The Ironies of the Law

Not mentioned in accounts of Trump's statements calling for prosecution of flag burners is the concurrence of the late Justice Antonin Scalia in Justice Brennan's majority opinion in Texas v. Jackson, the 1989 flag-burning decision. Scalia did not write himself but apparently supported this decision in one of the occasional instances of his libertarian spirit emerging from his usual originalism which generally was synonymous with conservatism. This put him at odds in that court with dissenters Rehnquist and Stevens, both of whom in this instance put patriotism above freedom of expression. 

We also have been invited to review Scalia's majority opinion in D.C. v. Heller, the gun rights decision. I suggest that if you place Scalia's text up against Stevens's dissent, which was the principal dissent in the case, Scalia's analysis of the history of 2nd Amendment interpretation comes up as thin and unconvincing compared to Stevens's solid presentation of more than 200 years of clear understanding that was now being ignored. Some of Scalia's partisans have compared his majority opinion in this case to Breyer's dissent, which called for balancing. I find myself in agreement with the critics of balancing, for Scalia did have that right in arguing that any time a judge calls for use of a balancing test, the balance seems to come out along the lines the judge prefers.

While no one can doubt Scalia's clear conservatism, his libertarian streak makes me feel that the way Supreme Court justices now are selected, especially by conservative, i.e., Republican, presidents, makes it less likely that we will have strong-minded justices who are not bound to one side or one theory. 

Obama's behavior in appointing or trying to appoint justices stands in stark contrast to the GOP practice. He selected Sotomayor and Kagan, who while clearly tending to emerge on the "liberal" side of the bench, are not entirely predictable in their views. Garland, of course, was the perfect nominee from the standpoint of those who want a fair, even-handed justice, who may have tilted slightly toward the progressive side but also whose temperament was tempered by his many years as a Justice Department attorney representing the government.

We are likely to get more predictable appointments like those of Alito or Thomas. Justice O'Connor reportedly was dismayed by Alito's being named to replace her; she sensed he was a doctrinaire conservative but she had precipitated the situation by adhering to the party loyalty rule of retiring during an administration of her party. The most egregious act in Alito's appointment was the appearance before the Judiciary Committee of a legion of Third Circuit judges rounded up by the late Chief Judge of that circuit, Edward Becker, who was an outright Republican even when on the bench.

Now we may get appointments from the somewhat notorious list of judicial conservatives put together by Trump's campaign. Given the partisanship that has now subsumed the process--Clinton and Obama tried to name justices closer to the center, which means that the center has moved rightward as Republicans named solid right-wingers: Breyer and Kagan, for example, are no Brennan or Marshall--we should expect to see judges in lockstep with right-wing opinion being named. 

We are also likely to be stuck with the practice of naming judges to the court rather than some others with legitimate practical experience gained from being legislators or practicing lawyers. O'Connor was the last legislator and Marshall the last justice with a distinguished background in practice.

Back on Broadway

Two shows I caught this holiday weekend--umpteenth revival of The Front Page and Manhattan Theater Club's Heisenberg. Latter is a two-character, minimal set drama about a May-December encounter--she American, he English--with some unexpected twists. Mary Louise Parker, whom I've seen before in Proof, is the extroverted Georgie and Dennis Arndt, the older introverted Alex, who is actually Irish but is essentially British in his manner.

Yes, it concerns uncertainty which is the only connection to the title. But it also tries to open up all kinds of avenues of thought without really opting to follow any of them. To me it was unsatisfying, never seeming to get to the heart of what is going on between the two. Simon Stephens, the playwright, is doodling with the concept and I felt it all came up short.

The Front Page is a cornerstone of the American theatre. Ben Hecht and Charles MacArthur caught the romance of the newspaper game in this fast-moving, repartee-filled gem from 1928. There's likely few alive who got to see the legendary Osgood Perkins (father of Anthony of Psycho fame) and Lee Tracy, the original leads.

As a whole, the production is beautiful. The shabby press room of the Chicago Criminal Courts Building and its inhabitants are marvelously presented. John Slattery is the star reporter who is the co-lead, ably supported by the likes of John Goodman, Lewis J. Stadlen, and the still-extant Robert Morse in a delightful, small, but key role.

One review, however, pinpointed the mid-second-act arrival of Nathan Lane as the co-lead, everyone's most iconic man-eating managing editor, Walter Burns, as the moment that sends the play into orbit. And it is. However, that's not to demean the first act and a half, which set the scene in fine fashion.

It's hard to think that anyone doesn't know this show: Jack Lemmon and Walter Matthau did it in the movies (so did Adolphe Menjou and Pat O'Brian, which takes you back a few more decades). Heck, Howard Hawks re-made it in the late 30s with Cary Grant as the m.e., and Rosalind Russell as His Girl Friday, the star reporter. 

I do vote for Lane as the Walter Burns for the ages. He's absolutely magnificent. And the 88-year-old drama still has plenty of laughs and maybe even a bit of wisdom to convey to us in a very changed era for the newspaper business. 

After the deluge

It was tempting to refer back on election night to Murray Kempton's memorable column in the '50s (I think it was '56) when writing in the late, lamented New York Post of those days about another Republican triumph: Eisenhower over Stevenson. His theme was "Don't tell me things will get better. Yesterday, the sun didn't shine on me, brother." He was taking the occasion to show his profound disappointment. (In retrospect, it's extremely ironic that Eisenhower turned out much better than expected.)

Yes, I wanted Hillary to win, more because the Republicans are always worse every time than they were the last time than because Hillary was so wonderful or even that Trump was so awful. He's a pragmatist, and likes to negotiate deals. The worst thing about his victory is the GOP flotsam and jetsam he brought in with him--tell me that Giuliani, Christie, and Gingrich aren't far worse than Trump any day.

I wish that this disaster for the pollsters would decrease the huge emphasis on polls in all of our news coverage. They blew it, pure and simple. But we will still see them prominently positioned every day because the broadcasters and reporters love a horse race, far easier to cover than discussing serious issues. 

I hope the Dems will shed some of their wimpish behavior and be prepared to fight this time when the usual GOP horrors are put up for the Supreme Court. Cries for unity are ridiculous--coming from McConnell and Ryan who admittedly did everything they could for eight years to frustrate everything Obama aimed to accomplish? And Obama too now talks that unity rot because he's more interested in his legacy than rebuilding the Democratic Party--showing how he blew the midyear elections twice under his watch. 

Chuck Schumer has the rep of being a fighter. Too often, of course, he fights for the interest of Wall St. But he needs to lead his troops effectively. If we get a Clarence Thomas this time, the nomination must be fought all the way--Joe Biden is the culprit for Thomas's making it on the court because the Republicans ran rings around the then-hapless Biden. Make them use the nuclear option. They'll regret it.

Obama disappointed me. He didn't really care about fighting hard. He let the pols write Obamacare and ended up with a mess. He let himself be held up by the two-bit insurance mouthpiece Joe Lieberman and should have denounced that pompous windbag owned by Hartford. In the end, Obama was afraid to push real change. And Hillary failed to give people a reason to back her. She played identity politics and yes, negative campaigning.

I liked Bill Clinton and recognize that when he was running, a Democrat had to look like he wasn't a wild-eyed radical to win. Clinton was a natural politician who related to regular people. Hillary never has been like that. Bill Clinton has done too much to soil his image and made too much easy money to be credible now. I was skeptical of Bernie Sanders but on most things, it turns out he was right. If he had won the nomination, they would have red-baited him but maybe it would've been better to go down that way.