Tag Archives: law

CCLaP Fridays: The Passage of Power, by Robert Caro

This week I review “The Passage of Power,” Robert Caro’s 4th volume in his epic biography of Lyndon Johnson.

MONDAYS WITH THE SUPREMES: PART V: SUPREME COURT SWINGERS

A limited-run series where I review three books about the Supreme Court of the United States, exploring its historical and ideological conflicts, and the transformations it wrought upon law and society.

Derek Smalls: We’re very lucky in the band in that we have two visionaries, David and Nigel, they’re like poets, like Shelley and Byron. They’re two distinct types of visionaries, it’s like fire and ice, basically. I feel my role in the band is to be somewhere in the middle of that, kind of like lukewarm water. – This is Spinal Tap (Rob Reiner, 1984)

In this installment of Mondays with the Supremes, we’ll focus on the Derek Smallses of the Supreme Court.  With nine justices, very small margins, usually one or two votes, can decide cases.  These “swing votes” become very powerful when the Justices search for “joins” to create a majority.  The media’s coverage of the Supreme Court attempts to divine the reasoning behind Court decisions by anticipating where each particular Justice will fall along the ideological spectrum.

Unlike a garden-variety politician, the Supreme Court Justice crafts their ideology not in the cash-drunken trenches of state primaries, but on a case-by-case basis.  To be fair, Justices have worked diligently to construct a judicial philosophy prior to their confirmation hearings, but a lifetime appointment can change things.  To paraphrase Robert Caro, power can deceive, but it can also reveal.  The institutional power of the position and the pressures of the specific case (legal, historical, sociological, etc.) create a different environment for the individual Justice.  After his appointment by President Nixon, Justice Harry Blackmun nearly cracked from the pressure involved in writing decisions on the cases assigned to him.

Finally, the issue of accountability arises.  “Who watches the watchmen?” to quote Seneca.  The Justices occupy the Court of Last Resort, accountable to no one above them.  They stand at the pinnacle of the Judicial Branch.  It is uncommon for the other branches make threats against the power of the Court.  (President Nixon’s notorious impeachment proceedings against Justice William O. Douglas is a rare exception of a direct assault on the Court from the Executive, although one can’t forget Speaker Tom DeLay’s unseemly comments about shooting judges who failed to meet his rather ethically deranged worldview.)

All of these attributes make the voting behavior of the Court’s “swing votes” that much more important.  In this installment, we’ll look at five Justices.  First, we look at two counter-examples and then two examples, in order to understand the pivotal nature of the “swing vote” and its impact on Court operations.

COUNTER-EXAMPLE I: JUSTICE FELIX FRANKFURTER

(1882 – 1965; SCOTUS: 1939 – 1962)

Justice Felix Frankfurter presents a case not so much of a “swing vote” but an ideological shift.  Appointed by FDR, Frankfurter espoused the doctrine of judicial restraint.  Over his decades on the Court, he began as “America’s leading liberal and ended as its most famous judicial conservative,” to quote the dust jacket of Scorpions.

Today the concept of judicial restraint makes reliable appearances in conservative circles, followed by the inevitable scolding the Court for “legislating from the bench.”  During the Great Depression – the first one – FDR passed law after law in the vain hopes of kick starting the economy from its inevitable decline into capitalist entropy.  Unfortunately, the Hughes Court (1930 – 1941) kept striking down law after law because New Deal legislation went against the tenets of free market capitalism, or at least how the Court interpreted how it should operate.  This led to FDR’s disastrous Court Packing campaign and his appointment of Frankfurter.

Frankfurter became a Justice in 1939, coming from an immigrant background and Ivy League education.  Growing up as an Austrian Jew left an indelible impression on him and inscribed upon his personality an admiration for American democracy.  The philosophy of judicial restraint is important, especially in light of the atrocities committed under Nazi Germany.  The patriotism he felt influenced his decision on the infamous Flag Salute case of Minersville School District v. Gobitis of 1939.  In the case, the Gobitis children in the Minersville school district refused to salute the flag on religious grounds (the Gobitis family were Jehovah’s Witnesses).  Frankfurter wrote the majority decision in the 8 – 1 case in favor of the school district.  This was less a case of conservative patriotism trumping individual rights than Frankfurter’s own boosterism for FDR.  Frankfurter wanted FDR to intervene in Europe and he saw the Minersville case as a test case for American patriotism.  Children not following the prescribed rituals of the loyalty oath during wartime could be seen as treasonous and a threat to national security.  All this is rather ironic, since the Nazis also persecuted Jehovah’s Witnesses and used ritualized loyalty oaths.  (While the Minersville School District isn’t a parallel to Germany’s NSDAP, one would be remiss to ignore the eerie similarities.)

In later decades, Frankfurter’s judicial restraint would take on a more conservative cast.  He stayed true to his legal philosophy, remaining unchanged as the world changed.  But this is less about ideology per se than the larger concept of consistency.  Frankfurter felt he couldn’t alter his beliefs, because then he would betray his concept of judicial restraint.

COUNTER-EXAMPLE II: CHIEF JUSTICE JOHN ROBERTS

(Born: 1955; SCOTUS: 2005 – Present)

Because of his recent decision to join the majority in the Obamacare decision, those on the Left have misinterpreted Chief Justice John Roberts as a “liberal justice”.  While it is still too early to tell where Chief Justice Roberts will fall on the ideological spectrum, he has, thus far, been seen as a typical, albeit photogenic, representative of conservative jurisprudence.

