Al Franken: Giant of the Senate - Al Franken (2017)

This is the second post about politics in as many months.  Perhaps it being 2017 has something to do with that.  People have their ways to speak out about various issues through social media, and this is mine.  I do not engage in prolonged persuasive argument, nor condemnations via Facebook status updates against the scores of politicians and other bad actors that commit atrocious acts every other week, or day.  While I do find many of their actions hilariously terrible, I write about them by writing about books by Democratic Senators.

I am referring, of course, to Donald Trump, Mitch McConnell, and Ted Cruz.  I do not need to say that Trump is the worst president in history.  He is just hilariously terrible.  Hopefully no major damage will be done by his administration.  Many will say, "C'mon man, how can you say that?  What do you call the travel ban?"  And sure there's that, and probably a number of other things that have already been actively changed for the worse.  My point is, he wants to repeal the Affordable Care Act, and he can't seem to get the votes, so we can hope that his term will be mired in the same gridlock that compromised so many of the bills passed by the Obama administration.

Franken tells that story in a very effective way.  The obvious thing to do here is compare it to This Fight is Our Fight.  Giant of the Senate is a better book.  Warren specializes in financial policy, so it makes sense that she needs to make a little extra effort with the reader.  Franken supports Warren on the vast majority of issues (I would be interested to see if they voted the same way on every bill).  He does not, however, purport to be any kind of expert on financial regulation.  Like Warren, he writes about how his previous career informed, and continues to inform, his political career.  He writes saliently about many of his pet issues (minute details of the ACA, especially) and outdoes Warren in the departments of readability and creativity.  And we always have to go here too--everyone wants Elizabeth Warren to run for President, and she's made it clear she doesn't want that, but what about Franken?  No one ever talks about him running for President.  He says nothing whatsoever to suggest that he would like to run.  Nor does he say why he wouldn't.  

Considering the book on its own, it's quite good and highly recommend it.  Like the recently-reviewed NYC 200's oral history, I did not want it to end.  Okay, it wasn't quite the same--I didn't enjoy it quite as much.  However, it was much more consistent.  They're completely different books.  I don't know what I am doing.  I wanted to excerpt one thing about the ACA, because Franken explained something about the Supreme Court decision in 2012 that I never really knew or understood (how Justice Roberts struck down certain provisions of the law) even though I wrote an extensive feature on the various opinions issued by the Court for my school newspaper.  Franken's tone is less of a teacher and more of a regular guy acerbic comedian that went to Harvard who just tells you how things worked:

"But Chief Justice John Roberts, custodian of the Court's reputation, knew that killing health care reform with a third highly partisan, legally dubious, and immediately impactful 5-4 decision on the heels of Bush v. Gore and Citizens United might undermine any remaining confidence in the Court's integrity once and for all.  So Roberts voted with the liberals, agreeing that the mandate was constitutional.  But he picked a different rationale, concluding that the mandate was allowable because the penalty it imposed on people who didn't buy insurance was really a tax, which Congress is empowered by the Constitution to implement.

Roberts's reasoning was so weird that Supreme Court reporters from both CNN and Fox News initially reported the ruling wrong.

Also, critically, Roberts's decision included a drive-by shooting: It eliminated the requirement that states use federal dollars to expand their Medicaid programs, which would have helped cover millions more low-income Americans.

An expert marksman, Roberts had aimed directly at the ACA's foot, weakening the law before it could go into effect.  Republicans hadn't succeeded in getting the Court to block Obamacare, but they could take solace in the fact that Chief Justice Roberts had made it less good." (258)

On the subject of health care, there is another example early on that underscores why the Affordable Care Act makes sense.  Here I will pause briefly to say that, I do not like the ACA because I consider the premium for my exchange plan very high ($366), having known what it's like to have excellent employer-provided coverage ($30, pre-tax).  Franken describes how the U.S. health care system is analogous to the Cambodian system (for those without a job that gives them insurance), and he does it so well as to be nearly immune to criticism:

"The day after the announcement, I visited a health clinic in Minnesota where my friend Dr. Margie Hogan worked.  I spent time meeting with health care providers and patients and listening to some of the horror stories that were commonplace before the passage of the Affordable Care Act.
One of the stories Margie told me became a mainstay of my stump speech.  It involved an incredibly promising seventeen-year-old girl from a Hmong* family who was doing college-level work as a junior in high school.  But she had lupus.  And her family earned just enough money to no longer qualify for MinnesotaCare, a program that covered low-income families in the state.  The girl lost her health insurance.
Lupus is a chronic disease, and the medication that controls it is extremely expensive.  The girl told her parents to stop buying it so they could afford to take care of the other kids in the family.  It broke their hearts, but she was right: They couldn't afford the medicine, not with everything else weighing on the family budget.  So they stopped buying it.
The next time Margie saw the girl was six weeks later, back in the hospital.  But this time, she was in the emergency room, suffering from renal failure.  She had to be put on dialysis, and doctors thought she might have to be on dialysis for the rest of her life.
'Now, that's wrong,' I would tell crowds that had invariably gone quiet by this point in the story.  'But it's not just wrong--it's stupid!  How much is it going to cost our system to give her dialysis throughout her life?  And how much is this going to cost her, in terms of her potential and her quality of life?'" (80-81)

That asterisk goes on to describe the Hmong people (random aside: isn't the kid's family in Gran Torino Hmong?) and is also the major point of my criticism: the asterisks are too small!  Clearly, I can see when each page has footnotes, but I would always miss the asterisk in the body of the text itself and search for sometimes like 30 seconds to see which part Franken was joking about or explaining further.

There are a ton of jokes in this book and that is one of the ways it is most refreshing.  Because Franken writes a lot about how he has not taken most of the opportunities he has gotten as a Senator to be funny, and he seems to have been holding his breath for the past 8 years, and finally this is like a big vomit pool of jokes.  I was kind of excited when Franken got elected because I thought he would bring more humor to various political events, but he hasn't done that very much.  He does in this book, however, and he also mentions every time he tried to be funny and how it backfired.

Those above quotes about health care also make me want to mention Mitt Romney. Because part of what makes this book good is Franken's willingness to point out the few redeeming qualities his Republican colleagues possess.   I have never heard anybody complain about Romneycare, and regardless of how much credit he is due for that piece of legislation, it appears to be the gold standard in the American health care system:

"What would a conservative solution to the 'Cambodian system' problem look like?  Well, actually, a lot like Obamacare.  The three-legged stool model, in fact, had originated with the very conservative Heritage Foundation, and had been enacted in Massachusetts under a Republican governor with the improbable name of Mitt.  Where, by the way, it worked extremely well: Romneycare now covers 97 percent of Bay Staters, and both Democrats and Republicans there intend to keep it intact, no matter what Trump and my Republican colleagues do to Obamacare between the time I finish this book and the time you read it." (250-251)

This is the beginning of the change I hope to see develop in this country over the next few years.  Democrats never give Republicans credit for anything, and Republicans never give Democrats credit for anything, but Franken recognizes that we need to focus on our commonalities rather than our differences.  This is most effectively established in his "64 Percent Rule" chapter.  Most of this is spent discussing No Child Left Behind and amendments thereto.  It comes across more generally throughout the rest of the book as well.  Franken is very good at "reaching across the aisle."  Even though he humiliates several Republican members of Congress, he generally has something nice to say about them to offset the opprobrium.  This is not the case for Ted Cruz.  Notwithstanding that, he still refers to Cruz as "extremely smart," a "gifted speaker" and a brilliant advocate at oral argument in the Supreme Court.  The chapter "Sophistry" details many of their encounters and is one of the true highlights of the book.  In particular, the whole joke about the Carnival cruise line incident is very memorable.

***

Okay, big mistake.  This is the worst mistake I have made on this blog in years.  I had written a whole other long section of this review, and I think it may have been the best part.  It touched on how this book was also notable because it could be classed in the same category as books like Bossypants.  It touched on the fact that I saw Ted Cruz on CNN yesterday, doing an interview segment from Houston, and expressing that Texas did not have enough disaster relief funding, and how that is one issue that is non-partisan.  Still, NPR could not help bringing up climate change and asking if the storm was caused by it.  Their scientist said it couldn't be directly attributed to it, but more moisture will generally form as the air gets warmer.  I compared it to Katrina and basically forgot about the more recent underfunded disaster Sandy, maybe because I was in a part of Brooklyn largely shielded from it.  I think we can all agree that Katrina was more devastating.  Yet the point was made that Sandy was more devastating, and many Texas congressmen (35 out of 36) voted against additional funding for Sandy relief effort.  So yes, we could think that disaster relief will become a partisan issue too, depending on the state that is being affected.

And I excerpted the second half of a section about a joke Franken made about the Supreme Leader of Iran.  During a hearing, when his turn came, he said something like, "I'd like to question the Supreme Leader, whom I like to refer to as Supreme Being, a few questions..." Everybody thought this was hilarious, and it is funny, but the story of how Chuck Schumer botched the joke with President Obama is funnier.  I regret that the book was due at the library today and I finished up yesterday, thinking it was close to complete--or at least complete with excerpts, because I needed to include one that was actually funny.  On the subjects of botched jokes and Ted Cruz again, the line where he suggests changing "difficult" to "challenging" (as an adjective for "cruise") was probably the funniest moment of the book for me.

