24 May 2010
Texas has again been bypassed in the Washington power game. (Whine-whine, sulk-sulk) I am referring, obviously, to our complete absence on the U.S. Supreme Court. To fill another vacancy there, President Obama has, predictably, looked to the Ivy League to select Solicitor General Elena Kagan.
Her background is the usual. She is from the northeast and earned degrees from Princeton and Harvard Law School. If she is confirmed, every single justice on the Supreme Court of the United States (SCOTUS in journalese) will have studied law at Harvard or Yale. In addition, she was dean of the Harvard School of Law. You can’t be more wrapped in poison ivy than that.
With the elevation of Kagan, the Supreme Court would for the first time ever have no Protestant members. SCOTUS will be made up of six Catholics and three Jews. Where is the Protestant to represent that 51 percent of America? The very name, “Protestant,” means we protest a lot. Can’t we write dissenting opinions? If she is confirmed, four of the nine justices grew up in New York City. Instead of issuing the usual refusal to hear a case, they will yell, “Fughetaboutit!”
This incestuous situation is traditional. In the history of the court, half of the 111 black robes came from the Ivy League either as undergraduates, graduate students or law students. Their death grip is tightening: since 1950, the percentage is 70. Of these, 18 went to Harvard Law, 9 to Yale Law, and 6 to Columbia Law. Two members of the very first High Court were Ivy Leaguers.
In continuing this tradition, President George W. Bush (Yale, Harvard) and his successor, Barack Obama (Columbia, Harvard), have shunned 99 percent of America. Are there no decent judges in Texas, South Dakota or Nebraska? What are we from flyover states, chopped elk?
Incidentally, not everyone is smitten by that Academic Axis of Ivy. When nominee G. Harrold Carswell (Mercer University school of law) was deemed “mediocre” in 1970, Sen. Roman L. Hruska said, “Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance?”
When President George W. Bush nominated Dallasite Harriet Miers to the high court, she was criticized by her conservative opponents because she had attended the SMU law school. Miers was also rejected because she made such a lousy appearance before the Senate Judiciary Committee. Judge Diane Wood, a University of Texas and UT law school graduate on the federal appeals court in Chicago, was on Obama’s short list for a second time. Wood moved from New Jersey to Houston with her family in 1966. That’s as close as we get.
If Kagan is confirmed, she will replace retiring John Paul Stevens, the oldest member of the Supremes, and the fourth-longest serving justice in the Court’s history. He’s an interesting guy. As a boy, Stevens attended the 1932 World Series baseball game in Chicago’s Wrigley Field, where he saw Babe Ruth call his shot. Stevens later recalled: “Ruth did point to the center-field scoreboard. And he did hit the ball out of the park after he pointed with his bat. So it really happened.” Stevens also met several notable people of the era, including aviators Amelia Earhart and Charles Lindbergh. Stevens’ father, Ernest James Stevens, was convicted of embezzlement (the conviction was later overturned).
Justice Stevens earned his BA from the University of Chicago in 1941 and was working on his master’s degree in English at the university, but enlisted in the Navy on Dec. 6, 1941. Great timing. As an intelligence officer, he helped break the Japanese code that led to the downing of Japanese Adm. Isoroku Yamamoto‘s plane in 1943. (You WW II history buffs will appreciate that accomplishment – it was a biggie.) After the war, Stevens earned his law degree from the Northwestern University School of Law with the highest GPA in the history of the law school.
He was our only justice from the Midwest, and the only military veteran. All of the nine justices, including Stevens, had arrived at the High Court after serving in an appellate court. Kagan almost got there. She was appointed to an appellate judgeship, but the Senate never confirmed her.
Stevens took his seat in 1975 after being confirmed by the Senate 98–0, but today we dwell in a different political atmosphere. Party of No had its anti-nominee signs already painted, just waiting to fill in the name. For decades confirmation hearings were rather dull until that of Robert Bork in 1987. His failed nomination was so heatedly and angrily opposed by Dems that it gave us “to be Borked” — to have one’s character assassinated. Example: “You sure got borked on that deal.” It can also mean just the opposite, to have screwed up, usually by doing something stupid. “You sure borked up that deal.”
Anyway, Obama has overlooked Texas again, but we must remember that he doesn’t owe Texas a thing. In the Texas Democratic primary, we voted for Hillary Clinton 51 to 47 percent over Obama. In the general election Texans went for John McCain 55 to 44 percent for Obama – a stomping. But Obama still won the Oval Office handily without us. And, to be fair, we didn’t complain when both George Bushes packed their administrations with Texans, from cabinet level – State, Treasury, Energy, Education, etc. etc. – on down.
After Vice President Lyndon Johnson met for the first time with President John Kennedy’s cabinet — made up whiz kids from the Ivy League and such — he rushed back to tell his mentor, old Sam Rayburn. Mister Sam sighed, “’Well, Lyndon, you may be right and they may be every bit as intelligent as you say, but I’d feel a whole lot better about them if just one of them had run for sheriff once.”
Obama, Sam and LBJ wouldn’t let this happen.
Ashby is borked at firstname.lastname@example.org