Ideological Makeup of the Parties: 1920, 1970, and 2020

I have completed my MC-Index for the 116th Congress, with 43 votes being counted towards a conservative score in each chamber. I’ll be posting details after the Amy Coney Barrett vote, and I am counting the vote currently based on what senators have said, and given this, only Susan Collins will among Republicans be voting against her while all Democrats are expected to vote no. I have counted score for the Senate thusly. Based on averages of my data for the chambers in each of these sessions, I have calculated the following for 100 years ago, 50 years ago, and now. These are not life scores for the named politicians, just what they scored in the session:

66th Congress (1919-21)

House:

Republican Representatives: 80%

Democratic Representatives: 19%

Lowest Republican: James H. Sinclair, N.D. – 29%

Highest Democrat: William Kettner, Calif. – 100%

Senate:

Republican Senators: 80%

Democratic Senators: 20%

Lowest Republican: Charles L. McNary, Ore. – 42%

Highest Democrat: James K. Shields, Tenn. – 82%

91st Congress (1969-71)

Senate:

Republican Senators: 63%

Democratic Senators: 30%

Lowest Republican Senator: Clifford P. Case, N.J. – 2%

Highest Democrat: Richard B. Russell, Ga. – 90%

House:

Republican Representatives: 72%

Democratic Representatives: 34%

Lowest Republican: Ogden R. Reid, N.Y. – 8%

Highest Democrat: William M. Colmer, Miss. – 100%

116th Congress (2019-21)

Senate:

Republican Senators: 84%

Democratic Senators: 6%

Lowest Republican: Susan Collins, Me. – 37%

Highest Democrat: Joe Manchin, W.V. – 38%

House:

Republican Representatives: 85%

Democratic Representatives: 5%

Lowest Republican: Brian Fitzpatrick, Penn. – 24%

Highest Democrat: Ben McAdams, Utah – 42%

Explanation of Data

There may be some things that stood out to you. For one, the Senate Republicans are 21 points more conservative on average in 2020 than they were in 1970, and House Republicans are 13 points more conservative. This coincides with the descent into irrelevancy of the Rockefeller Republicans, who were stronger in the Senate than the House and could be much more liberal than the so-called “RINOs” of today. The Senate Democrats are 24 points more liberal on average in 2020 than they were in 1970, demonstrating the McGovern wing’s success at taking over the Democratic Party. The Republicans are far closer to what they were ideologically in 1920, when in both chambers their members averaged an 80% for the 66th Congress. Wilson fatigue was at its peak and the GOP had an election blowout that ushered in the conservative Harding Administration (Warren Harding was, as a senator, nearly as conservative as Barry Goldwater). Notably, in the Senate, I counted six votes regarding the Versailles Treaty, the most important issue to come before that Congress. One hundred years later, the Republicans are four points higher in the Senate and five points higher in the House.

The notion that Democrats were more conservative in 1970 than in 1920 may surprise people, but there is an explanation: Southern Democrats had by 1970 grown quite conservative, while fifty years before they were usually supporters of the Wilsonian brand of liberalism. Northern Democrats, on the other hand, had grown considerably more liberal thanks to the influence of FDR. The last Northern Democratic president before Wilson was Grover Cleveland of New York, who had proved too conservative for his own party by 1896.

The Democrats in general may be higher in their liberalism in this Congress given opposition to President Trump, but the party has grown more liberal in the past twenty years. The Republicans too have grown more conservative in the past twenty years as there were more moderates in both chambers at the time.

The Rockefeller Republicans

While opposition to FDR had started out based in the Northeast, after World War II more and more Republicans from this region were inclined to compromise with liberal Democrats on domestic and foreign policy. One of the central examples of this is Senator Henry Cabot Lodge Jr., who when he was first elected to the Senate voted a mostly anti-New Deal line. However, the first signs of his budding moderation came shortly before the start of America’s involvement in World War II when he voted for Lend Lease. Lodge, as I have written about before, was the leading proponent of the Eisenhower presidency. Below is a list of liberal to moderate Republicans who served since the end of World War II.

CALIFORNIA

Senators

Thomas Kuchel, 1953-69.

Representatives

Richard J. Welch, 1926-49.

John F. Baldwin Jr., 1955-66.

Pete McCloskey, 1968-83.

Alphonzo Bell, 1961-77.

Steven Kuykendall, 1999-2001.

Steve Horn, 1993-2003.

CONNECTICUT

Representatives

Clare Boothe Luce, 1943-47. – Although Clare Boothe Luce has a conservative reputation and was a staunch anti-communist, she was actually quite moderate during her four years in Congress.

John Davis Lodge, 1947-51.

Abner W. Sibal, 1961-65.

Stewart B. McKinney, 1971-87. – First member of Congress to die of AIDS.

Horace Seely-Brown, 1947-49, 1951-59, 1961-63.

Ronald Sarasin, 1973-79.

Lawrence DeNardis, 1981-83.

Robert H. Steele, 1970-75.

Nancy Johnson, 1983-2007.

Christopher Shays, 1987-2009.

Rob Simmons, 2001-07.

Edwin H. May, 1957-59.

Albert P. Morano, 1951-59.

James Patterson, 1947-59.

Senators

Raymond E. Baldwin, 1946-49.

Prescott Bush, 1952-63. – Prescott Bush was what you would think of when you think Eisenhower Republican – Conservative on fiscal and economic issues and liberal on foreign aid and social issues. Bush served two terms before retiring in 1963. Also, of course, father of President George H.W. Bush.

William A. Purtell, 1952-59.

Lowell P. Weicker Jr., 1969-71, 1971-89. – Weicker stands as the last Republican senator from Connectictut, serving from 1971 to 1989. Although he started as a moderate, his record grew more and more liberal after Watergate. Republicans by 1988 had grown so sick of him as one of the leading anti-Reagan Republicans that many voted for Democrat Joe Lieberman, who won the election.

DELAWARE

Representatives

Pierre Du Pont, 1971-77.

Michael Castle, 1993-2011.

FLORIDA

Representatives

James W. Grant, 1987-91. – Switched to Republican in second term.

Carlos Curbelo, 2015-19.

David W. Jolly, 2014-17.

HAWAII

Senators

Hiram Fong, 1959-77.

Representatives

Pat Saiki, 1987-91.

Charles Djou, 2010-11.

IDAHO

Representatives

Orval Hansen, 1969-75. – 55%

ILLINOIS

Senators

Charles Percy, 1967-85.

Mark Kirk, 2001-10, 2010-17.

Representatives

Samuel H. Young, 1973-75.

John B. Anderson, 1961-81.

Thomas Railsback, 1967-83.

Jon E. Porter, 1980-2001.

Bob Dold, 2011-13, 2015-17.

IOWA

Representatives

Fred Schwengel, 1955-65, 1967-73.

Jim Leach, 1977-2007.

Thomas Tauke, 1979-91.

T. Cooper Evans, 1981-87.

KANSAS

Senators

James B. Pearson, 1962-78. – Yes, even as far in Republican heartland as Kansas Rockefeller Republicans existed! Pearson started his career somewhat conservative and grew more liberal during the Nixon Administration. He participated in the Wednesday Club, a group of moderate to liberal Republicans.

Nancy Kassebaum, 1978-97. – The daughter of presidential candidate Alf Landon, she, like him, was a moderate and this was reflected in her Senate voting record.

KENTUCKY

Senators

John Sherman Cooper, 1946-49, 1952-55, 1956-73.

Thruston B. Morton, 1947-53, 1957-68.