I didn't hit "save" last night, maybe because I was interrupted by a door-to-door canvasser for an alternative energy supplier (Constellation) that led me down a 30 minute rabbit hole and no small bit of consternation.  I am not going to write about that but it was one of the most bizarre experiences of my life.  So that is my excuse.

I ended on a very "book review ending" note.  I assessed the work as a whole, and I mentioned that Franken was unique because he was the one politician that was actually funny.  Somehow, I linked to reviews of both of Warren's books for some proposition that I forget.  I believe I mentioned that he did not have as specific ideas as Warren when it came to re-allocating government funds.  For the life of me I cannot recall what idea led to that statement.  Like, I wasn't saying Warren wasn't funny, but acknowledging that her career as a law professor did not prepare her as well as Franken's for writing funny books.  There is a little bit of Kurt Vonnegut in Franken's literary style, and it is refreshing to witness a lawmaker write about serious issues and still maintain a certain ironic distance to capture the absurdity of the situation.  This quality makes Franken an effective writer, speaker, inquisitor, leader, and whatever other nouns might be relevant.  Most importantly though, he hates lying politicians.  People hate politics because they hate all the lying.  Franken calls out a ton of it in this book, and it's always infuriating and ridiculous.  So that's ultimately why Franken is such a likable political figure.  It never feels like he's feeding you any B-S line.  If he did, he would self-consciously admit that it was a B-S line.

Except the line about Mitch McConnell snorting milk out of his nose from laughing so hard with him.  I think I only know he meant that satirically by hearing him mention that on a podcast.

Modern Romance - Aziz Ansari (with Eric Klinenberg) (2015)

Do I really need to write a review of this book?
Haven't you already seen the reviews, like five months ago?
This is actually one of the few books that most lay people (i.e. non-readers) of a certain age know.
They know it because they know Aziz Ansari, and it's about dating, and he's right: it's both a wonderful and horrible time to be single.
This book is candy to Penguin Press.

Do I need to parrot the ideas of this book or can I just write this as a special comment on Tinder?

I always try to "personalize" these reviews so they're more valuable than the "objective" stuff you'll find in any number of major newspaper markets across the country.  But this is a real opportunity for extreme personalization, and I don't want to go there.  I will start off with a pertinent quote, so you know what to expect:

"One thing that I definitely want you to know up front is that this book is primarily about heterosexual relationships.  Early in the process Eric and I realized that if we tried to write about how all the different aspects of romance we address applied to LGBT relationships, we simply wouldn't be able to do the topic justice without writing an entirely separate book.  We do cover some issues relating to love and romance among gays and lesbians, but not at all exhaustively." (8-9)

Because of this, while I initially flirted with the idea of putting this on the "best books" list, it fails.  I'm not that strident of an activist so I really don't care to start a fuss over the idea that LGBT relationships are different from straight ones, but I will comment briefly that a law school classmate of mine wrote a law review article about domestic violence in LGBT relationships and found that there wasn't much of a difference (I mean, obviously, in straight ones it's usually the dude doing the hitting, I'm guessing).  I do think gay dudes are way less picky when it comes to sex partners, in general.  That's about all I can say, though.  I'm not too angry, because I do think there should be a book about dating for bi people.  I just think it's a little troubling, economically, particularly when that big SCOTUS decision came down just as this book was released (June 16, 2015).  Straight people wouldn't be interested in reading about non-straight people, I guess.

What would a book about dating for bi people be like?  It would be the most fucked up thing in the world.  Do you disclose, or do you pretend?  Do you delete all your old Facebook references to anything that might give a potential date the idea that you had never strayed from the straight and narrow?  I really don't think there is any problem whatsoever for a bi dude to tell a same-sex partner that he likes girls--I think they're more excited by the idea of a straight dude than a gay one (at least for a casual thing)--but does that work on the opposite level for girls?  I mean, of course, girls don't want to go out with bi dudes, but are lesbians open to going out with bi girls?  Frankly, if Mr. Ansari would like to entrust such a project to a fellow '05 NYU Alum, I will rip up my law license and skip down the street.

I've been a little bit harsh in starting off this review, so let's move onto the positives: this is probably the funniest book I have reviewed on Flying Houses.  I laughed out loud while reading it more than a few times, and on the CTA that was sometimes embarrassing.  I think this was the line, yesterday:

"I'd run the Hardee's and probably be pretty good at it.  Maybe I'd catch wind of a guy who was running a huge 'biscuit extortion' scam to smuggle biscuits across the border to Georgia [from South Carolina].  The scam would work like this: The guy and his partner would steal biscuits from our store and then sell the stolen biscuits at a lower cost on the biscuit black market.  After getting suspicious of his frequent trips to Georgia, I would hide in the bed of a Ford F-150, under a bunch of biscuits, and when they reached their destination, I'd dramatically pop up and go, 'GIMME BACK MY BISCUITS!'
The family would be proud." (237)

It's not even that funny, really, but the image cracked me up.

Upon further review, it was actually this passage that made me laugh to embarrassment:

"My Dearest Charles,
I hope this letter finds you in the halest and heartiest of conditions.  I'm sure it will, as your constitution, as I recall, was always most impressive for its resilience and fortitude.
What do you make of this so-called 'Revolution'?  I fear that, win or lose, we shall be feeling its reverberations for decades to come.
In other news, in addition to your sister, I am fucking Tina, this woman I met at the bar last week.  I also caught syphilis from a prostitute I met in Boston.
Fondly, your brother-in-law,
Henry" (225)

Is Mr. Ansari a good writer?  I think so.  It's unclear to me how much of this book is written by him and how much is written by Klinenberg, but it feels like it's mostly Ansari, even when there's not a joke being thrown in every few sentences.

The constant jokes aren't a distraction.  Instead, they change the book into something different entirely.  Now I know that comedians get book deals, and sometimes their books are funny, but this is more impressive because it's about something else, something that most younger people might want to know.

The problem is that we all already know.  There is some interesting research that the book brings out, but all of the perceptions, all of the subjective stuff, we know.  We know about not texting back immediately for fear of seeming too desperate.  We know about selecting profile pictures.  There is a lot of stuff "we" know, but we don't really know that other people feel it too, and I guess that's why this book is nice.  Ansari is never mean-spirited with the jokes here, and that's impressive in this arena.  It also has the potential to get extremely raunchy, but the dirty stuff is kept relatively safe.

The central thesis, if you will, is that "good enough" partners are not good enough for people anymore.  We now require a soul mate.  Along the way in that search, we might discard some really amazing people, and Ansari advocates on behalf of "quality" rather than "quantity."  It's better to get to know a person really well and find out everything that's great about them, rather than to meet a lot of people and only get to know them superficially before deciding there's someone better for you.

This is kind of the romantic issue of our time, and Ansari is clever to seize upon the moment and call it out for what it is.  Thousands of people have written about these issues over the past half-decade, but Ansari is the first to turn it into a book with mass appeal.  And he is the right person to do it because the humor complements the material in a strange way.  In a sense, it almost detracts from the material, but this turns it into a strength.

Perhaps this sounds strange.  Really what I mean is, you can't take a book with this subject matter all that seriously.  You're not supposed to.  Ansari isn't saying WE ARE ALL LIKE THIS; he's just sharing stories that he heard in focus groups and surveys and sociological studies.  He also writes about his own romantic travails to powerful effect, though I contend that he leaves an important element of dating/mating out: money.

Maybe I'm cynical, okay, but we can't all go out every weekend night and spend 5 hours in a bar or club and spend $200 on drinks.  And when we think about who would be a good partner, tell me nobody cares about their job.  Of course, many more women pursue a professional career than in the past, and marriage has become a kind of status symbol--more of a "power couple" thing than the traditional "sole breadwinner" thing.  I would have liked to hear more about stay-at-home dads.

Ansari effectively describes the shift in marriage habits, from our grandparents' and parents' generations to ours.  Perhaps this is why I often said I wished I was 10 years older, back in '01 and '02.  But maybe it's more like 20 or 30 years older.  The difference is, the older generations did not have the experience that we do of "emerging adulthood," the period between, say, 23-30, when we pretty much live on our own and seek a mate that is most complementary to our vision of a worthwhile existence.  Ansari thinks this period is a great thing, more or less, but personally I'm not sure.  Now, I have no problem with their being tons of single people getting older and not having kids--so long as we're not lonely.  But I do have a problem when I am 32 and I look around and see that most people my age are married, or engaged, or have kids, or have a good job with a retirement plan, and I have nothing.  I guess it would hurt a lot more 20 years ago to be in the same situation at my age, but my belief is, it wouldn't be this way 20 years ago.  But I should shut up before I say something dumb and insensitive.

