Kurt X. Metzmeier's blog
I recently took research foray into the lovely Ohio river town of Maysville, Kentucky. (For some reason, my trip did not attract the same attention as that of George Clooney and Rene Zellwenger--who premiered their new film, Leatherheads, in George’s Aunt Rosemary’s hometown--or that of Hillary Clinton). Maysville is one of the oldest settlements in Kentucky; its role in U.S. history is as the key terminus in the network of roads to the American West in Henry’s Clay’s ill-fated American System. President Andrew Jackson, who despised both Clay and federal government expenditures, killed the plan and it would not be until President Dwight Eisenhower funded the National Interstate and Defense Highways Act of 1956 (popular name for the Federal-Aid Highway Act of 1956) before a federal transportation scheme this comprehensive would be realized.
While I was there, I took the opportunity to visit the well preserved law office of US Supreme Court Justice Stanley F. Reed. (This is in stark contrast to the St. Louis pizzeria that marks Justice Brandeis first office). I spent a little too much time in the library of the Kentucky Gateway Museum Center to visit Reed's grave, but there are really nice pics on Find-a-Grave.
With the exception of obtaining a degree from the Sorbonne in Paris (the one in France, not Bourbon County), Reed’s early career was pretty typical for a Kentucky lawyer of his time. He read law and was admitted to the bar on 1910 and set up a practice in downtown Maysville near the historic Mason County courthouse. He was elected to the Kentucky General Assembly in 1912, where he served two terms in the house before enlisting in the US Army when America entered WWI. He returned to Kentucky after the war and built a corporate practice with clients like the Kentucky Burley Tobacco Growers Association. Along the way he purchased a large Mason County farm where he raised blue-ribbon Holsteins.
Reed's interest in farming and expertise in the law of agricultural cooperatives made him a natural candidate to join the Federal Farm Board in 1929 as general-counsel. Reed, a Democrat, went on to serve in the same position in the Reconstruction Finance Corporation in the Roosevelt administration, where he helped develop the New Deal's commodity price support policies. In 1935, he was named the Solicitor-General, the third Kentuckian (after Benjamin H. Bristow and UofL law school alumnus William Bullitt Marshall) to serve in that position. (Pop quiz: Reed is one of four future-Supreme Court justices to wear the striped pants and grey morning coat, who are the other three? Hint: One of them is NOT Robert Bork).
In 1938 Reed was appointed to the Supreme Court (the last justice to serve without a law degree; he nicely bookends his fellow Kentuckian John Marshall Harlan, who was the first). He replaced George Sutherland, one of the dying breed of reactionary justices whose majority FDR's appointments had erased. Reed was a solid New Dealer on the court, despite some conservative leanings on the establishment clause and on the incorporation doctrine (which holds that the adoption of the 14th amendment made the federal Bill of Rights apply to the states). He was a workhorse who crafted over 300 opinions in his two decades on the court. Although racial covenants in some of his Kentucky properties caused him to recuse himself in Shelley v. Kramer in 1948, he was in the majority in several of the cases in the 1940s and 1950s that affirmed the civil rights of African Americans, including the 1944 case of Smith v. Allwright, which he authored. Nonetheless, Reed was thought to have had problems with aspects of the holding in Brown v. Board of Education, and may have even considered dissenting, but Warren brought him around and the unanimity of the decision gave it great moral authority. (See the excellent Robert H. Jackson Center sponsored symposium, Supreme Court Law Clerks' Recollections of Brown v. Board of Education, <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=892367>, for an interesting behind-the-scenes view of the case from one of Reed's law clerks, Jack Fassett).
Reed retired to his Mason County farm in 1957, where he continued to raise prize dairy cows until shortly before his death in a NY nursing home in 1980.
In a recent post, I listed some of the most useful books that a new lawyer or recent transplant to the Bluegrass can use to orient themselves to the history and politics that lies just under the surface of Kentucky jurisprudence. But history and politics aren’t the whole story. After all, they deal with the big legal contests and the tectonic shifts in policy and society. What about the life of the working lawyer practicing in small towns and big city courts, meeting in lunchrooms and courthouse porticos between court appearances and sharing stories with fellow toilers? Or their clients: ordinary people whose mundane lives occasionally intersect with the majesty of the common law of Chancellor Coke and Justice Story?