Justice Frankfurter was a case of a long-term ideological shift, Chief Justice Roberts exhibits a situation based on the administrative duties beholden to the Chief Justice of the Supreme Court of the United States.  Unlike the other eight Associate Justices, Chief Justice Roberts is the caretaker of his judicial legacy.  “The Roberts Court” will be stamped on every decision, including landmark cases, regardless of how he votes.  Chief Justice Earl Warren had Brown v. Board of Education and Chief Justice Warren Burger had Roe v. Wade and United States v. Nixon.  In addition to shouldering the responsibility of landmark decisions, there is the sheer statistical weight of being a Chief Justice.  There have been countless Congressional Representatives, hundreds of US Senators, 44 Presidents, but only 17 Chief Justices.  Even the President is aware of this fact, since appointing a Supreme Court Justice is one of the better perks of the job, but nominating a Chief Justice is the top prize.  While only President Jimmy Carter had the ill fortune to not nominate any Supreme Court Justices, only a few Presidents have been able to nominate a Chief Justice.

When it comes to the concept of the Supreme Court’s “swing votes,” one can safely reject the Chief Justice because of the responsibilities of the position and the power dynamic.  Any fleeting thoughts of Chief Justice Roberts becoming a “born again liberal” because of his Obamacare decision should take heed.  Despite the obvious fact that Obamacare was based on Romneycare, which was birthed in a conservative think tank, Chief Justice Roberts main concerns are with forging a judicial legacy.  It may not be an opinion penned by Roberts, but his name is on the Court.

Now repeat after me: “Oceania was at war with Eurasia: therefore Oceania had always been at war with Eurasia. The enemy of the moment always represented absolute evil, and it followed that any past or future agreement with him was impossible.” From 1984 by George Orwell.

EXAMPLE I: JUSTICE JOHN PAUL STEVENS

Bowties are cool.

(Born: 1920; SCOTUS: 1975 – 2010)

It may come as a surprise to some, but there was a time when the term “moderate” wasn’t uttered in derision.  President Gerald Ford appointed Justice John Paul Stevens to the Supreme Court.  Stevens came to the Court as a compromise appointment, but in the best possible terms.  President Nixon’s appointments (Burger, Blackmun, Rehnquist, and Powell) subscribed to conservative judicial ideology.  Nixon’s aim was to counterbalance the judicial liberalism coming from the Warren Court.

John Paul Stevens, a Chicago jurist, came to the Court under unique circumstances.  President Ford arrived to the Presidency not by election, but by appointment.  The same goes for his Vice President, Nelson Rockefeller.  Ford, his manner straightforward and folksy to Nixon’s paranoid deceptiveness, faced a difficult situation.  With the retirement of liberal firebrand William O. Douglas, the Court now had another open seat.  But an unelected President to put forward the name of a conservative ideologue, especially in the aftermath of Watergate, would lead to disaster.  The post-Watergate Congress, chomping at the bit to curtail executive power run amok, would never stand for that.  Ford, realizing his tenuous situation, nominated a moderate, in this case Stevens.

Over the years, Stevens had become the reliable liberal voice, albeit not as absolutist as either Justices Black or Douglas.  But the liberal-leaning Justice wasn’t as predictable as expected.  In the 1989 flag-burning case, Stevens sided with the conservatives.  This had less to do with being a Movement Conservative than with Stevens being a World War 2 veteran.  He said the flag “is a symbol of freedom, of equal opportunity, of religious tolerance, and of goodwill for other peoples who share our aspirations.”  In contrast to the flag-burning case, Stevens questioned the Bush Administration’s “intelligence operations at Guantánamo.”

During his early years, Stevens occupied the role of a prudent center.  His left-leaning stances have been accentuated with his military service and his bravery to question to Executive excesses committed during the Bush Administration.  In recent years, the Court has witnessed a changing of the guard.  Elena Kagan and Sonia Sotomayor may eventually fill Stevens’s judicial niche as The Moderate.  Unfortunately, due to the rightward slide of the judiciary during the Eighties and Nineties, the Moderate will probably inhabit a niche further to the Right than most mainstream American voters care to admit.

Turning and turning in the widening gyre
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world.

-   “The Second Coming,” William Butler Yeats (1919)

[Emphasis mine.]

EXAMPLE II: JUSTICE SANDRA DAY O’CONNOR

(Born: 1930; SCOTUS: 1981 – 2006)

Reading Toobin’s The Nine gave me a newfound respect for Justice Sandra Day O’Connor.  Nominated by President Reagan, O’Connor was the first woman appointed to the Court, that for so long had been the dominion of white Protestant males.  The Brethren paints a similar portrait, except with Thurgood Marshall as the token black and William J. Brennan as a token Catholic.  But if reading about the Supreme Court reveals anything, it is that the institution is more than the sum of its demographics.

Sandra Day O’Connor grew up on a ranch in Arizona and became close friends with William Rehnquist.  In many ways, she can be considered a photonegative of William O. Douglas, another product of the American West.  Fiercely independent, a tireless workaholic, and a public face for the Court, O’Connor was one of the best modern Supreme Court Justices in living memory.  This positive reputation, at least to this writer, has less to do with such trifles as ideological purity than her personal commitment to do what was best for the country.  She attempted to craft decisions based on American popular opinion, avoiding the extremes of both liberalism and conservatism.  Ideological purity is of limited usefulness in the world outside the Supreme Court Justice chambers.  Besides, America has been more about the bottom line than about any notion of “purity.”  (Read William Faulkner about the after-effects of the South’s Quixotic obsessions with racial purity and chivalry and you’ll understand right away what I’m talking about.  The recent spate of Republican gay sex scandals is the same thing, but with homosexuality replacing race.)