There are some really intriguing parts, particularly about Japan and the way their government is responding to the low-birth-rate crisis by subsidizing singles' parties.  And of course there are some priceless stories:

"Back in June of 2012 when I was 43, my boyfriend broke up w/ me via a text message after being together for 8 years!  I practically raised his daughter, and had been totally committed to him [and] everything that came w/ him.  I was really offended and hurt as I felt that I at least deserved to be broken up with in person or at least on the phone! 
Apparently the wound didn't run too deep, though, because look what happened next:
After 10 months of no contact, his uncle passed away [and] I called him [and] left a message w/ my condolences.  We finally talked after that [and] eventually got back together.  I still love him completely [and] have forgive him for how things went down.  And you best believe I gave him hell for that text! :-)
No offense, but at this point let's take a moment to be thankful we are neither of the people in that relationship." (194)

I could go on, and on and on about this book and excerpt every single great joke, but I'm gonna wrap things up here.  I just can't resist putting in my favorite part, which is where Ansari advocates for monster truck rallies as ideal venues for first dates:

"One of the social scientists I consulted for this book is the Stanford sociologist Robb Willer.  Willer said that he had several friends who had taken dates to a monster truck rally.  If you aren't familiar with monster truck rallies, basically these giant-ass trucks, with names like Skull Crusher and The ReJEWvinator,* ride up huge dirt hills and do crazy jumps.  Sometimes they fly over a bunch of smaller cars or even school buses.  Even more nuts, sometimes those trucks assemble into a giant robot truck that literally eats cars.  Not joking.  It's called Truckzilla and it's worth looking into.  Frankly, it sounds cool as shit, and I'm looking at tickets for the next one I can attend. (140)
"*Okay, I made up ReJEWvinator, but it would be cool if there were a Jewish monster truck scene." (141)

The book also ends on a really sweet story about a couple meeting and how they left notes to each other on the doors of their apartment complex.

This isn't necessarily "required reading," but I wouldn't be surprised to hear about this book being passed around between groups of friends in "emerging adulthood."  That is the way the most culturally relevant books attain their cache.  This is increasingly rare, and I applaud Ansari for rejuvenating the medium.

A People’s History of the Supreme Court – Peter Irons (2006)

A People’s History of the Supreme Court is modeled after Howard Zinn’s A People’s History of the United States, a book I have not read but have often seen in the bookshelves of friends.  As such this review may be lacking.  It would be interesting to compare the books to one another and see which is more “readable.”  This book clocks in at 531 pages and covers the period between 1787 and 2006.  It mentions every single Supreme Court Justice, but it is less about the personnel of the Court than the cases brought before it.  There are glimmers of greatness in this book, but I must confess that it eventually began to bog me down.  This may be attributed to the fact that I have previously read and reviewed The Brethren, Wild Bill, and The Nine—three books which mine similar territory to this book’s final 130 pages.  Regardless, the first 400 pages were often more interesting than not, and Irons has created a largely admirable work. 

But first, I cannot resist tying in a personal connection.  Few readers of Flying Houses have been with us from the beginning (those inauspicious days of April through July of 2008), but it is worth noting that Irons’s literary agent was the subject of an early post.  “Finally, let me thank some of the people who helped make this book come to life.  My agent, Sandy Dijkstra, found my editor, Jane von Mehren, whose meticulous and thoughtful editing has improved the book immeasurably.” (xix) Now, there are not all that many literary agents.  There are the heavy hitters, and they keep large rosters of writers.  However, I found this mention quite ironic.  Ms. Dijkstra was the only agent to respond to my query on my first novel.  She rejected it, and I attacked her in the post linked to above, which mentioned her derision for the original title of The Joy Luck Club. 

First, let me note that I am not the same person I was in 2008.  Many changes have taken place and I would probably not be so critical of Ms. Dijkstra as I was in those impetuous days of my mid-20’s.  Second, let me note that my complaints have not abated, and that the publishing industry continues to irk me to no end.  I went to law school in a time of economic turmoil, and I felt that getting a job with a law degree would be easier than getting a first novel published.  My dreams remain intact, however, and soon it will be time to test those waters again.

With that out of the way, Irons opens up his book by explaining that he was an ex-con admitted to Harvard in his mid-thirties.  He went to jail, “serving a three-year sentence for refusing military induction in 1963.” (xvii)  He also was instrumental in reopening the wartime internment cases of Fred Korematsu, Min Yasui, and Gordon Hirabayashi.  In short, Irons mentions these facts in the introduction to the book as a way of setting up the reader’s expectations.  Yes, he is probably going to be taking a “liberal” stance on the cases to be discussed. 

This does not make the book any less valuable, however, because Irons is a very good researcher.  The book opens with what is probably its strongest point of coverage: the Constitutional Convention in Philadelphia, PA in 1787.  For the first 75 pages or so, Irons brings the real “framers” to life and makes it feasible for 21^st century readers to understand them and maybe even identify with them.  This part of the book is truly special because there have been numerous debates about the “original intent of the framers” and how to decide cases from a “textualist” perspective.  Irons delves deeply into this material—but not so deeply as to make it a bore.  I have to believe that many Americans would find this portion of the book to be a “page turner,” even though it makes virtually no mention of the English court system or how the American court system would differ.  He does offer up a real stinger to the pro-gun lobby:

“In recent years, advocates on both sides of the ‘gun control’ issue have debated the ‘original intent’ of those who framed the Second Amendment.  Elbridge Gerry, Madison’s adversary in both Philadelphia and New York, offered this defense of the proposed amendment: ‘What, sir, is the use of a militia?  It is to prevent the establishment of a standing army, the bane of liberty.’  Arming the citizens who belonged to state militias, Gerry argued, would deter Congress from establishing a federal army that might oppress or invade the states.  Those who now advocate the constitutional ‘right’ of every citizen to ‘bear arms’ of any kind—from cheap handguns to assault rifles—are well advised to read the debates that led to adoption of the Second Amendment.  Not a single member countered Gerry’s argument that the ‘right to bear arms’ was limited to members of a state militia.  The current opponents of gun control legislation pay little heed to the Framer who spoke most clearly to the ‘intent’ of Congress on this controversial issue.” (75)  

From there, he moves into a discussion of George Washington’s first appointments to the Supreme Court.  This may well be the most hilarious portion of the text.  It is understandable that the Court seems “bush league” because it was in its infancy.  They barely have any work to do at first, and many of the Justices simply failed to show up for work.  Nobody really seemed to care, though.  The Supreme Court was in New York City in those early days.  It is worth noting that Irons writes with an eye towards entertaining “lay readers” (i.e. those that have not studied the primary materials themselves) and at times he writes with literary flair:

“The men Washington placed on the Court, in contrast [to Franklin Roosevelt], were a thoroughly undistinguished lot.  One spent time in debtors’ prisons for defaulting on loans; one returned his commission after five days to serve in state office; one never attended a single Court session; one was impeached for political bias on the bench; one was insane; and another was senile.” (86)

Things changed in 1801 when John Marshall took the post of Chief Justice.  Irons mentions that there are more than twenty books about Marshall and practically everything is praiseworthy.  Irons is careful, however, and keeps a critical eye on the Justices, primarily in regards to their views on slavery.  He is very tough on Marshall’s successor, Roger Brooke Taney, whom he denounces as a “racist” perhaps a dozen times, but he is more even-handed with Marshall:

“For almost two centuries, praise for Marshall as a judicial statesman has far outweighed criticism of his role as Chief Justice.  But the historical scale requires some balance.  Marshall was plain and humble in person, yet he was an aristocrat in outlook.  He came from a state [Virginia] that vigorously insisted on its ‘sovereign’ rights within the Union, but he favored the ‘General Government’ in almost every case he decided.  He read the Constitution broadly to protect the rights of property, but narrowly when he addressed individual rights.  Most important, Marshall disregarded his ‘feelings of humanity’ and looked at blacks as property, not as persons.  This last weight on the historical scale strips the mantle of ‘statesman’ from Marshall’s shoulders.” (141)

At this point it seems prudent to consider the usefulness of this book to law students.  There is probably no better book for incoming 1Ls to law school than this, for it covers almost every single case that will be encountered in any course on Constitutional Law.  This is what makes the book largely admirable.  While The Nine may be a more intriguing read because it covers events that most of us are not too young to remember, this book explains the foundations of the major doctrines of Constitutional Law—it is thorough on First Amendment cases and the Equal Protection Clause; it mentions substantive due process in passing; it covers the early Commerce Clause cases in fair detail (but unfortunately fails to mention Wickard, Lopez, Morrison, or Raich); it covers the “laissez-faire” period of the Court and the Lochner decision quite well; and it draws useful distinctions on the voting of certain Justices on the value of precedent and deference to the legislature against judicial “activism” and “voting from the gut.” And the Table of Contents will be useful for law students that wish to gain a more “human” grasp on what is actually being said in the opinions they are studying, for it includes all the cases mentioned.

The coverage of the major Marshall Court decisions is phenomenal.  Marbury v. Madison and Martin v. Hunter’s Lessee are brought to life, and Irons thankfully explains Marshall’s personal role in each, which some professors may mention but may just confuse law students, for the facts behind each case are so bizarre.

