Colorado City, Colorado. One company placed a spy among the organizers. This led the employer to fire 42 union members. Tensions rose at the mill and in February 1903, the WFM called a strike. Colorado governor James Peabody was an anti-union extremist who would use any method to eliminate the WFM, which had outraged employers in 1894 with an overwhelming victory in the state’s mines. Throughout Colorado that year, several strikes took place. Peabody worked with employers and private detective agencies such as the Baldwin-Felts, Thiel Agency, and of course the Pinkertons. Peabody called out the Colorado militia in response to the Colorado City strike, leading miners in Telluride and Cripple Creek to walk off their jobs. Mass arrests of strikers began that fall. Among those arrested was Charles Moyer, president of the WFM. Moyer had done nothing more than travel to Telluride to support the strike and sign a poster denouncing the mass arrests. He was then arrested for desecrating the American flag. This ridiculous charge allowed him to be released the next day, but he was immediately rearrested without any charges.


The strike was soon crushed by Colorado and Peabody’s forces, but Moyer fought the obviously unconstitutional arrest he faced. He petitioned for a write of habeas corpus to a Colorado court. He received it but the Colorado attorney general refused to honor it. He appealed to the state Supreme Court, which ruled that his constitutional rights had not been violated by his arrest for supporting a strike. He then appealed to the U.S. District Court based in Missouri. These judges overturned the state court and granted him the writ once again on July 5, 1904. This finally forced Peabody to let Moyer out of jail. Moyer wanted full exoneration so he took his case to the U.S. Supreme Court. It eventually accepted it, with oral arguments taking place on January 5 and 6, 1909. By this time, Moyer had survived the framing of he and Big Bill Haywood for the 1905 murder of former Idaho governor Frank Steunenberg, thanks to the extremely shoddy case and the defense skills of Clarence Darrow leading to the rare court victory for unions during these horrible years.

Oliver Wendell Holmes wrote the decision for the unanimous court. The decision completely ignored whether the strike was an insurrection. It gave the governor complete discretion in making this determination, effectively saying that if the governor called out the National Guard, there was in fact an insurrection. He wrote, “But it is familiar that what is due process of law depends on circumstances. It varies with the subject-matter and the necessities of the situation.” And while it makes some sense for law to have limited flexibility dependent upon the particulars of a given situation, in this situation Holmes was giving employers and their bought politicians carte blanche to do whatever they wanted to labor unions. So long as there was an insurrection, then the governor could call out the state militia or National Guard and have them act accordingly. He left open the possibility than an exceedingly lengthy time behind bars might be open to another challenge but that was not what Moyer was after. This decision also avoided any of the sticky constitutional questions–since the states cannot declare war, can the executive of a state declare a state of war to exist? But as was common for Holmes, he found ways to exclude ideological or racial minorities from full citizenship; unfortunately, he was frequently joined in the Gilded Age Supreme Court by his colleagues.

Holmes’ decision in Moyer v. Peabody helped to radicalize the labor movement, especially in areas that had already seen the iron fist of state violence. With Holmes giving governors the right to use violence at will, moderate unionists had a harder time telling workers that capitalism might work for them. The Industrial Workers of the World would build their case for radical syndicalism upon this point, up to the point where the IWW was itself crushed by massive state-sanctioned violence, including the government allowing employers to do what they wanted to unions and with government crushing workers defending themselves against that violence.

The case was so shoddy that the Court largely ignored it. In 1932, it revisited the ability of a governor to unilaterally decide to call a strike an insurrection, when in Sterling v. Constanin, it decided that the governor of Texas doing the same as Peabody was not constitutional. That is until 9/11. Then the Bush administration was all over it because of the possibility to justify indefinite detention whenever the government declares a state of insurrection. It was heavily discussed in the 2004 case of Hamdi v. Rumsfeld and remains an extremely threatening decision to workers today as Republicans seek to return the nation to the Lochner years. And the Moyer v. Peabody years as well.

