The GOP’s Downfall with Black Voters

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In 1868, the value of the black vote first became apparent to the GOP when they gratefully voted for President Grant. Had blacks not exercised their new rights, the president would have been Democrat Horatio Seymour, whose presidential campaign was the most nakedly racist in American history. For at least 22 years, the Republican Party took an active role in protecting the rights of blacks, but this enthusiasm had begun to wane after the end of Reconstruction and really waned after the failure of the Lodge Federal Elections Bill and subsequent electoral defeats partially based on support for the measure. No serious efforts to push civil rights legislation would gain traction until 1922, and then only briefly. For 64 years, blacks voted solidly Republican, but they could be counted as a solid Democratic bloc from 1936 forward. I think there are a few major factors that ultimately lead to the downfall of the GOP in terms of black support. Warning: this is going to be a bit of a story and for a lot of people is undoubtedly tl;dr. For those people, I will sum up as this: the GOP failed to pass an anti-lynching bill in 1922, FDR gained the black majority, and the people and events surrounding the 1964 election. However, if you bear with me you might learn some interesting things.

  1. The Failure of the Dyer Anti-Lynching Bill

In 1922, prospects were increasingly promising for civil rights. President Warren Harding had in the past year delivered a speech in front of a segregated audience in Alabama in which he called for equality between blacks and whites, the first president to do so. This speech was met with cheers from the black side of the segregated audience and with icy silence from the white side. The Republican platform of 1920, which reflected Harding’s views, also called for an anti-lynching bill. Black soldiers had fought bravely for the United States in World War I and the thought at the time was that this would open doors for them when they came home. Unfortunately, progress against anti-black racism would be largely stifled until after World War II. In the House, the measure was sponsored by Leonidas Dyer (R-Mo.), a Republican who could be best identified with the conservative “Old Guard”. He had been horrified by the race riots in St. Louis and East St. Louis as well as by the frequency of racially motivated lynching in the South. Public support was strong, and passage was overwhelming in the House. All but seventeen of voting Republicans were in favor, while the Southern-dominated Democratic Party only had eight of its representatives voting in favor. In the Senate, the measure would meet its requiem.

Senate Majority Leader Henry Cabot Lodge (R-Mass.) had a good civil rights record in the past, having previously drafted the Lodge Elections Bill in 1890 while he was in the House. Had it not been defeated by a Senate filibuster, this measure would have tackled both Southern efforts at excluding blacks from suffrage and corrupt voting practices elsewhere in the country. Unfortunately, Lodge seemed to have lost enthusiasm for civil rights since, and gave the duty of managing the bill to conservative freshman Samuel Shortridge (R-Calif.). Had Lodge himself pursued the matter, without doubt this effort would have been more formidable. Perhaps Lodge thought that civil rights was a losing issue and thus didn’t care to put too much effort into it. Although Senator Shortridge fought for the measure to the best of his abilities, the South had more able debaters in Minority Leader Oscar Underwood (D-Ala.) and Pat Harrison (D-Miss.). They also had a Republican ace up their sleeve: William Borah.

William Borah (R-Idaho) was a true political maverick who often opposed the initiatives of conservative Republicans, such as reducing taxes on the rich. He had also led with Sen. Hiram Johnson (R-Calif.) the group of senators known as the “irreconcilables”, who opposed the Versailles Treaty in any form and were successful in defeating it. Unfortunately, one of the areas in which he proved a maverick from his party was on civil rights. For instance, Borah was the only Republican in the Senate to vote for Sen. Harrison’s proposal to extend suffrage to white women only in 1919 (Govtrack). He was also such a persuasive debater that his arguments could change how senators voted, a feat that is practically unthinkable today. Borah used his oratorical and persuasive abilities to argue against the constitutionality of the Dyer Bill. Amateur supporters like Shortridge proved unable to match his powerful oratory and his mastery of debate. Borah also divorced his arguments against the bill from the crude racism of other opponents, which proved a winning strategy. The Dyer Bill was ultimately shelved without having had an up-or-down vote in favor of ship subsidy legislation.

This failure proved to black voters in the North that even with strong majorities, Republicans were unwilling to fight hard for civil rights proposals they claimed to support. However, this did not turn blacks against the GOP yet. The last time a significant number of black voters had flirted with Democrats was with Woodrow Wilson, who W.E.B. DuBois had backed in 1912 and had won more black votes than any previous Democratic candidate. But this had proved a mistake, as the Democratic Party at the time was still Southern-dominated with many of its members, including Wilson, supporting Jim Crow laws.

  1. Herbert Hoover & FDR

In 1928, Herbert Hoover ran a presidential campaign that aimed to appeal to the South, and the time was particularly ripe for it because the Democrats had nominated…*GASP*…Catholic Al Smith! Combined with his staunch opposition to Prohibition, this guaranteed Ku Klux Klan support for Hoover and led Sen. Thomas Heflin (D-Ala.), a ridiculously bigoted man who considered shooting (non-fatally) a black man in a confrontation as among his achievements, to back him instead of Smith. Many Southerners supported Prohibition and were deeply mistrustful of Catholicism, holding the false belief that if Smith was elected, he would take orders from the Pope. The Democrats unsuccessfully tried to lessen the damage by nominating Protestant prohibitionist Sen. Joseph Robinson (D-Ark.) for the VP spot. The results were stunning for the GOP, with the party breaking the “Solid South” by winning the Southern states of Tennessee, Texas, Florida, North Carolina, and Virginia. The GOP hadn’t won the latter four since Reconstruction. Hoover even almost won Alabama. This had all been done without losing the black vote.

The Hoover Administration, although engaging in certain small gestures that were in the direction of racial equality, such as Jessie De Priest, wife of black Congressman Oscar De Priest (R-Ill.), having tea with First Lady Lou Hoover, the administration was probably the least friendly Republican administration to civil rights since the end of Reconstruction. Hoover actively took the side of the “lily-white” movement in the Republican parties in the South in their aim to purge the “black-and-tan” faction, which was noncompetitive due to Jim Crow laws. That approach turned out to be a spectacular failure in gaining more white votes at the time. The administration also didn’t voice support for anti-lynching legislation, which the Harding and Coolidge Administrations had done. More critically, Hoover broke an important promise.

During the aftermath of the Mississippi Floods of 1927, there were numerous accounts of Southern whites abusing blacks in the process of conducting relief efforts, including forcing them to work at gunpoint. While Hoover’s approach at disaster relief was effective in providing aid to flood victims, he wanted these stories buried. He thus struck a deal with Tuskegee Institute head Robert Moton to suppress the story in exchange for blacks having an unprecedented level of power in his new administration (Barry, 1997). Whether Hoover ultimately intended to keep the promise or not is unknown, but he was undoubtedly distracted by another factor that would lead to the start of the black exodus from the GOP: The Great Depression. The Great Depression cost Hoover the election, but he still won 77% of the black vote. FDR’s New Deal, however, resulted in a massive switch as New Deal programs brought relief and benefits to working class and poor Americans, white and black. This switch became quite evident when black Congressman Oscar De Priest (R-Ill.), a New Deal critic who represented a majority-black Chicago district, was defeated in 1934 by his protégé and former Republican, Arthur Mitchell. The district has been Democratic ever since. This development was despite Roosevelt being beholden to white Southern politicians for support, and thus also never voicing support for anti-lynching legislation publicly and accepting racial discrimination in the dispersion of benefits in the South. The increasing number of Northern Democrats in the party who were sympathetic to civil rights could also be said to be a factor in the switch, a prime example being Sen. Robert F. Wagner (D-N.Y.), a New Dealer who sponsored anti-lynching legislation. In 1936, FDR won reelection overwhelmingly, and won 71% of the black vote. After this election, no Republican presidential candidate would win more than 39% of the black vote.

