The Charlotte News

Thursday, November 7, 1940



Site Ed. Note: As mentioned in "A Bit Mixed", Sherman Minton was a bit down after his loss in the Senate after one term. But he was not out. Roosevelt subsequently named him to the United States Court of Appeals and Truman appointed him to the Supreme Court in 1949 where he served until 1956. His term was somewhat lackluster, however, as even he said upon retirement that there should be more interest in who his successor would be than in him, that he was "just an echo". Not surprisingly, given his tenure in the Senate, he had not been supportive of individual liberties while on the Court, favoring on balance national security concerns. Minton had occasionally incurred Cash's editorial denunciation as Senator for his extreme stands against freedom of speech and the press. (See, e.g., "Free Speech--Limited", and "Now, What Is A Liberal?")

An odd mix, sometimes, this appointment process of jurists by presidents. Some of our presidents most identified as Liberals have appointed justices to the Supreme Court who turn out conservative, Minton being one example, Byron White, appointed by JFK, another, though Justice White would be considered more moderate than conservative. On the other side of the mark, there are Chief Justice Earl Warren and Justice William Brennan, both appointed by Eisenhower, and Roe v. Wade author, Justice Harry Blackmun, appointed by Nixon.

The history of the Court abounds with other such examples. The lesson to be drawn from it is that the dynamic of the Court and its long history combined with the governing concept of stare decisis, tempered by the determinations of conscience from changing times mandating occasional departures from precedent--such as the abandonment of the separate-but-equal doctrine adopted in Plessy v. Ferguson in 1896 in favor of integration of public schools "with all deliberate speed" in the Brown v. Board of Education cases in 1954 and 1955--, often will shape justices from a probable stance based on prior party affiliation or other such supposed ideological indicators to a very different stance when it comes to rendering decisions between litigants coming before the Supreme Court. Chief Justice Warren, for instance, who was primarily responsible for shaping the unanimity of the Court in Brown, had while governor of California publicly supported the internment of 110,000 persons of Japanese ancestry, 60% of whom were United States citizens, in the aftermath of Pearl Harbor. It should be noted, however, that Warren was only supporting an executive order of President Roosevelt the implementation of which Warren had no real power to dispute. (See Korematsu v. U.S., (1944) 323 US 214, upholding by a 5-3 decision the constitutionality of the executive order and hence the conviction of Mr. Korematsu for failing to leave his home in San Leandro, California, following an exclusion order of all Japanese, "alien and non-alien", from Alameda County. The opinion was based on narrow grounds, extreme national emergency in time of declared war, and did not attempt to argue from the fabric of the Constitution. It was written by civil libertarian Justice Black and concurred in by Justice Douglas, oft considered the most liberal justice to sit on the Court in modern times. One of the dissenters, by contrast, was Justice Jackson, usually considered a conservative on the Court. For contrast from this earlier decision to the present day, see the recent decision in Hamdi v. Rumsfeld, (2004) ____US____, holding by a vote of 6-3 that detainees accused of being enemy combatants do have certain Due Process rights, the right to counsel and the right to be heard before an impartial adjudicator, which may be a duly constituted military tribunal.) We see this dynamic played out in decisions every term in fact as occasionally justices will surprisingly depart their supposed ideological stance to adopt a position in a particular case seemingly 180 degrees the other way.

For those who find it troubling that we seem often to have a "Liberal" Supreme Court, they are actually criticizing the Founders who set it up under the Constitution and John Marshall who shaped it into a viable institution with real power, rather than finding faults with appointments of the moment or in the future. We remind again that we are founded as a liberal country on liberal precepts. For those terribly disturbed over it, we suggest a move to a more palatable place, perhaps Columbia or Argentina.

Criticize the Court's decisions we can under our Constitution, analyze those decisions we always should or at least listen to those without a strong political axe trained in that analysis, and inveighing we may certainly go. But to tamper with the process of appointment of justices or to seek to use undue political influence to influence decisions or to seat appointees of a certain ideological bent and persuasion is to do violence to the Constitutional framework of the government and to the foundations of the only branch of government which by design is supposed to be insulated from the politics of the moment and from political pressure.

It is an interesting historical footnote that after the decision in 2000 in Bush v. Gore, no justice has retired during the current term of the president, rendering the present 10 year period the second longest, short of the longest but by a hair, in the history of the Court without any death or retirement. The longest was between February 3, 1812 and September 1, 1823 during the second term of James Madison and the first term of James Monroe. If things continue for the next few months without a retirement, as we assume they will in this presidential election year, this will mark only the fourth time in our history that a president has served his first full four-year term without an appointment. The first was Monroe who later appointed a justice in the third year of his second term. Franklin Roosevelt was the second, though he appointed fully eight in the course of his next two terms, all between 1937 and 1943. President Carter was the third and of course, failing re-election, became the first president ever to complete his full term in office without an appointment. Only three presidents besides Monroe and Roosevelt served at least two terms and failed to get an appointment during each term. Madison, Woodrow Wilson, and Bill Clinton each did not have an appointment in their second terms in office. This time, given the outcome in 2000, there is some form of poetic justice in that conspicuous absence, we think.

