The Brief against Brandeis (a slightly edited version of a post published originally on 1 Feb 2010)

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 last year. The work of Melvin I. Urofsky of Virginia Commonwealth University, the 955-page tome is getting 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 Summer 2010 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.

Glenn Fellows visit Europe

Former Secretary of State Henry Kissinger, who grew weary of critics stating or implying that "Europe" disapproved of U.S. foreign policy, is said to have asked, "Who do I call if I want to speak to Europe?"

Sadly, I must report that the story is apochryphal. But today, if Secretary Kissinger did want to speak to Europe, he could do so by phoning Mr. Anthony Smallwood, spokesperson for the EU Delegation to the United States. Yesterday, Mr. Smallwood briefed the Glenn Fellows on the history of the European Union at its offices on K Street in Foggy Bottom. The multinational delegation is a little like an embassy without the consular functions, he said.

Ill Fares the Land

Tony Judt's new book is a sobering look at the consequences of income inequality for the United States and the United Kingdom. An excerpt was published recently by The New York Review of Books. Here's the gist:

The consequences are clear. There has been a collapse in intergenerational mobility: in contrast to their parents and grandparents, children today in the UK as in the US have very little expectation of improving upon the condition into which they were born. The poor stay poor. (See Figures 1 and 2.) Economic disadvantage for the overwhelming majority translates into ill health, missed educational opportunity, and—increasingly—the familiar symptoms of depression: alcoholism, obesity, gambling, and minor criminality. The unemployed or underemployed lose such skills as they have acquired and become chronically superfluous to the economy. Anxiety and stress, not to mention illness and early death, frequently follow.

Former Congressman Louis B. Stokes Speaks at Policy Salon

On Wednesday evening this week the Spring 2010 class of Glenn Fellows enjoyed a presentation by Louis B. Stokes that traced his rise from the Cleveland projects and wartime service in a segregated military to thirty years of public service in the U.S. House of Representative and the position of senior counsel that he now holds at Squire, Sanders, and Dempsey, arguably Cleveland's most prestigious law firm. Is this a great country, or what?

The evening was arranged by our partners, WISH (Washington Intern Student Housing) and the Congressional Black Caucus Foundation. Some of the Glenn Fellows and CBC fellows in attendance are pictured above with Rep. Stokes.

Senate GOP Candidates Fatten Bank Accounts

An article by Greg Giroux in today's Roll Call reports that Republicans throughout the country are having remarkable fund-raising success, and Ohio is cited as one of the most dramatic cases in point.

Here's the money quote, so to speak:

One of the biggest partisan imbalances in fundraising is in Ohio, where former Rep. Rob Portman (R) raised about $2.4 million in the quarter — more than four times as much as the $554,000 posted by Lt. Gov. Lee Fisher, the leading Democrat.

Portman has been able to save his money because he doesn’t face a contested primary. But Fisher must get past Ohio Secretary of State Jennifer Brunner (D), who is running a sparsely funded campaign, and he spent nearly as much as he raised in the period. That allowed Portman to extend his cash-on-hand lead to $7.6 million verses Fisher’s $1.8 million as April began.

Week Three Events

It was a busy week for the Glenn Fellows. On Wednesday, the WAIP program and the DC Alumni Club co-sponsored a climate change panel in the Hall of the States; more than 60 Buckeyes were in attendance. Panel members (seated, left to right, in the photo above) were Joe Shultz, staff member in the office of Senator Sherrod Brown, Professor Andy Keeler of the John Glenn School of Public Affairs; and Allison Specht of the American Farm Bureau Federation.

On Thursday evening, the Glenn Fellows joined visiting participants in OSU's Politics, Society and Law program at a Capitol Visitor Center reception for Members of Congress and their staffers. In the photo on the left, above, Senator George V. Voinovich is shown chatting with PSL students at the event.

Ohio House Races Featured in Plain Dealer story

A nice overview of the mid-term elections in Ohio appears in today's P.D., in a story written by Sabrina Eaton.

GAO Studies Language Proficiency in the Foreign Service

This Wednesday we had a guest speaker in our seminar, Patrick Dynes, an Ohio State Ph.D. and Senior Analyst at the U.S. Government Accountability Office, who talked about a GAO study of foreign investment in the United States generally and sovereign wealth funds in particular. Patrick is living proof that it's possible to survive thirty years of producing policy papers for a living.