His coverage on Chief Justice Taney’s reign is focused squarely on the Dred Scott decision.  I had no idea how complicated the facts behind this case were, but while Irons explains that details on it are sketchy, he does an excellent job of telling the story of how Dred Scott came to bring his case before the Supreme Court.  This is a very long section of the book and probably has the most detailed analysis of any single decision.  This case is not a major point of study in law school, but it is interesting reading. 

He also covers the case Ex parte Milligan in good enough detail that it will prove helpful for law students.  This is a case that is studied more often, and it is these early cases (up through the Slaughterhouse Cases) that make for the most difficult reading in a law school course and accordingly prove to be the most valuable portions of the book.  But what comes across most clearly is Irons’s distaste for Taney:

“Lincoln correctly charged Taney with trying to ‘nationalize slavery’ by his twisted and tortured reading of the Constitution in Dred Scott.  That his opinion was ultimately reversed by constitutional amendment is no consolation to the hundreds of thousands of young men who died after the Supreme Court shot holes through the Constitution.  It is fitting to speak ill of the dead when they committed acts of infamy.  Taney wrote an infamous opinion in Dred Scott, and no later judgments of his judicial ‘greatness’ can remove that stain from the Court’s history.” (184)

Irons also does his best to define what “partisanship” meant in the 19^th century, but I must confess that I still find what the parties stood for to be confusing:

“(The change in party labels requires a brief digression to avoid confusion.  The Federalists changed their name to the Whig Party between 1836 and 1856, when they became the second Republican Party, adopting the name of their former opponents.  The Jeffersonians who first called themselves Republicans abandoned that name in 1828—after using the hybrid title of Democratic-Republican for several years—to become the Democrats.  If this sounds confusing, it is.  But the nineteenth century saw a proliferation of party labels, including Free-Soil, Liberty, Union, American, and Anti-Mason.)” (122)

The next major point the book takes on is Plessy v. Ferguson.  This will be more useful than the coverage on the Dred Scott case because it is arguably more infamous for its precedential value.  (Irons also covers the Yick Wo v. Hopkins case and explains its facts quite well.) While the story of Homer Plessy is not quite as entertaining as that of Dred Scott, it is interesting to know that he could “pass” as a white man and that he actually wanted to get arrested so that he could challenge the separate accommodations for whites and blacks at the time.  Here, Justice John Marshall Harlan is the only dissenter in the case, and he emerges as one of the more noteworthy Justices and not just because his grandson would take up the post 44 years after he retired.  Again, Irons turns a critical eye on an apparently “liberal” justice that is worthy of praise:

“The notion of a ‘color-blind’ Constitution has enormous appeal as a guiding principle.  But there are dangers in substituting slogans for hard, realistic analysis.  Harlan’s famous sentence [‘Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.’] has been ripped from its context by those—including Supreme Court justices—who have wielded it in recent years as a weapon against affirmative action and other ‘race-conscious’ remedial laws and programs.  Those who quote the ‘color-blind’ sentence invariably fail to quote the sentences that preceded it in Harlan’s opinion.  ‘The white race deems itself to be the dominant race in this country,’ he wrote.  ‘And so it is, in prestige, in achievements, in education, in wealth and in power.  So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty.’
Harlan stated in these sentences the reality of race in 1896.  Whites held the reins of power, which they used to whip blacks into submission.  Harlan does not deserve scorn for acknowledging this reality, however much it reflected the ‘pride of race’ that he celebrated.  He had no more desire for ‘social equality’ with blacks than Justice Brown.  He was, after all, a man of his times, the son of slave owners and a man of superior prestige, education, wealth, and power.  But he was not a racist like Chief Justice Taney.” (230-231)

Irons makes a similar point about Abraham Lincoln, quoting from a speech where he says that he is not for social equality with blacks, though he is definitely against slavery.  This is surprising and some of these glimpses into the realities of the times are another factor that make this book worth reading. 

However, around this point, Irons switches his focus to the First Amendment, and Oliver Wendell Holmes, Jr. and the Schenk case in 1917.  He focuses on the “incitement” cases during World War I in First Amendment jurisprudence for quite a while, perhaps because of his own skirmishes with the law in the 1960s.  While this coverage is good, it is at this point that the Court’s decisions began to speak more for themselves than coverage on them.  There is quality coverage on Holmes as one of the greatest Justices in history, and also Louis Brandeis.  But, at least in my course in the First Amendment, our professor covered these cases in such fine detail that Irons’s descriptions amounted to little more than a nostalgia trip. 

He does cover the New Deal cases in excellent detail—the Schecter Poultry v. United States, West Coast Hotel v. Parrish, and National Labor Relations Board v. Jones & Laughlin Steel Company cases are quite important in defining the contours of the Commerce Clause, and law students are likely to find Irons’s emphasis of the importance of these decisions useful.  But it is also at this point that I began to lose interest in the book and “went through the motions.”  Of course, I was excited for the year 1939:

“Born in Minnesota in 1898 and raised in Washington state, William O. Douglas went east as a young man to Columbia Law School, where he taught after graduating at the top of his class [Not exactly—see Wild Bill review].  He moved to Yale’s law faculty in 1928, joining the ‘legal realists’ who looked behind judicial doctrine to explore the social, political, and economic forces that shaped the law.  Douglas staked a claim in the growing field of public and corporate finance, and Roosevelt picked the young professor to head the Securities and Exchange Commission.  Word got around that Douglas was a card shark, and he soon became one of the president’s ‘poker buddies’ and a New Deal insider.  Ironically, the only four senators who voted against his confirmation opposed Douglas as a ‘reactionary tool of Wall Street.’
William Douglas joined the Court at forty, the youngest justice since Joseph Story.  He stayed for thirty-six years, the longest tenure of any justice.  Douglas came to the bench without a well-defined judicial philosophy, and left as he came.  Much like the woodsman he was, Douglas avoided the beaten path and blazed his own trail.  Raised in poverty and struck by polio as a child, he developed a visceral sympathy for society’s ‘outcasts,’ including Communists and criminals.  He shared Frankfurter’s expansive view of due process and Black’s ‘absolutist’ devotion to the Bill of Rights.  Douglas was often criticized for failing to articulate a coherent judicial philosophy.  Certainly he never followed the narrow—but divergent—path from which Frankfurter and Black rarely strayed.  But there was an animating principle behind the twelve hundred opinions Douglas wrote over more than three decades.  ‘Our starting point has always been the individual, not the state,’ he wrote in 1958.  However far he wandered from the beaten path, Douglas never lost sight of his judicial lodestar.” (328-329)

So I really cannot complain about the coverage of Douglas, except that it is short and mentions nothing about his personal life.  There is also a nice quote about Justice Brennan:

“Perhaps the warmest tribute came from a former law clerk, Richard Posner, now a notably conservative federal judge.  Justice Brennan’s lasting influence, Posner wrote, stemmed less from his ‘commitment to a doctrine’ than from ‘the emanation of a warm, generous, and good-hearted person.’” (474)

There is not much else I can say about this book.  I think I have made my points relatively clear.  There are better books to read about the Court in the 20^th Century, but I have not read anything as compelling as this on the 18^th and 19^th century Court (though I have not been very interested in reading anything about it also).  Irons chief focus seems to be racism and later on, affirmative action programs, sprinkled in with the two major gay rights cases in 1986 and 2003.  He ends in 2006, largely focusing on the Guantanamo Bay cases, and barely mentioning Chief Justice Roberts and Justice Alito.  As I mentioned in the review for How Judges Think, this book may be due for a revision.  It is unfortunate that Irons does not mention Buckley v. Valeo, but any description of the Court that includes 2010 will include Citizens United and any mention of that case requires reference to Buckley.  This book was already revised once, however, and it is unclear that much could be added, though the opinions handed down by the Court this past summer certainly fall in line with Irons’s predictions regarding the path of gay rights.  Jeffrey Toobin did an excellent job on Citizens United and the Affordable Care Act Cases in The Oath so there is at least good reading material out there.  Irons work as a scholar of the “ancient history” of the Court is what makes this book most special, and though I have not read Zinn’s famous volume, I am sure this stands up alongside it fairly well. 

My Beloved World - Sonia Sotomayor

It is appropriate that My Beloved World will be my final post on Flying Houses before I leave Brooklyn Law School.  I expected to put the blog on hiatus for most of law school, but I ended up remaining somewhat prolific and increased its popularity exponentially.  "My Beloved World" refers to Puerto Rico in this book, but my beloved world will be the library at Brooklyn Law School, which I will be sad to leave.  There have been many miserable things about law school, and while aesthetically our library cannot compete with say, Pepperdine's (which features a view of the Pacific Ocean that surely puts it at the very top), I have always felt that there has been such a wealth of knowledge and information here that learning about the "legal aspect" of any topic was within my grasp.  In my case it came in the form of the biographical accounts of Supreme Court Justices--truly the best models one could hope to have in trying to achieve excellence.

