Six Meetings Before Lunch
Judge Roberto Mendoza is confirmed to the United States Supreme Court (1), but Toby's elation is short-lived as he is forced to help find a new panda bear for a zoo. Sam and Mallory, Leo's daughter, get into a fight over Sam's apparent support for school vouchers (2). Josh meets with Jeff Breckenridge, a lawyer who is up for a position in the Department of Justice; the problem is that Jeff believes that the U.S. government should pay reparations for slavery (3). One of the arguments Jeff uses is that the US government never did live up to a promise to give every free black "forty acres and a mule" (4).
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Nominating a justice to the Supreme Court (last updated May 2001) (back to top)
There are nine justices on the Supreme Court (including the chief justice), and whenever there is a vacancy, the President nominates a new justice; this power is checked by the Senate, which has the power to confirm or reject a nominee (the Constitution says that an appointment is not effective unless the President obtains the "Advise and Consent of the Senate," Article II, Section 2, Clause 2).
Battles over Supreme Court nominations began long before the infamous Bork nomination of 1987. According to legal scholar Henry Abraham, the Senate has rejected 30 of the 144 nominees formally sent for confirmation and it rejected 1 out of 3 nominees in the 19th century.
In the 20th century, five sets of nominations stand out as particularly vehement battlegrounds between the President and the Senate.
The first controversial nomination of the 20th century was President Wilson's appointment of Louis Brandeis, who is widely considered one of the greatest justices in history. The Bork battle obviously looms larger in modern readers' memory, but legal scholar Henry Abraham calls the Brandeis confirmation "battle" "the most bitter and most intensely fought in the history of the Court." Brandeis, a prominent Boston lawyer who was aligned with liberal social causes, was hated for his political views and also for being Jew. Debates over his nomination went on for months, but the Senate ultimately confirmed his nomination 47-22 (with 27 senators abstaining).
The second controversial appointment involved two failed nominations before President Nixon finally nominated Harry Blackmun. Justice Abe Fortas had resigned in May 1969 over concerns of his relationship with a convicted financier, and Nixon went through three nominations before Blackmun was confirmed. The first was Clement Haynsworth Jr., who had questionable financial improprieties similar to Fortas's and was ultimately rejected 55:45; the second was G. Harold Carswell, who was widely considered unqualified (Senator Roman Hruska, in Carswell's defense, made the famous statement: "Even if he is mediocre there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Cardozos, and Frankfurters, and stuff like that there.") and was rejected 51:45. Blackmun, anticlimactically, was confirmed 94-0.
William Rehnquist, now the Chief Justice, gave rise to controversy first when he was nominated by Nixon to the Court in 1971 and then when he was nominated by Reagan to be Chief Justice in 1986. He was accused of being too conservative but ultimately was confirmed both times; the vote in favor of his becoming Chief Justice was 65-33.
Judge Robert Bork's unsuccessful nomination is popularly seen as a turning point for the confirmation process; the Brandeis and Rehnquist confirmation battles were just as political but differed in ending happily for the nominee. Bork was accused of being too conservative (for example, he had criticized the Roe v Wade decision as an example of judicial activism, though he said in confirmation hearings that he respected precedent and would not commit to voting to overturn or uphold Roe) and he was rejected 58-42. Reagan then nominated Donald Ginsburg, who withdrew after his regular use of marijuana became public, and finally nominated Anthony Kennedy, who was confirmed without problem, 97-0.
And finally there is the nomination of Clarence Thomas in 1992. Thomas, a leading black conservative, was initially attacked for his politics, his support for the concept of natural law, and his general qualifications. Then, just days before the eve of the Senate vote on his nomination, National Public Radio reported that a former co-worker, Anita Hill, was saying that Thomas had sexually harassed her. The ensuing controversy resulted in a second round of hearings and attacks that Thomas likened to a "high-tech lynching of an uppity black man." Ultimately, Thomas was confirmed 52-48 in the closest successful vote in the 20th century.
Other nominations in the 1990s went far more smoothly. David Souter, a Bush nominee considered a "stealth candidate" for his lack of substantial record, was easily confirmed in 1990, 90-9. Clinton's two nominees, Ruth Bader Ginsburg in 1993 and Stephen Breyer in 1994, were also amicable processes; Ginsburg was confirmed 96-3 and Breyer 87-9.
As of 2001, it has been seven years since a president nominated someone to the Supreme Court. Given the age of some justices and news reports, George W. Bush will probably have the opportunity to nominate at least one during the current term. Bush has said that he disapproves of "activist" judges and is more inclined towards strict-constructionist judges along the lines of Scalia and Thomas.
