Quote of the Day (Mark Twain, on the Supreme Court and Partisanship)

"It is disgraceful, in Congress, or anybody at all, to question the honor and virtue of the highest tribunal in our country. If we cannot believe in the utter and spotless purity of the Judges of so sacred a tribunal, we ought at least to have the pride to keep such a belief unexpressed. I cannot conceive it possible that a man could occupy so royal a position as a Supreme Judge, and be base enough to let his decisions be tainted by any stain of his political predilections. I hate to hear people say this Judge will vote so and so, because he is a Democrat—and this one so and so because he is a Republican. It is shameful. The Judges have the Constitution for their guidance; they have no right to any politics save the politics of rigid right and justice when they are sitting in judgment upon the great matters that come before them…. When we become capable of believing our Supreme Judges can so belittle themselves and their great office as to read the Constitution of the United States through blurring and distorting spectacles, it will be time for us to put on sackcloth and ashes."—American novelist, humorist, and journalist Mark Twain (1835-1910), Letter to the San Francisco Alta California, Feb. 19, 1868

I never imagined that Mark Twain could be naïve until I read the above dispatch.

Even in his own time—11 years before he wrote this—the Supreme Court had accelerated the notion towards civil war with its Dred Scott decision. A month before the decision was handed down, President-elect James Buchanan worked behind the scenes to influence the outcome. Enslaved African-Americans paid the price, but so, too, did Buchanan’s Democratic Party, which split over the issue.

Partisanship on the Supreme Court is even more virulent today, leading to a near three-decade low in public opinion. That poses a challenge to its legitimacy that will only increase over the next few years. The current president is bent on having his way in everything—and the high court, at least until the tariff case, has been willing to grant him virtually everything he desires.

In other words, it may be, as Twain lamented, "time for us to put on sackcloth and ashes."

Quote of the Day (Samuel Johnson, on Zealotry and Credulity)

“Of all kinds of credulity, the most obstinate and wonderful is that of political zealots; of men, who, being numbered, they know not how nor why, in any of the parties that divide a state, resign the use of their own eyes and ears, and resolve to believe nothing that does not favour those whom they profess to follow.”— English man of letters Samuel Johnson (1709-1784), “Political Credulity,” in The Idler, June 17, 1758

Quote of the Day (William Galston, on Partisanship and Geography)

“[W]ith today’s deep polarization, voters in the minority experience the enactment of one-party programs as an attack on their deepest convictions. As they lose hope of turning the tide, many respond by leaving their states for others where the majority shares their beliefs. This further intensifies the link between partisanship and geography.

“If this trend continues, our nation will become a patchwork in which citizens live under fundamentally different legal regimes.”— American author, academic, political advisor, and Brookings Institution senior fellow William Galston, “Florida Turns Right, Minnesota Turns Left,” The Wall Street Journal, June 7, 2023

The accompanying photo of William Galston was taken Jan. 8, 2012, at a Civics Ed panel at the Brookings Institution by Medill DC.

Quote of the Day (Cecil Day-Lewis, on War, Fear and ‘This High Delirium of Nations’)

“Today, I can but record
In truth and patience

This high delirium of nations
And hold to it the reflecting, fragile word.” —Anglo-Irish poet (and British Poet Laureate) Cecil Day-Lewis (1904-1972), “Ode to Fear,” in The Complete Poems (1992)

In case you were wondering: Yes, this poet is the father of Oscar-winning actor Daniel Day-Lewis. He wrote against the backdrop of the outbreak of Fascism in Europe, and the world war that resulted.

The anxiety of our time is of a different tenor than the poet’s, but the potential for resentment, unrest and a widespread conflagration of bellicosity is every bit as real now as it was then. In particular, the mood swings now afflicting the American public over the collapse of the Afghan government pose real concern.

Twenty years ago, a widespread consensus existed for military action into the country. There are any one of several reasons why that mission failed, but—after the longest war in American history—it is clear that the American withdrawal has triggered scenes reminiscent of the fall of Saigon.

