WEEK 11- Federal Courts and Supreme Court Leadership

Appointments. The President nominates federal judges, and the U.S. Senate confirms them by a majority vote.
Senatorial Courtesy--federal district judges. Senators from the state can try to block confirmation in the Senate, especially if they are from the President's party. With segregationist Senators like James Eastland, this explains why Mississippi federal district judges in the 1950s and 1960s were unsympathetic to cases urging desegregation.

Ideological Effects. Presidents nominate judges from their party over 90% of the time. Democratic-nominated judges tend to be more liberal than Republicans, while Republicans tend to be more conservative. But neutrality dictated by the constitution and previous court decisions often overrides personal ideology.

An interesting commentary on senatorial courtesy, ideology, and judicial independence (given life terms). President Obama in 2010 nominated an African American, Carlton Reeves, to a federal district judgeship for the Southern District of Mississippi. Republican Senators Thad Cochran and Roger Wicker spoke on his behalf at a Senate Judiciary Committee, and the committee and the Senate confirmed him unanimously. In November 2014, Judge Reeves issued an order overturning the state of Mississippi's ban on same-sex marriage. Reflecting ideological neutrality, Judge Reeves also rejected a lawsuit by an African American plaintiff claiming that the old state flag with its Confederate emblem was unconstitutional, as the judge held that the plaintiff had not demonstrated any harm to him.

EARL WARREN COURT

The Earl Warren court of the 1960s was generally regarded as a liberal activist court.

Key Warren Court decisions on non-crime issues:

• 1) Brown vs. Board of Education- This 1954 decision held separate but equal public schools violated the 14^thamendment equal protection clause of the U.S. constitution. Self-esteem of young black children was hurt. Desegregation with "all deliberate speed" was ordered.
• 2) Reapportionment of legislative districts ordered. Equal protection clause requires "one man, one vote" and population equality of the districts. This applies to the U.S. House, both chambers of state legislatures, and other state and local government bodies.
• 3) Teacher, principal, or school district ordered school prayer in the public schools was unconstitutional and outlawed. The 1^stamendment establishment clause was used.

Key Warren Court decisions on Rights of the Accused issues of the early-mid 1960s:

• 1) Mapp v. Ohio enforced the 4^th amendment search and seizure clause on the states thru the exclusionary rule. Mapp's house was searched for pornography without warrant. Exclusionary rule means that that seized evidence cannot be used in a court of law to convict the person.
• 2) Gideon v. Wainwright provided that the right to counsel at trial for serious criminal offenses applied to the states. It was later extended to any conviction for which imprisonment could result. 6^th amendment case, right of counsel case. It reversed Betts v. Brady doctrine, which required states to provide public defenders only in special circumstances, such as capital cases or for illiterate defendants. Retroactiveness had a major impact on the states, as they had to retry inmates or release them.
• 3) Escobedo v. Illinois involved a murder confession and denial of counsel, and it held that the 6^th amendment right of counsel must be afforded to suspects very early (at the stationhouse), when officers' attention shifted from mere investigation to accusation.
• 4) Miranda v. Arizona involved a rape confession of a suspect who didn't specifically ask for counsel. This decision held that police must read suspects their rights. They had the right to remain silent, right to an attorney being present, if too poor the court would appoint an attorney, they had the right to discontinue interrogation at any time.

Many conservatives were angered over these decisions. Republican Congressional opposition (along with southern Democrats) torpedoed Abe Fortas' Chief Justice nomination in 1968 (as did ethical questions about Fortas). Congress members prevented Fortas’ consideration in the election year of 1968, Fortas resigned, and Nixon now had two Supreme Court vacancies to fill. President Nixon had pledged a law-and-order court, and he ended up eventually filling four Supreme Court vacancies. While the new Warren Burger court (his Chief Justice nominee) did not expand on the Warren court’s rights of the accused decisions, it did not reverse them either. Also, the Burger court was progressive in the areas of abortion and capital punishment. In Roe v. Wade, it struck down state laws outlawing abortion as violating a woman’s privacy and “liberty,” which was protected by the 14^th amendment (no state can deny any person of life, liberty, or property without due process of law). It also declared existing state death penalty laws to be unconstitutional as being too arbitrary and unfair under the 14^th amendment equal protection of life clause. In subsequent decisions, it required a two-stage process of first determining guilt, and then the punishment which must consider the character of the defendant and the circumstances of the crime. It also declared that the death penalty for rape violated the 8^th amendment ban on cruel and unusual punishment, as it was excessive; it has permitted the death penalty only for cases of 1^st degree murder.