Although Charles Moyer eventually broke from Haywood and the IWW, he remained deeply involved in union politics for many years. He was in Hancock, Michigan when the Italian Hall disaster took place in 1913 and rallied the WFM in nearby Calumet to take care of their own, although this had the effect of telling impoverished survivors to not take much needed charity. While in Calumet, he was beaten and deported from the town while bleeding from his wounds. The state did nothing to find who did this to him. He continued to lead the former WFM, now Mine, Mill, until 1926, dying in obscurity and largely forgotten in 1929.

This is the 206th post in this series. Previous posts are archived here.

The People Had Their Say

[ 84 ] December 2, 2016 |

Remember when the Republican Senate shredded the only norm—luck of timing—that stands between the Supreme Court’s standing as an institution and the implications of its complete politicization?

Here are some examples of the core logic that Republican officials used to justify their actions:

…. A lifetime appointment that could dramatically impact individual freedoms and change the direction of the court for at least a generation is too important to get bogged down in politics. The American people shouldn’t be denied a voice. —Grassley

…. We should let the American people decide the direction of the court. —Ryan

…. The only way to empower the American people and ensure they have a voice is for the next President to make the nomination to fill this vacancy. —Cornyn

…. The American people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American people decide. The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be. —McConnell

Well, the American people did have their say. They cast, by a 2.6 million vote margin, a plurality of votes for a major-party candidate with, for instance, the most expansive views of reproductive rights in decades. Clinton and Trump both made clear position on Supreme Court appointments. The public made it clear, by 48%-46%, that they preferred Clinton. While the libertarian ticket sent contradictory signals on the Court, you could make a strong case that over 50% of the public explicitly, and easily, rejected Trump’s and his party’s promises on Court nominations.

The point, I think, is obvious. No one need argue that Trump’s tiny margin of victory in the Electoral College—and his decisive defeat in the popular vote—renders his Presidency illegitimate. But the GOP made very clear that they wanted to give the American public a voice in the process. Democrats should, likewise, make it very clear that the Republican party must listen to that voice. Trump must nominate a moderate. If he won’t, the Democrats should filibuster and force McConnell to choose between, on the one hand, the nuclear option* getting rid of it for Supreme Court confirmation and, on the other, convincing Trump to choose a more bipartisan candidate.

There’s a larger issue here. Democrats have every right to use Clinton’s “mandate” as an integral part of their message when they oppose extremist Republican policies. And where they can hoist the Republicans by their own rhetorical petard? All the better.

*See Emmryss’ comment.


The Senate and the Court

[ 86 ] October 31, 2016 |


We’ve been hitting this point for months, but once again, if the Democrats don’t take the Senate, Republicans simply will not allow Hillary Clinton to name a justice to the Supreme Court, and very few if any to the lower courts. John McCain’s “flub” from last week saying this out loud was of course a flub only in that it was a little early to talk about it. But it’s certainly the plan.

In a stunning political move, conservatives are already strategizing on how to block any future Supreme Court nominee from moving forward during Hillary Clinton’s presidency before the election even happens.

“I don’t think there is precedent for it. It really does reveal just how politically charged and polarized our judicial politics have become,” said Charles Gardner Geyh, a professor of law at Indiana University who advised then-Sen. Joe Biden (D-DE) during the 1991 confirmation hearing of Justice Clarence Thomas. “We are at risk of losing legitimacy as a nation in terms of being able to govern effectively.”

A number of Republican lawmakers and scholars have already begun openly rationalizing why Clinton shouldn’t be allowed to appoint Supreme Court justices. (These are many of the same people who argued President Obama shouldn’t get a nominee in the last year of his term because it should be up to the person who wins the November election.)

Sen. Ted Cruz (R-TX) told reporters that the Senate would have a “debate” about whether to accept Clinton’s nominees and that there was nothing wrong with having just eight justices.