Marlow W. Cook, 1968-74.

Representatives

John M. Robsion Jr., 1953-59.

LOUISIANA

Anh Cao, 2009-11.

MAINE

Senators

Margaret Chase Smith, 1940-49, 1949-73. – I covered her in my last post.

Olympia Snowe, 1979-95, 1995-2013.

Susan Collins, 1997-present.

William Cohen, 1973-79, 1979-97.

Representatives

Stanley Tupper, 1961-67.

David F. Emery, 1975-83.

John McKernan, 1983-87.

MARYLAND

Senators

Charles Mathias, 1961-69, 1969-87. – Quickly developed a liberal reputation in the 1960s that helped win him a Senate seat in 1968, that and incumbent Daniel Brewster’s corruption scandal.

J. Glenn Beall, Jr., 1969-71, 1971-77.

Representatives

Gilbert Gude, 1967-77.

Newton Steers, 1977-79.

Constance Morella, 1987-2003.

Wayne Gilchrest, 1991-2009.

MASSACHUSETTS

Senators

Henry Cabot Lodge Jr., 1937-43, 1947-53.

Leverett Saltonstall, 1945-67.

Edward W. Brooke, 1967-79.

Scott Brown, 2010-13.

Representatives

John W. Heselton, 1945-59.

Hastings Keith, 1959-73.

Silvio O. Conte, 1959-91. – One of the longest standing Rockfeller Republicans from the state, he moved from moderate to liberal in his career, but in his later liberal phase he still had a few issues one might consider him conservative on: he was resolutely pro-life as a Catholic and was a firm opponent of pork barrel legislation. Notably, he was one of three House Republicans to vote against the Gulf War in 1991, which he did right before his death.

Margaret Heckler, 1967-83.

Frank B. Morse, 1961-72.

Paul W. Cronin, 1973-75.

Peter G. Torklidsen, 1993-97.

Peter I. Blute, 1993-97.

MICHIGAN

Representatives

Donald W. Riegle Jr., 1967-77, 1977-95. – Initially elected as a moderate to the House, Riegle moved more and more leftward until he officially switched parties in 1973. His move into the Democratic Party proved quite good for his political career as he was elected to the Senate in 1976, and served for eighteen years, retiring due to his role in the Keating Five scandal.

John B. Bennett, 1943-45, 1947-64.

Robert J. McIntosh, 1957-59.

Marvin L. Esch, 1967-77.

Garry Brown, 1967-79.

Philip Ruppe, 1967-79.

Carl D. Pursell, 1977-93.

James W. Dunn, 1981-83.

Paul B. Henry, 1985-93.

Robert W. Davis, 1979-93.

Joe Schwarz, 2005-07.

MINNESOTA

Senators

Edward J. Thye, 1947-59.

David Durenberger, 1978-95.

Representatives

John Zwach, 1967-75.

William E. Frenzel, 1971-93.

Arlen Erdahl, 1979-83.

Walter H. Judd, 1943-63.

MISSOURI

Senators

John Danforth, 1976-95. – Before John Danforth was elected to the Senate, Republicans were quite weak in the state, with only Gene Taylor from the staunchly conservative Springfield district representing Missouri in Congress. A strongly religious man, he was pro-life but also was very pro-civil rights and was overall a calming influence in the Senate and known as someone who could make bipartisan deals. Danforth was overall a centrist.

Representatives

Claude I. Bakewell, 1947-49, 1951-53.

NEW HAMPSHIRE

Senators

Charles W. Tobey, 1933-39, 1939-53.

Representatives

Chester Merrow, 1943-63. – Although Merrow was elected to Congress as a conservative before the end of World War II, his record became more and more liberal overtime. After his departure from Congress in 1963, he switched parties and tried to regain his old House seat without success.

NEW JERSEY

Senators

Clifford P. Case, 1945-53, 1955-79. – Case of New Jersey was one of the most prominent liberal Republicans on the scene. Although he succeeded a man who voted against Social Security to the House, Case proved much more amenable to Democrats. Although his record was moderately conservative during the Republican 80th Congress, he moved leftward after the loss of Congress in 1948. Although something of a moderate liberal during the Eisenhower Administration, his record again moved more to the left during the 1960s and even more so during the 1970s. By the 1970s, Case had little in common with his party label and in 1978 he was defeated for renomination by conservative Jeffrey Bell, who lost the election. Case is, to this day, the last Republican New Jersey voters have seen fit to send to the Senate.

H. Alexander Smith, 1944-59.

Representatives

Charles A. Wolverton, 1927-59.

Peter Frelinghuysen, 1953-75.

Gordon Canfield, 1941-61.

Millicent Fenwick, 1975-83.

Florence P. Dwyer, 1957-73.

William B. Widnall, 1950-74.

Frank C. Osmers, 1939-42, 1952-65.

William T. Cahill, 1959-70.

Leonard Lance, 2009-19.

Joseph J. Maraziti, 1973-75.

Harold Hollenbeck, 1977-83.

Matthew Rinaldo, 1973-93.

Robert W. Kean, 1939-59.

Bob Franks, 1993-2001.

Margaret Roukema, 1981-2003.

George M. Wallhauser, 1959-65.

William J. Martini, 1995-97.

Jon Runyan, 2011-17.

Chris Smith, 1981-present.

Jeff Van Drew, 2019-present.

Edwin B. Forsythe, 1970-84.

NEW YORK

Representatives

Seymour Halpern, 1959-73.

John Lindsay, 1959-65. – I have written about the Lindsay legacy before.

Theodore Kupferman, 1966-69.

Francis Dorn, 1953-61.

Ogden R. Reid, 1963-74. – Switched to Democrat in 1972.

Paul A. Fino, 1953-69.

Daniel Button, 1967-71.

Hamilton Fish IV, 1969-95.

Peter A. Peyser, 1971-77, 1979-83. – Switched to Democrat after 1977.

Martin B. McKneally, 1969-71.

William F. Walsh, 1973-79.

Angelo D. Roncallo, 1973-75.

Frank J. Horton, 1963-93.

Benjamin Gilman, 1973-2003.

S. William Green, 1977-93.

Sherwood Boehlert, 1983-2007.

James T. Walsh, 1989-2009.

Bruce F. Caputo, 1977-79.

Michael G. Grimm, 2011-15.

Edwin B. Dooley, 1957-63.

Donald J. Mitchell, 1973-83.

Joseph J. DioGuardi, 1985-89.

Rick Lazio, 1993-2001.

Joseph Clark Baldwin, 1941-47.

Sue W. Kelly, 1995-2007.

Augustus W. Bennet, 1945-47.

Amory Houghton Jr., 1987-2005.

Michael P. Forbes, 1995-2001. – Switched parties in 1999.

Richard Hanna, 2011-17.

Christopher Gibson, 2011-17.

John Faso, 2015-17.

Daniel Donovan, 2015-19.

John Katko, 2015-present.

Elise Stefanik, 2015-present.

Senators

Irving Ives, 1947-59.

John Foster Dulles, 1949.

Kenneth B. Keating, 1947-59, 1959-65.

Jacob Javits, 1947-55, 1957-81.

Charles Goodell (strictly as senator), 1969-71.

NORTH DAKOTA

Representatives

William Lemke, 1933-41, 1943-50.

Usher L. Burdick, 1935-45, 1949-59.

Senators

William Langer, 1941-59.

Mark Andrews, 1963-81, 1981-87.

OHIO

Representatives

Charles W. Whalen Jr., 1967-79.