The last time something like this last election happened, Rutherford B. Hayes appointed two justices in his single term in office, albeit one of them, John M. Harlan, the lone dissenter in Plessy, and a consistent voice of progressivism, was a wise and good choice. In the 1883 Civil Rights cases, for instance, in which the remainder of the Court upheld states rights under the 10th Amendment over the Congressional passage of the Civil Rights Act of 1875, which made it illegal to discriminate on the basis of race with regard to admission to privately owned public facilities, a direct precursor therefore to the Civil Rights Act of 1964, (which wisely drew on the excepting language of the majority opinion and rested itself on the "plenary power" provided Congress by the Constitution to enact laws to regulate interstate commerce, rather than resting solely on either or both the Thirteenth and Fourteenth Amendments, (cf. Q & A of July 17, 1963 by Mrs. Craig re Mrs. Murphy, and the subsequent decision in Heart of Atlanta v. U.S., (1964) 379 US 241)), Justice Harlan, himself a former slave owner from Kentucky who had nevertheless supported the Union during the Civil War, dissented with great commonsense wisdom: "Scarcely a day passes without our seeing in this court-room citizens of the white and black races sitting side by side watching the progress of our business. It would never occur to any one that the presence of a colored citizen in a court-house or court-room was an invasion of the social rights of white persons who may frequent such places. And yet such a suggestion would be quite as sound in law--I say it with all respect--as is the suggestion that the claim of a colored citizen to use, upon the same terms as is permitted to white citizens, the accommodations of public highways, or public inns, or places of public amusement, established under the license of the law, is an invasion of the social rights of the white race." His grandson later sat on the unanimous Court in Brown II.

To have maintained the Court intact these four years, we think, is a balancing notion for the republic, some form of consolation at least to the majority who cast their vote for the man now on the sidelines. And a long and bitter fight in the Senate for confirmation of a successor which might have followed was thereby avoided. Our hats are off to those who stayed.

Japan Retreats

But It May Herald A Drive Against the East Indies

Apparently the Japanese are preparing to get out of South China altogether and to fall back from their farthest advances in central China.

Last week they abandoned Nanning and the province of Kwangsi. The reason offered for the move was that acquisition of bases in French Indo-China made it unnecessary to retain troops in Nanning.

But now it is reported that they are retiring down the Yangtze. And the story from Canton has it that most of the Japanese troops garrisoned there are to be withdrawn within a few days and a number of Japanese firms which have been operating there are preparing to close.

What all this means is anybody's guess, but it is obvious that it involves some major decision on the part of Tokyo. The loss of face for Japan will be tremendous unless some new military enterprise can be swiftly carried through. Perhaps the Nipponese are merrily getting ready to throw the whole weight of their power toward establishing absolute control over the portion of China they have already "conquered"--the richest and most heavily populated part of the land.

But it is also possible that what is making is an all-out attack against the Dutch and the British East Indies. The seasoned campaigners from South China are precisely such troops as Japan would need for a blitzkrieg against the Indies.


The Solidest

South Carolina Stays Out Of the Two-Party System

One election result that seems clear is that South Carolina is going to have to wait a long time still before it gets around to the two-party system.

The Republicans down there waged a hot fight, with the assistance of the Willkie Democrats. In particular they fought, quite justly, for the right to a secret ballot. As matters stand in the state at present a Republican voter must give his hand dead away by asking publicly for the ballot of his party and then seeing it stacked up for the public to read.

Few South Carolinians are brave enough for that. But the Federal courts said they had no jurisdiction, and the state courts played the Cheshire Cat.

The matter, however, goes deeper. There is the poll tax for one thing. South Carolina casts less than 87,000 votes, while North Carolina was pulling up nearly three-quarters of one million. That was partly due to a complete certainty as to the outcome, of course. But it was also undoubtedly due in great measure to the fact that the poll tax disenfranchises many thousands.

Repeal of the poll tax, however, would not be enough. Plain fact is that the 4,000-odd South Carolinians who voted for Willkie were people to whom the poll tax meant no hindrance, that the very poor are the people disenfranchised by the poll tax, and that the very poor, in South Carolina even more than elsewhere, are solidly for Mr. Roosevelt.

The Republican Party fails in South Carolina ultimately for the same reason it fails elsewhere--that it has so far been unable convincingly to appeal to the poor. If South Carolina is ever going to have a two-party system, the Republicans will have to begin by looking for numerical strength where that strength lies.


A Bit Mixed

No Absolute Pattern Is Followed by the Voters

About Mr. Roosevelt and Mr. Willkie the American people seem to have been pretty clear in their minds the nation over. But elsewhere they showed mixed reactions.

In Pennsylvania, for instance, they returned to the Senate old Joe Guffey, whose political reputation is, to say the least, somewhat odorous. The explanation seems to reside in part in the voting of the straight Democratic ticket--often by people who never had been a Democrat in their lives before 1936 and who showed the zeal of new converts to any cause.

In part it was explained also, no doubt, by the fact that the Republicans were so singularly ill-advised to put up a man who had the stamp of hated Wall Street all over him. And finally, and probably decisively, there was the fact that old Joe has been a howling success at getting Federal funds for Pennsylvania. The state has had as much as any half-dozen Southern states.

While that was going on in Pennsylvania, in Wisconsin they were re-electing Bob La Follette, Progressive, who has been one of Mr. Roosevelt's most bitter opponents on foreign affairs. That, again, was certainly due to the Roosevelt tide, though it involved the scratching of the straight Democratic ticket by many new converts; for Henry Wallace had explicitly okayed La Follette and the Senator had himself okayed Roosevelt.

But while Wisconsin was doing that, it was also blandly re-electing as Governor Republican Julius Heil, who is quite as definitely reactionary as Guffey's opponent in Pennsylvania, though more on the clownish side--something that seems to be in rising favor in America (Pass-the-Biscuits-Pappy won again in Texas).

And while Pennsylvania and Wisconsin were behaving in such fashion, Indiana was retiring brash Sherman Minton as Senator in favor of an obscure Republican country newspaper editor. That was not consistent with Joe Guffey's fate in Pennsylvania. For Sherman, his party's whip, has been almost as successful in raiding the cash drawer for his state as old Joe himself.


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