O’Connor’s desire to read the sensible public perception of a case has given her a mixed reputation.  She cast the deciding vote on Bush v. Gore, thinking the US needed a definite end to the prolonged Electoral College-induce catastra-farce.  As a lifelong Republican, she cast her vote with George W. Bush, thus giving the country cold sweats following September 11th and comedy writers the greatest eight years of their lives.

Throughout her career, O’Connor has tried to remain in the middle of the road.  In abortion cases, she had shown a kind of libertarian feminism.  Since Roe v. Wade, a woman’s right to choose had become common cultural currency.  In O’Connor’s specific case, she rankled against the Right’s fetish for imposing government restrictions on a woman’s choice in matters relating to her pregnancy.  The 2000 case Sternberg v. Carhart had O’Connor depart from her usual conservative principles and had her move “farther left than she had ever gone in her judicial career.”  This was due to her “reverence for expertise, her suspicion of paternalism, and the deft lobbying of Breyer.”  (We will go into more detail with abortion cases in the next installment, plus George Carlin and Bill Hicks clips!)  The key factor is “suspicion of paternalism.”  With the Right’s slouching towards theocracy, O’Connor’s swing votes posed a necessary corrective.

In all these cases, the “swing votes” of the Supreme Court Justices have attempted to bring the Court back from the spasms of ideological extremism.  Today’s challenge is for Justices to perform the same function, even as the Court slides further and further to the Right.  The fearmongering and simplistic rhetoric, combined with the walleyed perceptions created by social networking, has created a public discourse at odds with mainstream opinion.  Will the center hold?  And with Right and Left pulling further and further apart, what is the center?

As with many other things in the United States, the center needs to be rehabilitated and rebuilt.  The Supreme Court Justices possessing the “swing votes” can work towards pulling the nation back from the brink.

The political center: an alternate view.

Up Next: The Abortion Debate (with Jokes)

MONDAYS WITH THE SUPREMES, PART III: KOREMATSU, BROWN, AND PADILLA

A limited-run series where I review three books about the Supreme Court of the United States, exploring its historical and ideological conflicts, and the transformations it wrought upon law and society.

This is the story of three Supreme Court cases.  The three cases illustrate the real political power exercised by the Supreme Court and the concept of stare decisis, more commonly known as “binding precedent.”  Furthermore, the reader should see this section as a kind of intellectual exercise.  Legal legitimacy coupled with cultural acceptance creates a powerful cocktail that can make overturning legislation much more challenging.

The Court established itself as an independent branch of the United States government in Marbury v. Madison, 5 U.S. (1 Cranch) 137(1803).  This allowed the Court to operate as “final arbiter” in constitutional disputes.  It announced to the Executive Branch that it wouldn’t act as the President’s handmaid.  The Supreme Court is not a rubber stamp to the President’s ever-growing imperial power.  (Congress has that job, at least in terms of its War Powers.  Since Vietnam, Congress, in acts worthy of the Heaven’s Gate cult, seems perfectly comfortable with acts of self-castration.  Besides, Congress engages in more pressing acts: seducing lobbyists, having affairs with staffers, and scanning wealthy families for trophy wife material.)

Coupled with its task as final arbiter, the Supreme Court utilizes the concept of “binding precedent.”  In an ideal circumstance, the Supreme Court does not legislate from the bench.  The Court either upholds or overturns the case based on precedent.  A Justice can’t just say, “This is wrong, don’t do it.”  A specific piece of legislation has to be deemed unconstitutional.  Previous Court cases, other laws, and the Constitution itself must support the constitutionality of the decisions.

While Congress writes laws to be signed into law by the President, the Supreme Court interprets the law.  But interpretation is a hollow exercise if it is not enforced.  These three cases show how the dance between constitutional interpretation and legal enforcement become a balancing act between branches.  Occasionally, these balancing acts spill over into public conflicts and duels.

Korematsu v. United States, 323 U.S. 214 (1944)

Holding: The exclusion order leading to Japanese American Internment was constitutional.

Majority: Black, joined by Stone, Reed, Douglas, Rutledge, Frankfurter
Concurrence: Frankfurter
Dissent: Roberts
Dissent: Murphy
Dissent: Jackson

Korematsu is a lingering black eye on the American legal system.  It remains a damning indictment against the Executive excesses of FDR and the judicial spinelessness of his appointees.  Alternately, Korematsu shows a patriotic Supreme Court upholding the will of the Executive in times of war against a ruthless enemy dedicated to brutality, terror, and warmongering.  What do you think, Dear Reader?

The case, like the segregated armed forces and the alliance with Stalin, opens any number of vulnerabilities within the otherwise hagiographic treatment of the Greatest Generation.  No amount of nostalgia or selective memory will disprove that our leaders and our citizens had feet of clay.  The Second World War was not as black-and-white as the opposing forces in the Lord of the Rings.  Reality, to quote Herman Melville, had more ragged edges.

The case itself upheld Executive Order 9066 that legalized the internment of Japanese-Americans.  War hysteria following the Japanese attack on Pearl Harbor coalesced with decades of anti-Asian sentiment among Americans of European descent.  While Japan had spies and other intelligence agents working towards infiltration of the US mainland, Executive Order 9066 involved tackling a surgical problem with a sledgehammer.  Instead of targeting suspicious foreign agents working for enemy powers, it gave law enforcement the ability to arrest and imprison native-born US citizens.  It invalidated constitutional protections offered to any citizen born in the United States to those who looked like the enemy.  (Arizona’s recent anti-immigration law also reflects this racially motivated hysteria.  Illegal immigration is a problem, especially in Border States, but turning every “Mexican-looking” person into a potential felon is a stupid solution.)