Charles A. Mosher, 1961-77.

J. William Stanton, 1965-83.

Lyle Williams, 1979-85.

Senators

William B. Saxbe, 1969-74.

Robert Taft Jr., 1963-65, 1967-71, 1971-76.

OREGON

Representatives

Homer D. Angell, 1939-55.

John Dellenback, 1967-75.

Senators

Wayne Morse, 1945-69. – Covered him in a previous post, switched parties in 1952. – 14%

Mark Hatfield, 1967-97.

Bob Packwood, 1969-95.

PENNSYLVANIA

Representatives

Marc L. Marks, 1977-83.

Charles F. Dougherty, 1979-83.

Robert J. Corbett, 1939-41, 1945-71.

James G. Fulton, 1945-71.

Mitchell Jenkins, 1947-49.

Edward Biester, 1967-77.

John P. Saylor, 1949-73.

Robert Coyne, 1981-83.

John McDade, 1963-97.

Jon D. Fox, 1995-99.

James Nelligan, 1981-83.

Jim Gerlach, 2003-15.

Robert L. Coughlin, 1969-93.

William F. Clinger Jr., 1979-97.

Thomas J. Ridge, 1983-95.

Edward Sittler, 1951-53.

James Greenwood, 1993-2005.

Michael G. Fitzpatrick, 2005-07, 2011-17.

Brian Fitzpatrick, 2017-present.

Senators

James H. Duff, 1951-57.

Hugh Scott, 1941-45, 1947-59, 1959-77.

Henry J. Heinz III, 1972-77, 1977-91.

Richard Schweiker, 1961-69, 1969-81. – Ronald Reagan picked him as his running mate in his 1976 effort at gaining the Republican nomination. Conservatives weren’t too pleased and tried to get him to change his mind and nominate James L. Buckley, New York senator and older brother of the National Review founder William F. Buckley Jr.

Arlen Specter, 1981-2011. – Switched from Republican to Democrat in 2009.

RHODE ISLAND

Representatives

Claudine Schneider, 1981-91.

Ronald Machtley, 1989-95.

Senators

John Chafee, 1977-99.

Lincoln Chafee, 1999-2007.

TENNESSEE

Representatives

Howard Baker, Sr., 1951-64.

VERMONT

Representatives

Richard W. Mallary, 1972-75.

Peter P. Smith, 1989-91.

Senators

Ernest W. Gibson Jr., 1940-41.

Ralph Flanders, 1946-59.

George Aiken, 1941-75.

Winston Prouty, 1951-59, 1959-71.

Robert Stafford, 1961-71, 1971-89.

Jim Jeffords, 1975-89, 1989-2007. – Switched from Republican to Independent in 2001.

WASHINGTON

Representatives

Joel Pritchard, 1973-85.

Hal Holmes, 1943-59.

John R. Miller, 1985-93.

Rodney Chandler, 1983-93.

Thor Tollefson, 1947-65.

Sid Morrison, 1981-93.

Senators

Daniel J. Evans, 1983-89.

WISCONSIN

Senators

Alexander Wiley, 1939-63.

Representatives

Merlin Hull, 1929-31, 1935-53.

Gardner R. Withrow, 1931-37, 1949-61.

Charles J. Kersten, 1947-49, 1951-55.

Donald E. Tewes, 1957-59.

Scott L. Klug, 1991-99.

William A. Steiger, 1967-78.

Alvin O’Konski, 1943-73.

The True Senate Female Firsts: Hattie Caraway, Margaret Chase Smith, and Maurine Neuberger

I have previously written about the actual first female senator, Rebecca Latimer Felton, but her appointment was symbolic and nothing more. While there were more women who served in the Senate in these early years, these women were placeholders for either their late husbands or senators who had died. When Hubert Humphrey died in office in 1978, for instance, his widow Muriel briefly succeeded him until succeeded by a replacement in a special election. There are in truth, three women of the early days of Senate that stood on their own: Hattie Caraway, Margaret Chase Smith, and Maurine Neuberger.

On November 6, 1931, Senator Thaddeus Caraway of Arkansas passed away. He had been a staunch economic and to a certain extent social progressive. Caraway voted for women’s suffrage as a representative in 1919 but he was also staunchly and actively racist. He had proposed legislation that outright prohibited blacks from joining the army and navy and introduced legislation outright mandating residential segregation in Washington D.C. His wife, Hattie (1878-1950), who was politically savvy herself, was appointed to the seat by Governor Harvey Parnell. Caraway managed to find herself a valuable ally in Senator Huey Long, who campaigned in Arkansas for her election to a full term, which she won in 1932.

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Caraway was a quiet figure in the Senate who was a supporter of Huey Long and mostly of the New Deal. Her modesty was like that of her late husband, Thaddeus.  In 1943, Caraway became the first woman to ever preside over a session of the Senate. However, although her status as a first was impressive for Arkansans, another impressive Arkansan was waiting in the wings: J. William Fulbright, a Rhodes scholar and former dean of the University of Arkansas who had proposed the resolution endorsing the creation of the United Nations…in his first term! The young Fulbright (39 years old) was also at this point a positive contrast to the much older Caraway (66 years old), whose lack of presence may have contributed to her defeat. The Senate would have to wait four years before they had their next female member…Margaret Chase Smith.

Margaret Chase Smith

Margaret Chase Smith - Wikipedia

In 1936, Clyde Smith, a conservative Republican who had opposed the pro-KKK wing of the state GOP in the 1920s, toppled Democratic incumbent Edward Moran in Maine’s 2nd district, one of the few bright spots for the GOP that year. However, Smith had been quite a ladies man in his day and his health was crashing and burning due to his undiagnosed syphilis. He had suffered a heart attack in his first term and ultimately his wife, Margaret Chase Smith (1897-1995), assumed more and more of his duties as his paid secretary. By 1940, it was clear he was dying. Smith died of a heart attack on April 8th of that year at the age of 63, but not before issuing a public statement the day before endorsing his wife should he die in office. She won the election to succeed him, and the newspapers of the time ran with the headline, “Mrs. Smith Goes to Washington”.

Many wives upon succeeding their husbands were expected to serve the remainder of the term and then leave the work to another man. Not so for Margaret Chase Smith, who had begun a long career in national politics. She established herself as a moderate but her foreign policy, although internationalist, was also very strongly anti-communist. In 1948, Smith easily won election to the Senate, making her the only woman in the chamber throughout her entire career. Unlike Caraway, Smith was outspoken and in 1950 she condemned the tactics of Senator Joseph McCarthy on the Senate floor in her “Declaration of Conscience” without naming him per Senate rules. She refused to limit herself to women’s issues and specialized on military affairs. Nonetheless, Smith repeatedly supported the Equal Rights Amendment and had sponsored the 1945 proposal and strongly supported pay equality for women. In 1963, she was one of nineteen senators to vote against the Limited Nuclear Test Ban Treaty, a position normally held by people significantly to her right, such as Barry Goldwater. This resulted in speculation of a “Goldwater-Maggie” ticket in 1964, but she had presidential aspirations of her own. In 1964, Smith became the first woman to run for the nomination for president in one of the two major parties, and at the Republican National Convention she finished second. However, the state was growing more Democratic as the 1960s wore on. In 1960, the state had voted for Richard Nixon, but in 1968 the state voted for Hubert Humphrey, possibly due to the presence of popular Democratic Senator Edmund Muskie on the VP slot. The difference can also be seen in the Congressional delegations. The 1960 election elected three Republicans to the House and Senator Muskie was the only Democrat, but by 1968 the situation had reversed: Senator Smith was the only Republican representing Maine. In 1972, popular Congressman William Hathaway, a liberal Democrat, challenged her for reelection. Despite the landslide for Richard Nixon that year, he didn’t seem to have coattails for several Republican senators and the GOP lost a net of two seats in the chamber that year. Gordon Allott of Colorado lost his bid for a fourth term, Cale Boggs of Delaware lost his bid for a third term to the man who is now running for president, Jack Miller of Iowa lost his bid for a third term, and Margaret Chase Smith lost her bid for a fifth term by over 6 points.