  1. LBJ, Barry Goldwater, the Civil Rights Act, and the Thurmond Switch

While black support for the GOP had fallen since the Hoover Administration, there were still a sizeable number of black voters who were sticking with the party of Lincoln. After all, most Republicans proved willing to support anti-lynching and anti-poll tax legislation, including people like conservative leader Sen. Robert Taft (R-Ohio). President Harry Truman’s support for civil rights and his order to desegregate the Armed Forces helped keep blacks in the Democratic column, but the support of President Eisenhower and Vice President Nixon for civil rights legislation was also helpful in keeping a significant base of support alive. Both men supported strong voting rights legislation and it was Majority Leader Lyndon B. Johnson who was most responsible for making the Civil Rights Act of 1957 weak. The original bill had some teeth, but Johnson figured that he could never be president if he was the typical southern politician, so for the first time in his twenty years in federal politics he expressed support for a weak civil rights bill. He struck a deal with other Southerners that in exchange for making the bill weak they wouldn’t filibuster. However, Strom Thurmond (D-S.C.), the Dixiecrat candidate for President in 1948, had different ideas. He managed to pull off the longest solo Senate filibuster in history at 24 hours against a bill that was effectively toothless. The passage of the bill as well as Thurmond’s filibuster were both strongly symbolic actions, one to give blacks hope and the other as a show of defiance.

By 1960, President Eisenhower had signed two weak civil rights bills into law that addressed voting rights. However, he had done much more than that. Eisenhower appointed judges to Southern federal courts that he knew would strike down segregation, such as Elbert Tuttle and Simon Sobeloff. In 1960, Vice President Nixon managed to win 32% of the black vote. However, there was a Republican who would prove decisive in further chipping away at the black vote: Barry Goldwater.

Among Senate Republicans, Goldwater had one of the weaker records of support on civil rights. While he had supported the 1957 and 1960 civil rights laws as well as 24th Amendment banning the poll tax for federal elections, he had also voted for the weakening amendments supported by Lyndon Johnson for the 1957 bill. Goldwater was attracting much attention for his staunch conservatism expressed in “Conscience of a Conservative”, his willingness to critique the political moderation of the Eisenhower Administration as constituting a “dime store New Deal”, and his view on who the GOP should be targeting for votes. Specifically, they should be targeting Southern whites. Goldwater figured that the GOP was bleeding out black voters while the white voters of an increasingly suburban South were finding much to like about the GOP’s suburban conservatism. In 1964, he sought the Republican nomination for President not so much to win the election, but to wrest control of the party decidedly for the conservatives. Unfortunately for the GOP, it was a bit of a foregone conclusion that they were going to lose that year: the electorate was still in mourning over the assassination of JFK and they were in no mood to turn out his successor. After winning a contentious primary in which some liberal Republicans declined to endorse him, Goldwater ran as his true self. This included taking hardline and principled stances that caused both alarm and offense. His language was cavalier on the prospects of open war with the Soviets, he hinted at privatizing Social Security, and advocated selling the Tennessee Valley Authority. The latter two stances likely cost him Southern states outside the Deep South. He also was one of six Republican senators to vote against the Civil Rights Act of 1964, which he did because he believed that the public accommodations and the employment discrimination sections of the act were unconstitutional. After President Johnson had actively supported and signed the Civil Rights Act into law and Thurmond switched parties shortly after Goldwater’s nomination, the message to blacks seemed unmistakable. Indeed, that year Goldwater only won his home state of Arizona, five Deep South states, and 6% of the black vote. Although he performed worse in the South than Eisenhower in 1956, the symbolism of this election and his sweeping of the Deep South was of paramount importance. The GOP has made little progress since then on gaining black votes: they have won no more than 17% in a presidential election since, and most recently, 8% voted for Donald Trump in 2016 (BBC News).

In all, most political Republicans deep down may have had good intentions for black people. Indeed, when it came to measures of voting rights, combating lynching, and opposing segregation most federal politicians had solid voting records. However, they squandered the black vote through missed opportunities, broken promises, and political calculation aimed at winning the white South. Thus, when a charismatic game-changer like FDR came along, most blacks found little reason to continue sticking with the Party of Lincoln. The GOP’s historical support for businesses also limited what they were willing to do to address private sector discrimination. While it is true that the New Deal and Hoover lost the GOP the black vote, the pick of Goldwater was the final nail in the coffin, and dismal support percentages in presidential races have resulted in the party writing off the black vote. It could also rightly be pointed out that there were similarly conservative senators who voted for the Civil Rights Act, but who aside from me (and now you from reading this) knows of Carl Curtis and Roman Hruska of Nebraska, or John Williams of Delaware? They were not in the public consciousness at the time for their votes and they certainly aren’t now.

References

Bailey, G. This Presidential Speech on Race Shocked the Nation…in 1921. History News Network.

Retrieved from https://historynewsnetwork.org/article/164410

Barry, J.M. (1997). Rising tide: The great Mississippi flood of 1927 and how it changed America. New York, NY: Simon and Schuster

Caro, R.A. (2002, June). LBJ Goes for Broke. Smithsonian Magazine.

Retrieved from https://www.smithsonianmag.com/history/lbj-goes-for-broke-64104277/

Hamilton, D.E. Herbert Hoover: Campaigns and Elections. Miller Center.

Retrieved from https://millercenter.org/president/hoover/campaigns-and-elections

Reality Check: Who voted for Donald Trump? (2016, 9 November). BBC News.

Retrieved from https://www.bbc.com/news/election-us-2016-37922587

“To Amend HJR 1 By Restricting the Right to Vote to White Citizens of United States, Regardless of Sex”. Govtrack.

Retrieved from https://www.govtrack.us/congress/votes/66-1/s10

 

 

Racism and Tax Cuts…Are They Really Peas in a Pod?

One of the angles tax cuts can be attacked at is with the claim that they are racist as leaving more and more funds out of the public sector leads to less wealth redistribution by government. Since blacks have higher rates of poverty than whites, the logic goes, the policy must be racist as it lessens the likelihood of outcomes becoming more equal.  This argument takes a consequentialist view of race and tends to be embraced by the folks who claim “capitalism is racism”. This was the line of thinking of some columnists in regards to the GOP’s tax bill last year, such as Katrina vanden Heuvel of The Nation (see links at the bottom). What these people and others of their mindset don’t realize, though, is that the intent of tax cuts is not racism, rather less money under political control and more money in the market, which can potentially produce jobs and growth all around. The notion of tax cuts necessarily being connected with racism can be disproven with the comparison of numerous votes of Congress, but for this case I have chosen three votes from 1924. I know I’m going quite far back for this one, but the debate on tax reduction was rather similar then to the one we had last year. One of these is on the Republican proposal for income taxes, one on the Democratic proposal for income taxes, and a segregation vote.