Second, on March 22, 2001, he announced he was ending a longtime tradition of allowing a special committee of the American Bar Association to screen candidates for lower federal court judgeships before nominated. Bush said that it was improper to give the ABA advance notice that other organizations did not receive; the move has been criticized as payback for the ABA's decision to oppose the Bork nomination. The ABA does not play such a role in Supreme Court nominations, but Bush's move sends a signal about his receptiveness to such outside input.
Sources: Henry J. Abraham, Justices, Presidents and Senators (1999, 4th edition). Susan Low Bloch and Thomas G. Krattenmaker, Supreme Court Politics: The Institution and its Procedures (1994).
School Vouchers (last updated October 30, 2002) (back to top)
Under school voucher programs, students who are either low-income or at low-performing schools are given state or private funds to subsidize their transfer to private schools or to supplement their public education. Proponents say that vouchers give poor students the same choices that wealthier students always had, and that the resulting competition will force moribund schools to improve. Critics say that vouchers simply undermine already-troubled public schools and are de facto ways of funding religious institutions.
Vouchers are currently available only in some areas. Milwaukee and Cleveland continue to run programs, and Cleveland's program was upheld as constitutional by the United States Supreme Court in June 2002. Florida implemented a program in 1999 but continues to face different kinds of court challenges; a state judge held that vouchers violated the state's constitutional guarantee of a publicly funded education in August 2002.
Politically, vouchers are still very much in the air. Polls have shown growing support, especially among minorities, but Michigan and California voters did reject referenda allowing for vouchers 3-1 in November 2000. President George W. Bush supported them during his campaign and, once in office, initially called for plans to make vouchers available nationwide for students at failing schools. He backed away from this plan in 2001, but has continued to praise voucher programs.
Legally, states and the federal government generally can direct education funds as vouchers (though some courts have ruled that individual state constitutions require the direct funding of public education). The only legal argument that can prevent voucher programs is one based on the Establishment Clause of the First Amendment. Religious schools, at least for now, comprise most of the institutions ready and willing to accept students with vouchers, which means that state money for vouchers goes and would go predominantly to religious institutions. Too much intermingling of church and state can violate the Constitution's Establishment Clause, but a 5-4 majority of the United States Supreme Court approved Cleveland's program as constitutional in a June 2002 decision that Bush called historic.
Milwaukee, Cleveland, and the CSF are geared towards low-income families, while Florida targets students in low-performing schools. Milwaukee, Cleveland and the CSF cap the number of participants (Milwaukee to 15% of the student population, Cleveland and the CSF by funding limits) and use lotteries to decide who gets vouchers; Florida would take everyone who qualified.
- Milwaukee: The oldest voucher program, Milwaukee's began in 1990 and has survived several constitutional challenges thus far. The program started small in the 1990-91 school year, with about 300 students at six private schools receiving $2,446 each, for a total funding of $733,800. By 1999-2000, there were about 7,600 students participating at about 90 schools, receiving $5,106 each, for a total funding of $38.9 million. For the 2000-01 school year, the program provided vouchers (maximum $5,326) to 9,600 students at about 100 schools. It is geared towards low-income families, caps the number of participants, and uses lotteries to decide who gets vouchers.
- Cleveland: In 1995, the state legislature enacted a pilot scholarship program that was then struck down by the Ohio Supreme Court because the legislation violated a procedural rule in the state's constitution, not the Establishment Clause. In 1999, the program was reenacted in all pertinent respects and 3,671 students enrolled in the program for the 1999-2000 school year. Cleveland provided vouchers (maximum $2,500) to these students, but Federal District Judge Solomon Oliver Jr. ruled in December 1999 that the program violated the Establishment Clause because so few secular schools were participating in the program that parents "cannot make a genuine, independent choice of what school to attend" and are effectively forced to participate in a religious institution. In the 1999-2000 school year, 46 of the 56 private schools participating were church-affiliated. This ruling was upheld 2-1 at the appellate level on December 11, 2000, but was reversed by the United States Supreme Court in June 2002.