Earl Warren as a Leader. The following information is derived from the book, Justice for All: Earl Warren and the Nation he Made, by Jim Newton. Riverhead books, New York. Quotes are from that book.

Warren’s Biography- 13 years as prosecutor of Alameda County in California. No case that he tried was ever reversed. As Attorney General of California, he advocated for the internment of Japanese-Americans after Pearl Harbor. He served as Governor of California, and was a Republican. "Was a veteran, married his whole life to one woman... appalled by pornography." (p. 518) He enlisted during World War 1, and had served in the Army and Army Reserves, and is buried in Arlington National Cemetery.

Some leadership suggestions from Earl Warren's pre-court political life:

• Get over mistakes. "Mistakes are not uncommon to human nature... The test of character is whether one has done everything in his power to rectify them. If that has been done, and the lesson from it is firmly embedded in one's mind, it should become part of the dead past." (p. 142)
• Grow personally over time and with new experiences. Before being governor, Earl Warren was a prosecutor who stressed public safety, and who supported civil service and business methods in government. In the 1942 gubernatorial campaign, he "began to express a more liberal vision- protective of schools and the elderly" and focusing more on the needs of society and "working people." (p. 156)
• Act in a nonpartisan way to promote the needs of the common good. The "common good" focus resulted in Warren liking the Progressive label (p. 216). In 1942 Warren not only swept the GOP gubernatorial primary, but came in a close second in the Democratic primary behind the Democratic governor, and then easily won the general election. He ignored partisanship in appointments, asking experts in each field who their most accomplished peer was, so he appointed some Democrats to office. His first budget increased spending for public education at all levels, social welfare, state workers, and for prisons and juvenile correction facilities. He instituted a state compulsory health insurance program. Warren also was prudent with government spending (urging a balanced budget), extolled free enterprise, enacted a tax cut, and backed an anti-communist loyalty oath for state employees. In 1946 he not only won the GOP primary by a landslide, but narrowly won the Democratic primary for governor. He won reelection to a 3rd term in 1950.
• Philosophy of never blaming others, and always assuming "the good will of his adversaries" unless proven otherwise. (p. 311)

His leadership as Supreme Court Chief Justice:

• Personal persuasion, exerted thru socializing with other court members. To get unanimous court backing for the Brown decision, he would lunch with some members (including a duck feast with all members), have private meetings with members, walk with them around the block, and take a nature walk. He was gracious. He "listened to his colleagues' reservations and coaxed them into become comfortable with the ruling's inevitability." (p. 313)
• Make concessions and be gracious to opponents. The Brown decision was limited to striking down segregation in the public schools. To cope with local officials who felt that they had been following previous court school decisions, Warren made it clear that "they had done nothing wrong... It was just that times had changed." (p. 318)
• An active and effective coalition builder. In Baker v. Carr reapportionment decision, he assigned the opinion to his closest judicial philosophical ally, Brennan, whom he thought could hold his own against the two dissenting judges. In Gideon v. Wainwright, Warren actually got plaintiff Gideon an effective lawyer (Abe Fortas) to argue his appeal.
• He was passionate and stubborn on the principle of fairness. When the court initially refused to hear a case of a Florida inmate, Bennie Brooks, being convicted of a prison riot, Warren wrote a stinging dissent that related how the inmate had confessed after being placed in "tiny sweat boxes for two weeks, naked on a starvation diet with just a hole in the floor to defecate in." (p. 485) The court reversed itself and unanimously reversed Brooks' conviction.
• Hard and relentless worker. Chairing the Warren Commission investigating President Kennedy's assassination, he was the only commission member to attend every committee session. He was "equally demanding of his staff. His temper could flare, and he was unyielding in his insistence that the staff work as hard as necessary in order to finish by his proposed deadline of June 1." (p. 436) When one staff member got married on a Saturday but was back at work on Monday, Warren's edgy response to the groom's mother was "Why wasn't he here Sunday?" (p. 436)