This history--what anthropologists would call “legal culture”--is best captured in memoirs and in collections of the stories and anecdotes that lawyers would share in idle moments in courthouse hallways. Sadly, it is a culture that that has been wounded by a more high-paced world and the drive to maximize billable hours, and may be finished off by e-filing. Nonetheless, a spate of recent books has highlighted this rich slice of Kentucky life:
John S. Palmore, An Opinionated Career: Memoirs of a Kentucky Judge (Georgetown, Ky.: Kentucky River Press, 2003). (Not available online, but I’ve seen copies recently at Carmichael’s Bookstore in Louisville) and Joseph-Beth Booksellers in Lexington).
In this thin volume, John Palmore, a giant of the Kentucky bench and bar who served on both the old Kentucky Court of Appeals and the state's new Supreme Court, offers an entertaining and revealing first-hand view of his life on the bench. Palmore takes us behind the scenes of some still vital high court decisions, shares stories on judicial campaigns, and discusses the 1970s reform movement that led to the 1975 Judicial Article amendment, including his efforts to implement the most challenging reform: the establishment of the district courts. Along the way he offers thumbnail sketches of his fellow justices and lawyers. (Palmore's follow-up, From the Panama Canal to Elkhorn Creek : A Chronicle of Life in the 20th Century by an Old Kentucky Lawyer (Louisville, Ky.: Butler Books, 2006) focuses more on his private life, but is still entertaining).
Mac Swinford, Kentucky Lawyer (Lexington: University Press of Kentucky, 2008).
In this reprint of his 1963 classic, the late Mac Swinford, the US District Judge for Kentucky (and the Eastern District after the 1963 division) offers an enjoyable take on the Kentucky bench and bar, mostly through the recounting of anecdotes from his early life as a small town practitioner in Cynthiana, Ky., in the 1920s, then and as a moonshiner-busting U.S. Attorney in the 1930s through his years as a federal trial court judge. In addition to his own stories, Swinford repeats a few old lawyer tales he heard over his long career and recalls colorful members of the bar he knew.
William Lynwood Montell, Tales from Kentucky Lawyers. Lexington: University Press of Kentucky, 2003.
Speaking of old lawyers tales, retired WKU folklorist Lynwood Montell has published a treasury of these anecdotes in this book (recently released in paperback). Montell, who built “one of the most successful folk studies programs in the United States” at WKU and is author of a extremely successful triad of books on Kentucky ghostlore, ably collects and selects stories that show the evolving practice of law in Kentucky, the breadth of experiences of ordinary life that lawyers see, and the fading sense of kinship among attorneys.
Harry M. Caudill, The Mountain, the Miner, and the Lord, and Other Tales from a Country Law Office (Lexington, KY: University Press of Kentucky, 1980) and Slender Is the Thread : Tales from a Country Law Office. (Lexington, Ky.: University Press of Kentucky, 1987).
Harry Caudill is most known to Kentuckians as the author of the classic 1963 expose of poverty in Appalachia and the ravages of the coal-mining industry, Night Comes to the Cumberlands, and as an environmental activist. However before he wrote the book that inspired Robert F. Kennedy to tour eastern Kentucky, Caudill was a small-town lawyer in Whitesburg. In these two books, Caudill draws on his experiences to recount the lives of hard-working mountain folk drawn into his office by the vagaries life.
Finally, I'd recommend a trio of biographies of justices from Kentucky: Loren P. Beth, John Marshall Harlan : The Last Whig Justice (Lexington, Ky.: University Press of Kentucky, 1992), Philippa Strum, Louis D. Brandeis : Justice for the People (Cambridge, Mass.: Harvard University Press, 1984) and James E. St. Clair and Linda C. Gugin, Chief Justice Fred M. Vinson of Kentucky : A Political Biography (Lexington, Ky.: University Press of Kentucky, 2002).
I had a pleasant conversation with a young lawyer who has recently joined the Beshear administration. He, like many young attorneys employed by state government entities (a category that can include anything from a sewer district to a school board), was somewhat surprised by the number of unresolved Kentucky constitutional issues that surround the matters he’s asked to research. Moreover, even as a Kentuckian, he was unprepared (by his legal training) for the way that the commonwealth’s political history shaped, framed and explained the law. This is nothing new; I hear similar things from former students all the time. Law schools do a good job teaching the law; the context is another matter.* And law and politics in Kentucky are "the damnedest," to paraphrase James H. Mulligan's famous poem.