Whether it’s the Russian experience in Afghanistan or Germany’s after WWI, a futile military mission can sow the seeds for national bitterness over the loss of face and the loss of lives.

We should not imagine immunity from such feeling in the United States. But, even as scenes of chaos and carnage fill our TV screens and many question the point of so much American sacrifice, instead of lamenting “another Vietnam” or “another Munich,” lawmakers might want to explain how:

*Former Afghan President Hamid Karzai acted erratically, emotionally, in a paranoid manner, and in deep complicity with those pocketing American aid all around him—and why so many in Congress barely made a peep; 

*Just-departed President Ashraf Ghani cut and ran in the face of the Taliban only a day after a televised address in which he said he still hoped to “stop the ongoing imposed war on Afghan people";

*The Bush administration widened the focus beyond finding Osama bin Laden to a wider war in Iraq;

*Out of $7.8 billion spent by the U.S. on reconstruction projects since 2008, $2.4 billion in assets were unused, abandoned, deteriorated, or destroyed, according to a report by the Office of the Special Inspector General for Afghanistan Reconstruction (SIGAR); 

*Donald Trump can claim that Biden had lost the country when he himself wanted to withdraw four months earlier--and few in his party were willing to denounce the plan loudly at the time, when it could have made a difference.

If historical analogies are in order for Afghanistan, there is another one at hand. The question of “Who Lost China?” in 1949 poisoned American foreign policy—and provided endless grist for Republican talking points—for two decades before Richard Nixon, a Cold Warrior of unimpeachable credentials, moved towards normalizing relations in 1972.

As today, a Democratic President was in office in China when our client government fell with shocking speed in 1949. 

But Harry Truman, like Joe Biden now, correctly saw that there were limits in how much the U.S. could accomplish with a corrupt regime that took American money without building up a stable government or the nation’s will to fight. ("All the money we [have] given them is now invested in United States real estate," Truman observed in explaining why "We are not going to give the Chinese a nickel for any purpose whatever," according to historian Michael Beschloss' Presidents of War.) 

The “high delirium of nations” that Day-Lewis fought against is a dangerous state of affairs. But so is a populace with a cable-bred, one-minute attention span constitutionally incapable of remembering the lessons of history. 

Instead of braying about the Afghanistan disaster, posturing politicians and pundits owe it to a war-weary American people to explain how much longer they were prepared to stay in a remote, mountainous nation long renowned before U.S. troops ever set foot there as "the graveyard of empires"--and when they would know it was time to go.

Quote of the Day (Judge Learned Hand, on Courts, Partisanship, and the ‘Spirit of Moderation’)

“This much I think I do know: that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish. What is the spirit of moderation? It is the temper which does not press a partisan advantage to its bitter end, which can understand and will respect the other side, which feels a unity between all citizens—real and not the factitious product of propaganda—which recognizes their common fate and their common aspirations—in a word, which has faith in the sacredness of the individual."—American Judge Learned Hand (1872-1961), “The Contribution of an Independent Judiciary to Civilization” (1942), reprinted in The Spirit of Liberty: Papers and Addresses of Learned Hand (1952)

Judge Learned Hand, a federal district and appellate judge for more than fifty years, wrote this from a lifetime of experience, but especially with the 1930s in mind, when the Supreme Court’s conservative majority ruled against one New Deal piece of legislation after another, provoking Franklin Roosevelt’s furious “court-packing” attempt in 1937.

It is certainly true, as both Republicans and Democrats have said at one time or another, that “elections have consequences.” But we now face the greatest threat to the politicization of the courts—and a threat to their independence—since the New Deal.

Of the three branches of the federal government, the Founding Fathers devoted the least attention to the judiciary in the Constitution. It has evolved in ways the framers could never have conceived—notably, in the amount of time that justices, enjoying longer life spans and (as Stuart Taylor Jr. and Benjamin Wittes argued in a 2006 Atlantic Monthly article) law clerks who save them the grind of drafting opinions, now serve on the Supreme Court.