On May 9, 1924, the GOP proposal, pushed by Senator Reed Smoot (R-Utah), would have brought the maximum income tax rate down to 32%. This proposal was defeated 36 to 47, with 34 Republicans and 2 Democrats voting for, while 7 Republicans, 38 Democrats, and 2 Farmer Laborites opposed. The Democratic proposal, pushed by Senator Furnifold Simmons (D-N.C.), brought the top income tax rate up to 40% instead of being 37.5%. This proposal passed 46 to 39, with 7 Republicans, 37 Democrats, and 2 Farmer Laborites voting for, while 36 Republicans and 3 Democrats voted against. For reference to the present, the top rate fell from 39.6% to 37% in the most recent tax reduction bill and the final vote in the Senate was entirely party line. The segregation vote was brought up by Senator William Harris (D-Ga.), who proposed that bathing beaches and bathhouses in the District of Columbia be segregated, with the funds split equally. This proposal was defeated 18 to 35, with 18 Democrats voting for, while 29 Republicans, 4 Democrats, and 2 Farmer Laborites voted against. Of the 22 Senators who voted for tax cuts and cast a vote on segregation, only Thomas Bayard (D-Del.) voted for segregated beaches and bathing facilities.

My example demonstrates that the advocates of tax cuts, even a time in which the KKK was at its high peak of national influence, did not support out of racist motives. Rather they voted out of a belief that freeing up more money into the private sector is beneficial for the economic well being of society. While I do not doubt that even those who voted against segregation were certainly prone to certain views about race considering most senators also voted for the national origins immigration quota that year, this comparison nonetheless demonstrates 95% opposition from supporters of tax cuts to a Jim Crow policy. If I were to hold a contemporary progressive or radical view of the world, I would expect much more support of tax cuts from Southern Democrats if their scheming to keep blacks second class citizens were to manifest itself in tax debates.

References

“To Amend, In the Nature of a Substitute, H.R. 6715, By Making the Maximum Surtax Rate 32 Per Cent”. Govtrack.

Retrieved from https://www.govtrack.us/congress/votes/68-1/s117

“To Agree to the Amendment to H.R. 6715, Which Amendment Provides That the Maximum Rate on Incomes be 40 Per Cent Instead of 37 ½ Per Cent”. Govtrack.

Retrieved from https://www.govtrack.us/congress/votes/68-1/s118

“To Amend H.R. 9559…”. Govtrack. (this is the beach and bathhouse segregation vote)

Retrieved from https://www.govtrack.us/congress/votes/68-1/s155

Links to articles that make arguments that are or are similar to the one I outlined:

https://www.theroot.com/5-ways-the-republican-tax-reform-plan-hits-black-folks-1820516643

https://www.thenation.com/article/trumps-tax-cut-scam-will-deepen-racism-inequality/

https://www.salon.com/2017/12/11/gop-tax-bill-a-new-mechanism-for-reinforcing-white-power/

 

The Hazards of Longevity on the Supreme Court

While the recent talk of “court packing” is profoundly stupid considering one of history’s most popular presidents couldn’t get the public or even his own party behind it, there is something to be said about Supreme Court justices sticking around too long. This is not to suggest that the Republicans ought to propose a measure capping service at the age of 80 to boot Ginsburg and Breyer, for that would be most devilish and unwise. However, justices have stuck around too long before and there have been consequences for it, and in more than one instance said justices were the deciding votes in crucial cases. Chief Justice Charles Evans Hughes once stated, “it is extraordinary how reluctant aged judges are to retire and give up their accustomed work” (Garrow, 997). Ailments that justices have suffered included severe depression, dementia, and mental derangement. I’m not one who usually likes to spare readers on details, so I have compiled a list of justices who suffered problems severe enough to impact their judgment at different times in court history. Quite frankly it is amazing how the court was able to carry on in spite of these cases!

Justices who suffered depression, severe mental illness, or drug impairment:

John Rutledge (1739-1800), Court Service: 1795.

The only justice to have attempted suicide, Rutledge was a recess appointment and an erratic figure who sunk his own confirmation as chief justice by giving a fiery speech against the Jay Treaty. This had already been confirmed by the very Senate that was voting on his nomination, and he lost the vote.

Henry Baldwin (1780-1844), Court Service: 1830-1844.

Allegedly insane after his first two years, according to those around him including his fellow justices. In 1833, he was hospitalized for “incurable lunacy”. According to Justice Moorfield Story, he was consistently in a state of “partial derangement”. He developed no consistent judicial philosophy but was the court’s strongest defender of slavery.

Frank Murphy (1890-1949), Court Service: 1940-1949.

By the late 1940s, Justice Murphy had developed health problems and drug addictions. He was addicted to the sleeping pill Seoncal and then the painkiller Demerol. By his last year, Murphy was buying drugs illegally twice a day. As a consequence, he would often not be deciding his own votes, with Justices Rutledge, Black, and Murphy’s clerk deciding what his votes should be.

Charles Whittaker (1901-1973), Court Service: 1957-1962.

Failed to develop a consistent judicial philosophy, suffered severe depression that resulted in indecisiveness and nearly drove him to suicide. Probably not as intelligent as the other justices. Suffered a nervous breakdown in 1962, forcing his retirement.

William Rehnquist (1924-2005), Court Service: 1972-2005.

Justice Rehnquist suffered from severe back pain, and was prescribed Placidyl throughout the 1970s to address this issue. However, by 1981, the drugs had taken their toll on him as he slurred his speech and suffered hallucinations. Rehnquist was hospitalized that year and weaned off the drug. By 1982, he had fully recovered and would be promoted to chief justice, serving until his death in 2005.

Justices Who Grew Too Old, Developed Disabling Health Problems, or Became Senile:

William Cushing (1732-1810), Court Service: 1789-1810.

The last judge to wear a full wig, Cushing was by 1796 in ill health and declined the post of chief justice on this ground. His mental faculties were waning, and by the last years, he was thought of as deranged. Yet, Cushing refused to retire and died in office.

Robert C. Grier (1794-1870), Court Service: 1846-1870.

Justice Grier suffered three strokes in 1867, rendering him partially paralyzed. His physical and mental abilities had severely declined and by 1869 this was clear to all. His incapacity was significant as it resulted in the overturning of the Legal Tender Act of 1862 (authorizing paper money). The original vote in the Legal Tender Cases was 4-4, but in his confused mental state, Grier changed his mind. Chief Justice Salmon P. Chase bears ethical responsibility for using Grier’s vote to secure his majority. He was finally convinced by his colleagues to retire in January 1870.

Nathan Clifford (1803-1881), Court Service: 1858-1881.

Although Justice Clifford had served ably as a justice, by 1877, his declining mental faculties were clear to all around him. In 1880 he suffered a massive stroke that rendered him, in the words of Justice Samuel Miller, a “babbling idiot” (Garrow, 1007). Clifford did not recognize people he had known and didn’t form sentences that made sense.  Clifford participated in no cases in the 1880 session but refused to retire as he hoped a Democrat would be elected in 1880 to pick his successor. He died in office the following year.

Ward Hunt (1810-1886), Court Service: 1872-1882.

After six unexceptional years on the court, Justice Hunt suffered a severe stroke in 1878 that rendered him partially paralyzed and unable to speak,yet would not retire because he would not be eligible for retirement with a full pension unless he had served ten years and reached age 70. Congress passed legislation to grant him a full pension if he retired in 30 days in 1882, and then he agreed to do so.