- Florida: In 1999, Florida instituted the Opportunity Scholarship Program (the nation's first statewide educational voucher program) as part of its A+ Plan for Education. Under the program, the state will grade public schools each year. If a school receives a "F" for two consecutive years, students there will receive vouchers - what the plan calls "opportunity scholarships" - to transfer to a better public school or a private school. The state's program started off small in 1999-2000, with 53 students receiving about $3,400 each. State-court judges have ruled in March 2002 and again in August 2002 that the program violates the state constitution because Florida was required under its own constitution to provide a public education directly, and not through intermediaries such as vouchers; the March 2000 ruling was reversed by an appellate court in October 2000 but the issue is again being fought. In any case, no additional vouchers would have been authorized in the 2000-01 or 2001-02 school years since none of the 78 schools failing in 1999 received a second F grade. Vouchers for students at 10 schools would have been authorized but for the August 2002 ruling.
- Children's Scholarship Fund: Funded largely by a Wall Street investor, Theodore J. Forstmann, the CSF provides smaller sums of about $1,000 per student to about 40,00 students around the country. It has clearly tapped into something: 1.25 million children applied for those slots, or more than 30 times the number of open spots.
Since 1970, about 10 to 12 percent of elementary and secondary students are in private schools, with 11.3 percent in 1999. As of 1994, most students in private schools attended religious schools, predominantly Roman Catholic (55 percent) or Lutheran (31 percent). Private-school students at non-affiliated schools accounted for only 14 percent of such students. Roman Catholic schools accounted for 35 percent of all private schools, and other religious schools another 47 percent; non-affiliated schools accounted for 18 percent of all such schools.
Sources: The Milwaukee Parental Choice Program (MPCP) is available on-line here. Florida's Opportunity Scholarship Program is on-line here. Regarding Cleveland, the United States Supreme Court opinion upholding the program as constitutional is on-line here. The Children's Scholarship Fund is available on-line here. Jodi Wilgoren, School Vouchers: a rose by other name?, New York Times, December 20, 2000. The Black Alliance for Educational Options runs a school-choice information clearinghouse, available here. General information about private schools is taken from the Department of Education's "Progress of Education in the United States of America - 1990 through 1994" report, available here.
Reparations (last updated August 2001) (back to top)
Reparations for slavery - usually to African-Americans as a group and not to individuals - is not a new idea. It has been raised several times ever since the emancipation of slaves, and has gained some more discussion in recent years with Randall Robinson's 2000 book The Debt: What America owes to blacks. In a roundabout way, it became front-page news in early 2001 because of an anti-reparations advertisement placed by David Horowitz in some college newspapers.
Reparations has made it to Congress, but not very far. The only legislative act for reparations is an annual effort by Representative John Conyers, a Democrat from Michigan. Every year since 1989, he has introduced a resolution to establish a commission that would study reparation proposals for African-Americans. The resolution is officially designated H.R. 40, so numbered after the so-called "Forty Acres and a Mule" order that General William Tecumseh Sherman issued to help free blacks secure their independence. Conyers' bill has never made it out of committee.
It is worth noting that both the federal government and one state government has made explicit monetary redress for past acts of wrongdoing involving minority groups. The Civil Liberties Act of 1988, passed with considerable bipartisan support and signed by Ronald Reagan, authorized compensation for those Japanese-Americans who had been interned during World War II. At the state level, the Florida legislature acknowledged in 1994 an "equitable obligation" to make up for the destruction of the town Rosewood in 1923, when the state did nothing as whites killed at least eight blacks and razed the town.
In both cases, much of the momentum for reparations came because the situations were not widely known beforehand; the extent of the Japanese-American internment was still not generally understood until a public investigation in the early 1980s and a Smithsonian exhibit in 1987. Another crucial factor distinguishing these cases from slavery is that some victims were still living, so that any reparations would compensate the very people who had actually suffered harm from the government's wrongdoing.
In any case, monetary reparations are not the only form of redress for slavery.
Redress can also be accomplished in nonmonetary ways such as amnesty and special government treatment, and redress need not be for individuals but can be for rehabilitating groups that had been injured. Seen this way, the United States has been providing some form of redress for more than a century. Immediately after the Civil War, the federal government enabled the Freedmen's Bureau to help provide for the economic independence of blacks, largely through land provisions that were of moderate success and through funding black colleges such as Howard University. And in the 20th century, affirmative action was initially seen as a way to make up for past discrimination long before it evolved into a means of achieving diversity.
Another possible means of redress is an official apology.
In 1997, Representative Tony Hall of Ohio introduced the one-sentence-long House Concurrent Resolution 96: "Resolved by the House of Representatives that the Congress apologizes to African-Americans whose ancestors suffered as slaves under the Constitution and the laws of the United States until 1865." There is no call for monetary reparations, and there are no pending lawsuits which could use such a resolution as evidence against the U.S. government. Hall's bill, like Conyers' efforts, did not get far.