What happened here? Well, Smith, as I wrote, was staunchly anti-communist on foreign policy and this made her a hawk on the Vietnam War. She backed President Nixon’s bombing of Laos and Cambodia in 1970 and denounced anti-war protestors, calling for them to be drafted. Smith made an appearance before a group of students that year in the wake of the killings of four students by the National Guard at the Kent State University protests that went disastrously as she seemed to require extensive notes to answer questions and then either lied or was misinformed about the presence of US troops in Laos (I find the latter more likely). This was embarrassing for the ranking member of the Senate Armed Services Committee, and she beat a hasty retreat from a booing audience. Maine had changed from when she delivered her “Declaration of Conscience” in 1950, when she was the most liberal member of the state’s all-Republican delegation. In twenty years, she had become its most conservative member, being the sole Republican in a Democratic delegation. However, this would not be the end of the Republican Party’s influence in Maine politics, and indeed most subsequent Republican officeholders nationally have been politically similar to Smith.

Maurine Neuberger

In 1960, Senator Richard Neuberger of Oregon was terminally ill with brain cancer, and before his death he had voiced his wish that his wife, Maurine (1907-2000), succeed him. This wish was not just based on her being his wife: she was a politician herself and had made a name for herself in the Oregon state legislature for her successful push to repeal the ban on colored margarine, contrary to the wishes of the state’s dairy industry. Neuberger had even appeared, at the age of 51, at a Democratic dinner in a swimsuit next to a donkey. Although Governor Mark Hatfield, a liberal Republican, was urged to appoint her, he declined and instead picked Democrat Hall S. Lusk as a placeholder, insisting on not giving any candidate the next election the advantage of incumbency.

That year she won a full term to succeed her husband, and Neuberger proved a firm supporter of 1960s liberalism. She backed the New Frontier, civil rights, and the Great Society. Although expected to run for reelection in 1966, she declined, opting to retire from politics and subsequently taught American government at multiple universities, including Oregon’s own Reed College.

NEUBERGER, Maurine Brown | US House of Representatives: History, Art &  Archives

In the early days of women in the Senate, they were quite the rare exception: Caraway was the only woman in the chamber throughout her whole time in the Senate and Smith was for most of her time the only one. Today, 26 women serve in the Senate.

References

Fitzpatrick, E. (2016, February 6). The Unfavored Daughter: When Margaret Chase Smith Ran in the New Hampshire Primary. The New Yorker.

Retrieved from

https://www.newyorker.com/books/page-turner/the-unfavored-daughter-when-margaret-chase-smith-ran-in-the-new-hampshire-primary

Monthey, T. (2017, January 8). Oregon Trailblazer. PSU History Department.

Retrieved from

Oregon Trailblazer | Maurine Neuberger

Slade, R. The Moment That Presaged a Maine Senator’s Downfall. DownEast.

Retrieved from

The Moment That Presaged a Maine Senator’s Downfall

Judicial Disappointments: When Justices Acted Out of Accord to The Wishes of Their Party

John Paul Stevens, SCOTUS photo portrait.jpg
John Paul Stevens, possibly the most disappointing justice for Republicans.

The notion of the judicial disappointment is rather recent given the increasingly ideological nature of the Supreme Court. Although there were certain differences that manifested themselves throughout US history, it hasn’t been as pronounced as now. Thus, most of what I write will be about relatively recent justices.

Felix Frankfurter

Felix Frankfurter (1882-1965) was one of FDR’s New Dealers and had been a prominent defender of Sacco and Vanzetti, so it was thought that when Frankfurter was nominated and confirmed to the court in 1939 he would rule in a manner fitting the man he supported. This was true in his upholding of commerce clause powers, but it became apparent over the years that while he had been a political liberal, he was the leading judicial conservative on the court. Frankfurter notably thought that the Supreme Court should stay out of the political thicket, and held that legislative reapportionment was strictly a political question…a precedent that would be undone by the Warren Court and the decisions that Chief Justice Earl Warren himself would consider the most important accomplishments of his court. Frankfurter thought of Warren’s work as “dishonest nonsense” (Hirsch, 13).

Byron R. White

Byron White (1917-2002) stands as the last disappointment for liberals on the court, as White was nominated by Kennedy yet he repeatedly voted in favor of the police in criminal defendant rights cases, voted against Roe v. Wade and would continue to oppose it throughout his time on the court. However, White was liberal on some other issues, such as school prayer and reapportionment. Nonetheless, White’s views went the opposite direction of what liberals wanted, such as opposing the “Miranda warning” in Miranda v. Arizona (1966), opposing abortion legalization in Roe v. Wade (1973), upholding the Hatch Act in United States Civil Service Commission v. National Association for Letter Carriers (1973), and upholding laws against sodomy in Bowers v. Hardwick (1986).

Harry Blackmun

Although how conservatives feel about Warren Burger and Lewis Powell and whether they can be considered disappointments is disputable, Harry A. Blackmun (1908-1999) is without doubt the most disappointing of Nixon’s picks and the one I would consider a complete disappointment for Republicans. For his first five years, he voted as a conservative, but his most famous decision, the one that ultimately defined his career, Roe v. Wade (1973), was a prelude of things to come. Although on criminal justice he seldom voted to expand the scope of criminal defendant rights, he proved quite socially liberal in many areas such as the notion of the “right to privacy”, school prayer, and affirmative action. He even later changed his mind from support to opposition to the death penalty. By the time of his retirement from the court in 1994, he was far more on the side of the William J. Brennan, the intellectual leader of the court’s liberal wing, than his old friend Warren E. Burger, who had only grown more conservative over time.

John Paul Stevens

Gerald Ford’s one and only pick for the Supreme Court had beforehand had a career as a brilliant anti-trust lawyer. John Paul Stevens’ (1920-2019) work earned him great renown and lead to President Nixon nominating him as a judge for the Seventh Circuit Court of Appeals. As a judge, Stevens proved moderately conservative. Perhaps a warning as to his future orientation would be that he was recommended by his former classmate, Senator Charles Percy, a liberal Illinois Republican. Initially, his orientation extended to his time on the Supreme Court: in the late 1970s he voted against affirmative action and for reinstatement of the death penalty, but would reverse course on the former and regarded his decision in Gregg v. Georgia (1976) as his only regret. Stevens ultimately would become, according to a 2003 statistical analysis of the Supreme Court, the most liberal justice in that court. He maintained, despite this and always ruling for the federal government on interstate commerce clause cases, that he was a “judicial conservative”. In 2008, Stevens wrote the dissent for District of Columbia v. Heller, which ruled for an individual right to bear arms. In 2010, Stevens wrote the dissent for the Citizens United decision and ultimately decided to retire, at the age of 90.

Although he was often in agreement with Ruth Bader Ginsburg and many Republicans regarded him negatively, Gerald Ford’s high opinion of Stevens never changed, and wrote favorably of him in the year before his death.