Stephen J. Field (1816-1899), Court Service: 1863-1897.

Justice Stephen J. Field developed the concept of “substantive due process”, yet in his last years on the court, his faculties deteriorated significantly. By the early 1890s the signs were becoming evident, and by the winter of 1896-97, he was asking questions in court that demonstrated a complete lack of understanding of cases before him. Field would also vote on cases and then forget how he had voted. He was also completely lethargic, and at last retired in December 1897.

William Moody (1853-1917), Court Service: 1906-1910.

Justice Moody’s time on the court was quite short, as he had begun to fall ill in 1908. By 1909 he was diagnosed with ALS, resulting in his retirement in 1910.

Joseph McKenna (1843-1926), Court Service: 1898-1925.

Justice McKenna mentally deteriorated over a period of ten years after suffering a stroke and by 1921 his abilities had become limited. Chief Justice Taft only assigned him simple cases, and even on those he made mistakes. He was finally convinced to retire in January 1925.

William Howard Taft (1857-1930), Court Service: 1921-1930.

By 1929, Taft was observing his own decline, noting that he had become more confused. Knowing the end was nigh, he retired in February 1930, dying one month later.

Sherman Minton (1890-1965), Court Service: 1949-1956.

Justice Minton had only served on the court for six years when he came to the conclusion at the age of sixty-five that both his mental and physical health were failing him. He retired 10 months after writing about the failing state of his health to former President Harry S. Truman.

Hugo Black (1886-1971), Court Service: 1937-1971.

Signs of Justice Black’s deterioration first started to arise in 1966, when he began having memory issues. A stroke in 1969 slowed him down considerably and had caused him to grow increasingly confused and forgetful. He also came to believe that there would be no election in 1972 and the U.S. would be taken over through a military coup. He retired eight days before his death.

John Marshall Harlan II (1899-1971), Court Service: 1955-1971.

Although Harlan didn’t mentally deteriorate, his eyesight deteriorated in the late 1960s to the point that he could not read past an inch from his face and often needed his wife and clerks to read materials to him. By the time he retired on September 23, 1971, and was suffering from spinal cancer, which would kill him three months later.

William O. Douglas (1898-1980), Court Service: 1939-1975.

The longest serving Supreme Court justice in history suffered a stroke at the end of 1974 that incapacitated him for 2 ½ months, and stayed on the court ten months. In this period, he thought he was the chief justice, slurred his words, addressed people in the Court with incorrect names, couldn’t walk, and feared that people were trying to kill him. Other justices agreed that they would often not count his votes given his condition. Douglas was finally convinced to retire on November 11, 1975. Even after his retirement, he attempted to participate in consideration of cases.

Thurgood Marshall (1908-1993), Court Service: 1967-1991.

Although Marshall had an impressive legal career all the way up to the Supreme Court, in his later years he grew increasingly lackadaisical. He spent hours watching soap operas in his chambers and often left the writing of legal opinions to his law clerks. Marshall also developed hearing loss and would simply vote the way Justice William Brennan did. He had hoped to hold out until a Democrat picked his successor, but the writing was on the wall as to his abilities in 1991, when he accidentally voted favorably on a death penalty case before having to write to his fellow justices to reverse his vote. He subsequently chose to retire.

References

Chapman, C. (1991, July 4). Octogenarian Justices Are No Asset To The Court. Chicago Tribune.

Retrieved from

http://articles.chicagotribune.com/1991-07-04/news/9103160585_1_justices-law-clerks-lot-of-excellent-ideas

Garrow, D.J. (2000). Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment. The University of Chicago Law Review, 67(4).

Retrieved from https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=5893&context=uclrev

Guerra-Pujol, F. E., The Most Senile Justice? (2015). Supreme Court Micro-Symposium, Forthcoming.

Retrieved from http://dx.doi.org/10.2139/ssrn.998673

The Loneliness of Trump on Russia: Has a President Ever Stood So Opposed to a Political Consensus?

President Donald Trump is outstandingly alone on the foreign policy issue of Russia, particularly on Putin’s interference in the 2016 election (although he seems to have walked back on that one). Almost every elected official is at odds with him as is his administration on how we should proceed with Russia. In spite of his protestations, there were only three members of the House and two members of the Senate who supported his position in opposition to a measure upping sanctions on Russia, Iran, and North Korea. Trump objected to the Russia inclusion while Bernie Sanders opposed the Iran part of the measure. The other senator was Rand Paul, who also happened to be the only elected official who praised Trump on his performance in the joint press conference with Vladimir Putin. I had difficulty thinking of an instance in which a president stood as alone on a foreign policy issue, but there was a minor one that occurred over Saudi Arabia only two years ago.

In 2016, Congress passed a highly popular bill, Justice Against Sponsors of Terrorism Act, that allowed families of the victims of the 9/11 attacks to sue the government of Saudi Arabia if it turned out there were people in the government who were involved in the attacks. The Obama Administration feared harming relations with Saudi Arabia and potentially exposing the US to similar lawsuits, thus Barack Obama vetoed the measure. The House overrode on a 348-77 vote, while the Senate overrode 97-1, with the Administration’s only supporter in that chamber being Minority Leader Harry Reid (D-Nev.). This was the one and only time President Obama’s veto was overridden. There are some differences between these dissents.

First, Obama had some party crossover in support of his position, as eighteen House Republicans voted against the veto override. Trump had zero Democratic support for his position, unless you count Bernie Sanders, who is technically an Independent and only voted against the measure due to the Iran sanctions. Second, Trump is actively disagreeing with conclusions reached by intelligence experts including CIA chief Dan Coats, while Obama’s disagreements lay in foreign policy calculation. Third, Obama got significantly more support from his party for his position on 9/11 families than Trump on Russian sanctions. Fourth, the Russia issue is ongoing due to its government’s interference in our elections and questions surrounding Trump and his campaign’s relations with Russia. The 9/11 measure may be ongoing should further evidence arise regarding officials in the Saudi Arabia government. There have been other instances in which presidents have taken unpopular foreign policy positions: both Jimmy Carter and Ronald Reagan had the majority of their parties in the House to oppose foreign sales. In Carter’s case, it was low enriched uranium to India in 1980, which was disapproved in the House 298-97 (D 180-67, R 118-30). After intense lobbying by the Carter Administration, the Senate rejected the disapproval resolution 46-48 (D 23-31, R 22-17, I 1-0), this time earning the support of a majority of his party. In Reagan’s case, it was the sale of Airborne Warning Control System (AWACS) Radar Planes along with other weaponry to Saudi Arabia in 1981. The House disapproved 301-111 (D 192-33, R 108-78, I 1-0). The Reagan Administration intensely lobbied the Senate, and received the same result as the Carter Administration, with the Senate defeating the resolution 48-52 (R 12-41, D 36-10, I 0-1). Reagan also opposed South Africa sanctions in 1986 for apartheid as he wanted to continue the policy of “constructive engagement”, and his veto was overridden by the House and Senate, with majorities of Republicans in both chambers bucking the administration.

While a president opposing both parties on a foreign policy issue is not unprecedented, the extent of the difference certainly appears to be.

References

Kim, S.M. (2016, September 28). Congress hands Obama first veto override. Politico.

Retrieved from https://www.politico.com/story/2016/09/senate-jasta-228841

“S. 2040: Justice Against Sponsors of Terrorism Act.” Govtrack.