Of course, it is extraordinarily unlikely that I will ever be a federal judge, but at the very beginning of this book, Sotomayor assures all that it is okay to dream:

"A student recently posed another question that gave me pause: 'Given that there are only nine Supreme Court Justices, each with life tenure, can anyone realistically aspire to such a goal?  How do we hold on to dreams that, statistically, are almost impossible?'  As I tell in these pages, the dream I first followed was to become a judge, which itself seemed far-fetched until it actually happened.  The idea of my becoming a Supreme Court Justice--which, indeed, as a goal would inevitably elude the vast majority of aspirants--never occurred to me except as the remotest of fantasies.  But experience has taught me that you cannot value dreams according to their odds of coming true.  Their real value is in stirring within us the will to aspire.  That will, wherever it finally leads, does at least move you forward.  And after a time you may recognize that the proper measure of success is not how much you've closed the distance to some far-off goal but the quality of what you've done today."  (viii)

Most striking about My Beloved World is Sotomayor's natural flair as a storyteller.  It is written almost as if it were a novel, and even has a couple of moments of "magical realism" that would not be out of place in a Marquez novel.  However, Sotomayor ends the story when she is appointed as a federal judge in the Southern District of New York in 1992.  Of course many law students and legal scholars will want to hear about Citizens United or Sebelius or other landmark decisions that were heard sufficiently long before publication, but no such treats are offered.  And it is probably for good reason: Sotomayor (like almost all federal judges) is politically savvy.  Later on in the book she rebuffs a colleague's suggestion to join the Republican party in order to have a better chance of nomination, deciding instead to register without any party affiliation.  Of course people view her as one of the "liberal Justices" and for the most part she has lived up to that stereotype.  However, I was quite surprised to read about her feelings on the criminal justice system.  While I am sure that she considers all cases fairly and without bias, I would generally presume that a "liberal Justice" would show slight bias to the Defense, and not the Prosecution.  However, Sotomayor started her career at the New York County District Attorney's Office, and I was shocked to read some of her statements regarding criminal law:

"However caustic, Judge Rothwax was no cynic, though like many a cynic he had been disillusioned, having started his career as a Legal Aid attorney and civil rights advocate before becoming a prosecutor.  That early experience led him to conclude that given all the elaborate protections of the rights of the accused, any defendant whose case eventually came to trial was almost certainly guilty.  In a controversial book, the judge proposed abolishing the Miranda warning and other rules that he believed handicapped the police and prosecutors; he also argued that a 10-2 jury verdict was close enough to unanimous for conviction.  I wasn't prepared to accept his presumption of guilt, though it is borne out statistically: policemen don't normally make arrests on sheer caprice; most defendants do turn out to be guilty.  But a probability of guilt doesn't seem reason enough to revise our standards of due process.  These are designed to protect everyone from the human frailties of those whom we entrust to enforce the state's tremendous powers.  Even if the vast majority of the law's agents exercise these powers scrupulously, it is unconscionable that anyone should pay for a crime of which he was unjustly accused.  Blackstone's famous ratio ('better that ten guilty persons escape than that one innocent suffer') still speaks to a deep-seated sense of what is just." (208)

Thus, Sotomayor covers herself--at least in this regard.  She does offer up some incredible stories and is not afraid to write about sensitive topics.  I would say that this book should be required reading for anybody that would like to be a prosecutor (or a criminal defense attorney, for that matter), if only because she offers valuable tips for success.  It is extremely difficult to argue with Sotomayor: she is wise, and what the book beautifully captures is how she turned her "humble beginnings" into an asset rather than a liability.  But first, two tips for criminal trial attorneys.  The first is emotion:

"Granting myself permission to use my innate skills of the heart, accepting that emotion was perfectly valid in the art of persuasion, amounted to nothing less than a breakthrough.  Warren [Murray] would teach me much else in the way of trial skills, as had John Fried, Katie Law, and others at the DA's Office.  But that was the single most powerful lesson I would learn.  It changed my entire approach to jurors, from the voir dire to the structure of my summations, and the results spoke for themselves: I never lost a case again.  I had hung juries a couple of times, and once or twice a conviction on fewer than all counts of the indictment, but never an acquittal.
Leveraging emotional intelligence in the courtroom, as in life, depends on being attentive; the key is always to watch and listen.  You don't need to take notes with the court reporter getting down every word.  Lower your eyes to your pad, and you're bound to miss that hint of a doubt that flits across the witness's face.  Scribble instead of listening, and you won't notice the split second of hesitation in which a witness hedges a choice of words, avoiding the ones that would flow naturally in favor of the ones whose truth he or she is more certain of." (210)

The second is jury selection, debunking a myth that still seems to creep into the minds of attorneys today:

"Other lessons I would figure out for myself, often contrary to conventional wisdom.  Some prosecutors, for instance, would look for legitimate reasons to eliminate black and Hispanic juror candidates in the voir dire, the assumption being that minorities are biased in favor of defendants.  But to me that made sense only if you saw all people of color as potential perpetrators and believed, even more implausibly, that they all saw one another that way, too.  It was obvious to me that any black or Latino who held a job, or went to school, or stay home to care for an elderly parent was likely as law-abiding as anyone in my own family and, if anything, far likelier to be the victim of a crime than to commit one.  The notion that such a person would, on the basis of racial or ethnic solidarity, let anyone walk who might pose a danger to the community would have seemed laughable where I came from.  And so I packed my juries with the kinds of people I'd grown up among; the results, again, spoke for themselves."  (211-212)

While I do not believe this book will get any "bad reviews," it is not perfect (I found two typos: "Riven" instead of "Driven" near the beginning; "judge (last name)").  Some might decry sections of the book as being too "touchy-feely" and lacking in clues to Sotomayor's jurisprudence--but she anticipates this in the preface.  I would have liked to see a section on her decision that ended the Major League Baseball strike in 1994, but perhaps we will need to wait until she retires for her "judicial autobiography."  I must say that I read the book in a week, as "pleasure reading" while studying for the Bar, and was dismayed that she did not devote a single word to her experience of taking it (perhaps some memories are better forgotten).  But while I cannot say it is one of the best books I have reviewed on Flying Houses, it contains unmistakable wisdom, clarity and value.  And I found Chapter 24 to be the single best moment of the book.  Justice Sotomayor indulges in a fair bit of self-deprecation, which is welcome in a book where she has to explain how she achieved such magnificent heights.  She is also extremely funny at times.

In Chapter 24 she describes her life after her divorce from her high-school sweetheart, moving to Carroll Gardens and getting advice from friends on dating, with which she did not have much experience.  She writes about her prospects of giving birth to a child and her life as a diabetic.  She writes about adoption.  She writes about her circle of friends and how they have kept her from feeling alone.

She also writes about smoking:

"I had been a smoker since high school, burning through three and a half packs a day for much of my life.  I made my first serious attempt at quitting in my final year of law school: every time I felt the urge, I ran around the block, often with Kevin and Star chugging alongside in solidarity.  Going cold turkey during exams may sound like a needlessly brutal rigor, but in retrospect it seems less perversely self-punishing than lighting up again two years later when Kevin and I split.  There would be further attempts, using various methods, including hypnosis, but nothing worked for good until I saw little Kiley holding a pencil between two fingers, blowing imaginary smoke rings.  The guilt of endangering the health of a loved one is by far the best motivation I've discovered." (284)

She also writes about Puerto Rico's strange situation as an American territory, but not a State.  I do not know if Puerto Rico will ever become a State, but if it does, I think Sotomayor will be considered an important figure in bringing the issue back to the forefront.  However, her feelings on the matter are somewhat masked:

"Again and again, the conversation returned to the island's political status.  Did we want to remain a commonwealth, with some self-rule and a preferential trade relationship with the mainland?  Half the class believed that was no better than being a colony of the United States, living as second-class citizens.  But if we should aspire to statehood, the full rights of citizenship would come at the price of the full obligations, including a tax burden that, arguably, might have crippled our economy at the time.  Some proposed, with passionate conviction, that full independence was the only way to preserve our culture and the proper dignity of self-determination.  The economic repercussions of each position were as inscrutably complex as they were critical to the arguments.  And for those who are eager to discern my present views on the status question, I can only advise you not to give too much weight to whatever ideas vied for prominence in a young student's mind." (152)

All I can say is that this book really made me appreciate Sotomayor and the contributions she continues to make to our country.  If I ever get the chance to meet her, I will ask her for a hug.  I would imagine she gives amazing hugs.

Here is a clip that perhaps better encapsulates what is so great about her: her willingness to be a public figure and to serve as a role model par excellence:

Wild Bill: The Legend and Life of William O. Douglas - Bruce Allen Murphy

Justice Douglas is my favorite Supreme Court justice, ever.  Justice Stevens is #2, and Justice Brandeis might be #3.  (Brennan, Marshall, and Black might fill out a few other top slots.) That all 3 ran on the "same line" from 1916 - 2010 is noteworthy, and whatever reservations Douglas may have had about his likely successor, one hopes that Justice Stevens "made good" in the eyes of history (I believe that he has).

