Lend Me Your Ears: Great Speeches in History (88 page)

I learned never to humiliate an antagonist and never desert a friend. In a political struggle, never get personal else the dagger digs too deep. Your enemy today may need to be your ally tomorrow.

I learned that nothing lasts. What is up will inevitably go down and sooner or later in reverse. It took forty years, but the House changed masters. Victory is often the prelude to defeat. President Bush can rise to testify about that. Failure is often the precursor of triumph. Ask Bill Clinton. Richard Nixon tasted both ends of those beguiling equations. The breeding ground of politics is irrigated and nourished by change. As one who has fallen from political power, I can instruct George Stephanopoulos in how quickly you lose your charm and your enticements when you no longer sit at the right hand of the Sun King.

I learned that a political poll is Janus in disguise. The life of a poll is about ten nanoseconds. It is already in decay when it is published. A political poll, like the picture of Dorian Gray, is the face of entropy. The veteran professionals know that. The old pols use polls to raise money. When polls are up, go for the fat wallets. But the politician who persistently
lifts his wet finger to test the political polls before he acts usually leaves office with a wet finger….

But the greatest lesson I have learned, the most important of my education, is really the essential imperative of this century. It is called leadership. We brandish the word. We admire its light. But we seldom define it. Outside Caen in the Normandy countryside of France is a little cemetery. Atop one of the graves is a cross on which is etched these words: “Leadership is wisdom and courage and a great carelessness of self.” Which means, of course, that leaders must from time to time put to hazard their own political future in order to do what is right in the long-term interests of those they have by solemn oath sworn to serve. Easy to say. Tough to do.

I remember when I first bore personal witness to its doing. It was in December 1963. Lyndon Johnson had been president but a few short weeks. At that time I was actually living on the third floor of the White House until my family arrived. The president said to me on a Sunday morning, “Call Dick Russell and ask him if he would come by for coffee with you and me.”

Senator Richard Brevard Russell of Georgia was the single most influential and honored figure in the Senate. His prestige towered over all others in those years before the dialogue turned sour and mean. When in 1952, the Senate Democratic leader’s post fell open, the other senators turned immediately to Russell, imploring him to take the job. “No,” said Russell, “let’s make Lyndon Johnson our leader, he’ll do just fine.” So at the age of forty-four, just four years in his first Senate term, LBJ became the youngest ever Democratic leader and in a short time the greatest parliamentary commander in Senate history.

When Russell arrived, the president greeted him warmly with a strong embrace, the six-foot-four LBJ and the smallish, compact Russell, with his gleaming bald head and penetrating eyes. The president steered him to the couch overlooking the Rose Garden in the West Hall on the second floor of the mansion. I sat next to Russell. The president was in his wing chair, his knees almost touching Russell’s, so close did they sit.

The president drew even closer, and said in an even voice, “Dick, I love you and I owe you. If it had not been for you I would not have been leader, or vice-president, or now president. But I wanted to tell you face to face, please don’t get in my way on this civil rights bill, which has been locked up in the Senate too damn long. I intend to pass this bill, Dick. I will not cavil. I will not hesitate. And if you get in my way, I’ll run you down.”

Russell sat mutely for a moment, impassive, his face a mask. Then he spoke, in the rolling accents of his Georgia countryside. “Well, Mr. President, you may just do that. But I pledge you that if you do, it will not only cost you the election, it will cost you the South forever.”

President Johnson in all the later years in which I knew him so intimately never made me prouder than he did that Sunday morning so long, long ago. He touched Russell lightly on the shoulder, an affectionate gesture of one loving friend to another. He spoke softly, almost tenderly: “Dick, my old friend, if that’s the price I have to pay, then I will gladly pay it.”

Of all the lessons I have learned in my political life, that real-life instruction in leadership on a Sunday morning in the White House was the most elemental, and the most valuable. It illuminated in a blinding blaze the highest point to which the political spirit can soar. I have never forgotten it. I never will.

