The Brief against Brandeis (Reprise)

There is no denying that the long-lived Louis D. Brandeis (1856-1941) was an American treasure. The son of Eastern European Jewish immigrants, he graduated at age 20 with the highest GPA in the history of Harvard Law School. He made his reputation as a Progressive lawyer and as a leader of the worldwide Zionist movement. In 1916, he was nominated for a seat on the United States Supreme Court by President Woodrow Wilson.

The definitive biography of Justice Brandeis was published by Pantheon in 2009. The work of Melvin I. Urofsky of Virginia Commonwealth University, the 955-page tome has received rave reviews. One, written by Anthony Lewis, appeared in The New York Review of Books. Brandeis, according to Lewis,

was intensely interested in facts. His law clerks did research on facts as much as law. When the Court considered a case on presidential appointment power that involved the 1867 Tenure of Office Act, Brandeis had his law clerk, James M. Landis (who became the dean of Harvard Law School), go over the Senate journals of 1867 to see what the views of the times were. Landis spent months in the Library of Congress reading the journals page by page.

Brandeis even tried to get Justice Holmes, who read philosophy in the original Greek, to take more interest in facts. He urged Holmes to spend the summer break reading up on working conditions and visiting the textile mills in Lawrence, Massachusetts. A year later Holmes wrote Harold Laski that “in consideration of my age and moral infirmities, [Brandeis] absolved me from facts for the vacation and allowed me my customary sport with ideas.”

Brandeis’s obsession with facts continues to reverberate through American law and politics. Consider, for example, what Wikipedia has to say about the term “Brandeis brief,” which refers to

a pioneering legal brief that was the first in United States legal history to rely not on pure legal theory, but also on analysis of factual data. It is named after the litigator Louis Brandeis, who collected empirical data from hundreds of sources in the 1908 case Muller v. Oregon. The Brandeis Brief changed the direction of the Supreme Court and of U.S. law. The Brandeis Brief became the model for future Supreme Court presentations in cases affecting the health or welfare of classes of individuals. This model was later successfully used in Brown v. Board of Education to demonstrate the harmful psychological effects of segregated education on African-American children.

This week members of the Winter 2012 class of Glenn Fellows are reading essays and court cases organized around the theme of fact-finding and its jurisprudential consequences. As they read these materials, my hope is that they will perform a little thought experiment by asking themselves about the facts that the Court recognized in Muller, Brown, and Roe v. Wade, and whether it would have been wiser for the Court to base its rulings on strictly legal grounds, rather than conducting fact-finding expeditions.

In Brown, for example, the Supreme Court had the option of resurrecting Justice Harlan’s stirring dissent in Plessy v. Ferguson, which would have meant striking down school segregation on the grounds that “our constitution is color-blind,” rather than on the less substantial grounds that segregated schools inflict psychological damage upon African-American children. Likewise, in Roe v. Wade, there were a number of precedents that the Court, rather than wrestling with the question of fetal viability and formulating a national “right of privacy,” might have used to finesse the issue of abortion by declaring that public health is a matter that the Constitution, through the Tenth Amendment, reserves to the states. I hope the Fellows will ask themselves, in short, whether the Brandeis brief, so well intentioned, has inflicted a great deal of legal and political harm in the century since Muller v. Oregon.

The Administrative State: Costs and Benefits

Yesterday's Politico contained an essay by Senators Rob Portman (R-OH) and Pryor (D-AR) making the case for passage of a bill, called the Regulatory Accountability Act, that would require agencies to conduct more systematic analysis of costs and benefits prior to administrative rule-making. Read it here.

Garfield: A Book Reivew (Reprise)

My first full-time teaching job was at Hiram College in northeastern Ohio. When I washed up on the shores of that bucolic campus in the summer of 1970—I was 25 years old—I was vaguely aware that the school was the descendant of something called the Western Reserve Eclectic Institute, and that it had been founded by the Disciples of Christ in 1850. I also was aware that its most famous alumnus was James Abram Garfield, the twentieth president of the United States. Somewhere along the way I had learned that Garfield was assassinated by a "disappointed office seeker" and that he was succeeded by a non-entity named Chester A. Arthur.

That was about it. For me Garfield was merely one of several post-Civil War Ohio Republican presidents who had been officers in the Union Army during the Civil War and wore full beards. I probably could not have picked Garfield out of a lineup if it had included Rutherford B. Hayes and Benjamin Harrison. Over the next decade and a half, I was to learn a lot more, some of it from Allan Peskin’s definitive biography, Garfield (Kent, OH: Kent State University Press, 1978), and some of it from my faculty colleagues, alumni of the college, and local townspeople.