David Souter

George H.W. Bush’s first pick for the Supreme Court, David Souter, was a bit of an unknown save for his record on the state Supreme Court as a “tough on crime” judge. Indeed, his political record suggested conservatism as he had been a supporter of the staunchly conservative Governor Meldrim Thomson Jr. in the 1970s. Senator Warren B. Rudman, a moderate conservative, vouched for him to President Bush. Bush had another option in Edith Jones of the Fifth Circuit, who was known as a staunch conservative. Perhaps being afraid of selecting a justice who would get “borked”, he chose what seemed like a safe option. However, after Souter’s first three years he started to prove himself a moderate liberal in his rulings, including on civil rights issues, abortion, and on interstate commerce cases. Fortunately for conservatives, they would not be disappointed with Bush’s second pick, Clarence Thomas.

References

Cruz, T. (2020, September 29). How George H.W. Bush’s Supreme Court Nomination Cowardice Affected America. The Federalist.

Hirsch, H.N. (1981). The enigma of Felix Frankfurter. New York, NY: Basic Books.

The Biden Record: 1973-2009

Joe Biden when first elected to the Senate, 1973. He is 30 years old in this picture.

In 1972, moderate Republican J. Caleb Boggs was running for reelection, albeit reluctantly. He was 63 years old and felt done with politics. Running up against him was a 29-year old who wasn’t given much of a chance: Joe Biden. Initially, Biden was 30 points underwater but with his hard work, enthusiasm, and ability to connect with voters, on election day he narrowly upset Boggs. He had in truth been ready to retire. Upon taking office, by which time he had turned the constitutionally required age of 30, he was the sixth youngest senator in American history. Biden established himself as a liberal Democrat and for the most part he was. However, in a few ways he was different, and most notable, as I have written about before, was his turn against busing as a means for desegregation. Many of Delaware’s voters disapproved of it as did a substantial minority of Democratic senators, and Biden ultimately tacked enough to the center to win reelection by 16 points in 1978. Aside from the busing issue, Biden was a vote for expanding the federal role in civil rights. He progressively did better and better on his reelections until 2002, when he won by 18 points and for the first time since 1972 lost one of Delaware’s three counties. In 1987, as head of the Senate Judiciary Committee, he played a leading role in sinking the nomination of Robert Bork to the Supreme Court and did so for ideological reasons. In 1988, Biden made his first run for president, but he ran into trouble after plagiarizing a speech from a British Labor politician that recounted his childhood. On the Supreme Court, Biden has been a regular partisan…if the vote on a Supreme Court justice from Republicans has been controversial, Biden has been a vote against it: he voted against Rehnquist in 1986 and Roberts in 2005. Perhaps from a progressive standpoint this offsets his vote for the second Iraq War in 2002, as his opposition to the troop surge in 2007. Speaking of, Biden voted against the first one in 1991. In 2008, he made another bid for the presidency, but he was easily outdone in support by Barack Obama and Hillary Clinton.

On abortion, Biden’s record historically is more mixed than you might think. In 1976, he voted for the Hyde Amendment, which he only recently disavowed. Biden also on other occasions voted against federal abortion funding. During the second Bush Administration, Biden voted for the Partial-Birth Abortion Ban Act but against the Unborn Victims of Violence Act. Although historically he was a bit pro-life, he is the headliner of an overwhelmingly pro-choice party and will act accordingly should he be elected. Biden is a living example of how the Democratic Party has changed on the issue overtime.

A point of contention against Biden’s record, which from many quarters is in truth disingenuous, was his sponsorship of the Violent Crime Control and Law Enforcement Act of 1994, which played a minor role in increased incarceration throughout the United States. Conservative Republicans opposed the bill for its ten-year ban on 19 types of “assault weapons” as well as what they called “unnecessary social programs” that inflated the measure’s cost. The “tough on crime” aspects were not the reasons for Republicans to oppose the bill, and those among them who turn around and say that’s a disqualifier for Biden are being disingenuous if they know the history. The truth is that both parties wished to be “tough on crime” back in 1994 and Republican disagreement was on gun policy and too much focus on social programs. Part of the crime bill was the Violence Against Women Act, which provides federal grants to states for domestic violence prevention, which Biden specifically sponsored as well.

Per the MC-Index, in the 100th and 110th Congresses, Biden scored his lowest at a zero. These were the last two years of the Reagan and Bush II Administrations respectively, in which Democratic scores tended to be lower than usual on the scale. His highest scores were during the Carter Administration, scoring a 34% in the 95th Congress and a 24% in the 96th Congress. Biden’s life score is overall an 11%. This means he has been a solid liberal in his career overall, although not as radical as some of the younger Democrats wish he was.

File:Joe Biden official portrait 2013 cropped.jpg
Vice President Joe Biden, 2013. He is 70 years old in this picture.

My view on Biden is that as a presidential candidate, he is second-rate, and that in any other year he would be treated as such as he was in 1988 (he lost the nomination to another second-rater) and 2008. The vice presidency was basically a reward for his long years of service, and he himself is a living example of the Democratic Party’s change over the years. However, our current president has lowered standards to the point that Biden, now in his late seventies and more gaffe-prone than ever, is viable. Make of that what you will.

References

Cooper, K.J. (1994, August 14). GOP’s Beef with Beleaguered Crime Bill Shifts to Pork. The Washington Post.

Retrieved from

https://www.washingtonpost.com/archive/politics/1994/08/14/gops-beef-with-beleaguered-crime-bill-shifts-to-pork/69f000cf-a246-4766-9306-baf6be7e6a7c/

Clement Haynsworth and G. Harrold Carswell: Nixon’s Failed Nominees

Yep, this is yet another post regarding the Supreme Court. For how controversial the Supreme Court is now, it may surprise people to know that few people in history have actually been rejected for the Supreme Court by a vote of the Senate: only eleven have lost a confirmation vote, and Nixon had the misfortune of nominating two of them.

In 1968, in one of his moves to appeal to the South, Richard Nixon promised that if elected he would get a Southerner on the Supreme Court and promised to pick “strict constructionist” judges. To fulfill his campaign promise, on August 21, 1969, Nixon nominated Clement Haynsworth Jr. of South Carolina, chief justice of the Fourth Circuit Court. He was to succeed Abe Fortas, who had resigned over accepting a retainer from financier Louis Wolfson, who was under investigation for securities fraud (for which he was convicted) and had only returned it after Wolfson had been indicted twice. Fortas had only a year ago been nominated as chief justice by Lyndon B. Johnson, but Republicans and Southern Democrats had blocked the nomination, and the case against him was based largely on ethics as well as his liberal attitude towards the regulation of pornography.

Clement Haynsworth

Democrats, smarting over Fortas not only being rejected for chief justice but also being forced to resign, chose to play hardball with Nixon and the Republicans. Northern Democrats, led by Phil Hart of Michigan, attacked Haynsworth’s judicial record as anti-civil rights and anti-labor. This alone wouldn’t have sunk the nomination, but when they hit upon conflict of interest issues with Clement Haynsworth, they struck gold. Democrats alleged that Haynsworth had voted in decisions that involved his financial interests. Republicans had based their case against Fortas on conflict of interest. Moderate Republican Senator Marlow Cook of Kentucky defended Haynsworth, stating that he was being subject to a unjustified campaign of character assassination, and the conflict of interest charges were never proven.