For at least three decades, Senate confirmation hearings have been partisan battles. Until the last couple of years, however, the slenderest sense of restraint—the mutual courtesy among Senators, Presidents’ political antenna for recording and responding appropriately to disturbances in both Capitol Hill and the electorate—has existed.

In a media and political environment riven by the propaganda feared by Hand, that fig leaf has now been swept away. Democrats left themselves open to charges of smearing a nominee by not raising accusations of sexual assault against Brett Kavanaugh until late in the confirmation process.

Worse, Mitch McConnell has successfully rushed the nomination of Amy Coney Barrett to the Supreme Court, in brazen violation of his own rationale four years before for blocking the nomination of Merrick Garland: i.e., that the Senate should not fill a court vacancy in an election year before a new President is inaugurated.

With his smashmouth maneuvering and bizarre sense of priorities (lightning speed on the confirmation, dawdling on COVID-19 relief), the Senate Majority Leader has shown a mastery of parliamentary procedure but a disregard for organizational civility—making him an ideal legislative henchman for a President similarly disinclined towards respecting norms.

McConnell may have placated a party base desiring a dominant right-wing majority on the Supreme Court for decades, but it may be a Pyrrhic victory. Even as Barrett starts her service, he has laid on the back of this respected jurist misgivings about her allegiance to Trump that will cling to her as long as the President stays in office, and apprehension about her background and partisanship that will remain for as long as she remains a justice.

More important, the hypocrisy of McConnell and President Trump has been rank enough to precipitate a grave upping of the ante. Joe Biden now faces enormous pressure from his party base to undo the damage caused by McConnell’s shameless maneuvering by resorting to FDR’s proposal of increasing the court’s size. Even if the Democratic Presidential nominee decides not to seize this expedient, he will have to figure how to proceed if elected in dealing with a court heavily tilted against any of his initiatives.

With both the legislative and executive branches determined to, as Judge Hand put it, “press a partisan advantage to its bitter end,” it may be left to the judiciary to behave responsibly.

In the past, Chief Justices such as John Marshall and Charles Evans Hughes realized exactly how far they could go without endangering the Supreme Court’s reputation for impartiality. There are occasional, flickering signs that John Roberts wishes to operate in the same way.

But these are thin reeds for current observers of the court to grasp. Despite the longtime belief that the Constitution exhibited a farsighted skepticism about imperfect legislators, Presidents and judges in the new nation, the Barrett imbroglio shows that the Founding Fathers may in fact have been too trusting in this group’s ability to rise above petty partisan advantage. What hope for the genius of the system to prevail when its main actors lack wisdom, courage, and these days, even Hand’s understanding and respect for the other side?

Quote of the Day (Ambrose Bierce, on Partisan Strife)

“The partisan strife in which the people of the country are permitted to periodically engage does not tend to the development of ugly traits of character, but merely discloses those that preexist.”— American short story writer and journalist Ambrose Bierce (1842-1914), on election campaigns, in his “Prattle” column, Nov. 8, 1884

No truer demonstration of Bierce’s observation exists than the controversy over the Brett Kavanaugh nomination to the Supreme Court. The only thing that both sides seem to agree on is that his confirmation today by the Senate has opened a new vein of ugliness in American politics.

Each side might insist that it did what it had to do, but neither really covered itself in glory. It will be impossible for the Democrats to escape the suspicion that it waited until the last minute to introduce Christine Blasey Ford’s accusation against him, after they saw taking his nomination apart on the basis of ideology, as with Robert Bork, was gaining no traction. At the same time, the GOP showed, by not even bringing to a vote the nomination of Merrick Garland, that it had no scruples at all when it came to power politics—quite simply, they blocked any action at all on him because they could.

For the foreseeable future, I think we are going to see confirmation votes almost as razor-thin as this one. The whole process has become consumed by “partisan strife”—and strife over single issues, at that. I’m afraid that it will take a disaster for the two sides in Congress to talk to each other again.

We are not a better nation after all of this.