Early on, It was pointed out to me that one of the handsomest houses in Hiram Village, still in use as a private residence, had been Garfield’s home while he served as teacher and principal of the Western Reserve Eclectic Institute. Several alumni of the college were, it was said, on friendly terms with direct descendants. Faculty colleagues supplied some important biographical details. Garfield, I was to learn, was born in a very rude log cabin on the Ohio frontier, endured desperate poverty through much of his childhood, and went to work early on the Erie and Ohio Canal. Garfield’s was a Horatio Alger story—literally, I read that book, too. He worked his way through the Eclectic as a janitor, proving to be a brilliant and industrious scholar with a gift for friendship and leadership. He wrestled with male students, and he debated itinerant atheists. There were persistent rumors about his having carried on a love affair with Almeda Booth, one of his teachers at the Eclectic. In 1858, he married a local girl, Lucretia Rudolph; their love letters were collected and edited by a colleague in the English department. Another colleague produced a play about Garfield’s assassination.

Garfield was an accomplished scholar in several fields, including Latin and Greek. Though he studied ancient languages, he was enlightened in many ways that we would consider modern. He was a voracious reader; he was one of the few Members of Congress who made good use of his lending privileges at the Library of Congress; he was a confirmed abolitionist before the war and remained committed to full racial equality afterwards. He treated everyone with respect, had a playful sense of humor, and saw both the tragic and comic aspects of the human condition. In an age of rampant political corruption, Garfield was a man of honor, though he was no goody two-shoes.

That Garfield was “not just a tragic figure, but an extraordinary man” is one of the major themes of a new book: Candice Millard’s Destiny of the Republic: A Tale of Madness, Medicine, and the Murder of a President. The book is a careful study of the assassination based on extensive research in what appear to be the most pertinent sources. The madman at the center of the tale is, of course, the assassin, Charles Guiteau. The practice of medicine was very much in flux at the time, with older physicians in the United States strenuously resisting the revolutionary ideas of England’s Dr. Joseph Lister, who called for antisepsis in the operating room based on his understanding of the role of germs in the spread of disease.

As for murder, Millard endorses the testimony that Guiteau provided at his trial: Guiteau might have done the shooting, but Garfield’s attending physicians murdered him with two months of wrong-headed, agonizing treatment. The chief physician, the ironically named Dr. Bliss, introduced infection almost immediately when he and many others repeatedly stuck their fingers in Garfield’s wound searching for the bullet. Later, they were unable to recognize the infection that had set in, let alone stop its spread. Millard is unable to resist the temptation to assert that this was a case in which ignorance, literally, was Bliss. The other major character in this sad tale is Alexander Graham Bell, who invented a metal detector called the Induction Balance that he hoped would aid Garfield’s physicians in their search for the bullet. Unfortunately, the perfection of the device came too late to save its intended beneficiary.

This is a wonderful book, though in a recent Washington Post review, Del Quentin Wilber makes a legitimate point when he complains that the story of Bell’s Induction Balance is somewhat tangential to the Garfield drama. I am inclined to concede the point, but for me it doesn’t begin to ruin what is an informative and moving story. I do, however, have two reservations of my own.

The first has to do with Guiteau and his motives. Invariably, Guiteau is described as a “disappointed office speaker,” and Millard shows that he shamelessly lobbied to be appointed to a consulship to Paris. There can be no question about his having been a disappointed office seeker. But, as Millard makes clear, he was also a lunatic, a religious fanatic who was convinced that his deed had been divinely inspired. It suited the enemies of the spoils system and the advocates of civil service reform to play down his derangement while stressing the role that the patronage system played in causing a disappointment keen enough to inspire assassination.

My second reservation has to do with the book’s title, which asserts that the destiny of the republic was at stake during the many weeks that Garfield’s physicians attended so incompetently to their patient. This is a little overwrought. For one thing, it doesn't consider the extent to which the powers of the presidency--Lincoln's example notwithstanding--were narrlowly circumscribed during this period. And in any case it isn't clear what public policies were at stake as the honest and enlightened Garfield lay on his deathbed and the hapless Chet Arthur, the creature of a political machine, cowered in a Manhattan townhouse. Garfield may have been the one politician of the Gilded Age who had it in him to put an end to the spoils system, introduce the principle of merit into public service, and put a hammerlock on Jim Crow—had he not been thwarted by an assassin’s bullet. But, as it happened—and Millard tells this story very well indeed—mediocre Chet Arthur rose to the occasion to an extent that no one had imagined possible, which is further cause for wondering whether Guiteau's heinous deed altered the course of American political history.

If it seemed to some people at the time that the destiny of the republic truly was at stake, it may be because the president of the United States, in addition to being chief legislator, chief diplomat, and leader of his party, serves as head of state—part of what Walter Bagehot called the “dignified” aspect of government, in contradistinction to the “efficient” exercise of political power. The American people will mourn a president—even one who is practically unknown to them, like William Henry Harrison, or one who was unloved because he was unlovable, like William McKinley—because the president is, among other things, the embodiment of the state. In Garfield’s case, the mourning was profound, because his many virtues, which included his gregarious and passionate nature, were so conspicuous. He must have been an easy man to love. Careful readers of Millard’s admirable book will mourn his loss still.