A closer analysis of the decision reveals the potential time bomb that would later explode in Brown v. Board.  As Feldman writes in Scorpions,

With the war on, Black was disinclined to stand up for equality, even though his liberal, Catholic colleague Frank Murphy condemned the decision as pure racism.

Because the Korematsu case focused on a military order, Justice Jackson became torn and issued an enigmatic dissent, trying to balance “uphold[ing] a military order would distort constitutional law; striking it down would inappropriately second-guess military authority.”  As opposed to Robert Jackson’s concept of judicial pragmatism, Justice Felix Frankfurter wrote a concurrence stating that the internment program “is not be stigmatized as lawless because like action in times of peace would be lawless.”  Frankfurter believed in judicial restraint and opposed all measures to legislate from the bench.  Frankfurter’s assessment opened up the possibility for repealing segregation with the reasoning that the internment was necessary because it was wartime.  In peacetime, similar unfair treatment based on race was unconstitutional.

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)

Holding: Segregation of students in public schools violates the Equal Protection Clause of the Fourteenth Amendment, because separate facilities are inherently unequal. District Court of Kansas reversed.

Majority: Warren, joined by unanimous

During the Fifties and Sixties, the Warren Court oversaw the greatest expansion of civil rights and individual liberties in recent memory.  In Brown v Board of Education, Earl Warren wrote a unanimous opinion striking down segregation in schools.  It was an act whose time had come.  The Court followed in the footsteps of President Truman’s executive order desegregating the armed forces.  Truman’s actions were relatively easier than what the Court faced.  Unilateral action could be taken, since Truman acted as Commander-in-Chief of the armed forces.  Desegregating schools was a trickier business.

The long winding road of Brown v. Board culminated in the Supreme Court’s unanimous decision.  The unanimity of the Court gave the decision extra moral and legal heft necessary for such a radical social change.  Scorpions relates how the Court reached a unanimous vote; routinely holding over the decision until the next year and then having it reargued.  Only until Chief Justice Vinson, a proud Southerner and pro-segregationist, retired and with Justice Robert Jackson on his deathbed, were the circumstances right.

With stare decisis, the Court used Korematsu as a precedent to strike down Plessy v Ferguson.  In oral arguments, evidence was presented that showed that “separate but equal” did not mean what it said.  The races were separated but far from equal.  Everything from racist stereotypes in pop culture to redlining to legal disenfranchisement were engineered to keep African-Americans from getting any ideas about racial equality.  Plessy v Ferguson would not stand, since it was based on false pretenses.  Korematsu came into effect because of the reasoning involved.  The Japanese-American internment camps were created as a temporary measure.

Once the War ended, the camps would lack any basis for existence.  Since the US Government knowingly created the camps as a racist containment strategy, the same could be said for legal segregation.  Segregation contained “uppity blacks.”  With the US triumph in the Second World War against racist tyranny, it seemed a tad hypocritical to defend racist social engineering.  In addition, segregation was used as a canard to discredit American democracy.  Justice Robert Jackson understood this, because he had jousted with Hermann Goering during the Nuremberg Trials.  In the Fifties, the Soviets and American Communists consistently used segregation as an example of American capitalist evil.  The United States also had the awkward experience of explaining to African diplomats and dignitaries why hotel clerks and restauranteurs were treating them like shit.  Despite popular opinion to the contrary, especially but not exclusively, in the South, that the time had indeed come to rectify this perversion of democracy.

But it wasn’t all smooth sailing and waiting for segregationists to retire or die.  The nine justices battled between striking down school segregation with a unanimous vote and the order to do it immediately.  Like a refrain from a terrible pop song, the Court settled on a compromise.  (Compromises being the go-to solution for America’s self-inflicted race-based problems.)  In exchange for a unanimous vote and to appease stubborn Southerners on the Court, the Court decided to strike down Brown, but for the lower courts to establish their own timetables.  “Gradualism” was the key word.  Unfortunately, gradualism only sounded good on paper.  This opened the door for states to drag their feet or come up with creative legal loopholes.  This led to Southern governors challenging the Supreme Court’s authority, since the Court lacked any enforcement apparatus.  Eventually we get the National Guard escorting little black girls to school and repugnant alternate uses for fire hoses.

The Brethren picks up where Scorpions leaves off.  With desegregation legal and mandatory, it opened up a can of worms for courts to unravel.  If schools were desegregated, does that mean neighborhoods also need to be desegregated?  Do schools have to match the racial ratios of the neighborhoods they serve?  What about bussing?  The challenges associated with desegregation stretch into the Sixties, Seventies, and Eighties.  Even in the Nine, the Rehnquist Court, made up of a conservative and moderate majority, sought to strike down Brown, but with little success.

Rumsfeld v. Padilla, 542 U.S. 426 (2004)

Holding: Habeas corpus petition had been improperly filed in the U.S. District Court for the Southern District of New York, and should have been filed in the U.S. District Court for the District of South Carolina; petition should have named Padilla’s immediate custodian, not the Secretary of Defense.

Majority: Rehnquist, joined by O’Connor, Scalia, Kennedy, Thomas
Concurrence: Kennedy, joined by O’Connor
Dissent: Stevens, joined by Souter, Ginsburg, Breyer

Padilla v. Rumsfeld appears like a culmination of Korematsu and Brown, but is in reality rather disappointing and dangerously inconclusive.  We have the similar themes of rights violation occurring during wartime (Congress keeping its rubber-stamping ability to legislation expanding Executive power in fighting trim.)  In this case, the concept of habeas corpus lay in the crosshairs.