In the presidential election of 2000—only the second in U.S. history in which the winner in the Electoral College lost the popular vote—the U.S. Supreme Court decided 5–4 that it was best able to resolve the controversy over election results in Florida. The intensely controversial case,
Bush v. Gore
, transfixed a nation that had never before placed the responsibility for making the call that would decide who would be the next president on any court. The famous saying of Finley Peter Dunne’s fictional Mr. Dooley—that “the supreme coort follows th’ iliction returns”—was turned on its head, as the election returns were ultimately decided by the Supreme Court.

Democratic voters were understandably angered at the high court’s intervention that led to the election of Republican George W. Bush. Republicans—who usually called for judicial restraint and inveighed against judicial activism—were delighted with the decision of the Court, most of whose members were appointed by Republican presidents, to step into the political process. This led to questions about the Court’s independence and charges of politicization.

Ruth Bader Ginsburg, the Brooklyn-born attorney known for her advocacy of women’s rights and everyone’s civil liberties, had been appointed to the Supreme Court by President Bill Clinton in 1993. She voted with the minority in
Bush v. Gore
and joined the vigorous dissent.

Speaking to the University of Melbourne Law School on February 1, 2001—little more than a week after the inauguration of President George W. Bush—Justice Ginsburg put the case in the context of other famous controversies decided by the Court. She concluded that “whatever final judgment awaits
Bush v. Gore
in the annals of history,” public confidence in the whole federal judiciary (not just the Supreme Court) would be
sustained “at a level never beyond repair”—a judicious way of saying that, in time, the drop in confidence could be fixed.

In this excerpt, I have deleted her published speech’s footnotes, one of which states: “Justice Ginsburg acknowledges with appreciation the grand assistance of her 2000 Term law clerk, Goodwin Liu, in composing these remarks.” Not many speakers do that.

***

…OF ALL THE
words recently spoken and written about judicial independence in the United States—and whatever one makes of the U.S. Supreme Court’s part in calling the excruciatingly close November 2000 election for President Bush—a 1980 comment by the U.S. Chief Justice remains, in my view, right on target. On the obligation of a good judge, Chief Justice Rehnquist then said: He or she must strive constantly to do what is legally right, all the more so when the result is not the one the Congress, the president, or “the home crowd” wants. My aim in this lecture is to offer some thoughts, from the vantage point of a U.S. federal judge, on just how important—and difficult—it is for judges to do what is legally right, no matter what “the home crowd” wants.

If it is true, as Henry Fielding wrote, that examples work more forcibly on the mind than precepts, then allow me to begin with a few trying cases, situations in which the U.S. Supreme Court intervened to resolve controversies some thought best left to political decision makers—to the executive or the Congress. My first two illustrations today generate no sparks in the United States. The third awaits history’s judgment.

I will recall first a 1974 case titled
United States v. Nixon
, which yielded a unanimous opinion written by Chief Justice Rehnquist’s predecessor, Warren Burger. On Chief Justice Burger’s death, a
New York Times
obituary praised the opinion as “the pinnacle of [Burger’s] career and one of the [U.S.] judiciary’s finest achievements.” The case concerned a subpoena issued by U.S. District Judge John Sirica at the height of the Watergate scandal. Judge Sirica’s subpoena directed the president to produce, for use in a criminal proceeding, tape recordings and documents capturing Oval Office conversations between Nixon and his closest advisers.

In his campaigns for the presidency, Nixon had repeatedly called for the restoration of “law and order.” He promised to appoint judges equal to the task, people who would not be “soft on crime.” A United States Supreme Court that included four Nixon appointees, including Chief Justice Burger and now Chief Justice Rehnquist, declared the law and affirmed Judge Sirica’s order. The president obeyed, then promptly resigned from office.