So for this new gov'ment lawyer's benefit, and others similarly situated, I offer a summer reading list (click the titles to link to places where you can buy them):
Hambleton Tapp and James C. Klotter, Kentucky : Decades of Discord, 1865-1900. (Frankfort: Kentucky Historical Society, 1977).
Without an understanding of late nineteenth century Kentucky, many provisions of our 117-year-old constitution are inexplicable. The 1891 charter was born in a time of great fervor. The state was caught up in the Populist movement and many of the framers were highly suspicious of special interests and corporations, especially the dominating force of the Louisville & Nashville Railroad Company. They wanted the constitution to protect workers by making sure they were paid and that they could sue for workplace injuries. Tapp and Klotter vividly describe these times and how they impacted both the constitution and the political institutions that followed.
James C. Klotter, Kentucky : Portrait in Paradox, 1900-1950. Frankfort, KY: Kentucky Historical Society, 1996.
Klotter continues the story (and the titular alliteration) from where he and Tapp left off. The key theme of this era was how Kentucky’s political system grappled with the changes wrought by the great depression and the increasing role of government, and ultimately, failed. As a result, the state fell behind in education and industrial diversity, ill-served by a Democratic party seemingly permanently crippled by factionalism and by politicians too eager to avoid tough choices. (Lowell H. Harrison and Klotter’s A New History of Kentucky (Lexington, Ky.: University Press of Kentucky, 1997) is more of a college history text than a summer read but I’d recommend its later chapters as a reference for the period from 1950 to the end of the 20th century).
John Ed Pearce, Divide and Dissent : Kentucky Politics, 1930-1963. Lexington, KY: University Press of Kentucky, 1987.
A former political reporter and columnist (with service on both the Courier-Journal & Times and the Lexington Herald-Leader), John Ed Pearce is an excellent writer who cannot help but be entertaining. This book covers the main period of bitter factionalism in the Democratic Party between the progressive Rhea-Clements-Combs wing and the more conservative faction controlled by Happy Chandler. Pearce was a partisan in some of these fights, writing speeches for Combs while covering them as a reporter, but that adds to the feeling for the era. (For fun, and perhaps a little insight into the often raucous history of local politics in Kentucky, I'd also recommend Pearce's Days of Darkness: The Feuds of Eastern Kentucky, 1994).
Penny M. Miller, Kentucky Politics & Government: Do We Stand United? (Lincoln: University of Nebraska Press, 1994)
Malcolm Edwin Jewell and Penny M. Miller, The Kentucky Legislature: Two Decades of Change (Lexington: University Press of Kentucky, 1988).
Despite their age, these two books by UK political science professor Penny Miller (state treasurer Jonathan Miller’s mom), are the best introduction to the Kentucky political system in print and they help to bring the political history of the state up to date. The Kentucky Legislature is particularly valuable for describing the body’s coming-of-age in the late 1970s and early 1980s when it emerged as an independent branch (out from the subservience to the governor that was typical for most of the 20th century). Do We Stand United? (still used at both UofL and UK in poli sci classes), gives a mixed assessment of how Kentucky governors and legislative leaders have adapted to the legislature's new-found power and responsibility. Both books cry out for new editions that include lessons from the Patton & Fletcher administrations—do you hear me, University Press of Kentucky?
Kurt X. Metzmeier, Michael Whiteman and Jason Nemes, United At Last: The Judicial Article and the Struggle to Reform Kentucky's Courts (Frankfort, Ky.: Court of Justice, 2006).
A little log-rolling here, but this book is the only published account of the activities leading up to the 1975 constitutional amendment vote that established the Kentucky Court of Justice as a fully equal branch of government. The measures taken to implement the reforms and establish the branch's independence are also discussed. (LEGAL WARNING: We tried to keep it readable, although I still haven't convinced my own mother that a book on court history can be light reading. So if you're reading poolside, make sure there is a lifeguard around in case you nod off and fall into the water).
Finally, I’d recommend every bright young person entering government read Tracy Campbell, Short of the Glory: The Fall and Redemption of Edward F. Prichard, Jr. (Lexington: University Press of Kentucky, 1998) as a cautionary tale as to what can happen when partisan enthusiasm outruns ones ethics training. Pritchard was a Harvard educated protégée of Felix Frankfurter and young New Dealer who returned to his native Bourbon County only to ruin his career in an election scandal. The book recounts Prichard’s early fall and his long battle to recover his career and good name as an educational reformer (the Prichard Committee that was so important in marshaling support for the Kentucky Education Reform Act was led by "Prich").