The death blow for Haynsworth came when the “Conscience of the Senate”, Republican John J. Williams of Delaware, found himself unable to support him. While he didn’t think Haynsworth did anything illegal, he viewed Haynsworth as having a consistently lax attitude on ethics. Williams was respected on both sides of the aisle and was part of the GOP’s conservative wing, thus this gave more liberal Republicans room to oppose him. Robert Griffin, the Michigan Republican who led the charge against Fortas on ethics grounds, also announced that he could not support Haynsworth. The nomination failed 45-55, with 17 Republicans defecting. Nixon didn’t give up easily, and sought a justice who was more conservative and more to the South.

Nixon’s Second Try: G. Harrold Carswell

https://upload.wikimedia.org/wikipedia/commons/4/43/G._Harrold_Carswell.jpg

The following year, Nixon tried again with Florida’s G. Harrold Carswell, who served on the Fifth Circuit Court of Appeals, and who had no apparent ethics issues surrounding him. His Attorney General, John Mitchell, proclaimed him “too good to be true”. Mitchell had no idea how correct he would turn out to be. However, Carswell had a past as a politician in Georgia, and in 1948 he ran for the state legislature and had delivered a speech in which he endorsed Jim Crow and “white supremacy”. While in 1948, every elected Georgian official was expected to support Jim Crow, his statements by 1970 had aged very badly, and he renounced them. Carswell was also involved in the turning of a public golf course into a private club with segregation, and had prolonged a desegregation case in the 1960s. In truth, his judicial record on civil rights was mixed. He ruled against his own barber when the NAACP brought suit for him refusing to serve black customers and he had been credited with freeing the University of Florida Law School of discrimination. He was also accused of mediocrity, as 58% of his decisions had been overturned by higher courts. Carswell was not helped by his allies either, with Senator Roman Hruska (R-Neb.) stating, “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises, Frankfurters, and Cardozos” (The Downfall Dictionary). Unfortunately and unfairly for Hruska, this quote would be the most famous thing about his over twenty year career in the Senate. Democrat Russell Long of Louisiana compounded the damage with his quote, “Would it not appear that it might be well to take a B or a C student who was able to think straight, compared to one of those A students who are capable of the kind of thinking that winds up getting us a 100 percent increase in crime in this country?” (The Downfall Dictionary) Carswell met Williams’ standards of ethics and won Griffin’s approval, he curiously did not meet with Marlow Cook’s approval. Cook was a liberal on civil rights and was sufficiently disturbed to vote against. Although he fared better than Haynsworth in the vote, 13 Republicans still defected and Carswell was defeated on a 45-51 vote. At this point, Nixon was incensed and blamed an anti-South prejudice on the part of the Senate. He even considered nominating Senator Robert Byrd of West Virginia, who would have provided a huge dilemma for Democrats, as Byrd was a leading Democrat but had also opposed the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

Although Richard Nixon liked the notion of firsts for political purposes, had Carswell been confirmed, he may have achieved a first Nixon didn’t care for: in 1976 he was arrested for propositioning an undercover police officer in a men’s restroom. Three years later, he was beaten in a hotel room by a man he had invited in. Carswell would have quite possibly been the first gay or bisexual Supreme Court justice had he been confirmed. Ultimately, Nixon proved one of the more prolific nominators of Supreme Court justices among presidents, having got four justices in, and in the end he did get a Southerner that the Senate couldn’t refuse: Lewis F. Powell Jr. of Virginia, a former president of the American Bar Association. Only the staunchly liberal Democrat Fred Harris of Oklahoma voted against.

References

G. Harrold Carswell: representing the mediocre. (2014, November 23). The Downfall Dictionary.

Retrieved from

http://downfalldictionary.blogspot.com/2014/11/g-harrold-carswell-representing-mediocre.html

Hoffecker, C.E. (2000). Honest John Williams: U.S. senator from Delaware. Newark, DE: University of Delaware Press.

Retrieved from

The Oil Depletion Allowance: The Largest Tax Loophole in American History

The tax code has numerous loopholes in it that reduce tax burdens, as many Americans discovered upon the New York Times report of President Trump’s taxes, which told a tale of tax avoidance. There are, however, not as many as there used to be and the most substantial one was the oil depletion allowance.

In 1913, as the oil industry was starting to grow in the United States, Congress passed as part of the Underwood Tariff a modest oil depletion allowance that permitted a reduction of up to 5% of gross taxable income from an oil well, and this was only based upon the initial value of the property. However, this was expanded in 1926 with a whopping 27.5% reduction of taxable income. This provided a huge incentive for people to buy oil wells, as at most a bust would lose you 10 cents on the dollar if you were in the top 90% in income. Politicians from oil rich states, particularly Louisiana and Texas, were the greatest guardians of this provision, which constituted a massive windfall for oil producers and thus quite a chunk out of potential revenue. Its proponents justified it as being good for the economic growth of the United States as well as important for its defense. Opponents thought the allowance too high and a waste of money at 27.5%. Author Robert Bryce wrote the following about how the allowance operated in practice: “An oilman drills a well that costs $100,000. He finds a reservoir containing $10,000,000 worth of oil. The well produces $1 million worth of oil per year for ten years. In the very first year, thanks to the depletion allowance, the oilman could deduct 27.5 per cent, or $275,000, of that $1 million in income from his taxable income. Thus, in just one year, he’s deducted nearly three times his initial investment. But the depletion allowance continues to pay off. For each of the next nine years, he gets to continue taking the $275,000 depletion deduction. By the end of the tenth year, the oilman has deducted $2.75 million from his taxable income, even though his initial investment was only $100,000” (Spartacus Educational).

The era of Democratic legislative dominance began after the 1930 midterms, and Texas Democrats came to occupy many powerful positions: John Nance Garner was House speaker and then vice president, Sam Rayburn was chair of the Interstate and Foreign Commerce Committee before becoming House speaker for all but four years from 1941 to 1961, Rep. Hatton Sumners chaired the Judiciary Committee until 1947, Rep. Joseph Mansfield chaired the Rivers and Harbors Committee until 1947, Reps. Marvin Jones and later W.R. “Bob” Poage chaired the Agriculture Committee, and Rep. George Mahon would chair Appropriations from 1964 to 1979. Furthermore, Senator Tom Connally was a key ally of President Roosevelt, and in the 1950s, Senate Majority Leader Lyndon B. Johnson was key in preventing any reduction of the Oil Depletion Allowance. Senator Russell B. Long (D-La.), as a member of and from 1966 to 1981 chair of the Senate Finance Committee, was also a key defender. Taking on this giant of a tax break was, as one might gather, a formidable task.

This allowance was frequently capitalized on by wealthy people including Hollywood figures, who may not otherwise have been interested in purchasing oil wells or shares in oil wells. Bob Hope and Bing Crosby had particular success here as “They each paid $40,000 to Monty Moncrief (a successful Texas oilman as well as their golfing partner) for a 25% share in a West Texas venture. For this particular venture, both stars earned $5,000,000 each on their initial $40,000 investment. When the depletion allowance was taken into account, $1,375,000 of the $5,000,000 was tax-free. Other Hollywood stars who experienced similar successes in the oil business included Jimmy Stewart, Gene Autry, Don Ameche and Frank Sinatra, who fittingly titled his first oil well ‘Crooner No. 1.’ ” (Nocera). The oil depletion allowance made oil a practically irresistible investment, as the dividends paid were high and the risk was low as you could deduct losses on the investment from your taxes.