Padilla, an American citizen, was held in the brig and charged as an “enemy combatant.”  The case could have unraveled the Bush Administration’s legal basis for torture, extraordinary rendition, and other authoritarian atrocities committed in the name of liberty and freedom.  (These colors don’t run, just the intelligence and common sense of the American voter.)  In the end, the case was struck down on a technicality, since Padilla should have petitioned the brig’s commandant, not the Secretary of Defense.  Unfortunately, this leaves a lot of questions unanswered and civil liberties extremely vulnerable to Executive malfeasance and whatever psychotic lunacy one can get away with by saying the magic words “national security.”

While Padilla is an unfortunate case, stare decisis and a future Court will have the opportunity to slay the dragon of Executive power run amok.  Since the War on Terror is technically finished, we’ll see how the laws and executive orders issued during those tumultuous years will hold up under judicial scrutiny.

Up next: Tapes and Tapes

Mondays with the Supremes: Part I: Inside the Secret World of the Supreme Court

From the Onion.

A limited-run series where I review three books about the Supreme Court of the United States, exploring its historical and ideological conflicts, and the transformations it wrought upon law and society.

The Brethren: Inside the Supreme Court, by Bob Woodward and Scott Armstrong (1979)

The Nine: Inside the Secret World of the Supreme Court, by Jeffrey Toobin (2007)

Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices, by Noah Feldman (2010)

I.     INSIDE THE SECRET WORLD OF THE SUPREME COURT

The Supreme Court of the United States is one of several institutions in our country that radiates majesty, secrecy, and opacity.  Like the Central Intelligence Agency and National Security Agency, it is shrouded in secrecy, periodically issuing decisions with great import to the daily lives of American citizens.  It also possess similarities to the Federal Reserve with a group of unelected individuals commanding great power.  Furthermore, Supreme Court Justices, like Federal Reserve Governors, have a tendency to speak in opaque terminology.  Discovering the importance of a Supreme Court decision sometimes involves digging through mountains of legalese and knowledge of the case’s labyrinthine history up the ladder of the US Justice system.

Supreme Court Justices possess a federal position unlike any other.  While Federal Reserve Chairmen must be re-appointed, once one is on the Supreme Court, one is given a lifetime appointment.  It makes it a hotly contested position, coupled with the small number of seats on the Supreme Court (only nine, despite the best efforts of FDR).  Appointed by the President and confirmed by the Senate, the average voter has little direct influence in the process.  In the past, the voter had even less, since US Senators were not elected via direct election.  (The 17th Amendment, passed in 1913, worked to change the deliberative, glacial, and otherwise necrotic institution.)

These three books under review, The Brethren, by Bob Woodward and Scott Armstrong, The Nine, by Jeffrey Toobin, and Scorpions, by Noah Feldman, work to remove the secretive veil that covers the Supreme Court.  Each book attempts to reveal to readers a “secret history.”  (Similar secret histories have included James Bamford’s series of investigative works on the National Security Agency and William Greider’s exploration of the inner workings of the Federal Reserve.  One can also add the vast, albeit dubious, literature associated with secret societies, and the equally vast literature associated with detailing the histories of the world’s numerous intelligence agencies.)

The books refract off each other in fascinating ways.  One can read punctuated biographies of specific justices.  In The Brethren, President Nixon appoints William Rehnquist to the Supreme Court from his previous position in the Justice Department.  The Nine follows his ascent to Chief Justice following his appointment by President Reagan.  Scorpions explores how Rehnquist, working as a clerk for Justice Robert Jackson, wrote a memorandum affirming Plessy v Ferguson’s segregationist policies.  The memorandum would come back to haunt Rehnquist during both confirmation hearings.  Justices Hugo Black and William O. Douglas were both appointed by FDR (as recounted in Scorpions) shuffle off the mortal coin in The Brethren in its detailing of the Court during the Nixon and Ford years.

The Brethren by Bob Woodward and Scott Armstrong was the first expose of the inner workings of the Supreme Court.  The book covers the Supreme Court terms from 1968 to 1975.  Justice Potter Stewart’s dissatisfaction with Chief Justice Warren Burger’s shenanigans prompted the authors to interview justices, clerks, and other personnel working with the highest court.  On the surface, one would assume the book is a tawdry exposé, but in actuality, Woodward and Armstrong wrote a limited-scope institutional investigation, exploring the personalities, protocol, and positioning that made the Supreme Court a uniquely American civic organization.  One reads about the factions, horse-trading, and decision writing.  The intellectual and ideological components that go into the construction of the finalized Supreme Court decision make for fascinating reading.  Instead of wrangling the necessary votes in Congress, one has to contend with only nine votes, or, at minimum, five votes in order to create a judicial majority and possibly overturn legislation.

The Brethren’s major accomplishment involved making the reader see the Supreme Court as simply another American civic institution.  The Court is an institution with its rivalries and it reaches decisions every bit as partisan and shady as those made in Congress or the Oval Office.  Woodward and Armstrong helped de-mythologize an institution deadly serious about preserving its autonomy, prestige, and authority, even if that involves wrapping itself in quasi-religious pomp and circumstance.

If one deigns to call him or herself an “informed voter,” it helps to know what our alleged representatives are doing, especially at the highest echelons of power, and how the power structure operates.  Responsible citizenship involves more than parroting back empty slogans befitting a bumper sticker and preening about with an “I Voted” sticker like you just won the Congressional Medal of Honor.  The fact that voters cannot elect Supreme Court justices should prompt more people to read books relating the zenith of the Judicial Branch.