“You know, I think there will be plenty of time for debate on that issue,” Cruz told the Washington Post, when he was asked if the Senate would move forward with Clinton’s nominees. “There is certainly long historical precedent for a Supreme Court with fewer justices. I would note, just recently, that Justice Breyer observed that the vacancy is not impacting the ability of the court to do its job. That’s a debate that we are going to have.”

Cruz’s suggestion that the Supreme Court may continue to operate without another justice under Clinton also casts the stakes of U.S. Senate races across the country in a new light. If Republicans do hold the majority, will they follow Cruz’s lead and refuse to move forward with any of Clinton’s nominees no matter the nominee’s record or qualifications?

I fail to see how this is stunning, unless you still believe that Mitch McConnell cares about Senate traditions. What’s stunning is that reporters would find this stunning. This is why it’s not more important to win the Senate than the presidency, but it is almost as important.

Previewing the Next Term

[ 34 ] June 28, 2016 |

I am no Supreme Court expert, but this preview of the next term looks promising, primarily because of what the Court is not going to hear. First and most importantly to me, the Court refused to rehear Friedrichs, meaning that the anti-public union fanatics have to start over at the lower courts. So that’s one piece of good news. The second is how apoplectic Sam Alito is that the Court refused to hear a case that will almost certainly reject religious liberty arguments that would allow pharmacists to choose whether they distribute birth control. He’s already whining about the future of the Court and his precious religious liberties that apply only to right-wingers seeking to oppress women or gays. Maybe he should go ahead and flounce off the court.

Geography and Law in the Evenly Divided Court

[ 90 ] March 30, 2016 |


Is that flag at half-staff for Scalia or for the future of the American court system?

A couple of people in the Friedrichs posts yesterday were saying, “hey, this divided court thing ain’t too bad.” Well, that’s true so far as it goes. But it also causes a lot of problems. Among them is that because 4-4 splits just revert to the relevant circuit court without precedent, law begins to be divided by geography, creating potential long-term problems. Dayen:

Unlike a majority Supreme Court ruling, a 4-4 split doesn’t make binding precedent for the entire nation; it just upholds the ruling of the circuit court of appeals where it was decided, in this case the 9th Circuit. A separate challenge from another circuit court could produce a different interpretation of the law, and if the Supreme Court remains deadlocked, the same issue could have different legal outcomes in different parts of the country.

This is already happening. A case about giving gender-discrimination protections to spouses of borrowers of bank loans produced a 4-4 tie last week. The 8th Circuit had ruled that the bank didn’t have to extend Equal Credit Opportunity Act protections to spouses, and the Supreme Court affirmed that ruling; but the 6th Circuit separately made a different one, saying that spouses are eligible. So if you take out a loan in Missouri, jurisdiction of the 8th Circuit, you can legally be treated differently than if you take one out in Michigan, home of the 6th.

Theoretically, at least, this situation favors Democrats. Since Democratic presidents have had the opportunity to nominate judges in 16 of the last 24 years, the appeals court system has more Democratic appointees. In the 13 different circuits, Democrats have appointed the majority of judges in nine of them, while four (the 5th, 6th, 7th, and 8th) have a majority of Republican appointees. However, there are at least two Republican-appointed judges in every circuit court, meaning that across the federal judiciary, you can still draw a three-judge appellate panel with a Republican majority.

Since appellate courts often (though not always) follow Supreme Court precedent, a deadlocked Court also has the effect of locking in legal interpretations for the indeterminate future. Whether you see that as a good thing depends on how you feel about current law in a particular area. It likely means continuing to allow corporations and wealthy individuals to make unlimited donations to super PACs in line with the Citizens United ruling. It also means maintaining a woman’s right to choose in line with Roe v. Wade.