In a later post, I’ll give my poolside recommendations for entertaining books on Kentucky legal history…
* The University of Louisville Brandeis School of Law does require that students take a designated "perspectives" course. I teach American legal history as a perspective and try hard to add this context to both national and Kentucky law. Many law schools do not have this requirement; some do not even offer legal history.
After musing on the worst justices on the US Supreme Court, I thought it might be appropriate to discuss some interesting quantitative research I'm doing on the national reputation of Kentucky high court judges as represented in selective reporters like the Bancroft-Whitney Trinity Series and American Law Reports (ALR). The idea of getting some objective data on state judges from the presence of their opinions in highly selective multistate reporters came from an oft-hand remark by former Chief Justice John S. Palmore in his recent judicial memoir, An Opinionated Career: Memoirs of a Kentucky Judge (Georgetown, Ky.: Kentucky River Press, c2003), where he praised Osso W. Stanley, a trial commissioner on the old court of appeals (then the state's highest court).* Palmore noted that while Stanley’s Republican party affiliation prevented him from ever being elected to the court from his predominately Democratic district (see prior postings, “Old Partisan Kentucky Judiciary” and “Partisan Defined”), he was a wonderful judge and “gifted writer,” who probably had “more of his opinions … published in the American Law Reports (ALR) …than any other judge who has served on the Kentucky court.” (p.76). The passage alerted me to the role that selective reports played in how judges viewed the work of other judges.
The Trinity Series was a pre-West selective reporter by San Francisco law publisher Bancroft-Whitney Co. which included American Decisions (covering opinions from 1760-1869); American Reports (1868-1887) and American State Reports (1886-1911). The series sought to carefully collect leading state court decisions of the fifty states in the period from 1760-1911. The series was highly selective and numbered fewer than 300 volumes for the entire run. Although decisions were picked based on the legal issue addressed in the case, the series editors also chose opinions from judges who had a high reputation in the American legal community. It is clear from my preliminary results** that George Robertson was the leading bluegrass judge in the century, with nearly double the number of decisions published nationally as his closest competitor:
Top ten Kentucky judges represented in the Trinity Series:
1. Robertson, George -- 148 decisions (7 signed only as CJ)
2. Pryor, William S -- 77
3. Boyle, John -- 69 (29 signed only as CJ)
4. Marshall, Thomas A. -- 67
5. Mills, Benjamin -- 67
6. Owsley, William -- 53
7. Simpson, James -- 50
8. Ewing, Iphraim M. -- 43
9. Lewis, Joseph H. -- 40
10. Holt, William H. - 38
George Robertson (whose portrait hangs in the Uofl Brandeis School of law courtroom), served on the Kentucky Court of Appeals from from 1829 to 1834, when he resigned to resume his private practice and teach as law at his beloved Transylvania University, where for 25 years he led the law department. He returned to the court from 1864-1871. His decisions were widely cited in the area of criminal law, legal jurisprudence and tort law, and Kentucky histories and bar tributes mark him as a leading figure in the state legal firmament.
Robertson’s reputation is backed up by some recent scholarship. He is favorably viewed in Peter Karsten’s Heart Versus Head Judge-Made Law in Nineteenth-Century America (Chapel Hill, N.C.: University of North Carolina Press, 1997; see esp. UofL history professor Thomas C Mackey’s review). Karsten’s thesis is that 19th c. jurisprudence reflects a struggle between judges who applied the common law without concern its impact on individuals (especially workers and the victims of railroad injuries), versus a more humanistic view of the law offered by other jurists. Karsten sees southern and midwestern judges trying to mitigate the harsh effect of doctrines like the fellow-servant doctrine that were promulgated by northeastern jurists in the thick of the industrial revolution and he uses George Robertson is an exemplar of this tendency.
Now obviously, there are caveats to this line of research. Judges with long tenures have a more opportunity for their opinions to be cited and those who served as chief justice may have had a better choice of the type of topics that would tend to be selected. Because of this, I’m planning to expand on the selection data with some citation analysis. In addition, I’m trying to come up with a way to track citations to Kentucky cases in the 21,000 19th and 20th century legal treatises in the Making of Modern Law database. I’m also working in a parallel manner using American Law Reports selection patterns to create a similar ranking for 20th century judges, although the changing nature of both the Kentucky court and the continual re-purposing of the ALR by its editors are making that effort more of a challenge. One thing is clear even at this stage: Palmore was right about Stanley!