A Federal District Judge- William Alsup

Leadership insights are taken from his autobiography, Won Over: Reflections of a Federal Judge on His Journey from Jim Crow Mississippi:

• Childhood focus on good character habits- he was "boring," did not "smoke, drink, or use substances" (p. 13). Father's death resulted in financial problems, so it reminded kids that they had "very little to fall back on and reminded us that we ought to study like hell, and work like hell, to get somewhere in life" (p. 33). College at MSU during exam time was "to study all alone... my lonely drill" (p. 95).
• His passion was human rights and civil rights for African Americans. As a high school senior in 1963, he published a letter to the editor in the anti-civil rights major state newspaper that favored voting rights for blacks, and "compared white supremacy to the Nazi creed of a master race" (p. 73). The Declaration of Independence creed of all men being created equal, plus the World War 2 war of democracy against tyranny influenced him.
• Interpersonal courtesy in pre-party polarization days. Working on a power line crew, he felt that "this is our home and we shouldn't get crosswise with our neighbors because we disagree over an issue... Differences over politics gave way to the team" (p. 83).
• College non-class activities were important. Debate team showed him the importance of "one solid well-developed point," which helped him as a trial lawyer. A compliment from a lady African American judge who coached a black college at a Mississippi Youth Congress was a "long-remembered inspiration for me" (p. 98). One debate contest was at Harvard, whose atmosphere inspired him to attend Harvard Law School. Also elected Vice President and then President of student YMCA cabinet. Attended a Tougaloo rally for March Against Fear, and elected secretary of new group, MSU Young Democrats. Attended a Chicago workshop on urban poverty, and attended speech by Martin Luther King.
• Switched college majors, explored his strengths and interests. Started in civil engineering, then switched to aerospace engineering, finally ended up in mathematics to benefit from more liberal arts classes. (p. 123)
• Mentors included a reverend who was the new faculty advisor for the student YMCA program, who was a United Methodist minister who interpreted the Bible as saying, "we should be doers of the word and not just hearers," which thus inspired Alsup to "address some of the wrongs on our own campus" (p. 127). He also attended an Alabama pro-civil rights speech by Senator Robert Kennedy, which inspired him to invite similar "controversial" speakers to the MSU campus in an effort to "help find common ground" (p. 136).
• Won one fight against a Board of Trustees rule against "controversial" outside speakers, enforced by college Presidents. Young Democrats wanted to invite state NAACP President Aaron Henry to speak on campus. He and four other proposed speakers were banned, so Alsup and his group wrote a letter to the editor of the school newspaper protesting and supporting academic freedom, which they first delivered to the university president. Young Democrats lined up a pro bono lawyer, and Danny Cupit the Young Democrats President plus Alsup met with the university president. The MSU President informed the board of trustees of the proposed lawsuit and on his advice the board reversed itself and Aaron Henry did speak on campus. A state columnist of the major newspaper attacked the YMCA, and Alsup in a letter to the campus newspaper blasted the columnist for teaching "hate," dividing Mississippians, and keeping the state at the bottom (p. 173). The MSU administration then downgraded the YMCA as an organization (p. 176), and two investigators of the State Sovereignty Commission (which upheld segregation) asked neighbors about Alsup.
• Initiative shown again. Graduated from Harvard's joint law-public policy program. Thus, Supreme Court justice William O. Douglas hired him as a law clerk. Financial problems practicing in Mississippi led him to become a trial lawyer in San Francisco. He also served in the federal executive branch as assistant to U.S. Solicitor General, and then as special trial counsel for a federal case involving the merger of two major defense contractors. Desiring a federal judgeship during Democratic President Clinton's administration (with California having two Democratic Senators), Alsup got Republican Senator Leader Trent Lott's support (as well as a California Democratic Senator's) after he told Lott that he (Alsup) was born in Mississippi.