Retrieved from

https://www.govtrack.us/congress/votes/114-2016/s148

“S. 2040: Justice Against Sponsors of Terrorism Act.” Govtrack.

Retrieved from

https://www.govtrack.us/congress/votes/114-2016/h564

“To Agree to H. Con. Res. 194, The Resolution Disapproving the Sale to Saudi Arabia of Airborne Warning Control Systems (AWACS) Radar Planes, Conformal Fuel Tanks for F-15 Aircraft, AIM-9L Sidewinder Missiles and KC-707 Aerial Refueling Aircraft.” Govtrack.

Retrieved from https://www.govtrack.us/congress/votes/97-1981/h243

“To Agree to H. Con. Res. 194, The Resolution Disapproving the Sale to Saudi Arabia of Airborne Warning Control Systems (AWACS) Radar Planes, Conformal Fuel Tanks for F-15 Aircraft, AIM-9L Sidewinder Missiles and KC-707 Aerial Refueling Aircraft.” Govtrack.

Retrieved from https://www.govtrack.us/congress/votes/97-1981/s338

“To Agree to H. Con. Res. 367, Disapproving the Proposed Export to India of Uranium for the Tarapur Atomic Power Station Pursuant to Export License Application XSNM 1569.” Govtrack.

Retrieved from https://www.govtrack.us/congress/votes/96-1980/h1164

“To Agree to H. Con. Res. 432, Disapproving the Proposed Export of Low Enriched Uranium to India.” Govtrack.

Retrieved from https://www.govtrack.us/congress/votes/96-1980/s948

Short Term Economic Hardship is the Cost of Independence

Regarding Brexit there have been many dire predictions about the economic downturn Britain will suffer as a result. However, its defenders could hold that the short-term cost of leaving is worth the long-term benefits that an independent Britain will bring, such as not receiving costly mandates from politicians unelected by the people and having more control over their immigration. Even if Britain continued to mandate policy similar to the EU’s numerous rules and regulations, at least objectionable legislation will be passed from London instead of Brussels and voters can hold their legislators directly responsible. We can see a similar example with the American Revolution and its aftermath.

After consistent taxation without representation and colonists not being treated as Englishmen through oppressive laws such as the “Intolerable Acts”, the Patriots decided that the colonies needed to be independent. The costs were great not only in terms of lives but on economic well-being. The British blockaded American ports, cutting off imports and exports. The morale of American soldiers was badly tried as often their pay was postponed and they often had little food, depending on inefficient Congressional requisitions of grain and livestock to keep them alive. Congress tried to get the states to pay for the war effort, but the states lacked a system of taxation and were thus of little assistance. Inflation skyrocketed, which primarily harmed soldiers as they were on a fixed income. Some soldiers would be given land after the war in recompense for not being fully paid. To add to these difficulties, many wealthy merchants were of no help in the war effort as they opposed independence. The costs would continue after the war, as the Revolutionary War had cost the colonies the equivalent of $2.4 billion, and the newly constituted United States needed to raise revenue to pay off the war debt (Daggett, 2010). One of the most controversial ways was through the “Whiskey Tax”, a tax on distillers which was so unpopular in Western Pennsylvania that it resulted in the Whiskey Rebellion, a violent tax protest that had to be put down by the military.

The issues surrounding Brexit are comparatively far milder, and it is not going to be nearly as costly as the American Revolution. Just as many people in Britain think Brexit to be unwise and not worth it, so did many colonists. There are even people who hold this view today albeit from a hindsight perspective, such as Dylan Matthews of Vox, who wrote an article on how American independence was a mistake primarily from a racial justice angle. However, we don’t hear about the economic angle much because the United States was successful in paying off its war debts to France, Dutch bankers, and individual creditors within the colonies by the 1790s thanks primarily to Alexander Hamilton. Brexit may be viewed similarly in time if implemented to its fullest.

Whatever your feelings on Brexit, the costs associated with this move away from the EU are likely short-run, with possible benefits in the long run if the EU faces more crises in governance and the Middle Eastern population proves increasingly unwilling or unable to integrate into European society.

References

Daggett, S. (2010, June 29). Costs of Major U.S. Wars. Congressional Research Service.

Retrieved from

https://fas.org/sgp/crs/natsec/RS22926.pdf

Ferling, J. (2010, January). Myths of the American Revolution. Smithsonian Magazine.

Retrieved from

https://www.smithsonianmag.com/history/myths-of-the-american-revolution-10941835/

How Alexander Hamilton Tackled the National Debt. (2017, April 19).  Smithsonian Magazine.

Retrieved from https://www.smithsonianmag.com/sponsored/alexander-hamilton-debt-national-bank-two-parties-1789-american-history-great-courses-plus-180962954/

Matthews, D. (2015, July 3). 73 reasons the American Revolution was a mistake. Vox.

Retrieved from

https://www.vox.com/2015/7/2/8884885/american-revolution-mistake

“Whiskey Rebellion”. Encyclopedia Britannica.

Retrieved from

https://www.britannica.com/event/Whiskey-Rebellion

On a Scale of Jimmy Carter to FDR, How Transformational is a Trump Presidency for the Supreme Court?

The best argument for many regular Republicans to vote for Donald Trump in 2016 was the Supreme Court, and this argument looks better and better as time passes. The Democrats are in a highly precarious position when it comes to the Supreme Court, as Ruth Bader Ginsburg is 85 and Stephen Breyer is turning 80 this year. They are the justices most likely to retire or die next, meaning that the Democrats need to win the next presidential election to prevent a court transformation. If they lose, Ruth Bader Ginsburg will have to stay on the court until the age of 91 to avoid having a conservative successor, beating the record for oldest justice set by Oliver Wendell Holmes Jr., who retired at the age of 90. In regards to the question I posed for the title, Trump’s influence has already surpassed that of Jimmy Carter, who nominated and confirmed no justices. As I see it, Trump has the potential to reach the level of FDR. No, he won’t nominate and confirm nine justices, but the impact of his picks may be the same on an ideological level. The nightmare the Democrats will be facing if Trump is reelected, however, is likely the very nightmare conservatives faced after FDR was reelected not once, but three times.

When Franklin D. Roosevelt first took office, the court had four justices (Willis Van Devanter, James McReynolds, George Sutherland, and Pierce Butler) with a restrictive reading of the Commerce Clause and a belief in the existence of an implied “liberty of contract” in the Constitution, known popularly as the “Four Horsemen”. Three justices (Louis Brandeis, Harlan F. Stone, and Benjamin Cardozo) had expansive interpretations of the Commerce Clause and did not believe in the “liberty of contract”, known popularly as the “Three Musketeers”. These two factions battled over whether New Deal programs were constitutional or not, with Chief Justice Charles Evans Hughes and Owen Roberts being the swing votes. Roberts was often convinced to side with the Four Horsemen, giving them their needed fifth vote. By FDR’s death in 1945, only Musketeer and now Chief Justice Harlan F. Stone and Roberts remained. In total, FDR had managed to nominate and confirm nine justices on the Supreme Court (James F. Byrnes resigned the court after a short time, and Stone was promoted to Chief Justice). The Four Horsemen had been replaced by reliable supporters of the New Deal, including Hugo Black and James F. Byrnes, who had shepherded the New Deal through the Senate. Roberts was now the most conservative member of the court, with FDR having placed in reliable justices to uphold just about any use of the Commerce Clause. Although FDR had lost his “court packing” battle, which some commentators with a historical knowledge deficiency think is a good idea to repeat, he won the Supreme Court war. Perhaps the best example of the solidification of this victory is Wickard v. Filburn (1942), in which the court ruled unanimously that a farmer growing additional crops beyond government allowances for his livestock only constituted “interstate commerce”.