The Empty Chamber (reprise)

I've always been a little ambivalent about the "broken branch" thesis. On the one hand, Thomas Mann and Norman Ornstein make a good case that things have gone downhill in both houses of Congress since the glory days of Lyndon Johnson and Sam Rayburn. George Packer has made the same argument, specifically about the Senate, in The New Yorker. Actually, no one has issued the indictment more eloquently than former Senator John Glenn. Looking back on his long career, he writes:

In my twenty-two years in the Senate, I had watched the legislative process change. There was always partisanship--that was the nature of the system. Although it produced disagreement and debate, it ultimately forged budgets and laws on which reasonable people could differ but that worked for most. In general, lawmakers performed their duties in an atmosphere of mutual respect.

This was no longer the case. By the 1994 election, we had single-issue candidates, the demonization of government, the sneering dismissal of opposing points of view, a willingness to indulge the few at the expense of the many, and the smug rejection of the claims of entire segments of society to any portion of the government's resources. Respectful disagreement had vanished. Poisonous distrust, accusation, and attack had replaced it.

On the other hand, sometimes it seems to me that maybe the good old days weren't all they're cracked up to be--maybe, as a wag once suggested, they never were! Certainly, the vicious caning of Senator Charles Sumner of Massachusetts by South Carolina's Preston Brooks in 1856 (pictured above) hardly qualifies as "respectful disagreement."

On the third hand, you can make the case that what's wrong with Congress is that its powers have been usurped by an all-consuming executive branch whose mandate comes from what James Madison referred to as "the superior force of an interested and overbearing majority." Or you could argue that Congress has simply abdicated while the executive--and the judiciary--have been flexing their muscles. Either way, the explanation for Congressional irresponsibility starts to sound like the old saw about academic politics: it's vicious precisely because "the stakes are so low."

January 25, 2012 update: There's an interesting story in today's Politico on the GOP legislative agenda--interesting in part because it features Rep. Steve Stivers.

Winter 2012 Glenn Fellows at Voice of America

Yesterday afternoon we had a revealing tour of Voice of America and a very interesting conversation with Kent Klein, VOA's White House correspondent.

Left to right in the photo above: Cathy Hatten, Elliot Stone, Kristen Maiorino, Ana Hontz Ward (our tourguide), Zach Rybarczyk, Kris Fetterman, Adam Kong, Jenn Semon.

Ratiionality and Public Policy Making (Reprise)

It's week 2, which means it must be time to take another close look at Eugene Bardach's A Practical Guide for Policy Analysis, a book that has always struck me as a kind of Rorschach test. While Bardach recognizes that policy analysis is "more art than science," he is, ultimately, an optimist. He thinks that public policy is improved when it is informed by rigorous empirical research. As a dyed-in-the-wool futilitarian, the Washington Buckeye is less sanguine about the prospects of rationality in the policy-making process.

The October 8, 2009, issue of the New York Review of Books had a remarkable article that bears on the issue: "The Anarchy of Success," by William Easterly, an economics professor at NYU. The article is a review of two books, Leonard Mlodinow's The Drunkard's Walk: How Randomness Rules Our Lives, and Ha-Joon Chang's Bad Samaritans: The Myth of Free Trade and the Secret History of Capitalism.

Here's the nub of the argument. Easterly says that the phenomenal rates of economic growth enjoyed by Hong Kong, South Korea, Singapore (see skyline photo above), and Taiwan in the period between 1960 and 2007 inspired a tsunami of research by economists eager "to find in the empirical data which factors reliably lead to growth. Yet hundreds of research articles later, we wound up at a surprising end point: we don't know."

Think of it. After the investment of billions and billions of dollars and Euros in the righteous cause of economic development, we actually don't know the causes of growth. According to Easterly, summarizing Mlodinow, economists have identified 145 factors associated with growth, but "most of the patterns were spurious, because they failed to hold up when other researchers tried to replicate them." As for Bad Samaritans, Easterly says that Chang criticizes "those who have made overly strong claims for free trade and orthodox capitalism, but then he turns around and makes equally strong claims for protectionism and what he calls 'heterodox' capitalism, which includes such features as government promotion of favored industries, state-owned enterprises, and heavy regulation of foreign direct investment."

Could it be that "the science of muddling through" is the best we can do?

Winter 2012 Glenn Fellows at the Newseum

From left to right: Cathy Hatten, Elliot Stone, Zach Rybarczyk, Kristen Maiorino, Adam Kong, Kris Fetterman, Jennifer Semon