This generous tax break didn’t go unchallenged: Senators Paul Howard Douglas (D-Ill.), William Proxmire (D-Wis.) and John J. Williams (R-Del.) regularly tried to reduce the oil depletion allowance, but were stymied by the political leaders of the day, including President Dwight Eisenhower, Lyndon B. Johnson, and Speaker of the House Sam Rayburn. Although John F. Kennedy had as a senator voted to reduce the allowance, Texas was one of the key states to his victory in 1960, so he needed to tread lightly on the issue. Nevertheless, after Kennedy’s assassination in 1963, conspiracy theorists, such as Barr McClellan, speculated that he was offed partly to protect the allowance on the behest of LBJ. Once Johnson became president, any proposals for reducing the allowance were dead in the water as they would face his veto.

Without President Lyndon B. Johnson on hand to veto, in 1969 the Senate reduced the deduction from 27.5% to 22% in a compromise. In 1975, with an increase of liberals in the House and Senate, the oil depletion allowance was completely removed for companies that produced over 2,000 barrels a day, and gradually reduced for smaller producers until it hit 15% in 1984. This is where the oil depletion allowance stands today, a shadow of its former self.

References

Depletion allowance. Encyclopedia Britannica.

Retrieved from

https://www.britannica.com/topic/depletion-allowance

Nocera, J. (2019, January 30). How a 91% rate sparked the golden age of tax avoidance in 1950s Hollywood. Los Angeles Times.

Retrieved from

https://www.latimes.com/business/la-fi-nocera-tax-avoidance-20190129-story.html

Oil Depletion Allowance. Spartacus Educational.

Retrieved from

https://spartacus-educational.com/JFKoildepletion.htm

Civil Rights and “No Knock” Warrants

A major subject of discussion as of late (aside from that painful debate) lately has been the use of “no knock” warrants, which has been brought on by the accidental police killing of Breonna Taylor. Since Taylor was black, this has entered the public consciousness as a civil rights issue. The interesting thing is, though, that in 1970 the lines of support and opposition regarding civil rights and “no knock” warrants for drug seizures (the officers were “no knocking” on a drug case when they accidentally shot Taylor) were not necessarily what you’d expect. So, once again, I am conducting some comparative politics. For this, I will compare the votes on the Civil Rights Act of 1964 and the Ervin proposal to strike “no knock” warrants from a crime bill, which was defeated 40-44 on January 27, 1970. Bear in mind, some states are not represented in my comparison, such as Alaska, California, Illinois, Oklahoma, Oregon, and Virginia as all of these states had different senators in 1970 than in 1964, and none of these senators had previously been representatives, thus those states’ senators are not part of this comparison.

There are four groups here:

Opposed Civil Rights Act of 1964, Opposed “No Knock” Warrants for Drug Seizures:

Democrats: 8

Sparkman (AL), Fulbright (AR), Holland (FL), Eastland (MS), Stennis (MS), Ervin (NC), Jordan (NC), Gore (TN)

Republicans: 0

Opposed Civil Rights Act of 1964, Supported “No Knock” Warrants for Drug Seizures:

Democrats: 6

McClellan (AR), Russell (GA), Talmadge (GA), Ellender (LA), Long (LA), Byrd (WV)

Republicans: 4

Gurney (FL), Cotton (NH), Thurmond (SC), Tower (TX)

Supported Civil Rights Act of 1964, Supported “No Knock” Warrants for Drug Seizures:

Democrats: 9

Dodd (CT), Mansfield (MT), Bible (NV), Cannon (NV), McIntyre (NH), Montoya (NM), Pastore (RI), Jackson (WA), Magnuson (WA)

Republicans: 19

Allott (CO), Dominick (CO), Boggs (DE), Williams (DE), Fong (HI), Jordan (ID), Miller (IA), Dole (KS), Pearson (KS), Smith (ME), Griffin (MI), Curtis (NE), Hruska (NE), Young (ND), Schweiker (PA), Scott (PA), Mundt (SD), Bennett (UT), Aiken (VT)

Supported Civil Rights Act of 1964, Opposed “No Knock” Warrants for Drug Seizures:

Democrats: 20

Ribicoff (CT), Inouye (HI), Church (ID), Muskie (ME), Kennedy (MA), Hart (MI), McCarthy (MN), Symington (MO), Metcalf (MT), Williams (NJ), Anderson (NM), Burdick (ND), Young (OH), Pell (RI), Yarborough (TX), Moss (UT), Randolph (WV), Nelson (WI), Proxmire (WI), McGee (WY)

Republicans: 4

Cooper (KY), Mathias (MD), Case (NJ), Goodell (NY)

Most Prevalent Democrat and Republican Positions and the Southern Split

The most common position among Democrats was what you would think: 20 supported the Civil Rights Act of 1964 and opposed “No Knock”. Among Republicans, the most common was both support the Civil Rights Act of 1964 and support “No Knock”, with 19 senators voting this way. What is quite interesting is how “No Knock” divided Southern Democrats who voted on the Civil Rights Act of 1964. Nine opposed “No Knock” and of the nine, only one voted for the Civil Rights Act of 1964. All five of the Southern Democrats who supported “No Knock” opposed the Civil Rights Act of 1964. This southern split can be at least in part be attributed to the leadership on this issue of North Carolina’s Sam Ervin, who commanded great respect with his legal and debating abilities…I mean…he got both of Mississippi’s senators to vote against through his talk about the home being a man’s castle. The leading Senate backer of “No Knock”, incidentally, was Robert Griffin of Michigan, who had voted for the 1960s civil rights laws. Politics isn’t as simple as it seems on first glance.

The Midnight Judges

Should President Trump lose reelection in November, you can bet Mitch McConnell will work overtime to fill the federal judiciary with conservative judges. Although such an act may be condemned as undemocratic, it would not be unprecedented. John Adams did the same, and even more blatantly as he had his supporters pass a law that enabled him to appoint more Federalist judges. They would be known as the “midnight judges”, which sounds rather familiar as one of the names that McConnell’s opponents have given him is “Midnight Mitch”.


In 1800, John Adams became the first president to lose reelection. He had lost the political support of both Alexander Hamilton and Thomas Jefferson and was defeated by the latter. However, although he was defeated, Adams wanted to be sure Federalists continued to have influence. Thus, shortly before he had to leave office, his supporters in Congress passed the Judiciary Act of 1801, which enabled Adams to expand the judiciary and eliminate a seat on the Supreme Court.

With the remaining time in office he had, he labored to appoint all the judges allowed by the law, and they were called the “midnight” judges as he supposedly labored in appointing them until the midnight before Jefferson was to be inaugurated. Easily the most significant appointment he made was that of John Marshall, his secretary of state, as chief justice. He would serve until his death in 1835, and in that time he would define what the Supreme Court’s function was to be in America. However, the expansion would not last, as Jefferson and his new friendly majority were sure to repeal the Judiciary Act of 1801. This provoked the ire of Samuel Chase, an overly partisan Federalist justice, who publicly denounced the repeal as opening the door to “mobocracy” and that it would serve to undermine individual and property rights. Jefferson, in turn, denounced Chase, and the House impeached him. The Senate, however, did not convict. To this day, Samuel Chase is the only Supreme Court justice to ever have been impeached.

