Right-wing D.C. Circuit

Granted that yesterday's D.C. Circuit decision throwing out many NLRB decisions because the President's recess appointments that permitted a quorum were found invalid was rendered by two of the longest-serving active judges on the court, one being the chief judge--in the federal courts, the chief judge's position is filled by seniority--President Obama would still be well advised to strive harder to make some timely appointments and push harder for judicial confirmations.  That is to say, this case might still have ended up before Judges Sentelle and Henderson, two known reactionaries, but that does not excuse the President's lassitude in naming judges nor his apparent unwillingness to fight more for their seating.

The 47-page decision is filled with "original intent" talk, which proudly declares that what happened, not at the Constitutional Convention in 1787, but in the early administrations and Congresses, has more relevance for us today that what occurred in the second half of the 20th century.  My first issue with this line of thinking is that of the historian: despite some written records, we do not have as clear a picture of exactly what informed decisions by all three branches in those early days as decisions like this one would assume. One might well append to any mention of "original intent" the phrase my criminal law professor employed when any such stock term was mentioned: "whatever that is."

For one thing, the Congressional proceedings were recorded often by independent reporters who did not feel obliged to record the sessions verbatim and indeed exercised a good deal of discretion in determining what they felt was important and, even more, with what they happened to agree.  Recall, too, that in the 1790s, we had a wildly free-wheeling press--in terms of unofficial reports--that was highly partisan and proud of it.  Despite our usually unanimous disdain for the Sedition Act of 1798, it did not spring up entirely from John Adams's head without some cause, even if a far from justifiable one. 

Second, it should be unnecessary to point out that conditions were far different in those days, as were standard governmental practices.  Presidents of both parties have been making recess appointments in large numbers in recent decades.  In response to that reality--responding to clear need--we get the kind of thinking that was characteristic of the reactionary Supreme Court of the 1930s, also impervious to a critical economic situation. 

Third, the decision does not refer to what was actually discussed at the 1787 Convention because as most know, it was conducted in secret and no transcripts or any reports were ever released.  We have recollections of James Madison from his diary, among others, much of it edited in the 1920s by the scholar Max Farrand.  While frequently utilized, this is not what any good reporter would regard as a clearly accurate source. 

In view of the exalted authority reactionaries afford the "original intent" of "the Framers"--assuming, as I do not, that it is readily discernible, one might also observe that the whole Constitutional Convention of 1787 was regarded by many at the time as of dubious legality because it was conducted in secret and since it had purportedly been called to revise the Articles of Confederation, and clearly went quite a bit beyond that brief. Too, the questionable ratification processes in several states also made the Constitution worthy of somewhat less than divine regard. 

At one point in the decision, Hamilton is quoted, from a letter written in 1799, when he was out of office and probably recognized that he had little chance of regaining political power.  Much as I admire Hamilton generally--Ron Chernow's magisterial biography has begun to revive his huge importance even as the reputation of his adversary Jefferson has come into more question--we do not know what particular situation he was considering when he wrote what he did in his letter, nor does his letter have legal authority. We might also recall Hamilton's famous description of the judiciary in The Federalist (presumably seeking to calm the concerns of those who feared a powerful judiciary) as "the least dangerous branch"--oh, really, Mr. H?

The decision also quotes Marshall on the authority of the judicial department twice, which makes me think the D.C. Circuit realized it was treading on quaky ground and sought to bolster its argument by pounding the table twice with John Marshall's words.

Lastly, the D.C. Circuit--or at least two of the three judges--went beyond what was needed to decide the case by adding on that any recess appointment could only fill a vacancy that "happened" during the recess. The third judge found this extension too much and only agreed to the first holding. Other circuits have not agreed with this position, so we find that the Supreme Court will review the question anew, and perhaps face up to recent history despite the "original intent" proclivities of a few of the more troglodytic members of that court.

This all makes one adopt a slightly more indulgent view of the British unwritten constitution. Blind adherence to precedent--especially when the precedent is far from either clear or established--does not make our written constitutional tradition stronger.

Still a Great Museum

You still usually watch all the other streetcars go by in the Park Street Green Line station in Boston when you wait for what used to be called the Arborway car to ride out to the Musuem of Fine Arts.  It's a cultural journey because on the way you pass the stops for Symphony Hall and then Northeastern University, and after the MFA, you'll hit Brigham & Women's Hospital and eventually Beth Israel. The streetcar is always packed, even though now it only goes to Heath St. I even saw parked on the side track at Boylston St. one of the old cars they used to run on that line with little doors at the four corners so you could find yourself trapped in the middle with seeming hundreds of Northeastern undergrads blocking your way out. Couldn't get off to see if the old watering hole near the ancient Boston Arena was still extant--Crusher Casey's was its name.

The MFA remains a fantastic museum.  Yes, they had trendy contemporary exhibits of some guy's photos of the British royal family and then art photographs of all sorts of celebrities, but after that, you can walk upstairs and spend your time with rooms full of John Singleton Copley and John Singer Sargent, and one amazing gallery that gathers wonderful Gauguins, Monets, Caillebotes, Van Goghs, Rouaults, Degas, Renoirs, and more, all in the same place.

They're not just examples--they are great pictures, some of the Monet haystacks and views of the Rouen cathedral, for example, or one of Van Gogh's last paintings in Auvers. I always enjoy seeing the Gilbert Stuarts of George and Martha than we used to have on trading cards when I was growing up, and the one that was used for the dollar bill, too.  And there's one of Washington on a boat that has it all over the famous Leutze in the Met in New York.