Up next: Matters of Protocol

After Lyletown, by K.C. Frederick

A game of tennis with a good friend signifies that Alan Ripley has achieved “the good life.”  It is 1988 and Alan works as a Boston area real estate lawyer, has a loving wife working in academia, and a growing son.  The idealistic picture of late twentieth century domestic bliss fractures when Rory Dekker enters Alan’s life.  Alan met Rory twenty years ago as the intense fires of Sixties idealism curdled into resignation and rage.  With Nixon ascendant, Alan and his friends decide to “make a difference.”

Inspired by a seductive ideologue named Lily Culp and aided by a couple ex-cons, the tiny cadre of revolutionaries decide to participate in a heist.  The heist involved raiding a gun store, stealing the weapons, and distributing them to blacks.  It all seemed to make sense, at least on paper.  Then the day Alan should have participated in this nascent revolutionary action, he becomes sick and has to bow out.  The Lyletown Six became the Lyletown Five.  In the resulting melee, one person died, the others fled, and Rory ended up serving hard time.  Now Rory has returned into Alan’s life and Alan doesn’t know why.  Blackmail?  Revenge?  The reunion of friends possesses an ominous tinge.

After Lyletown by K.C. Frederick is a meticulously constructed narrative that Alan and Rory dealing with the consequences from the events of the Sixties.  On the surface, the premise is reminiscent of a thriller.  The novel itself operates on a much smaller, much more psychological level.  It is a novel of interiors.  Much is given over to Alan thinking and rethinking his decisions in the past and calculating the degree of his culpability.  The superficial portrait of the upper middle class real estate lawyer is only part of the picture.  Between the fires of Sixties idealism and thriving in Reagan’s America, Alan suffered one failed marriage and a dead-ended literary career.  He then reinvented himself as a law student, divorced his first wife Martha, and remarrying an attractive literary scholar named Julia.

Because of Rory’s silence in prison, Alan thinks he owes the ex-con something.  This is exacerbated by Alan’s realization that he could have lost everything if Rory chose to expose Alan’s part in the botched heist.  To further complicate matters, Alan chose to not reveal this part of his life to Julia.

What follows is a series of meetings between Alan and Rory.  Alan mired in self-guilt, Rory noticeably vague on his current situation.  Rory says he needs money, but doesn’t elaborate.  Alan, with lawyerly rationalizations, decides best not to ask, since too much knowledge would make him more culpable, especially if Rory’s plans for the money aren’t exactly legal.

Some passages in the novel seem a bit too on-point, like when Alan visits an elderly Polish woman who is his client in an eviction case.  The woman worked for the Polish resistance and lives on a modest pension.  The woman’s work in the resistance seems like an obvious mirror to Alan’s work with the Lyletown Five.  On the other hand, Julia’s father fought in the Second World War but refused to talk about it.  The war left him taciturn and tortured on a deep psychological level.  The omnipresence of war creates these peculiar ripple effects.  Since the story is set in the Late 80s/Early 90s, the reader could project the future for Tommy and how the future War on Terror will effect him.

The novel is an exploration of how war, prison, and affluence effect individuals, told at an unhurried pace.  The writing shimmers with descriptions of Innisfree, the Vermont cabin Julia’s father built, and Boston bars (dive bars and trendy Yuppie havens alike).  Not a narrative of spectacular confrontations but one that builds menace with a slow intensity and allows for the exploration of human interrelationships damaged by bad personal and foreign policy decisions.

An Interview with David Schmahmann, author of The Double Life of Alfred Buber

Why is Alfred Buber an important character for modern readers?

Alfred Buber’s story is a riff off several things: isolation, male loneliness, a feeling some of us may have that for others life is richer, more sensual, more rewarding than it ever will be for us. Buber is frozen by that feeling, by the sense that he is a spectator at his own life, shut out of any chance at love, at being wanted, at feeling full and satisfied.

He mistakes these feelings, I think, for desire, and I believe many men do this: conflate loneliness with desire, as if connection with a woman, finding a woman, sexually bonding with a woman, will somehow end the emptiness. As Buber puts it, in men loneliness acquires a sexual tinge.

It’s Buber’s own story, of course, how his quest unfolds, but maybe in the crooked telling of it, the double lives and inadvertent lies, Buber reveals something universal: men’s desire for women is unyielding, relentless, and as often as not a proxy for much more complex needs.

As a lawyer practicing in Burma, what are some of the cases you’ve handled?

I first went to Burma to link up with a friend who had opened a Rangoon office for his law firm just after Aung San Suu Kyi was released from house arrest the first time. We had in mind to build a robust international practice and be prepared for what we thought would be an onslaught of foreign firms anxious to do business in an evolving, resource rich, and developing economy.

It was not to be. The government never did, really liberalize anything, despite grand sounding visions, nor take its boot off the neck of business, let alone its own people. As time passed companies left rather than came, or were forced to leave, western entrepreneurs vanished and were replaced by Chinese, Japanese and others, and it became clear that the obstacles to our building a viable practice were insurmountable.

What we did do, as American lawyers, was develop relationships with Burmese lawyers whom we trusted, and retain some very talented younger Burmese lawyers on staff, so that we would have been in a position to provide advice to international clients on the business environment, laws, and pathways to success. The firm to some extent continued to do this for a number of years, but I didn’t persevere, though I have warm feelings towards many people in Rangoon, and look back on the time I spent there with great fondness and nostalgia. (Well, I look back on just about everything with nostalgia. It’s the present I have problems with.)