*Stanley was Palmore’s predecessor as editor of Kentucky Jury Instructions
**With special thanks to Sarah L. Johnstone who helped track the cases and tabulate the results.
Kentucky Attorney General Jack Conway* yesterday released an opinion finding that the Council on Postsecondary Education (CPE) violated Kentucky law when it hired Brad Cowgill as its chief without conducting a statutorily required national search. (The opinion is not yet of the AGs site so you can find it here). What is more interesting is the comment made by Conway in an interview with CJ reporter Stephenie Steitzer. He told her that if the CPE ignored his opinion, the matter could end up in the courts, or "without elaborating," he suggested that "Beshear has the authority to "reorganize" the council."
What he was eluding to was the governor's broad power to reorganize executive branch units under KRS 12.028, which gives him or her the authority to "between sessions of the General Assembly, temporarily effect a change in the state government organizationalstructure as described in subsection (1) of this section if such temporary reorganization plan is first reviewed by the interim joint legislative committee with appropriate jurisdiction." While such a reorganization would last only until the next meeting of the general assembly, Kentucky courts have given the governor a wide berth in these cases. The power was last exercised by Governor Fletcher in 2004 when he abolished the old Kentucky Racing Commission replacing it with a new Kentucky Horse Racing Authority.
The CPE, currently under the Department of Education, is among the units subject to the law (KRS 12.020). The governor could abolish the CPE, dismiss Cowgill (who does not have a signed contract), and establish a new board with a new interim director to handle the CPE's duties. The few judicial decisions and AG opinions on the reorg law suggest that the governor may or may not be able to dismiss the appointed members out of hand, but he can certainly ask them to resign (Fletcher's course in the racing commission case) or make them a minority on the new board by increasing its size and appointing new members (subject to the law that boards be evenly split between the top two political parties).
Clearly this would be a "nuclear option" but one available if the current jostling between the governor and the CPE ripens into a crisis. The reorganization law is rooted in the "ripper bill" of 1932, when Gov. Ruby Laffoon nakedly stripped the lieutenant governor and the auditor of much of their powers; in that case (as well as later cases), the high court found that law constitutional, implicitly acknowledging the plenary power of the executive to organize his branch when authorized by statute.**
* Pictured to the right in a poster supporting the ALA/Kentucky Library Association's READ campaign.
** Talbott v. Laffoon, 79 S.W.2d 244 (Ky.1934).
Joe Gerth has an interesting article on the issues raised by the Kentucky General Assembly’s recent decision to unplug its clocks and enroll several laws that had—allegedly—been passed after the constitutionally mandated April 15 deadline (Ky. Const. s 42). However, the article is a little vague as to details relevant to lawyers so I decided to dig deeper.
The article discusses an issue precedent to the constitutional controversy (actually more an expectancy of a controversy than a perfected one): the question of whether a court can even inquire into the legitimacy of a enrolled bill. For years, Kentucky courts had followed the common law principle known as the “enrolled bill rule,” which, as stated in the case of Lafferty* v. Huffman, 35 S.W. 123 (1893), held that a bill "properly enrolled, signed by the presiding officers of both houses, and approved by the governor, will be presumed to have been enacted … in the manner prescribed by the constitution and cannot be impeached.” The rule was based on both the separation of powers between the branches and on the practical understanding of the possibility of errors by clerks and staff in the preparation of legislative records, especially in the more frantic hours of a session. The courts, in Justice Hazelrigg’s expressive words, didn’t want to cause the “superstructure” [of the] law thus built up [to] fall” due to nitpicking of an imperfect legislative record.
However as Hazelrigg’s pen begat the typewriter, and the typewriter begat the computer, the commonsense justification for the rule waned and many state courts shifted away from an absolute presumption of validity towards a rule that only gave prima facie presumption that an enrolled bill was valid, allowing extrinsive evidence (say, I don’t know, real-time, date-stamped real-time video) to rebut the presumption. That was the rule adopted in 1980 that Gerth alludes to in his CJ piece. In D&W Auto Supply v. Department of Revenue, 602 S.W.2d 420, the court examined a litter law that, among other things, assessed a tax to fund its purposes. Unfortunately, the law, while properly enrolled, clearly failed to meet the constitutional absolute majority required for money bills (See “Two Guides to the Kentucky General Assembly: With Apologies to Niccolò Machiavelli and ABC's Children's Programming Division” ).
