News
Judges and Judiciary
Feb. 22, 2002
Holiday Honors
Dicta Column - By Douglas G. Carnahan - When I was in grade school in the 1950s, I looked forward to February. Not only did the Southern California winter start to break up, but we also were treated to two school holidays close together: Abraham Lincoln's, and then George Washington's, birthday.
By Douglas G. Carnahan
When I was in grade school in the 1950s, I looked forward to February. Not only did the Southern California winter start to break up, but we also were treated to two school holidays close together: Abraham Lincoln's, and then George Washington's, birthday.
In return, we studied the significance of these presidents. We learned that Abe was honest, that he freed the slaves and walked 5 miles, or was it 10, to refund a postal customer five cents, or was it a penny? We did not learn, however, that many of Washington's contemporaries viewed him as an amiable dunce, that he was unlearned compared to Presidents John Adams, James Madison and Thomas Jefferson, or that he had a vicious temper that he strove to control.
Deification has been a rocky road for both of these great men. They suffered not only at the hands of revisionist historians and novelists but also at the whim of the very federal government they each did so much to establish, protect and expand.
Their birthdays now are celebrated together, and inaccurately. Washington's actual birthday, Feb. 22, is now both a state and federal holiday, defined as the "third Monday in February," under 5 U.S.C. Section 6103 and California Government Code Section 6700. Lincoln's birthday, Feb. 12, is a state holiday and is lumped together with Washington's on various calendars as "Presidents Day," "Washington-Lincoln Day," and so forth.
This is a shame. Having generic holidays, or no celebration at all for Lincoln in some circles, detracts from celebrating each man's real contributions to our common weal, despite their deficiencies.
And it also unfairly elevates the presidency.
Doesn't President Bush have enough power without there being a particular day denominated Presidents Day?
I don't recall celebrating Congress Day or House and Senate Day. And there certainly is not a Supreme Court Day, Judiciary Day or Chief Justices Day.
This latter is a great lack.
If we focus solely on the personalities involved, rudimentary research shows that since 1789, 42 men have served as president of the United States. During this time, only 16 men have been chief justice of the United States. Just as with the presidents, certain of them have been ineffective. But others have had profound influence on the life and politics of Americans.
Indeed, it ought not be difficult to pick out two chief justices and set up a new holiday.
I nominate myself to do this.
For starters, we can disqualify William Howard Taft. He was a great chief justice but had the bad fortune to be the only person also to serve as president. This is regrettable for his holiday status, since he was a far better chief justice than president.
Chief Justices Warren E. Burger and William H. Rehnquist also should be removed from consideration. It is unseemly to name a holiday after living people.
After that, several chief justices, just as with presidents, have to be stricken because they served so short a time as to not make a significant record. In this group are John Jay, John Rutledge and Oliver Ellsworth, who all three served between 1789 and 1800. These early justices also were historically handicapped because their caseloads were not heavy.
Chief Justice Roger B. Taney also has to go. He served a long time and was well-regarded as a scholar but has had to live with the blight of one horrible decision, the Dred Scott case, which did as much as any one thing to bring about the Civil War. One hates to disqualify any judge for one bad call. Keep in mind, we are talking deification here. Richard Nixon would be the presidential analogue: Did wonderful things but must live with Watergate.
Several chief justices, while nice fellows and basically competent, fall into a sort of historical nonentity status. The chief justiceship nominees of Presidents Franklin Pierce, James Buchanan, Zachary Taylor and Benjamin Harrison, while having had distinguished legal and political careers, fall into this category.
Our list is now smaller. Indeed, it is down to four men, about whom more in a minute.
This listing exercise unfortunately must ignore the many able judges who have toiled away at their benches without ever being elevated to the Supreme Court, let alone the chief justiceship. One thinks of Learned Hand, Roger Traynor and Arthur Vanderbilt.
On the Supreme Court itself, our discussion must remove from consideration Justices Joseph Story, Stephen J. Field, Oliver Wendell Holmes Jr., Benjamin J. Cardozo, Louis D. Brandeis, Felix Frankfurter, Hugo L. Black, William O. Douglas, William J. Brennan, Thurgood Marshall, Sandra Day O'Connor and the two John M. Harlans. Just as Presidents Day ignores George Marshall and Alexander Hamilton, our prospective Judges Day must ignore these justices who never became chief justice.