Wild Bill is a long book--511 pages to be exact.  It was published in 2003 and took 15 years to research and write.  Mr. Murphy did a fine job with his research and his prose, but one tends to wonder about editing.  While Wild Bill will certainly make the "best books" list on Flying Houses, I fear that it did not capture a wide audience.  Murphy states that he had a 2,700 page manuscript at one point, so boiling this down to 1/5 of that length must have involved some serious editorial wrangling.  He had good help:

"My gratitude is extended to agent Robert Gottlieb, then at William Morris, for arranging the original book contract and for encouraging me to stick with the plan of doing a one-volume biography." (515)

Gottlieb is a legend in his own right, but it is quite apparent to me that few people in 2003 were still interested in reading multi-volume biographies.  However I will not use this review as a sword against the modern world of literary agents.  This is a book that deserved to be published (of course) and deserves to be called one of the greatest biographies in American history--primarily because its subject is one of the greatest heroes in American history, and the treatment of that subject is well considered.

For those that are unaware of Justice Douglas (or who did not read my review of his excellent work Points of Rebellion) there are a number of "sound bites" that people in law school tend to know:

(1) He was married four times.

(2) He was an impassioned environmentalist.

(3) He holds the record for the longest term of service on the Court.

(4) He was fucking crazy.

Of course I am only kidding about the last one.  If he was crazy at any point, it was near the end of his life, and I intend "crazy" in its most endearing form: good crazy; not bad crazy.

His life story is not easily told in a review of a book, but I would like to comment on one thing first:

Whitman College.

Now, few people may know this, but Whitman College was on my "shortlist" of undergraduate institutions to attend back in 2001.  It did not win out, but I am sure that had I gone there, I would have been aware of Justice Douglas much earlier in my life, and would have modeled the years past accordingly.  Therefore, I blame the admissions outreach office of Whitman College for its failure to highlight this esteemed alumnus's humble roots.  Perhaps I was not interested in law when I was 18, but I am sure that, had I gone to Whitman College, I would have gone to law school immediately, would probably have graduated at one of the most terrible times in history, and might not be sitting in the Napping Room of the Brooklyn Law School library, typing out this post.  

I suppose the best place to begin is with his time in law school (at Columbia):

"As his classmates got to know Douglas, they became aware that he was different from them.  'The thing that really set him apart from the rest of us,' remembered classmate Herman Benjamin. 'was not his brilliance--we were all pretty smart--and it was not his poverty--we were all pretty poor...No, what set him apart from the rest of us was his age.  He was a full two years older than the rest of us.'  Indeed, in an entering class of 264 people, nearly all twenty-one or twenty-two years old, Douglas was one of only two who were about to turn twenty-four.  Embarrassed by this difference, Douglas made up a story to explain it...." (44)

That story involves distinguished service in World War I, which later serves to get him a place at Arlington National Cemetery.  This is apocryphal, like some other stories Douglas liked to tell, but true enough to make people shut up.  

Douglas did well in law school, but not as well as most modern Supreme Court justices:

"This combination of intellectual challenges took its toll on Bill Douglas's scholarly performance.  At the end of the first year's exams, when the top several students were acknowledged by being named James Kent Scholars, Douglas was not among them.  Douglas's friends believed that his lack of academic success was due to causes beyond any intellectual weakness on his part. 'Douglas was not well-off in law school,' explained Herman Benjamin.  'He was the only one of our class who absolutely had to work...The rest of us worked to get spare money, but Douglas had to work to live.  I think it's quite possible that his financial straits may have affected his scholarship." (45)

Later, he improved in his second year, due in no small part to the efforts of his first wife, Mildred, who taught school in New Jersey and supported him for his last two years in school.  However, it was not without its disappointments.  He didn't make the Columbia Law Review (at first) and he "lost a clerkship."  Furthermore:

"The real truth, they all knew, was that the Yakima Apple Knocker had been nowhere close to graduating second in his class or, for that matter, to the law clerkship.  Herman Benjamin, a Law Review compatriot who is acknowledged as the class's historian, remembered, 'Not only can I assure you that Al McCormack was the universal and obvious choice for the clerkship [with Harlan Fiske Stone], but...if Douglas was competing with McCormack, it was for no better than fifth in the class....Douglas's memory on this matter is never very precise.  I have concluded that he is always a little general about the facts.'" (474)

This is not a far cry from my laments about Justice Stevens being the only recent Justice not to graduate from Harvard or Yale, but that being okay because he graduated #1 in his class at Northwestern.  Once again, I lament that only the most intellectually superior will ever have a chance to sit on the Supreme Court.  It is particularly ironic, in this day and age of anti-intellectualism, that the President has never felt compelled to place a "more ordinary" mind on the Court.  I digress.

Justice Douglas was raised in large part by his mother, with whom he had a stormy relationship.  His father was a Reverend, and sometimes Murphy invokes that image when writing of Douglas as a "preacher from the pulpit of the Court."  He was very ill as a boy, but recovered, and eventually was a very powerful hiker.  At one point he challenges a bunch of people to hike a 161 mile trail:

"The Washington Post endorsed a plan to build the C&O Parkway from Cumberland, Maryland, to the nation's capital along an old 185-mile, 230-foot-wide towpath beside the historic Chesapeake and Ohio Canal....Douglas sent a letter to the editor protesting that this highway would destroy the canal that his predecessor Justice Louis D. Brandeis used to travel by canoe to Cumberland.  Even now, he said, 'it is a refuge, a place of retreat, a long stretch of quiet and peace at the Capitol's [sic] back door--a wilderness area where man can be alone with his thoughts, a sanctuary where he can commune with God and with nature, a place not yet marred by the roar of wheels and the sound of horns.'" (330)

Of course he makes good on his challenge, and the editors at the Post decide that they were wrong, that the trail is indeed beautiful, and that they no longer endorsed the project.  

Oh, also he did this (in his mid-50's) after a horse fell on top of him about five years earlier, crushing 23 out of 24 of his ribs.  

There is also plenty of gossip regarding his womanizing and drinking.  No less than five wives/long-term girlfriends (while married to someone else) were sprinkled throughout his life.  And there were more:

"'We never knew what Dad did in Goose Prairie,' recalled his daughter Millie.  'He would just be gone for long periods of time [during the summer].'  And he took advantage of his privacy, especially in his relationships with women.  'Bill was the biggest whorer around,' recalled Isabelle Lynn, an early guest and later Kershaw's partner at the Double K, 'but we still loved him, though.'  Kay Kershaw had built a one-room, tine-roofed outbuilding, complete with a fireplace and a half bath, where a guest could live in total seclusion even from the main ranch.  This very quickly became Douglas's home away from home.  'Bill came here when he had a girlfriend, or when he didn't have a girlfriend and was writing one of his books,' recalled Kershaw, adding with a knowing smile, 'and he was here a lot.'  His female guests were arranged by an old friend.  'Douglas would just see what he liked in Yakima, and Elon Gilbert would ask the girl up,' explained Kershaw.  'I was always seeing girls come by saying, "Is Bill around?"   There were all types and all ages, and they came all the time...Poor Bill,' Kershaw concluded, 'he was no family man.  His personal life was all fouled up.'" (270-271)

As for drinking, Douglas could do it with the best of them.  But his paranoia, while oftentimes reasonable in certain respects (this was the J. Edgar Hoover era after all), sometimes took a toll on his staff:

"After a day of hard work with Douglas, everyone would wait until he departed before leaving themselves--sometimes it was at 6:00 and sometimes as late as 8:00 P.M.  When Douglas found out about this practice, he began leaving and then returning ten minutes later to see if the work was still under way.  If he saw no one, Douglas asked his secretary the next day, 'Where was everyone last night?  I came back, and no one was in the office.'
On days when they did not all scramble for the door after he had departed, the bottle of vodka in the bottom of Fay Aull's desk might be brought out to celebrate the survival of another day in the Justice's service.  One time, the Justice walked in a few minutes later to find a party well under way, said nothing, and went into his office.  The next morning, he buzzed for his secretaries and told them, 'Somebody is stealing my booze.'  Knowing that no one would dare touch the ample supply of liquor that he kept in his office, this was merely intended to put them on notice that what he saw should not happen again.  All it did, though, was convince them all to wait an extra five minutes before beginning the end-of-day festivities." (407-408)

There is also a great account of a pseudo-nervous breakdown he suffers while on a hiking trip:

"Everyone looked forward to dinner and the conversation that followed around the campfire, where Douglas would often sit cross-legged on the wooden supply boxes or on a log by the fire and tell his stories.  Looking past the roaring embers, with sparks filling the air around him, he would mesmerize the travelers with his tales of how he had 'cleaned up the Street,' how he had told Felix [Frankfurter] to 'go to hell,' or how close he had come to being vice president and then president instead of that haberdasher from Missouri.
But as the pack train moved along on this August day, it soon became clear to everyone that something was dreadfully wrong with their famous friend...'I'm gonna get good and drunk tonight,' he hissed at Cragg Gilbert.  Normally, that would not be an unusual statement, except this time Gilbert could see that Douglas would be drinking out of anger rather than to amuse himself.
As soon as the procession reached Blankenship Meadow, nearly everyone sprang into action--pitching their tents, getting their water, scouring the woods for kindling, arranging the food and cooking utensils for dinner, and building a campfire.  But Bill Douglas did none of that.  Instead, reaching into one of his saddlebags, he took out a liquor bottle and just sat down, drinking as fast as his body would allow.  With each swig, a deepening anger set in.  When the bottle was finished, he simply tossed it aside, returned to the saddlebag, and picked out another one.....Douglas started mumbling, but it wasn't to anyone around him, it was only to himself and in a language only he seemed to understand....'They bought it! They bought the goddamned nomination!'...Douglas's mumbling eventually ceased, and he began yelling at no one in particular...."(348-349)