The enrolled bill rule stood in the way of righting an obvious violation of a constitutional provision and the Kentucky Supreme Court, in an unanimous opinion by Justice Stephens, overruled Lafferty and adopted the “extrinsic evidence rule," noting that “It is clear to us that the major premise of the Lafferty decision, the poor record-keeping of the legislature, has disappeared. Modern equipment and technology are the rule in record-keeping by our General Assembly. Tape recorders, electric typewriters, duplicating machines, recording equipment, printing presses, computers, electronic voting machines, and the like remove all doubts and fears as to the ability of the General Assembly to keep accurate and readily accessible records.” Id at 424.
Turning to the balance of powers rationale, the court rejected the premise that “the equality of the branches … requires that we shut our eyes to the constitutional failings and other errors of our copartners in government.” Channeling Justice Marshall, the court noted its duty under the Kentucky constitution (and I’m paraphrasing) to say what the law is. The court, in essence, adopted 1 Sutherland, Statutes and Statutory Construction s. 15.06 (4th ed. 1972; s. 15.6 in current 6th ed.) as the law of Kentucky.
It’s hard to tell yet whether anybody’s ox was gored by the laws enrolled in the wee hours of April 16 (allegedly). However, if they have a grievance that finds its way into the courts, the law (as well as the video records of KET) may be on their side.
* The case was styled from the name of William T. Lafferty, a town official of Berry, Ky., who the court released from an injunction barring him from issuing liquor licenses. In 1908, he was named dean of the new UK law school, where he soon was producing licenses of a different vintage.
LEFT: William T. Lafferty; RIGHT: Lafferty Hall, the building that the UK college of law moved into in the 1930s. It now houses the anthropology department.
As the train wreck that was the 2008 session of the Kentucky General Assembly screeched and clanked to the constitutionally mandated deadline of midnight April 15, it suddenly became clear that it needed more time. Drawing on the omnipotent power conveyed upon them by the citizens of Kentucky, Senate leader David Williams and House leader Jody Richards raised their hands high and commanded time to stand still!
OK, actually they unplugged the clocks and went on to pass at least five bills after the day of April 16th had dawned, if WHAS' Mark Hebert and the Lexington Herald-Leader's Ryan Alessi are counting correctly. There is talk of someone asking Attorney General Jack Conway to write an opinion as to whether this is legal. (This could be the oddest OAG since Attorney General Squire Boone opined on whether the 1826 legislature could repeal the law of gravity).*
"And yet it moves." Or so muttered Galileo after recanting his daft idea that the sun did not revolve around the earth. However, no timid Tuscan can teach the legislature the lesson it truly needs. No, they need someone to tell them (straight up, boyee) what time it is. Flavor Flav is the man for the job.** First, he brings his own personal clock (like to see someone get up in his grill to silence that time-piece). Second, he has the resume that indicates he will stand up to the legislative leaders to end pork-barrel politics and support state priorities. Let his friend, Chuck D explain:
Gettin' small makin' room for it all
Flavors on the phone so he can...
Make the call
I know you're clockin' the enemy
You should be clockin' the time
Checkin' records I'm wreckin' you
For defecting my rhyme
No provokin', no jokin', you know the stage is set
If you're thinkin' I'm breakin'
He ain't rocked it yet
My education is takin' you for a long ride
I'll have you brain slip and do the slide
Glide into infinity, it's infinite
With your hands in your pockets
I know your money is spent
Like this, like that, butter for the fat
If you kill my dog, I'ma slay your cat
It's like that y'all, can you handle it son
I'm public enemy number one
From "Terminator X To The Edge Of Panic"
Under Sen. Flav, fat (as well as butter) will be cut and education will supported (from the two infinity references, I assume that science education is a priority). And finally, somebody to put David Williams' tabby on notice!
* Not actually true.