Since the court had gifted Congress such an expansive definition with Filburn, it seemed that nothing would be ruled as an excess of Commerce Clause powers and wasn’t…until U.S. v. Lopez in 1995, and it was a 5-4 vote about the banning of possession of handguns near schools. The “liberty of contract” doctrine has not returned and may never, even with a conservative court as this doctrine has its critics on the right. This is not to say that no conservatives emerged on the court…on other issues very definitive wings arose: during the 1950s and 1960s Chief Justice Warren along with Justices Brennan and Douglas could be counted as the solid liberal wing of the court, while the conservative wing was led by Justices Felix Frankfurter and John Marshall Harlan II, with Harlan often being the court’s only dissenter after Frankfurter’s retirement in 1962. Conservative power did not start to truly reemerge on the court until the 1980s. Although the confirmation of Brett Kavanaugh will only truly be a rightward shift of the court on social issues as Kennedy proved conservative on other issues, it could be enough to overturn Roe v. Wade should its validity come into question (spoilers: it will). Now the power may be decidedly shifting, and if Trump wins another term, he will certainly be a transformational president for the Supreme Court, and it would be on the scale of FDR should he nominate and confirm replacements for Ginsburg and Breyer. The United States Supreme Court could potentially have at least a half-century of dominating conservative jurisprudence ahead of it, much like the Supreme Court had over a half-century of liberal jurisprudence. This thought is unbearable for today’s Democrats, and they will do all in their power to stop it.

References

U.S. v. Lopez, 514 U.S. 549 (1995)

Wickard v. Filburn, 317 U.S. 111 (1942)

Leaders In Name Only: When the Leader is Not in Charge

No one disputes that the most powerful Republican in the Senate is Mitch McConnell, nor does anyone dispute that the most powerful House Republican is Speaker Paul Ryan. The same goes for their Democratic counterparts, Minority Leader Chuck Schumer and Minority Leader Nancy Pelosi. However, the exercise of power has not always been so clear cut in politics. Sometimes it is exercised from behind-the-scenes or even just barely so, as it is an open secret as to who really runs the show. There are numerous examples from American politics, including:

Presumed Leader: Champ Clark, Speaker of the House, 1911-19. Actual Leader: Oscar Underwood.

Although a popular Democratic politician, Champ Clark (D-Mo.) did not exercise power anywhere close to his autocratic predecessor, Joe Cannon (R-Ill.). While still exercising some power, it was not what he had previously commanded within the party and he was overshadowed by Majority Leader Oscar Underwood (D-Ala.), who was also chair of the Ways and Means Committee (Hendrick, 414-415) from 1911 to 1915. This was partly thanks to the House revolt against Cannon’s leadership in 1910, which had stripped the Speaker of several powers, including the ability to simultaneously chair the Rules Committee.  This was also partly due to Underwood’s sheer legislative expertise, being the top expert bar none for tariff and tax policy in his party and quite possibly the House itself. Underwood, instead of Clark, led the House Democratic Party. His abilities were also recognized when he was elected to the Senate, as he would also serve that chamber’s Minority Leader from 1920 to 1927. His last name is also a basis for Frank Underwood in House of Cards.

Presumed Leader: Frederick Gillett, Speaker of the House, 1919-25. Actual Leader: James Mann.

Although an established and respected conservative politician, when the Republicans elected Frederick Gillett (R-Mass.) Speaker in 1919, he was not initially the expected pick. The Republican leader during Democratic control of the House from 1911-19 was James Mann of Illinois, a staunch partisan who did not shy from a fight and was even considered by some observers to the most powerful member of the House when Democrats were in control (Haines, 3). However, an expose was published about his close relations with Chicago meat packers. The resulting investigation found that he had received from them “a horse and occasionally choice cuts of beef” (Haines, 3). Yet, when Gillett assumed the Speakership, he wasn’t the real power. The real political power still lay with Mann, whose influence was exercised in the party conference’s steering committee and was aided by allies Majority Leader Franklin Mondell (R-Wyo.) as well as Appropriations Chair and former Speaker of the House Joe Cannon (R-Ill.) (Hershey, 311). This behind-the-scenes leadership persisted until Mann’s death in 1922. After that year’s election, Gillett had one of the toughest fights to be reelected Speaker, as a small group of progressive Republicans rebelled against his leadership, a scenario unlikely under Mann. Gillett would be promoted by the voters of Massachusetts to the Senate in 1924, with him being succeeded by Nicholas Longworth (R-Ohio), who was de jure and de facto leader.

Presumed Leader: Henry T. Rainey, Speaker of the House, 1933-34. Actual Leader: Franklin D. Roosevelt.

As the Speaker of the House who presided over the First 100 Days, one would think that Henry T. Rainey (D-Ill.) would be a more famous politician, but he is actually one of the least notable speakers. He is so because he gave away so much of the powers of Congress to the Roosevelt Administration. Bills were drafted by the White House or Executive Branch and sent to Congress. Rainey gets a special place on this list for abdicating traditional Congressional responsibilities to the Executive Branch, only acting as a rubber stamp for Roosevelt. As the political scientist E. Pendleton Herring wrote, the president had become a “prime minister” (Sundquist, 136). Thus, Franklin D. Roosevelt did not only lead the Executive Branch, he also led the House of Representatives.

Presumed Leader: Wallace White, Majority Leader, 1947-49. Actual Leader: Robert Taft.

Wallace White was a longtime politician, having served in the legislative branch since 1917. He had some legislative accomplishments, particularly as the House sponsor of the Radio Act of 1927, the first law to provide needed regulation of radio frequencies. After his election to the Senate in 1930, White would be for most of his time part of a Republican minority desperate to leave the political wilderness. He was initially on the path to party leadership as assistant to Senate Minority Leader Charles McNary, but for all intents and purposes there were stronger Republican leaders in the Senate, such as Robert Taft and Arthur Vandenberg. After McNary fell ill with a brain tumor in 1943 that would kill him the following year, White briefly assumed acting leadership, but Taft successfully managed to change the rules by making the leader position and chair of the Conference separate. Although he was the official party leader in the Senate, he had no sway over the Conference, where actual leadership decisions were being made by Taft and his allies. White was personally liked by all his colleagues but was also not a natural leader or public speaker, and was thus the perfect front man for the intellectual and seemingly aloof Taft. His dominance was so complete that “White openly deferred to Taft on all issues by looking back from his Senate seat twelve rows to Taft for signals that told White what to do” (Donaldson, 36).

Despite public appearance of being content, White was dissatisfied with his role. He did not want to be the official leader, but rather wanted to attend to duties as chair of the Interstate Commerce Committee and as a member of the Foreign Relations Committee in the 80th Congress. Taft was also aided in his control in this session with his followers holding chairmanships of major committees. White repeatedly requested to be relieved, but was denied time and time again. His part as figurehead was just too useful, and he was not forceful enough as a person to push back. White was, simply put, a natural workhorse who was forced into being a reluctant showhorse. Frail at the age of seventy, the stress resulted in a nervous breakdown which left him out of commission for three months. Upon his return, White lacked the mental energy to continue, and Sen. Kenneth Wherry (R-Neb.) effectively took over his duties on the floor of the Senate. He had had no plans of running for reelection and retired in 1949.