What the Museum of Fine Arts has in common with the other great museums of the world is depth--their American collection has the early people like the Peales and then the Luminists and Winslow Homer.  So too with their European section--you follow the development right from the Renaisssance through Delacroix and Titian and Velasquez and then a gallery of all the great Brits--Reynolds and Gainsborough and Ramsey and Van Dyck. All are surrounded by plenty of their less-renowned contemporaries that gives depth and texture to the whole experience.

I did like one temporary exhibition--one of European posters that made me realize how for so many years the poster was a key factor in publicity and was produced by so many greats and near-greats. And it was complemented by a show featuring a great collection of post cards--most featuring Parisian scenes but produced by specialty printers in Germany. There's good contemporary galleries as well--where the curators make their bets on what work being done now is likely to endure.

Winning on the Road

It wasn't just because they were playing on the road today that I was hoping both the Niners and the Ravens would win.  The Niners are a scrappy outfit with a quarterback who plays like RGIII; the Ravens have been a solid team for some time and were really better than the Redskins--despite losing to them. They just weren't as lucky during the season. I also like them because although Flacco had a great day, if you remember the time they won the Super Bowl, they proved you don't need the greatest QB to win the big one.

Perhaps appropriately, I started the day out in Boston, where if you listened to the local news types both on screen and in print, you mightn't have bothered to tune in today much less traipse out to Foxboro. It was a dead solid cinch. The Herald, now owned by Rupert, was more focused on rousting some local pols, always of course of the Democratic persuasion.

I do think that today's results show that great teams gain strength from quieting down the home crowds. And in the Greater Boston area, they always give you some good basis for wanting to do just that. The one Boston team I liked was the old Celtics, but as much as I enjoyed Red Auerbach, and even more from reading his memoirs as told to John Feinstein a few years back, he probably did have his finger on the old Boston Garden clock, just like today with the two-minute warning coming up, somehow the clock operator let Brady get an extra play in.

Comparative advantage in sports is never that simple, though. Some years ago, when The Wall Street Journal broke the sports-history discovery that Leo Durocher had set up an old German army telescope in the Giants' clubhouse out in center field of the Polo Grounds to use for stealing signals from the other team and relay them through an incredible Rube Goldberg series of buzzers and hand signals back to Leo coaching third to pass to the batter, I immediately concluded that of course Leo did it. The man would do anything to win. And before he died, Bobby Thomson more or less nodded when they asked him if he had been the recipient of this intelligence.

However...then there's the rest of that story. Despite this contraption and Stone Age-style communications system, the Giants won more games in the stretch on the road in '54--the year of their World Series triumph. So go figure.

Earl Weaver was cut from similar cloth as Leo, except he was a rube and Leo a city slicker--both would skin you alive if you gave them the chance. Both would do anything to win--and became renowned for taking umpires on. Earl really was the prototypical dandy little manager who stayed a bit aloof from the great players he deployed so expertly.  But Leo's one-on-one style was different: he really did know how to treat the young Jackie Robinson (on the Dodgers) and Willie Mays (on the Giants) so that they became acclimated to playing in the majors, where both had plenty more obstacles than players starting out now do.

And then Stan Musial picked the same day to call it a life at 92. There may be hardly anybody left in his class who was great for so long. He was one of those fantastic ballplayers who was always on everyone's list of the all-time greats. He just went out there every day and usually beat you, and rarely struck out, as the stats indicated. But more than that, he had the class that the rest of the Redbirds lacked in the late 40s, especially, when they acted like the "Southern team" of baseball that they then were--just as George Preston Marshall's Redskins were the same in football.

American Exceptionalism

We've heard much talk this past year about American exceptionalism--in essence, that the U.S. has values and ideals plus a culture that keeps us from falling into the disasters that befall other less-favored states such as dictatorship and genocide.  So there's lots of chest-puffing about us being "a light unto the nations" and such.

I'm as patriotic as any reasonable American, but lately, I've read enough about two major subject areas in which Americans are exceptional only in being behind the rest of the world: health care and guns. A recent survey found that we were last of 17 nations in mortality of those under 50 and it's been clear for years that we experience a far greater number of gun deaths than anyplace else on earth.

The mortality figures are shameful, especially since our standing improves once people make it to 80. This is accounted for by the fact that those who last that long have reached the stage where health care is provided to all; before then, the market rations health care to those who can afford it. In short, the comparative stats show that socialized medicine works, at least for the mass of people. Yes, we have wonderful medical technology and skilled personnel, but only those well-off or well-situated can take full advantage.

As for guns, we've been dragged far beyond what are reasonable limits--those that would allow hunters and sportspeople to pursue their avocations in the fields and woods. That was what I expected when I was quite young, enjoyed target shooting, and yes, was even a member of the NRA. But the 2nd Amendment crazies--led by the NRA and Antonin Scalia--have perverted the sporting basis, much less the wording of the amendment, which as former Justice Stevens's dissent (for the 4 in the 5-4 ruling) clearly demonstrates, was intended to support militias, not an armed camp, much less concealed weapons everywhere.

So to those who glory in American exceptionalism--and I won't even get into the argument about torture, which we clearly engaged in during the Bush-Cheney days and perhaps at other times, noting, however that Zero Dark Thirty is a terrific picture, whatever its factual basis--there are two major fields in which we have little to boast about to the rest of the world. What I fault President Obama for is not doing enough to get people who agree with him--in Congress and out--to support his proposals as loudly as the mouthy opponents criticize.