Earlier in time, my second illustration is popularly known as the “steel seizure case,”
Youngstown Sheet & Tube Co. v. Sawyer
. In the spring of 1952, the United States was heavily engaged in the Korean War. At home, inflation was rising, and labor unrest was widespread. For several months, the United Steel Workers of America had been seeking a substantial wage increase, which the steel companies had repeatedly refused. With negotiations at an impasse, the steel workers voted to strike beginning on April 9. On the evening of April 8, to keep the mills in operation, President Truman issued an executive order directing the secretary of commerce to take possession of eighty-five steel companies. The order declared that “a work stoppage would immediately jeopardize and imperil our national defense… and would add to the continuing danger of our soldiers, sailors, and airmen engaged in combat in the field.”

The steel companies argued that the order was an unconstitutional encroachment on congressional authority. In response, the government urged that a strike would so endanger the well-being and safety of the nation that the president must be held to possess “inherent power” to seize the steel mills. The United States District Court in Washington, D. C., rejected the government’s plea and enjoined enforcement of the president’s order. But the full Court of Appeals immediately voted 5–4 to stay the district court injunction, with the eight judges appointed by Truman evenly divided on the issue. One month later, a 6–3 majority of the United States Supreme Court declared the president’s order invalid; the authority to seize property, the Court held, is a lawmaking power which the Constitution vests in Congress alone “in both good and bad times.”

While four of the justices in the majority were appointed by Truman’s predecessor, Franklin Roosevelt, the fifth and sixth votes came from Justices Burton and Clark, both Truman appointees. In a concurring opinion, Justice Clark explained (borrowing words written by Justice Story more than a century earlier) that, although the Court gives “the most entire respect” to the executive branch, “[i]t is our duty to expound the laws as we find them in the records of state; and we cannot, when called upon by the citizens of the country, refuse our opinion, however it may differ from that of very great authorities.” President Truman immediately complied with the Court’s judgment. “[L]ess than thirty minutes after the justices finished reading their opinions,” he dispatched a letter ordering the secretary of commerce to return the confiscated mills to their owners.

More than 150 years ago, a young French observer of democracy in America, Alexis de Tocqueville, made this prescient comment: “Scarcely any political question arises in the United States that is not resolved,
sooner or later, into a judicial one.” Were the Watergate and steel seizure cases not enough to illustrate Tocqueville’s insight, my third example,
Bush v. Gore
, surely provides graphic confirmation of its truth. The Court’s decision in that case ended thirty-six days of controversy over the 2000 presidential election.

The petition for review in
Bush v. Gore
was filed in the United States Supreme Court on the evening of December 8, 2000, hours after the Florida Supreme Court had ordered statewide manual recounts of certain disputed ballots. Whether the recounting was permissible under state and federal law raised questions whose stakes could not have been higher. On December 8, George W. Bush led Al Gore in the Florida vote tally by some hundreds of votes—a razor-thin margin in an election with over 6 million votes cast statewide. At the national level, Gore had won the popular vote, and with 267 all-important electoral votes compared to Bush’s 246, Gore was only three electoral votes shy of victory under the presidential electoral system decreed by the U.S. Constitution. The winner of Florida’s popular election would capture all of the state’s twenty-five decisive electoral votes and, in turn, the presidency.

One would expect that the first instinct of any judge, faced with such a case, would be restraint. The Supreme Court’s initial encounter with the controversy might fit that description. Just five days before it agreed to hear
Bush v. Gore
, the Supreme Court issued a unanimous decision declining to intervene at an earlier point in the unfolding drama, when the Florida Supreme Court had interpreted Florida election laws to allow manual recounts to go forward in certain counties. The U.S. Supreme Court found the underpinnings of the Florida Supreme Court’s initial decision unclear, and therefore remanded the case for clarification whether federal law had been duly considered. In that measured response, the U.S. Supreme Court referred to precedent counseling restraint when “there is considerable uncertainty as to the precise grounds of [a state court] decision.”

In the ensuing irresolution, pressure on the political and legal system continued to mount. Not since 1876 had a presidential contest been so close, and not since then had the nation waited so long for a definitive resolution. On December 9, one day after the Florida Supreme Court’s decision ordering statewide manual recounts, the pressure pushed the unanimity of the United States Supreme Court past its breaking point, as a 5–4 majority voted to stay the recounts pending review and disposition of
Bush v. Gore
.