Today it seems unimaginable that anyone would hold a leadership position yet have someone else calling the shots for the position, but as I have shown there have been numerous occasions in which the leader is at best a bit less powerful than someone who is officially subordinate (Clark) or at worst a figurehead who calls none of the shots (White).

References

Donaldson, G.A. (1999). Truman defeats Dewey. Lexington, KY: The University Press of Kentucky.

Haines, L. (May 1919). Your Government at Washington. The Searchlight.

Retrieved from https://books.google.com/books?id=0i9JAQAAMAAJ&pg=PA3&lpg=PA3

Hendrick, B.J. (1912). Oscar W. Underwood: A New Leader From the New South. McClure’s Magazine.

Retrieved from https://books.google.com/books?id=jJJEAQAAIAAJ&pg=PA415&lpg=PA415

Hershey, M.R. (2014). Guide to U.S. political parties. Thousand Oaks, CA: CQ Press.

Wallace H. White: Powerless to his Party. U.S. Senate.

Retrieved from https://www.senate.gov/artandhistory/history/common/generic/People_Leaders_White.htm

 

 

Supreme Court Justice Confirmation Year Rules – What Rules?

In 2016, Senate Majority Leader Mitch McConnell (R-Ky.) attracted much controversy when he refused to hold a vote on Barack Obama’s Supreme Court nominee Merrick Garland and cited a rule he pretty much made up that he called the “Biden Rule”, based on Vice President Joe Biden’s 1992 argument for delaying Supreme Court picks until after a presidential election year. Biden of course disavowed that argument. Interestingly, no confirmations of Supreme Court nominees have occurred on presidential election years since Biden’s argument. In 2018, Senate Minority Leader Chuck Schumer (D-N.Y.) shot back after the announcement of Justice Anthony Kennedy’s retirement that justices shouldn’t be confirmed on midterm election years due to McConnell precedent, even though this precedent did not apply to midterm years. If both these men had their preferences, we would only confirm justices on odd-numbered years. As I am wont to do given the nature of this blog, let’s look at the history of it all! I will apply a “controversial justice” standard for this….in other words, justices not accepted unanimously or by acclamation as those are the only times that actually politically “count”.  I will refer to these separate views as the “Biden-McConnell” Rule and the “Schumer Retort”.

The “Biden-McConnell” Rule

The number of Supreme Court picks during presidential election years who were controversial is actually rather low. Here’s a timeline of justices confirmed during presidential election years:

1796 – Samuel Chase and Chief Justice Oliver Ellsworth confirmed, Chase by acclamation and Ellsworth with only one dissenting vote.

1804 – William Johnson confirmed, is not controversial as he is confirmed by acclamation.

1836 – Chief Justice Roger B. Taney and Justice Philip Pendleton Barbour are confirmed, and both are controversial.

1864 – Salmon P. Chase is confirmed Chief Justice December 6th, after the election.

1872 – Ward Hunt is confirmed on December 11th, after the election.

1880 – William Burnham Woods is confirmed after the election.

1888 – Justices Lucius Q.C. Lamar and Melville Fuller confirmed by the Senate before the presidential election, and both are controversial.

1892 – George Shiras confirmed by acclamation.

1912 – Justice Mahlon Pitney is confirmed, and he is controversial.

1916 – Justices Louis Brandeis and John Hessin Clarke are confirmed, the former is controversial while the latter is confirmed by acclamation.

1932 – Justice Benjamin Cardozo is confirmed by acclamation.

1940 –  Justice Frank Murphy confirmed by acclamation.

1988 – Justice Anthony Kennedy confirmed unanimously.

Observations:

  1. In the entire history of the United States, only seven justices were confirmed during presidential election years before the election who had at least one senator object.
  2. Only two of these occurred during the 20th Century, and both occurred over a hundred years ago. Louis Brandeis was the last justice to be confirmed on an election year who was controversial.
  3. In 1912 the Senate was held by the Republicans and in 1916 held by the Democrats. The presidents were of the same party. This was not true for 2016.
  4. The Republicans only confirmed one justice who was controversial during a presidential election year and before the election had occurred: Mahlon Pitney.
  5. 2016 was unique because it was a presidential election year in which the Executive Branch was controlled by one party and the Legislative Branch by another and the justice pick was controversial.

Schumer’s Retort has a lot of history that indicates that if not confirming justices in midterm years were a practice, it would toss out a whole ton of precedent, but I will apply the same “controversial nominee” standard to him as McConnell:

1790: James Iredell confirmed by acclamation.

1798: Bushrod Washington confirmed by acclamation.

1806: Henry Brockholst Livingston confirmed by acclamation.

1826: Robert Trimble confirmed, five senators dissent.

1830: Henry Baldwin confirmed, two senators dissent.

1846: Levi Woodbury and Robert Grier confirmed by acclamation.

1858: Nathan Clifford confirmed, he is controversial.

1862: Noah Haynes Swayne, Samuel Freeman Miller, and David Davis confirmed, the former with only one dissenting vote and the latter two by acclamation. The last one was after the election.

1870: William Strong and Joseph Bradley confirmed, no vote was recorded for the former and the latter with nine dissents.

1874: Morrison Waite confirmed unanimously.

1882: Samuel Blatchford confirmed by acclamation.

1890: Henry Billings Brown confirmed by acclamation, after the election.

1894: Edward Douglass White confirmed by acclamation.

1898: Joseph McKenna confirmed by acclamation.

1902: Oliver Wendell Holmes Jr. confirmed by acclamation after the election.

1906: William Henry Moody confirmed by acclamation after the election.

1910: Charles Evans Hughes, Edward Douglass White, Willis Van Devanter, and Joseph Lamar confirmed by acclamation, White elevation to Chief Justice. Only Hughes is confirmed before the election.

1914: James C. McReynolds is confirmed, with six senators dissenting.

1922: George Sutherland confirmed by acclamation and Pierce Butler confirmed after the election with eight dissenting votes.

1930: Charles Evans Hughes confirmed as Chief Justice, his nomination is controversial. Owen Roberts on the other hand is confirmed by acclamation.

1938: Stanley Forman Reed confirmed by acclamation.

1946: Fred Vinson confirmed as Chief Justice by acclamation.

1954: Earl Warren confirmed as Chief Justice by acclamation.

1962: Byron White and Arthur Goldberg confirmed by acclamation.

1970: Harry Blackmun confirmed unanimously.

1986: William Rehnquist elevated to Chief Justice and is controversial, Antonin Scalia on the other hand is confirmed unanimously.

1990: David Souter confirmed with nine dissenting votes.

1994: Stephen Breyer confirmed with nine dissenting votes.

2006: Samuel Alito confirmed and is controversial.

2010: Elena Kagan confirmed and is controversial.

Observations:

  1. 13 Justices were confirmed during midterm years and before the election who had at least one senator dissent.
  2. 8 of these instances occurred after 1900.
  3. 3 of them occurred with justices currently serving!

