Today in Supreme Court History: September 21, 1981

9/21/1981: Justice Sandra Day O'Connor is confirmed by the Senate, 99-0.

Justice Sandra Day O'Connor

Comments

[Dan Schiavetta]

McLeod v. General Electric Co., 87 S.Ct. 5 (decided September 21, 1966): Harlan reinstates NLRB decision forcing General Electric to negotiate with electrical workers’ union even though some negotiators also were members of other unions GE was bargaining with (a business cannot be forced to bargain with more than one union at a time)

[JasonT20]

...even though some negotiators also were members of other unions GE was bargaining with (a business cannot be forced to bargain with more than one union at a time)

I'm guessing that decision was that a company can't be forced to bargain with more than one union representing the same employees for the same employee contracts, while the negotiators were representing one union over that one contract, while they happened to be members of other unions that were bargaining with GE over different contracts with different bargaining units. That correct?

[Dilan Esper]

It must be. Because obviously firms bargain with different unions over different contracts covering different groups of workers all the time.

[Dan Schiavetta]

Yes that’s correct.

[JasonT20]

I thought so. It looks like GE was just trying to find an excuse not to bargain in good faith then, rather than bringing up something substantive. Quelle surprise

[JasonT20]

Ah, for the days when most nominees were moderate enough that no one in the Senate felt like it was worth the political capital to try and block them. And those that weren't moderate at all were still not so far to one side that resistance would be more than a few token votes against them.

Of course, those days 40 years in the past, so here we are.

[David Nieporent]

I don't think this reflects a change in the nominees.

[JasonT20]

True, there is a lot more going on that the nominees themselves, but do think that the nominees did change.

It started to become much more of a political battle as Presidents increasingly looked to put their stamp on the Court even if it meant a fight in the Senate. And the courts became a significant campaign issue. Reagan picking Rehnquist for CJ, nominating Bork faced strong opposition from Democrats when you saw no opposition to Sandra Day O'Connor or Scalia and nothing significant over Kennedy. Reagan's nominees weren't uniformly strong conservatives, of course, but he showed a willingness to pick ideological fights with his nominees that I don't think happened very often in the decades before him.

Then George H.W. Bush nominated someone that ended up on the opposite side as expected, and the religious conservatives spent three decades after that working to make sure that Republican Presidents would only nominate someone they could count on to eventually overturn Roe.

Meanwhile, the Federalist Society (founded by law students in 1982, but started getting funding from conservative and libertarian foundations soon after - Olin, Scaife, Koch, etc.) has spent all that time working to build a network of right of center lawyers to fill government jobs. They've been highly effective at it, with no effective organization of similar intent on the left to compete with it. This culminated with Trump basically deferring to the Federalist Society for his judicial appointments.

The liberals in the courts don't get talked about the same way in most media as the conservative judges and justices. But that is not because they are less ideological, but because it is less of an organized effort on the part of Democrats to do that. They'll nominate liberals, and make major campaign points over abortion, gay rights, etc., but they don't have an equivalent of the Fed Society to make lists of potential nominees that a President could just copy. I am not at all saying that this is a right-wing only problem.

I think that, like the country itself, as well as for the sake of stability and a less partisan judiciary, we need to be looking to ensure that we aren't putting only solid liberals and conservatives into lifetime appointments as judges. Most of all, we need to be looking for judicial nominees to actually have judicial humility. Many of the current and recent justices on both sides have or had backgrounds of partisan positions or jobs as lawyers. Roberts, for instance, worked in the Reagan DoJ, and has a record of pushing to not renew the Voting Rights Act without modification. (All the way back in the mid 80s, he wanted pre-clearance gone and for there to be a higher bar to show discrimination in lawsuits.) Kagan was solicitor general under Obama before being nominated, Kavanaugh had worked for George W. Bush in the 2000 election fight and previously for Ken Star. These are not people that you could reasonably believe would be unbiased in politically charged cases.

Really, no one should be able to look at any case and be able to predict the outcome entirely based on which party the President that nominated the judge (or judges or Justices) was. If that can be done for virtually all hot-button cases that reach the SC, which is true as it is now, then the Court has lost any claim to political independence and is just another partisan part of government. Only it is one that doesn't ever face the voters.

[The Margrave of Azilia]

“Most of all, we need to be looking for judicial nominees to actually have judicial humility.”

Does that refer to upholding precedents, or upholding statutes?