So on the personal side of things, Murphy does a good job of summarizing Douglas's life.  Murphy's writing on the law could be compared to Jeffrey Toobin's (in The Oath or The Nine), though it lacks the same kind of immediacy that present-day reportage on the Court entails.  It seems clear that Murphy is "liberal," but he is more nuanced in his treatment of "conservative" justices.  In any case, this book has some overlap with The Brethren, but an unrelenting attack on Justice Burger is not undertaken. And it is to Murphy's credit that he must have known the existing literature on his subject, and that he didn't want to needlessly repeat some episodes already noted in other books.  Thus, there is some discussion of Douglas's treatment of his law clerks, but none of the stories from The Brethren are repeated.  Generally, Murphy is great at summarizing the Court's decisions in concise and well-chosen language.  See for example, his two sentence summary of Roe v. Wade:

"In Roe, the Court had overturned Texas's ban on abortions by creating a trimester system regulating the ability to secure abortions based on the differing interests of the three parties involved in the dispute: the mother, the unborn fetus, and the state.  While the mother had an unlimited right to get an abortion in the first three months of a pregnancy, and the state had the right to prevent an abortion in the last three months to protect the fetus, in the middle trimester a state could only regulate the decision to get an abortion based on the need to protect the health and life of the mother." (458)

So, again, this book will be useful for students studying Constitutional Law.  Here is a brief list of cases that the book touches upon, and may be useful in supplementing one's studies:

Adderley v. Florida (1966)
Dennis v. United States (1951)
Feiner v. New York (1950)
Griswold v. Connecticut (1965)
Korematsu v. United States (1944)
Minersville School Dist. v. Gobitis (1940)
New York Times Co. v. United States (1971)
Papachristou v. City of Jacksonville (1972)
Poe v. Ullman (1961)
Rosenberg v. United States (1953)
Roth v. United States (1957)
Sierra Club v. Morton (1972)
Terminiello v. Chicago (1949)
United States v. Nixon (1974)
United Stats v. O'Brien (1968)

Sadly, the book does not pass the 420 test--but it comes pretty close:

"By this time [1970] he was especially suspicious of the FBI.  Upon noticing men in dark suits loitering around his summer house, Douglas began to investigate their mission.  'I wrote you last fall or winter that federal agents were in Yakima and Goose Prairie looking me over at Goose Prairie.  I thought they were merely counting fence posts,'  Douglas wrote his friends at the Double K ranch in the spring of 1970.  'But I learned in New York City yesterday that they were planting marijuana with the prospect of a nice big TV-covered raid in July or August.  I forgot to tell you that this gang in power is not in search of truth.  They are "search and destroy" people...It would be ironic if they planted it over in Ira [Ford]'s yard, not mine!'  But no such marijuana raid was ever staged." (444-445)

Douglas's career looks like this: (1) humble beginnings in Yakima, WA; (2) Whitman College years; (3) One year spent teaching high school; (4) Columbia Law School years; (5) Time spent working at Cravath, the work making him sick, weighing his other options; (6) Time spent teaching at Columbia and Yale Law Schools; (7) Offers dangled from the University of Chicago, playing law schools against one another to have him on their faculty; (8) elected Chairman of the SEC and prosecutes Richard Whitney; (9) Appointed to the Supreme Court in 1939; (10) Potential Vice-Presidential Candidate for Franklin Delano Roosevelt and Harry S. Truman; (11) Potential presidential candidate--until he gets divorced; (12) Several wives, stultifying alimony responsibilities, and general disarray of personal financial affairs; (13) Discovery that he could be paid handsomely for writing books on the various travels he took; (14) Last surviving New Dealer on the Court, facing five Nixon appointees; (15) Greatly diminished old man who refuses to accept that he can no longer handle the work on the Court after suffering a stroke.

While the book does not discuss the Bakke case (that was decided in 1977, two years after Douglas retired), it does mention a similar case that came before it, and Douglas's opinions on the matter would turn out to be quite prophetic:

"The 1973-1974 term offered Douglas the opportunity to deal with the growing number of programs offering preference based on race to law-school applicants.  Marco DeFunis Jr., a Caucasian, was suing the University of Washington Law School for denying him admission while admitting under its 'affirmative action' program minority applicants with lesser qualifications...'I don't know about these tests,' said Douglas, referring to the Law School Admissions Test (LSAT), which is used to test the aptitude of prospective law-school applicants.  Three days later, after the Court decided not to hear the case because DeFunis was about to graduate, Douglas decided to write a dissent to the denial.  The reason, he explained to his clerk, was simple: 'I might not be around next time this issue comes up.'
After considerable back and forth with his clerk in writing the opinion, Douglas's arguments against affirmative-action programs were instructive.  First, he vigorously attacked the LSAT, even without evidence to prove his point, as being so racially biased that on occasion there must be reverse bias by a law school to correct it.  The only requirement for him was that 'the consideration of each application [be done] in a racially neutral way.  Since [the] LSAT reflects questions touching on cultural backgrounds, the Admissions Committee acted properly in my view in setting minority applications apart for separate processing...The melting pot is not designed to homogenize people, making them uniform in consistency.  The melting pot as I understand it is a figure of speech that depicts the wide diversities tolerated by the First Amendment under one flag.'.......
Douglas made very clear, however, that he had no tolerance for a quota system, by which a certain number of the seats for the incoming class were reserved for certain minorities: 'The reservation of a proportion of the law school class for members of selected minority groups is fraught with similar dangers, for one must immediately determine which groups are to receive favored treatment and which are to be excluded, the proportions of the class that are to be allocated to each, and even the criteria by which to determine whether an individual is a member of a favored group.'  Only a policy of admissions based on racial neutrality was the answer: 'The purpose of the University of Washington cannot be to produce black lawyers for blacks, Polish lawyers for Poles, Jewish lawyers for Jews, Irish lawyers for Irish.  It should be to produce good lawyers for Americans and not to place First Amendment barriers against anyone...A segregated admissions process creates suggestions of stigma and caste no less than a segregated classroom, and in the end it may produce that result despite its contrary intentions.'  For Douglas, who had once been denied access to the undergraduate portion of this very school because of his family's finances, the programs of affirmative action, which diminished the use of merit as an admissions criterion, were not permissible: 'All races can compete fairly at all professional levels.  So far as race is concerned, any state-sponsored preference to one race over another in that competition is in my view "invidious" and violative of the Equal Protection Clause.'  He was prepared to send this case back to the lower court to determine both the impact of the LSAT and this application process on various groups." (467-468)

These concerns would arise 40 years later in the Grutter and Gratz (University of Michigan) cases, and are still being decided as I write this today (University of Texas).

The lesson is that anyone interested in a progressive future for America should read this book and try to follow Douglas's lead.  To be sure, Murphy does not hold up Douglas as a god, and details his personal indiscretions as greatly as his contributions to American society at large.  So maybe, it is not okay on a moral level for a Supreme Court justice to use his or her position in order to constantly get laid.  But the point is Douglas lived by what he preached.  He believed in the freedom of the individual to express themselves in whatever ways they sought fit, and he certainly expressed himself without worrying what others would think of him.

Murphy sums up Douglas's importance in the history of 20th century America nicely near the end:

"He celebrated his 74th birthday, on October 16, 1972, by objecting to twenty-six denials of writs of certiorari, offering full dissents in ten of them.  Douglas was objecting to the Court's unwillingness to hear all manner of cases: antimonopoly laws, airport zoning statutes, state support for parochial-school education, employment liability, destruction of war materials, the constitutionality of chain gangs, and the rights of the poor in filing for criminal-trial transcripts.  By this time, Douglas was so anxious to show his displeasure with his colleagues that when four members of the Court voted to accept a case, he objected to that as well.  But with four Nixon appointees now dominating the Burger Court, it was all to no avail." (458)

His retirement announcement is described in rather moving terms as well:

"After they heard the news, one by one each member of the Court walked over to shake their senior colleague's hand and wish him well.  Then, as Douglas was quietly wheeled to the door, he raised his good arm, and, with some difficulty, expressed to his colleagues what had become his mantra in his waning years: 'Keep the Faith!'  With Douglas's record-making legacy of 1,164 full opinions, including 486 full dissents (not to mention thirty-two books and hundreds upon hundreds of public speeches), now complete, for the first time in more than thirty-six years the guardianship of the Constitution was in others' hands." (495)

At times this book may drag (I found it a bit slow through the several chapters dealing with Douglas's Presidential ambitions) but at other times it reads like an adventure story ("Trouble in the Woods" may be the strongest chapter in the book, as Murphy does an excellent job of recreating the horror of Douglas's horseback-riding accident).  Generally, the book is about as "quick" a read as you can expect for a 500+ page volume.  It is excellent reading for law students and those interested in the law, but I fear most people will forget about Justice Douglas.  That would be unfortunate because his influence remains relevant even in these technologically-advanced times.  Douglas could see where the future of America was heading, and more often than not, his opinions articulated that view.  He was an extraordinary human being, and this book is likely the most authoritative text on his life.