Earl Warren and the Warren Court: The Court That Changed the Nation

Earl Warren.jpg

The start of the liberal era of the court began, strangely enough, with Republican politicking. Earl Warren (1891-1974) was a prominent player in Republican politics as California’s popular governor as well as Thomas E. Dewey’s 1948 running mate. Although Warren had a reputation as a progressive Republican governor (he even tried to push for compulsory health insurance) and in 1944 had called for a more liberal GOP at the Republican National Convention, he maintained good relations with both the liberal and conservative wings of the party. However, from the very beginning Warren took a disliking to a young politician named Richard Nixon. In 1946, Warren persuaded Harold Stassen to not come to California to campaign for Nixon when he ran against incumbent Democrat Jerry Voorhis for Congress. Nixon didn’t forget Warren’s intervention and the two men developed a rivalry that became a feud that lasted the rest of Warren’s life. Warren also declined to endorse his Senate bid in 1950 as he didn’t want a more conservative Republican competing with him for leadership in California and didn’t care for his sort of anti-communist politicking. Nixon would get to pay him back in spades when he wanted the presidency in 1952. He hoped he could be a compromise candidate between the conservative Taft and the moderate Eisenhower, but ultimately was undermined by Nixon, who in exchange for Eisenhower picking him as vice president, convinced most of the California delegation (of which he was part) at the Republican National Convention to switch their support from Warren to Eisenhower. This became known as “The Great Train Robbery” since he had boarded the Warren train going to the Republican National Convention in Chicago. Nixon backed procedural vote after procedural vote that helped Eisenhower secure the nomination.

Warren’s dislike of Nixon turned to hatred after this episode and he publicly snubbed him while thanking his supporters. Warren’s supporters gave the press the slush fund story that resulted in Nixon giving his “Checkers” speech on TV to save his career. To placate Warren, Eisenhower promised him the next spot available on the Supreme Court. This happened to be the chief justice spot, as Fred Vinson died suddenly of a heart attack in 1953. The impact of this would be apparent by the next year with Brown v. Board of Education. Warren had immediately made it clear to the justices where the decision would be going. By a 9-0 vote, the court found school segregation a violation of the 14th Amendment. Under any less strong or persuasive leadership, the decision may not have been unanimous. Some doubtful justices among the nine were Robert Jackson, Felix Frankfurter, Tom Clark, and Stanley Forman Reed, not to mention Vinson had some reservations himself before his passing. This has led some to draw the conclusion that had Vinson lived, Brown v. Board of Education would have been decided 5-4 in the opposite direction. It was Warren’s skills as a politician that won the justices over: he agreed to compromise in language to grant states flexibility in pursuing desegregation, which won over Jackson, Frankfurter, and Clark. Reed was only convinced to make it unanimous in a bid to avoid resistance to the ruling (Cray).


Warren quickly sided with Justices Hugo Black and William O. Douglas in their support of Supreme Court activism on social issues and individual liberties, and in 1956 he was joined by William J. Brennan Jr., a liberal Democrat who complimented Warren’s leadership with intellectual and legal prowess. Indeed, legal reasoning was a weaker spot of Warren’s, with legal historian Melvin Urofsky writing that “scholars agree that as a judge, Warren does not rank with Louis Brandeis, Black, or Brennan in terms of jurisprudence. His opinions were not always clearly written, and his legal logic was often muddled” (Urofsky, 838). Warren as a chief justice can be compared to Eisenhower as commander the American forces in Europe: they were tremendous in political leadership, but on legal questions and strategy respectively they were at best middling. He is also the distinct opposite of Justice James McReynolds, as while Warren excelled at the personal and not so much at the legal reasoning, McReynolds was a highly capable legal reasoner and conservative but was also tremendously disagreeable and openly bigoted to Jewish colleagues Brandeis and Cardozo.


Warren’s impact on the court turned the South against him and his decisions on criminal defendant rights, anti-subversive legislation, privacy, school prayer, and legislative reapportionment turned conservatives nationally against him while winning the praise of liberals. The John Birch Society and some other conservatives went as far as to call for Warren’s impeachment, but this never went anywhere. Some of his most notable decisions:


Brown v. Board of Education (1954) – Already mentioned above.

Yates v. United States (1957) – Dramatically weakened the Smith Act by requiring individuals to urge others to take violent action rather than holding beliefs that support violent action against the state. This hampered state efforts at suppressing communists. Decision vote: 6-1.

Mapp v. Ohio (1961) – The exclusionary rule applies not only to federal government, also to states. Decision vote: 6-3.

Engel v. Vitale (1962) – School prayer is unconstitutional. Decision vote: 6-1 (two justices didn’t participate).

Gideon v. Wainwright (1963) – States must provide attorneys for indigant defendants free of charge. Decision vote: 9-0.

Abington School District v. Schempp (1963) – Bible readings in schools unconstitutional. Decision vote: 8-1.

Reynolds v. Sims (1964) – State legislative districts must be based on population and no other factor. Warren considered this and other reapportionment cases to be his most important legacy. Decision vote: 8-1.

Griswold v. Connecticut (1965) – Right to privacy, although not explicitly written, is implied in Constitution. The central precedent used for Roe v. Wade (1973). Decision vote: 7-2.

Miranda v. Arizona (1966) – People who are arrested must be read their rights before they are interrogated. Decision vote: 6-3.

Loving v. Virginia (1967) – Laws against interracial relations and marriage are unconstitutional. Decision vote: 9-0.

In 1962, Warren openly supported Governor Edmund “Pat” Brown for reelection against challenger Richard Nixon and was overjoyed when he lost, laughing with President Kennedy over what the two men thought would be Nixon’s last press conference.

Warren was also appointed by President Johnson to head the commission investigating the assassination of President Kennedy. He once again applied his political skills to gain a unanimous vote on a report despite strong reservations from Senator Richard Russell of Georgia. Controversy over the commission’s finding of Lee Harvey Oswald as the lone gunman continues to this day. In 1968, Warren announced his retirement and had hoped that LBJ would fill the vacancy with a court liberal, but a combination of Senate Republicans and Southern Democrats blocked his pick of his man Abe Fortas. With the Senate refusing to confirm him or another Johnson nominee, Warren had to swear in his rival Nixon and, worse yet, have his successor on the court be Judge Warren Burger, a known Warren Court critic. He also ended up confirming four justices, with Warren Burger, Lewis Powell, to a considerably lesser extent Harry Blackmun (who would later shift to the liberal wing of the court), and especially William H. Rehnquist weakening a considerable number of Warren Court decisions, particularly those involving criminal defendant rights. Much of the partisanship that has surrounded the Supreme Court can be traced to the Warren Court’s decisions, the backlashes against them, as well as the bitter rivalry between Nixon and Warren.


Warren died on July 9, 1974, but just before he passed he told Justices Douglas and Brennan, who were by his side at his deathbed, that they must rule against Nixon in United States v. Nixon (1974), which forced him to turn over the Watergate tapes. Two weeks later they did just that.

Warren was one of the strongest political leaders of the court in American history, but he was no legal scholar and didn’t develop doctrines like Justices Frankfurter and Black. The intellectual behind the liberalism of the court itself was Justice William J. Brennan Jr. Warren’s skill was in leadership, and it is why in influence only John Marshall and Roger B. Taney overshadow him as chief justice.

References

Cray, E. (1997). Chief Justice: A biography of Earl Warren. New York, NY: Simon & Schuster.

Farrell, J.A. (2017, March 21). The Inside Story of Richard Nixon’s Ugly, 30-Year Feud with Earl Warren. Smithsonian Magazine.

Retrieved from

https://www.smithsonianmag.com/history/inside-story-richard-nixons-ugly-30-year-feud-earl-warren-180962614/

Urofsky, M.I. (2001). The Warren Court: Justices, Rulings, and Legacy. Santa Barbara, CA: ABC-CLIO.