However, in cases with unsettled law or unique addendums, the regional Supremes can make very consequential rulings. For instance, in Whole Woman’s Health v. Hellerstedt, the 5th Circuit ruled last year that Texas’s regulations for abortion providers—including requirements that abortion doctors have admitting privileges to hospitals and that facilities maintain the same standards as surgical centers—didn’t impose an “undue burden” to getting an abortion and were therefore legal. If the Supreme Court splits 4-4 in the case, which it heard earlier this month, that ruling would be upheld for Louisiana and Mississippi as well as Texas, limiting abortion access for millions of women.

In the short-term, this might not be a huge deal. Were this to go on for years, as Dayen says, it would be a disaster for the nation.

The Corporate Court

[ 38 ] March 13, 2016 |


There are two types of Supreme Court justices when it comes to corporate matters. There are those who are virulently pro-corporate. And there are those who are moderately pro-corporate. But there aren’t justices suspicious of corporations and whether it’s Obama or Hillary who actually names the next justice, that person is unlikely to represent anything looking like an anti-corporate or economically populist view.

At the same time, some argue that the Supreme Court under Chief Justice John G. Roberts Jr. has become perhaps the most business-friendly court in recent history. A 2013 study by Lee Epstein of Washington University in St. Louis, William M. Landes of the University of Chicago Law School and Judge Richard A. Posner of the federal appeals court in Chicago ranked justices according to their rulings in cases involving business. The findings, which Ms. Epstein and Mr. Landes updated through the 2014-15 term for this article, show that six of the 10 most business-friendly justices since 1946 sat on the Supreme Court at the time of Justice Scalia’s death.

President Obama has given little indication that he is likely to reverse this trend. Both of his previous nominees, Sonia Sotomayor and Elena Kagan, have been relative moderates on matters involving business, despite some progressive opinions in specific cases.

“They are not Hugo Black or William Douglas or Earl Warren,” said Arthur R. Miller of the New York University School of Law, who has written about the court’s friendliness toward business, referring to three prominent liberal justices.

A variety of factors can help explain the demise of economic populism on the Supreme Court, where it once had a solid constituency. In recent decades, business interests, led by the U.S. Chamber of Commerce, have played a much more active role in the confirmation battles over Supreme Court justices.

There is also the increasing partisanship of the United States Senate, which can prompt a Democratic president to select more moderate nominees in the hope of winning Republican votes.

Most important, however, may be a broad pro-business consensus within the upper ranks of the legal profession, one that has been more than two generations in the making.

Were Bernie Sanders to actually win, he would almost certainly name an anti-corporate nominee. Whether such a nominee could even win even all the Democratic votes however is an open question.

Erik Visits an American Grave, Part 18

[ 37 ] February 14, 2016 |

This is the grave of Oliver Wendell Holmes.


Holmes of course is one of the most famous and important Supreme Court justices in American history. After barely surviving the Civil War (wounded a number of times and also barely defeated a case of dysentery), Holmes enrolled in Harvard Law School and then practiced admiralty and case law for about fifteen years in Boston. In 1881, he gave a series of lectures that became a famous book titled The Common Law. President Hayes considered him for a federal judgeship in 1878 but he demurred. But he was convinced in 1882 to take a seat on the Supreme Judicial Court of Massachusetts, where he became Chief Justice in 1899. In 1902, Theodore Roosevelt nominated him for the Supreme Court of the United States. Senator George Hoar attempted to block confirmation to protest Roosevelt’s imperialist policies that were shared by Holmes, but he eventually was confirmed. He quickly angered Roosevelt by voting against his position in Northern Securities. He authored many of the most important opinions in U.S. history, including in Schenck, Abrams, and Buck v. Bell that held up eugenics and forced sterilization. His record as far as the modern liberal looking back from a political perspective is mixed, but he’s one of the 5 most important jurists in the Court’s history.

Oliver Wendell Holmes is buried at Arlington National Cemetery, Arlington, VA, on the grounds formerly owned by the treasonous Robert E. Lee.

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