Judges who adhere to a precedent they don't like boast of being humble, even if they're overturning a statute.

But judges who uphold a statute they don't like also boast of being humble, even if this means overruling a precedent.

Whose boasts are more accurate?

[JasonT20]

By judicial humility, I simply mean that they won’t think that they were given the powers of a judge to fulfill any kind of agenda, but to simply to fulfill a duty to apply the law “without fear or favor” in the cases before them. We need judges that view impartiality as the keystone of their job.

[JasonT20]

Whether they uphold X that they don't like or Y that they don't like isn't a measure of their humility. It isn't really even a measure of their impartiality. Really, we shouldn't find it easy to tell what laws or outcomes they like or don't like.

[Ty Gold]

You should have mentioned that O'Connor was the last nominee before C-SPAN and 24 hour cable news turned the whole process into.a televised circus. That paradigm shift is likely just as important as the Federalist Society making lists.

[JasonT20]

Fair point. That is one of the things that shows how political news became entertainment rather than a civic responsibility of news outlets.

[Rev. Arthur L. Kirkland]

Meanwhile, the Federalist Society (founded by law students in 1982, but started getting funding from conservative and libertarian foundations soon after – Olin, Scaife, Koch, etc.) has spent all that time working to build a network of right of center lawyers to fill government jobs.

The mention of Scaife makes it worthwhile to observe that Dick Scaife was a particularly revolting piece of shit. He apparently was scarred during childhood by kooky, paranoid parents, but that doesn't excuse any substantial fraction of his miserable conduct, low character, or disgusting views.

Still revered at Heritage, the Federalist Society, and similar spots, though.

[Magister]

Nominees are chosen with more careful vetting of their political views: no Republican will nominate a non-Federalist Society candidate, and Democrats have moved to balance against that. That would seem to be a change in nominees.

It used to be not always obvious how a nominee would lean even on major issues. So Reagan and Bush 1 gave us Kennedy and Souter; Bush 2 gave us John Roberts who gets a lot of complaint around here for his squishiness on conservative issues, but is also the last nominee to break 70 votes in the Senate. Rehnquist, Bork and Thomas were controversial in the late 20th century for reasons specific to each and not entirely ideological reasons.

Will there ever be a successful nominee when President and Senate are of opposite parties? Democrats will retaliate for Garland, and Republicans will preemptively retaliate against the expected retaliation if they get the next chance (as if they need an excuse).

[F.D. Wolf]

Om September 21, 1939, radio station WJSV in Washington, D.C., recorded its entire broadcast day from sign-on at 6 AM to sign-off at 12:30 AM. Of particular historical interest is President Franklin D. Roosevelt's address to a joint session of Congress.

Hitler had invaded Poland on September 1. France and Great Britain declared war on Germany two days later, marking the start of World War II. Roosevelt called on Congress to repeal those portions of the Neutrality Act of 1935 (which he himself had signed into law) which prohibited the sale of weapons to belligerents, nations at war. He rather illogically argues this will lessen the risk of the United States being dragged into the war in Europe. He repeatedly stresses the point that, under no circumstances, will America become involved in the war.

After his address, we hear the end of French Prime Minister Édouard Daladier's radio address to his people (in French), followed by an English summation. Notably, he condemns both German and Russian perfidy in their secret agreement to divide Poland. (Two years later, Germany would turn on the Soviets, who would join the Allies). That is followed by some congressmen from both parties echoing the President's commitment to stay out of the European war.

Minor points of interest: a local fur store advising that now was the time to buy your furs, as importing would soon be difficult. (It boasts that its owner had the foresight to anticipate the trouble in Europe, so he had imported extra furs, allowing you to get them at today's lower prices). Also, the Arrow News reports, brought to you by Arrow Beer. (Note this is less than seven years after the repeal of Prohibition). Also, on the last day of the baseball season, legend Walter Johnson calls the broadcast (which begins in the bottom half of the fourth inning) of the hometown Washington Senators taking on the Cleveland Indians. (The Indians won 6-3, scoring all six of their runs in the eighth inning).

Quite a treat for history nerds like myself:

https://archive.org/details/OTRR_WJSV_Complete_Day_Singles/WJSV_Complete_Broadcast_Day_39-09-21_-1530-1545_Rhythm__Romance.mp3

[Dan Schiavetta]

Thanks!

[Commenter_XY]

Oh wow, Walter 'Big Train' Johnson? I read about him. Damn.