** Once he establishes residency--how hard could that be? Stephenson v. Woodward, 182 S.W.3d 162 (Ky., 2005).
In recent posts I discussed John McKinley, the only other U.S. Supreme Court justice besides Louis D. Brandeis to be buried in Louisville, grouping the two disparate men under the random accident of the geographic proximity of their last resting places. If state lines are ignored, a third justice is also buried nearby, the gregarious New Albanian Sherman Minton, whose grave at Holy Trinity Catholic Cemetery lies just across the the Ohio River bridge that bears his name. (Credit to Jim Chen, who pointed out the Oyez created Google Maps page of SCOTUS death-places). Minton is a balancing addition to the Kentuckiana trilogy, a solid hardworking and sensible jurist whose career avoided the dizzying heights of Brandeisian greatness and the spectacular lows of McKinleyesque inconsequentiality, landing squarely in the middle of most rankings.
Minton, a senatorial pal of Harry S. Truman who appointed him to the court in 1949, was the last member of the U.S. Congress to sit on the court. This is no obscure fact; since he left in 1956, only Sandra Day O’Connor, an Arizona state legislator, joined the Court with any experience in drafting laws, counting votes and trading favors to pass a law. The woeful lack of practical experience has led many of the current court to expect laws to be drafted without error or ambiguity, and, when they don’t find this perfection, they are content to ignore obvious legislative intent. Minton, a man with a high regard for the product of the popular branches, sought to find and vindicate the purpose of the legislature embodied in its laws.
Sherman Minton was the last of another breed of justice, at least according to a new paper on SSRN by Justin Crowe and Christopher Karpowitz, “Where Have You Gone, Sherman Minton? The Decline of the Short-Term Supreme Court Justice” (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=948813). Crowe and Karpowitz discuss the historical role of “short-term” justices, men who served productively on the court but did not stay for decades. They show that this was a common phenomenon in the 19th and early 20th centuries, but has been rare in the last half-century.
When Sherm Minton left the court in 1956, he likely had little idea that an era was ending. The age of poker-playing lawyer-legislators was over; the court would increasing become the province of law professors, Justice Department staff attorneys and corporate lawyers; all typically rotated through a federal lower court position before being seated on the high court. Where they would sit … and sit … and sit …
Federal judge and former congressman Abner J. Mikva was decrying this tendency in the lower federal bench back in the early 1980s: "Judicial Selection: Casting a Wider Net," 62 Annals Am. Acad. Pol. & Soc. Sci. 125 (1982).
Senator McConnell’s recent campaign ad has once again got me hot under the collar. No, it is not any particular claim he makes (that would be a different blog), but instead something that he has repeated in every commercial since he began ad buys at the beginning of 2008: that he is “only the second Senate leader from Kentucky” (the other being Alben W. Barkley).
Admittedly, this claim is backed up by the Senate Historical Office which dates the history of this title (arbitrarily, I believe) back until 1920 when they declare that the title “leader” was formally applied to the chairmen of the Democratic and Republican caucuses. This clearly neglects the increasing importance of this party office in Senate politics starting at the end of the 19th century and at the same removes three additional Kentuckians from the roll of leaders: John W. Stevenson (1873-77), James B. Beck (1885-90) and Joseph C. S. Blackburn (1906-07). Moreover, this determination ignores what some of these men were actually called by the press: leader.
The reason that Senate historians have fixed on the 1920 date is that it is admittedly hard to determine when the caucus chair went from being a mere presiding officer to the chief organizer of the party’s legislative activity. It is fairly clear that former Kentucky governor Stevenson’s role when he held the Democratic Senate caucus chair in the 1870s was to gavel the infrequent meetings to order. However, when Jo Blackburn let loose the leadership reins in 1907, his fellow Democrats prepared to jockey for a position of real power.
Reading through contemporary accounts of the caucus chairmanships of Senators Beck and Blackburn in the free New York Times archive (1851-1923), it is clear to me that McConnell is the fourth, not second Kentucky Senate leader, and that if re-elected he needs to give his other predecessors their due.