Mitch McConnell would have been best off making the “election year” case from an intellectual standpoint if he had qualified it significantly. Given that politics in the media is based around sound-bytes, he made a claim that wasn’t accurate but conveyed a certain message: it is highly irregular for controversial justices to be confirmed in a presidential election year. Chuck Schumer is simply trying to create a new standard to stymie Republicans that has even less basis than the McConnell case. The Democrats badly want to kick back over the Supreme Court but they are unlikely to get their chance until after the midterms.

References (yes I am citing Wikipedia this time, it has an excellent list of what I was looking for!)

List of Justices of the Supreme Court of the United States. Wikipedia.

Retrieved from https://en.wikipedia.org/wiki/List_of_Justices_of_the_Supreme_Court_of_the_United_States

 

On Ideology and Anti-Lynching Legislation

On Friday, the Senate’s three black members, Cory Booker, D-N.J., Kamala Harris, D-Calif., and Tim Scott, R-S.C. introduced anti-lynching legislation, which would make lynching a federal hate crime. This is an effort to correct a historical wrong as opposed to stopping a current criminal phenomenon. From 1882 to 1968, at least 4,742 people were reported lynched in the United States (BBC News). The overwhelming majority of victims in the South were black, and anti-lynching legislation had been proposed over 200 times but never adopted. When I first began my political research back in high school (strictly extracurricular because I’m a nerd) on how politicians voted on major civil rights measures, I was fascinated to learn about how anti-lynching votes played out and how they related to ideology if at all. For the purposes of my case study, Southern states are defined as former Confederate states plus Kentucky and Oklahoma.

The first time an anti-lynching bill passed the House was on January 26, 1922. The Dyer bill passed the House 230-120, with 221 Republicans, 8 Democrats, and 1 Socialist voting for, while 17 Republicans and 103 Democrats voted against. 95% of Republicans, 47% of Northern Democrats, and 1% of Southern Democrats did voted for the measure, with Ben Johnson (D-Ky.) standing alone among them. There is some fascinating and unique context behind these figures. The Republican Party had a supermajority in the House at the time, and the northern wing of the Democratic Party had been wrecked in the 1920 election, as only 15 Northern Democrats cast votes on this bill. Even New York City’s Congressional delegation was majority Republican in that session. Thus, the Democratic Party was dominated by its Southern wing, which was committed to maintaining the Jim Crow system. Before the tired narrative gets trotted out about the GOP being ideologically akin to today’s Democrats, we can compare their votes on the income tax cuts during the session. The first House vote on the Mellon tax cuts occurred on August 20, 1921, the vote being 274-125. 270 Republicans, 3 Democrats, and 1 Independent Republican voted for while 9 Republicans, 115 Democrats, and 1 Socialist voted against. The final version of the bill was passed on November 21. The vote was 232-109, with 225 Republicans, 6 Democrats, and 1 Independent Republican voting for, while 11 Republicans, 97 Democrats, and 1 Socialist voted against. It must be understood that at the time, many Democrats did vote liberal, they just didn’t include blacks in their perception of who ought to be helped. The fact that 95% of Republicans backed tax cuts and 93% backed anti-lynching legislation indicates that civil rights when applied to anti-lynching legislation cannot be understood properly on the liberal-conservative dimension of politics. It is best understood as a regional issue. Unfortunately, this bill, which was a plank of the Republican Party platform and personally supported by President Harding never made it to his desk, as Senate Southern Democrats succeeded in killing it. While I could stop here, the Northern Democrat vote is best illustrated in the subsequent votes on the subject.

The next serious effort would be the Costigan-Wagner Bill, which was proposed in 1935. The politics surrounding this legislation were a bit different. In 1922 the major pushers had been conservative Republicans, with Leonidas C. Dyer in the House leading the charge and Sen. Samuel Shortridge of California leading the effort in the Senate. This time, the sponsors were liberal Democrat Senators Edward Costigan of Colorado and Robert Wagner of New York. This distinction neutralized the notion that anti-lynching legislation was a “partisan” proposal. Unfortunately, the bill would meet the same sort of resistance from the South and would be killed without having had a definitive up or down vote. Proponents would try again in 1937.

The 1937 effort was made with the Gavagan-Wagner bill, Rep. Joseph Gavagan (D-N.Y.) being the new sponsor. This bill passed 277-120, with 189 Democrats, 75 Republicans, 8 Progressives, and 5 Farmer-Labors voting for and 117 Democrats and 3 Republicans voting against. This bill once again got shelved in the Senate. Different from the bill’s reception in the House in 1922, you have a majority of Democrats voting in favor as the Republican presence is greatly compromised. Thus, many Northern Democrats are in Congress and voting for the measure. Yet, Republicans are slightly stronger in support than Northern Democrats. 96% of Republicans voting on the measure backed it, while 92% of Northern Democrats did so. Only 6% of Southern Democrats voted for, and of these only Maury Maverick (D-Tex.), whose family name was the origin of the word, was from a former Confederate state. The final effort in which a vote would be held was in 1940.

The 1940 bill, known as the Gavagan-Fish bill, with Rep. Hamilton Fish (R-N.Y.) as sponsor, passed 252-131, with 109 Democrats, 140 Republicans, 2 Progressives, and 1 American Laborer voting for and 123 Democrats and 8 Republicans voting against. The Democratic vote flipped from favorable to unfavorable due to the 1938 midterms, in which Republicans regained some of their strength in the North. Republican support stayed roughly where it was at 95% while Northern Democrat support went down to 84%. The Southern Democrat percent support fell to 1%, with only Edward Creal (D-Ky.) voting in favor.

Overall, the record proves that the determinant of support of anti-lynching legislation is not to be found on the liberal-conservative ideological spectrum. Contrary to what is probably common thought, conservatism does not mean opposition to anti-lynching legislation and liberalism does not mean support of anti-lynching legislation. While conservatives could try and say that the 1922 vote demonstrates that opposition correlates highly with the liberal side, the Democratic Party at the time was effectively a party of the South, and the upholding of Jim Crow came first, perhaps along with the price of cotton being high. The subsequent votes demonstrate a difference as clear as day and night between regions.

P.S.: The popular left-wing narrative about the “parties switching” as it relates to liberal-conservative spectrum and civil rights deserves to die, as it is an extremely convenient narrative, has poor basis in the political record, and is ignorant of certain realities about what the Republican Party is now and has been since its founding. There is other evidence I will be presenting in future posts, but I hope this article has at least nudged your thinking away from this pop history narrative.

References

(30 June 2018). Black US senators introduce anti-lynching bill. BBC News.

Retrieved from https://www.bbc.com/news/world-us-canada-44668459

“To Pass H.R. 801, A Bill to Make Lynching a Federal Crime.” Govtrack.

Retrieved from https://www.govtrack.us/congress/votes/76-3/h96

“To Pass H.R. 1507, An Anti-Lynching Bill.” Govtrack.

Retrieved from https://www.govtrack.us/congress/votes/75-1/h27

“To Pass H.R. 8245.” Govtrack.

Retrieved from https://www.govtrack.us/congress/votes/67-1/h94

“To Agree to the Conference Report on H.R. 8245.” Govtrack.

Retrieved from https://www.govtrack.us/congress/votes/67-1/h134

“To Pass H.R. 13.” Govtrack.

Retrieved from https://www.govtrack.us/congress/votes/67-2/h169