By coincidence, another GAO report was the subject of the "Federal Diary" column in yesterday's Washington Post. The Post's Joe Davidson reports that the GAO has done a study of foreign language proficiency in the U.S. diplomatic corps, and that the results are quite disturbing. In a policy forum sponsored by the American Foreign Service Association, diplomats conceded that the incentive structure in the foreign service does not always encourage language proficiency. One of America's top diplomats, John Negroponte (pictured above) argued that inadequate language proficiency was only the most serious of a number of challenges facing the Department of State and other agencies that pursue the U.S. diplomatic mission. See Davidson's article here.

Anita McBride at Glenn School/WISH Policy Salon

Anita Bevacqua McBride, a prominent White House staffer under three Republican presidents (Ronald Reagan, George H.W. Bush, and George W. Bush) and one of the architects of the prestigious White House internship program, spoke to an assembly of interns on Tuesday evening, April 6, in what was the first event of spring quarter for the John Glenn/WISH Policy Salon.

Mrs. McBride, who grew up as the daughter of Italian immigrants in Bridgeport, Connecticut, discussed her own interest in public affairs, which was nurtured by a University of Connecticut study-abroad program and then by a Washington internship secured through American University's Washington Semester program. She rose quickly in the Reagan administration, where she served as Director of White House Personnel. During George W. Bush's second term, she was an Assistant to the President and Chief of Staff to First Lady Laura Bush. In addition to her several White House assignments, Mrs. McBride worked for the former U.S. Information Agency and was Special Advisor in the State Department's Bureau of International Organizations. Although she no longer is a public official, she continues to devote significant time to public service as a member of the U.S.-Afghan Women's Council, as Chair of the J. William Fulbright U.S. Foreign Scholarship Board, and as Executive in Residence in the School of Public Affairs at American University.

Mrs. McBride spoke to an assembly that included a delegation from the University of Connecticut and interns from other universities who live in WISH housing, as well as the eleven members of the spring 2010 class of Glenn Fellows. Members of the audience (pictured with Mrs. McBride, above) seemed particularly interested in her experience with presidential transitions and receptive to her message about the virtues of service through the Peace Corps or such international NGOs as CARE, Inc.

Reposting: "A Book Full of Numbers"

What follows is the text of a post originally published here on January 12, 2010. I am reposting it now to provide some guidance for the Spring 2010 Glenn Fellows, who are currently reading Bardach and trying to define their research projects. Unfortunately, the Post is no longer making Samuelson's article available for free, so there is no link to it.

Robert J. Samuelson is an op-ed columnist who often has something provocative to say about current events. His column in yesterday’s [January 11, 2010] Post was about the Statistical Abstract of the United States, an annual publication of the Census Bureau. I found it especially stimulating given that we have had our noses buried in Eugene Bardach’s A Practical Guide for Policy Analysis this week.

Bardach says that in defining the problem (step one of The Eightfold Path) one should think in terms of deficit and excess and “quantify if possible.” He also suggests that one’s thesis should consist of hypothesized relationships between two or more variables. Bardach’s Appendix A, for example, is about sentencing laws and rates of cocaine consumption (and drug-related crime).

Samuelson’s piece, meanwhile, could be the source of a number of testable hypotheses. For example, he reports (again, based on the Statistical Abstract of the United States) that the U.S. seems to enjoy the world’s lowest food prices, but to suffer from the highest rates of obesity. Just a coincidence? Maybe. Maybe not.

Samuelson also finds evidence in the Statistical Abstract that over the past four decades student-teacher ratios have declined dramatically, but that (contrary to everything that we’ve been told by the teachers’ unions) there has been no discernable improvement in standardized test results.

Finally, Samuelson notes that crime rates have declined since the early 1990s, and he speculates that that might be due to “better policing techniques” and/or “tougher sentencing” patterns, from which we might infer that Samuelson has not read Bardach’s Appendix A.

Anyway, I thought this might be helpful to the Glenn Fellows as they ponder the logic of the Research Proposal Worksheet.

Are Country, Right or Wrong

The Washington Buckeye is a political independent, and as such he feels it's important to be even-handed in his commentary. Unfortunately, it's easier for an apostate to find fault with his former brothers and sisters in arms than with complete strangers. And these days, it's like shooting goldfish in a tank. Ladies and gentlemen, welcome to the wonderful world of Teabonics. Thanks to Amanda Hurley for the link.