There is much precedent for apologies from the federal government, either through Congress or through the president.
Beyond the Japanese-American internment, Congress apologized in 1990 to uranium miners and the people in Nevada affected by the nuclear tests there and in 1993 for overthrowing the native Hawaiian government a century earlier. Clinton apologized in 1997 for secret experiments conducted from 1932 to 1972 on the black men of Macon County, Alabama, who went untreated with syphilis.
Other countries have been dealing with reparations and apologies issues, and a few examples are worth noting here for broader perspective. Germany signed agreements in 1952 with the State of Israel and a major Jewish organization to help make up for the Holocaust. Japan has awkwardly tried dealing with the rape and forced prostitution of Korean "comfort women" during World War II; Japan's prime minister apologized profusely on his own behalf, private citizens have donated money to compensate, and the courts have granted small victories to some "comfort women" who have sued, but the government officially has done little of note. South Africa investigated the legacy of apartheid and issued amnesties as a means of reconciliation, Australia has long debated what to do about the forced removal of Aboriginal children from their families, and the list goes on.
For more on reparations, go here.
Sources: When Sorry isn't Enough, edited by Roy L. Brooks. The Debt: What America owes to blacks, by Randall Robinson. Many Billions Gone: Is it time to consider the case for Black reparations, by Robert Westley, Boston College Law Review, December 1998 (40 B.C. Law Rev. 429). Achieving the Impossible Dream: How Japanese-Americans obtained redress, by Mitchell T. Maki, Harry H. L. Kitano, and S. Megan Berthold.
Forty acres and a mule (last updated August 2001) (back to top)
It has become a legend in African-American circles, a symbol of the debt that many African-Americans feel the United States government owes them for decades of slavery. It was a rallying cry for some in the riots of the 1960s and it inspired the name of filmmaker Spike Lee's production company.
Shortly after the Civil War ended, the United States government struggled to determine what to do with the now-freed blacks. Both the military under the War Department as well as the Treasury Department claimed some jurisdiction over the freedmen, and it was unclear what the government should do.
With his authority unclear, General William Tecumseh Sherman issued Special Field Orders No. 15 on January 16, 1865, later known popularly as the order for "forty acres and a mule."
First, the order set aside for freedmen settlement the Sea Islands in Georgia south of Charleston, the abandoned rice fields on the river banks for 30 miles along the coast, and the country bordering the St. John's River. These lands were "reserved and set apart for the settlement of the negroes now made free by the acts of war and the proclamation of the President of the United States." Each family of free blacks that chooses to live there "shall have a plot of not more than forty acres of tillable ground," as long as the overall area is managed by three "respectable negroes" who are "heads of families."
Second, freedmen in this territory were to govern themselves subject only to military and Congressional rules. "The negro is free, and must be dealt with as such," according to the order.
Finally, the order stated that the black man could not be drafted, though he "must be encouraged" to enlist for pay. Whenever a black man enlists, he can locate his family in any of the settlements at his leisure and acquire a homestead as if he was present.
The Freedmen's Bureau, enacted by Congress in 1865 as a way to help freed blacks after the Civil War, attempted to implement land redistribution programs and to make good on Sherman's order. However, just as it was starting its work, on May 29, 1865, President Andrew Johnson granted amnesty to rebels "with restoration of all rights of property, except as to slaves." Such amnesty ultimately deprived the Freedmen's Bureau of many of the lands it sought to give freed blacks.
Assistant Bureau Commissioner and former General Rufus Saxton had been implementing Sherman's order when Johnson reversed policy. Saxton had already given possessory titles to 40,000 freed blacks for 485,000 acres, and he initially refused to return these lands to their former owners. He finally conceded to Johnson's orders and allowed dispossessed owners to return to their lands, although he refused to let such owners evict any freedmen holding valid grants under the Sherman order. Ultimately, however, military authorities forced the freedmen in the Sea Islands to contract or leave.
General Sherman himself said that his order had not been meant to be permanent. In a letter to Johnson in February 1866, he wrote: "I knew of course we could not convey title to land and merely provided 'possessory titles' to be good so long as war and our Military Power lasted. I merely aimed to make provision for the negroes ... leaving the value of their possessions to be determined by after events or legislation."
Sources: George R. Bentley, A History of the Freedmen's Bureau (Octagon Books, 1974; originally published 1944).
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