Of course this book won't be for everyone--but as I've mentioned on Flying Houses previously, parents should stop telling their children to "one day be President" and instead urge them to "one day be a justice."  Douglas may have wanted to be President (due in no small part to his mother's prediction that it was his destiny), but the lasting impact of his work as a justice easily outdoes that of the majority of 20th century American Presidents.  Future generations of law students will know his name, but more of the general American population should become acquainted with him.  This book should provide that requisite level of intimacy for all.      

Disrobed: The New Battle Plan to Break the Left's Stranglehold on the Courts - Mark W. Smith (incomplete)

Note: This is Not the "Disrobed" Written by Judge Block, and I Would Much Rather Read that One

by Jack Knorps

Perhaps the problem with America is that we don't really give deference to the voices that speak in opposition to ours.  It pains me, greatly, to leave that scarlet word "incomplete" in the title of this post (I  have not had an "I" since Proust, je pense) but Mark W. Smith is no Mark E. Smith and I can hardly bear to waste anymore of my time reading this book.  I got through 33 pages.  I thought it would be a fun review to write, but I was wrong.

I have written at length on the "right" and the "left" swinging of the Court, but this book is a waste of my time because it is dated!  It was published in 2006.  If Smith did not get his wish then I'm sorry for him, but from his writing he appears to be an extremely radical conservative.

In the basement of the Brooklyn Law School library, there is some graffiti in the men's bathroom.  In the handicapped stall somebody wrote, "My s*** feels like: -a Scalia opinion (painful and offensive)."  I don't know who wrote that (it wasn't me--Scalia actually amuses me more often than not and I find him to be charmingly erudite, if politically "unattractive"), but if they are a terrorist then we should find him and torture him by forcing him to read this book.  That would be perfectly constitutional, actually. (I think.)

This book is dated because it opens up with Smith's Blackberry blowing up over Harriet Miers' failed appointment to the Court to replace Justice O'Connor (how charming to think, by the way, that there might have been a Justice Miers rather than a Justice Alito--Alito may be just about as conservative as you can get before entering lunatic land, but he is a much better writer than Smith--more respectable, at least).

This book has a chapter called "No More Souters."  I can guess what it says.  I didn't get that far, nor did I get to the titillatingly-titled fourteenth chapter, "Do You Sodomize Your Wife?" I made it to the first mention of Justice Douglas and Justice Brennan, and I stopped:

"Just look at how liberal justices decided when to use the power of the courts--and when not to.  In Williamson v. Lee Optical (1955), for example, the Supreme Court upheld an Oklahoma law preventing opticians, as opposed to licensed optometrists or ophthalmologists, from fitting lenses to eyeglasses.  In short, the Court rejected any suggestion that opticians or their patients had a right to enter into a voluntary economic transaction without the blessing of the state.  In his opinion, Justice William O. Douglas concluded, 'The day is gone when this Court uses the [Constitution] to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought...."For protection against abuses by legislatures the people must resort to the polls, not to the Courts."' (emphasis added).
Yet it was the very same Justice Douglas who a decade later wrote the majority opinion in Griswold v. Connecticut, striking down laws that restricted the sale of contraceptives.  Apparently, in the eyes of Justice Douglas, only economic conservatives needed to 'resort to the polls' when government regulators curtailed their liberties; social liberals could absolutely resort to the courts 'for protection against abuses by legislatures.'  Justice Douglas and the rest of his left-wing cronies on the high court obviously took to heart Emerson's line that 'a foolish consistency is the hobgoblin of little minds.'
Liberal justice William Brennan approved of the same double standard.  As constitutional scholar Bernard Schwarz explained, Brennan practiced 'judicial deference in the economic realm' but 'believed that the Bill of Rights provisions protecting personal liberties imposed more active obligations on the judges.  When a law infringed upon the personal rights the Bill of Rights guaranteed, Brennan refused to defer to the legislative judgment that the law was necessary.'
Why should Justice Brennan defer to government actions in the economic realm but not in the social or personal realm?  What about the constitutional guarantees to the right to keep the fruits of your own labor?  Did the Framers of the Constitution jettison the original Articles of Confederation to guarantee the 'fundamental' and 'unalienable' rights to abortion and buggery and the right to be free from hearing the words 'under God' uttered in the Pledge of Allegiance?" (31-32)

Actually Douglas used the words "the Due Process Clause of the Fourteenth Amendment," which, yes, is part of the Constitution, but does not comprise the entirety of its text.  And Smith perhaps does not seem to worry about rogue "eye doctors" that would create things like the Opti-Grab and make people go cock-eyed.  But plenty of people try to practice law without a license.  I am sure that Smith would not worry about rogue "baby doctors" that would perform "back-alley abortions with coat hangers"--no, we can have every baby carried to term, and if the mother is irresponsible, well she can put it up for adoption, I guess.  Shame on her--she should at least need to suffer for 9 months and we should DEFINITELY BRING MORE PEOPLE INTO THIS WORLD BECAUSE IT'S GREAT!

Writing this review is like shooting fish in a barrel.  The part about Romer v. Evans is priceless.  Jeffrey Toobin may write books about the Court that read like "Con Law for Dummies," but Disrobed is truly written for the lowest common denominator--that is, someone that does not consider the other side's position because they know they're right.

It is quite funny, however, to think of this book as dated though it was published just seven short years ago.  Smith probably blew his brains out when Obama won the election and put Sotomayor and Kagan on the Court.  Or at least he probably got really bad migraines for a while.

I am guessing, however, that Smith did not lose very much money in the Great Depression, Part Two (the first of which he asserts was drawn out--not ameliorated--by the New Deal), but he does believe that allowing banks to fail back in the day was a bad thing--not sure how he could get what he wants.  Reading this is like listening to Rush Limbaugh.  One is saddened that people who are obviously capable of publishing a book, or speaking for hours on end and entertaining millions of people, can have their voices heard so loudly, and can propagate such myths and fool the masses into believing whatever sounds good for their agenda

I love the part in Romer v. Evans where Scalia references the Chicago Cubs (I think I have written about this on Flying Houses several times before) and talks about how gay law schools are.  I had to skip ahead to "No More Souters" to make sure that Smith was not in fact gay because then he might actually be ridiculously clever--but I guess I am wrong:

"But now we know the kinds of judges we need to look for--principled conservatives who want to protect traditional American rights and values and who will focus on results rather than merely process--how do we find our Judicial Reagans?  As any of my ex-girlfriends can tell you (and certainly as any of Bill Clinton's can), a woman knowing what she wants in a man is a far cry from her actually finding one who meets those criteria.  It's the same with conservatives who are selecting judges: There's no guarantee we'll appoint Judicial Reagans just because we have certain qualities in mind." (124)

I have a serious problem with people that like drama for the sake of drama or fighting for the sake of fighting.  There is a book called "Perpetual War for Perpetual Peace" and Justice Douglas made a similar point in Points of Rebellion: let us keep fighting because we don't know what else we are supposed to do with ourselves.  There is a civil war going on in this country, but it is hidden, and for good reason: it would tear families apart.  Many of my friends are conservatives--or libertarians--which I believe is just code for "reputable Republican."  Smith repeatedly refers to the "loony left."  But writers like him give Republicans a bad name.  I can agree to disagree, but I am not going to write an entire book accusing my enemies of being insane and taking the Supreme Court to task.  It's a foolish endeavor.  It has been foolish for me to read this book and waste my time with it.

I will say that the book--while written extremely poorly--at least uses pretty decent grammar.  It is more than I could say for Pygmy, but I am sure that even the "terrorist kid" in that book (or whatever he is) is a nicer person than Smith seems to be.

"Do You Sodomize Your Wife?" was apparently asked to Justice Scalia at NYU Law.  Smith says that Scalia "does not argue that sodomy is good or bad, fun or unfun, moral or immoral, or anything of the kind.  He instead believes only that such questions should be resolved through the democratic process, not by a small cadre of unelected judges."  (210)

That may be so but Smith does not give Scalia's answer to that question, which was probably quite witty--instead, Smith just calls the question an "intellectually vapid query" and focuses on the question itself rather than the answer: which is that Congress does not equal Democracy--Congress may be called democracy but it should be clear to any high school student that the democratic process is controlled by moneyed interests and the Court is really our last resort to protect against tyranny--and moneyed interests do not always respond to the increasingly diverse needs of Americans.  I personally prefer a world where I have a choice between The Strand, Barnes & Noble, and Borders, but I guess I'll probably be able to find something decent at Barnes & Noble anyways....

I have said all I can about this book.  I regret checking it out because it forces me to make a terribly unattractive statement: it's okay to stop reading a book if you think it sucks (or if it just makes you so angry that you feel you have wasted your time).  Now I really have to go study Crim Pro, Sec Reg, Tax, the MPRE, and whatever other fun stuff I do.  Luckily I do not need to "take a side" in these activities.