Leader Blackburn (with senatorial 'stache):
One characteristic of blogs that I have not figured out how to get around is that the medium disfavors citation to print-only sources. Bloggers are eager to link to support for their propositions from online references but they (and I count myself in this) are loathe to pull out the Harvard citator or Chicago Manual and drop a hoary old bibliographic citation on their readers. In a recent post, “John McKinley: Louisville's Lost Supreme Court Justice," I made several assertions that seemed to cry out for a footnote but I could not figure out how to insert such references without messing up the flow and (more importantly) detracting from my cool graphic layout. First, I numbered Louis D. Brandeis among the greatest justices to have sat on the court, a very defensible position, but a source or two might be nice. Second, I suggested that Justice John McKinley was perhaps not as well-respected. This might not strike readers who have not heard of him (a sizeable subset of humanity) as needing a citation, but there is actually excellent authority for the statement (from the University of Chicago Law Review, no less). Finally, I argued that McKinley is not usually counted among the list of Kentucky Supreme Court justices. Some might say: There’s a list?! Oh yes, my dear, there is a list. In fact, a little bibliography answering all these questions might be in order…
Top Supreme Court Justices:
Ranking judges is perhaps the most entertaining useless exercise in the legal world (Doris Kearns Goodwin and Michael Beschloss can keep the president-ranking game). In 1992, University of Texas Law Librarian Roy Mersky and a UT colleague bibliographically surveyed all of the judge-ranking efforts up to that date. Roy M. Mersky and Gary R. Hartman, Rating the Justices, 84 Law Libr. J. 113 (1992). Among the best known efforts are George R. Currie, A Judicial All-Star Nine, 1964 Wis. L. Rev. 3, Bernard Schwartz, The Judicial Ten: America's Greatest Judges, 1979 So. Ill. U. Law J. 405. and James E. Hambleton’s meta-analysis, The All-Time, All-Star, All-Era Supreme Court, A.B.A. J. Apr. 1983, at 462. Almost the studies put Brandeis in the top nine (in center-field, if I read the ABA Journal illustration right). Brandeis missed Roscoe Pound’s 1938 list of all-time judges of U.S. history (The Formative Era of American Law 4, 30 n.2), hobbled by the evident fact that he failed meet an implied condition of the ranking: he was still alive.
Most Insignificant Justices
The two seminal works on this topic (see fn 1 of Easterbook, infra) are David Currie, The Most Insignificant Justice: A Preliminary Inquiry, 50 U. Chi. L. Rev. 466 (1983) and Frank H. Easterbrook, The Most Insignificant Justice Further Evidence, 50 U. Chi. L. Rev. 481 (1983). Students of judicial irrelevance may be interested in Professor Currie’s Objective Indicator of Insignificance (OII) factors that led him to fix the MIJ tag on Virginian Gabriel Duvall and Kentuckians may be distressed that Judge Easterbrook pointed the finger at homeboy Thomas Todd, but the fact is that both seriously considered John McKinley for the esteemed title of Sultan of Sloth.
In his article Kentucky Justices on the U.S. Supreme Court (70 Register Ky. Hist. Soc. 121), Woodford L. Gardner, Jr., confined his list of “Kentucky Justices” to the eight men who were born in the state and the two men appointed to the court while residing in the state. In order of appointment they are:
Thomas Todd (no snickering), born in Virginia, appointed from Kentucky, 1807.
Robert Trimble, born in Virginia, appointed from Kentucky, 1826.
Samuel Freeman Miller, born in Richmond, Ky., appointed from Iowa, 1862.
John Marshall Harlan, born in Boyle Co., Ky., appointed from Kentucky, 1877.
Horace H. Lurton, born in Newport, Ky., appointed from Tennessee, 1910.
James C. McReynolds, born in Elkton, Ky., appointed from Tennessee, 1914.
Louis D. Brandeis, born in Louisville, Ky., appointed from Massachusetts, 1916.
Stanley F. Reed, born in Boyle Co., Ky., appointed from Kentucky, 1938.
Wiley B. Rutledge, born in Cloverport, Ky., appointed from Iowa, 1943.
Fred M. Vinson, born in Louisa, Ky., appointed from Kentucky, 1946.
In fairness to Gardner, he was not unaware of McKinley’s Kentucky ties, grouping him with John McLean, Philip Pendleton Barbour and John Catron as justices “closely associated with Kentucky.” McLean lived in the state a few years as a child and the Virginian Barbour practiced in Kentucky for a couple years before returning home. Catron had greater ties to the state, having read law, practiced and held office in Kentucky before migrating to Tennessee. None but McKinley is buried here, however, and he now can claim 166 years of residence.
Justice in Repose:
Finally, this whole exercise occurred when I noticed that nearby Cave Hill Cemetery had a justice planted among the oaks and roses, in George A. Christensen, Here Lies the Supreme Court: Revisited, 33 J. Sup. Ct. Hist. 17 (2008), an updated survey of the final resting places of Supreme Court justices. Plan your vacation accordingly!