In the movie Reversal of Fortune, Alan Dershowitz advises Claus von Bülow against telling his side of the story, since telling the truth would put the lawyer in an awkward position.  Does Alfred Buber’s truth telling place him at greater risk?

By the time he tells his story Buber no longer cares about risk, how he is regarded, or anything else, including his own life. He makes a commitment to tell his story accurately, and to do his penance by laying out his flaws and weaknesses for all to see. But in doing so he exposes more than he thinks he does because his story doesn’t add up, eventually reveals his illusions too, and how the track on which his thoughts run is not completely coincident with reality.

Of course being too honest puts one at risk whenever there are disputed versions of a single set of facts. Lawyers know this – memory is very shaky – but good lawyers are quite adept at sizing up how a client’s story – however honest or well intentioned – may be received.

And I would never disagree with Professor Dershowitz on anything law related anyway.

Many reviewers have likened the book to the writing of Vladimir Nabokov.  How do you deal with living in Nabokov’s shadow?

I love Lolita, and since there is some similarity in subject matter I’m not terribly surprised at the comparison, but I’m not a beneficiary of it. When a reviewer chooses to make the comparison between me and Nabokov, the enquiry then devolves to a single question: Am I as good as Nabokov, or am I not?  How could I possible come out ahead in such a contest?

I would say, in all bluntness, that my thinking, my story, my tone even, is meant to evoke J. Alfred Prufrock rather than Humbert Humbert. Those wonderful lines in Prufrock where he obsesses about the women he encounters in sedate London parlors, about how the fine hair on their arms catches his eye, about how they may see him, about how shallow their interests seem to be and how isolated and distressed he is, these are Buber’s themes. Buber’s default into what he thinks is desire – Nabokov’s territory – is just that: a default. His mind set, his dilemma, are not Humbert’s.

Buber is, like Prufrock, a perfect English gentleman. He certainly isn’t a pederast: he thinks of berating, in fact, the owner of a Bangkok bar for allowing a too-young girl to work there.

Have you ever been to Thailand?  If so, what were you impressions?

I went as a tourist many years ago, and then more recently when I had the opportunity to work in Burma I visited several times. I have also spent time in the north of the country, near the Burma border, visiting refugee camps and friends who work there, and I’m active with a group that supports Burmese refugees who live just inside the Thai border.

I came to know Bangkok quite well, and I have a great affection for many things there. There is something about the city that has overpowering charm: the Thais are as physically graceful as people get, in my view, have ways of behaving and thinking that are difficult for a casual visitor to access and are therefore endlessly interesting, and Bangkok is spotted with magnificent temples and statuary and stores filled with dusty treasures there for the finding. There is also a steamy, sensual undercurrent to it, a bluntness, a candor, that I admire.

Sex, women, desire, lust, the profane thread that suffuses everything but that is usually either denied or treated with adolescent titillation, is brazenly confronted in Bangkok. Personally, I find the image of a Bangkok bargirl trolling for fellatio customers less vulgar than Paris Hilton’s smile.

In a previous interview, you stated that the book came from a non-judgmental perspective.  How does this contrast with the place of judgment in law?

In law, the matter is always binary: one side wins, the other loses. Mature lawyers are often able to anticipate what the odds are of one or the other, and to find some appropriate middle ground on which to resolve differences. I’ve become quite good at that, in all immodesty, in sizing up disputes and trying to anticipate where the midpoint is, how it should end.

In my travels, in my books, I’m talking about something quite different. I’m by no means a moral relativist  – I believe in right and wrong, that there are some absolutes – but I have no patience for blue-stockings and self-righteous moralists. I don’t pass judgment on Alfred Buber, on men who behave as he does, or on Nok and women who make the choices she does, just as I have a very removed perspective on peoples’ private decisions: I care as much what color you paint your living room as I care about whom you have sex with (as long as you own the room, and the other person or people consent), and I don’t pass judgment on the kind of sex tourists who drift about in Buber, nor their licentious behavior. There are bigger problems in the world than carnal trading.

If anything I’m most acidic in the novel about the moralists who torment Buber in his own law firm, rather than about anything Buber himself may think or do.

What are your thoughts on how Americans view sexuality?

The question’s hard because it presupposes there is any one view. I’d start by saying, I suppose, that Buber is not really about sex at all but about male loneliness, personal alienation, a misguided journey by one man who seeks to find solace in sex when his desires have very little to do with sex itself. In the novel Buber makes clear that even as he sets out with fantasies of sensual escapades, no sooner does one actually present itself than he retreats into his old prissy persona, and promptly falls in love – not lust by any measure – with a young women who personifies for him the exact opposite of the raucous sexuality that surrounds him.

I think many people, perhaps the dominant culture too, trivialize sex, treat sexuality as a voyeuristic commercial oddity, reduce the sex act to a past-time, a punch line, a battle-station in some strange, unpleasant, jostling for dominance and relevance. As we retreat to our homes, our computer tables, our post-industrial, post-feminist, post information-age irrelevance, romantic love becomes tangled with isolation and computer-assisted fantasy, and a generation soaked in soulless high school hookups leads the way for sex to become as mundane as sweating.

I think we live in strange times.

Who are some of your favorite authors?

For many years I was an ardent fan of Lawrence Durrell (The Black Book; Tunc and Nunquam; The Alexander Quartet, and others) and of his friend Henry Miller. I still am. I reread and reread those books. I’m a huge Wodehouse fan, an admirer of Evelyn Waugh, Somerset Maugham, D.H. Lawrence, Nobokov …. An eclectic mix, in short. I also read an awful lot of non-fiction.

