How Far is “Far?”

With certain exceptions, most U.S. Supreme Court cases are heard as appeals from decisions by lower courts, so the justices may only rely on evidence developed in the trial court “record” below. No question, Justices reviewing cases also draw from their life experiences. For example, in the last Supreme Court term Justice John Paul Stevens invoked his Chicago upbringing as the child of tavernkeepers in a case concerning interstate liquor sales. But typically Justices may not incorporate facts from outside the record unless it is a matter of which they may take “judicial notice,” such as the time of sunrise on a date certain. The question of personal knowledge affecting a case brings me to U.S. Supreme Court Chief Justice John Roberts, son of a Bethelehem Steel company executive, who grew up in the comfortable environs of La Porte County, Indiana, where he attended a Catholic boys’ boarding school before he left for college–eventually, Harvard and Harvard Law.

Last week, Chief Justice Roberts cited, without reference to the record on appeal, personal assumptions about Indiana geography during oral argument in Crawford v. Marion County Elections Board. Crawford is a suit challenging recently enacted, burdensome Indiana Voter ID laws. Plaintiffs charge that the law places the unconstitutional burden on Indiana voters who lack the specified form of ID now required, because, among other reasons, these voters must now travel to the county seat to”vote by affidavit” each time they wish to cast their ballots at their local polling place.

Polling places tend to be extremely convenient to voters and located a short distance from home. But now, no matter how well known to the poll watchers and election judges, no matter how many years a citizen has cast her ballot at the location, no matter how identically her signature matches up with the signature card on file, an Indiana voter without the newly imposed, specified form of “official” photo ID must travel from the polling place to her county seat to fill out the required affidavits to cast a provisional ballot.

Attorney Paul M. Smith presented this argument to an unreceptive Court. Smith tried to explain that the county seat isn’t necessarily close , or easily accessible, to the voter, but Smith could not punch through the gauzy memory of Chief Justice Roberts. To Roberts, and to at least one of his Republican colleagues, “close” is just a gassed up car at the ready. Chief Justice Roberts openly scoffed at Attorney Smith, demanding “how far away is the furthest county seat for somebody in the county,” only to cut off Smith’s reply , “I don’t know the–” interjecting his own evidentiary conclusion:

Chief Justice Roberts: “County seats aren’t very far for people in Indiana.”

But the underlying question, forthrightly presented by by Attorney Smith, and dismissed by the arrogant Roberts, boils down to this: how far is “far?”

Smith continued: “If you’re an indigent person, Your Honor, in Lake County, in Gary, Indiana, you’d have to take the bus 17 miles down to Crown Point to vote every time you want to vote. And if you’re indigent that’s a significant burden, and. . .”

Here, the indefatiguably arrogant Justice Antonin Scalia interrupted with his signature combination of bullying and arrogance:

“It’s not a burden if you’re not indigent?” Responded Smith, “Well, it’s–it’s less of a burden, Your Honor, considerably less of a burden. You–

The ever bombastic Justice Scalia interrupted again: “17 miles is 17 miles for the rich and the poor.”

So there it is, Republican jurisprudence in a nutshell. Gosh, it’s just as burdensome for a Bethlehem Steel executive whose passport was stolen yesterday to drive to La Porte to vote by affidavit as it is for the low-income Gary resident who needs bus fare, frequent bus service, possibly para-transit (which has to be reserved days ahead), child care, or half a day off from her hourly job to “dash” off to the county seat. Which neatly summarizes the open antagonism of the Republican party toward the poor, the infirm, and the elderly. It also reflects the right wing power structure’s naked desire, reaching its fullest expression through these Reagan-Bush II Supreme Court appointees, to eliminate from public discourse and public life the voices of any individual with the bad judgment to lack middle class income, or its accoutrements of ease and entitlement.

The cavalier pose of Chief Justice Roberts is as self-centered and clueless as that that fictional scion of Northern Indiana suburbia, the eponymous Jerry Engels from the novels of the late Thomas Rogers . Nothing is far for a guy with a car.

Background Check

Joe Nocera’s column in Saturday’s New York Times focused on FDIC Chairwoman Sheila Bair, formerly staffer to ex-Senator Bob Dole and more recently a professor at UMass. See the whole story here.

This aside stopped me in my tracks:

“The person the administration had hoped to nominate as chairman of the Federal Deposit Insurance Corporation, the nation’s primary bank regulator, was suddenly proving unacceptable. (According to the Washington rumor mill, that choice, Diana L. Taylor, Mayor Michael R. Bloomberg’s companion and, at the time, New York’s superintendent of banking, was nixed by the National Rifle Association, presumably because of Mayor Bloomberg’s antigun stance.)”

But a bit of research and reflection suggests that the story isn’t the grim tale of suffering-because-of-spousal assocations (or, non-spouse) it first seemed. The Times’ lengthy 2006 profile of Ms. Taylor when her FDIC nomination stalled also hinted at the possibility of an NRA veto. See the earlier story here.

 

But the FDIC Chairmanship is subject to Senate confirmation, and the Senate was evenly divided between Rs and Ds back in early 2006. It is easy to imagine a scenario in which the White House congressional liaison advised Bush that no one with anything to do with Bloomberg had a prayer of Senate confirmation. The NRA held tight rein in that chamber, and the White House probably lacked the votes, or the interest in the arm-twisting it would take to counter NRA opposition. Bair, the final pick, had Senate ties, presumably a plus for the 50 Republicans (and several pro-gun Dems) whose votes were key.

Yes, it’s annoying that Ms. Taylor’s nomination was withdrawn because of the actions of her friend Bloomberg, and nothing to do with her views, personal or public. There was no suggestion she ever personally lobbied for or advocated for or in any way spoke out about gun control. She’s no Sarah Brady or Congresswoman Carolyn McCarthy. Taylor’s passionate policy pronouncements seem to have run the gamut from denouncing excess banking fees to urging greater access to banking services for immigrants. No, she was the victim of NRA payback to Bloomberg, pure and simple.

But the Bush Administration will happily name persons to influential policy posts irrespective of the politics or alliances of the person’s spouse, or “companion.” Mary Matalin, counsel to Vice President Cheney, and wife of notorious Democratic Consultant and pundit James Carville comes to mind. Josh Bolten, White House chief of staff is another example.  Libby Copeland reported in an Aug 29, 2006 Washington Post story last year that  Bolten’s live-in girlfriend Dede McClure was a Democrat. Neither Matalin nor Bolten’s appointment was subject to Senate confirmation. And there was no suggestion in either of these cases that either appointee was tainted by her husband or “companion.”

A quick Google search revealed that Ms. Taylor rebounded pretty well from the FDIC mess. She took a job in the private sector, and this June was been named to serve on the FDIC advisory board. Her skills, knowledge, banking experience and formidable talent are already put to good use in helping regulate America’s banks. Maybe the next president, a Democrat, will find a way to keep using her talents, despite her association with a notorious Republican.