What other projects are you working on at the moment?

I have young children and a busy law practice, and those features tend to slow down my writing. It’s not a matter of time, so much, as it is mindset. I find that my best work happens when I retire from daily preoccupations and settle into my story without distraction.

I am though working on a novel I’ve tentatively called The Color of Skin.  Like my first novel, Empire Settings, it’s set in South Africa, and like Empire it concerns this issue of interracial love. But the story is much more visceral: about the modern consequences of the relatively simple, unacknowledged fact that the early Victorian explorers in south eastern Africa couldn’t keep their hands off the Zulu women.

How it came about, how it may have felt, how a descendant may deal with the mixed messages that have resulted from these relations over the years, makes for wonderful reading. I think it will make for a really compelling novel.

Contracts: the Essential Business Desk Reference by Attorney Richard Stim

Contracts are everywhere.  Richard Stim makes this obvious in the introduction to Contracts: the Essential Business Desk Reference. Enumerating everything from employment contracts to those involving insurance, credit cards, toll roads, and music and book downloads, contractual relationships are everywhere and nowhere.  Because of this situation, Contracts is an essential tool for navigating the occasionally intimidating aspect of signing the dotted line.  Following or breaking contracts have real consequences for all involved.

The book organizes the various terms associated with contracts in alphabetical order.  Aided by cross-references, it provides easy navigation of topics.  Nolo, the publisher, also boasts dictionary definitions written in “plain-English.”  What this means is that explanations are not cluttered with needless jargon or legalese.  Definitions range in length.  Larger topics can get broken down into subgroups and may have the addition of sample forms or sample clauses.  (The book devotes five pages to “real estate contracts.”) Here is an example of a shorter definition:

ceiling

Like a cap, a ceiling is slang for the upper limit for something.  For example, the term is commonly used in real estate transactions to refer to the upper limit over which the interest rate on a variable rate mortgage may not rise over the life of the loan.

Related term: cap.

The usefulness of this book cannot be denied.  For a novice or for those writing a specific contract, the book offers easy navigation, clear and precise definitions, and abundant cross-references.  Since this book deals with legal topics, the usual disclaimer applies: This book is a guide to contracts, but not the substitute for professional legal counsel.  (In the same way CliffsNotes are not an effective substitute for actually reading the book.)  Prior to receiving legal assistance, Contracts will give the reader an added advantage.  Reading the definitions will give the reader an opportunity to craft precise questions to ask his or her lawyer.

 

 

 

To Account for Murder by William C. Whitbeck

If Permanent Press had a prestige novel, To Account for Murder by William C. Whitbeck would it.  The novel presents a fictionalized version of real life events that happened in Michigan.  In 1945, Senator Warren G. Hooper was murdered in a gangland-style slaying.  To this day, the murder case has never been solved.  William C. Whitbeck, the author of the novel, also works as Chief Judge of the Michigan Court.  He presents us with the tale of one Charlie Cahill, a disabled vet, prosecutor, and son of an Irish bootlegger.

Set in Lansing during 1945 and into 1946, Whitbeck paints a picture of a strange yet familiar world.  Charlie Cahill narrates the novel in a classic deathbed confession set in the mid-1990s.  The hospital bed mirrors his recovery from grievous wounds he suffered during the D-Day invasion.  During his convalescence, he meets Sarah Maynard who works as a nurse in the hospital ward.  Sarah saves this broken man, having one less arm, and pulling him back from the black abyss of alcoholic despair.  The resulting affair is less than convenient for both involved, since Sarah is the wife of Michigan Senator Harry Maynard, an abusive drunk.

The machinations that lead Charlie to murder Senator Maynard act as prologue to the ensuing courtroom drama and political races.  Charlie is recruited by Judge “Ironpants” Hennessey to assist one Hubbell Street, a drinkin’ whorin’ prosecuting attorney with Macbeth-like ambition and Falstaffian appetites.  This is where To Account for Murder, with its historical setting and lively characters akin to HBO prestige fare like Boardwalk Empire, meets the murderer-working-in-law-enforcement of Dexter.  Charlie and Street work to engineer a frame-up of two button men in the Jewish Purple Gang.  The Purples put a serious hurt on Charlie’s brother and might have killed their father.

Whitbeck spices up the proceedings with relevant historical details, details usually smoothed over or erased entirely by historians who mistake historical narrative as harmless family-friendly infotainment.  These details include a vicious anti-Semitism and racism that exists as a vast undersong to the omnipresent corruption and influence-peddling that permeates the capital city.  The reader is also reminded that the United States had a problem with illegal intoxicants flooding our cities, this time coming from the North.  While bootlegging and gangsterism acquired the amber hue of nostalgia, the United States faces a similar problem with narcotrafficking and the concomitant social ills it breeds.  With a constitutional amendment repealing Prohibition and Canadian Club on liquor store shelves, the solution to the endless intractable War on Drugs may be staring us in the face.

The novel gives the reader a harrowing courtroom drama, pitting Charlie and Street against the formidable Joel Haricot, a legless veteran of the Great War, and adept legal mastermind.  As with any moral tale, triumphs come at a dear cost, along with unexpected reversals and betrayals.

The only quibble this reviewer has with the novel is a revelation that occurs on the last page of the last chapter.  While in a certain light it answers many questions, it has the unintended effect of undermining the entire narrative.  Whether it was a justifiable pay-off or a gratuitous manipulation depends on the attitude of the reader.  For this reviewer, it’s a hung jury.