The chief justices left in our group now are easily identified: John Marshall, Charles E. Hughes, Harlan F. Stone and Earl Warren.
Trying to reduce this eminent group from four to two is difficult.
Regrettably, at this point we must leave Stone behind. He was an exemplary justice but pales in comparison to the other three in several respects. His demeanor and effectiveness as chief justice was less commanding, partly because he suffered from having to follow Hughes. In addition, the only public office he ever held other than justice was the attorney generalship, where he only served one year. Most of his pre-bench career was spent as an academic, which is appealing. But in the deification business, we tend to look for people with broader backgrounds in government. Even Lincoln, whose only federal job other than president was to be a one-term congressman, had a broad background in politics and law.
Hughes was the chief justice central casting would send us. His effect on the law itself, partly because of the times in which he sat, however, tended to be technical. He gave leadership to the court in landmark decisions such as Near v. Minnesota and Erie Railroad v. Tompkins, but laypeople today would be hard-pressed to recognize his name, let alone any significant legal developments for which he is responsible. This is not a bad thing for a judge, but it doesn't lead to mythmaking.
Hughes ran for president in 1916 and resigned from an associate justiceship to do so, so he might be disqualified on that ground. He did have an amazing career in public service and at the bar, serving both as governor of New York and secretary of state. He was the only person to have been appointed to the Supreme Court twice, once as an associate justice and once as chief. He was prominent in squelching President Franklin Delano Roosevelt's misguided court-packing plan in the 1930s but also had his hand in the substantive due process trashing of early New Deal legislation. He runs close in our race, but we have to leave him out.
We are left, appropriately, with the two chief justices bracketing the real beginning and the modern terminus of Supreme Court history. We have John Marshall, chief justice from 1801 to 1835, which remains a record, and Earl Warren, chief justice from 1953 to 1969.
This gives us the Marshall of Marbury v. Madison and the Warren of Brown v. Board of Education. We have the judge who made the court, and the one who remade it. Marshall the congressman from Virginia and secretary of state; Warren the only person to be elected governor of California three times. We will forgive Warren's vice-presidential campaign in 1948 and his try for a presidential nomination in 1952.
Warren, as was Marshall in his day, is sometimes seen as an activist judge who remade the Constitution to suit himself. Like most judges, he had his subjective side and questioned lawyers with his famous criterion: "But is it fair?"
Yet Warren led a unified court to the Brown decision, re-energized American government in the reapportionment cases and extended the rights of criminal suspects in ways which have yet to be overturned despite the court's veer to the right. His status as a champion of the institution of the judiciary is as secure as Marshall's.
Why venerate judges? Many laypeople and too many lawyers view the bench as a group of result-oriented political hacks collecting paychecks for working a 20-hour week. And no doubt out of the population of judicial officers, there is a share of toadies, incompetents, slackers and boors.
But just as Presidents Day honors the presidency and its place in the scheme of things, along with the accomplishments of the holders of the office, a holiday honoring Marshall and Warren would do the same for the judicial branch.
Our best judges have protected and inspired us. They have safeguarded our rights, extended our freedoms and have not been afraid, when appropriate, to correct past judicial errors. Just as American history would be far different had there been no presidency, it is hard to imagine, at least since Marshall's tenure, American history without the judiciary and the judges in it.
Marshall's birthday was Sept. 24, 1755; Warren's birthday was March 19, 1891. If we split the difference between these months, we get June, which is coincidentally not overburdened with holidays.
Let me suggest, therefore, that the third Monday in June be henceforth celebrated as Judges Day, to be informally known as Marshall/Warren Day.
The symmetry with Presidents Day is compelling. We would be celebrating a Virginian president and a Virginian judge, a Western president (Illinois was the West in those days) and a Western judge. Lincoln and Warren knew poverty in their youths; the other two were patricians. Lincoln and Marshall were congressmen; Washington and Warren were executives. Marshall and Washington were Federalists; Lincoln and Warren were Republicans.
Felix Frankfurter once commented, "American legal history has done very little to rescue the Court from the limbo of impersonality. ... Until we have penetrating studies of the influence of [prominent justices], we shall not have an adequate history of the Supreme Court, and, therefore, of the United States."
I'll leave Congress Day honorees for a different columnist.
Douglas G. Carnahan is a Los Angeles Superior Court commissioner.
When I was in grade school in the 1950s, I looked forward to February. Not only did the Southern California winter start to break up, but we also were treated to two school holidays close together: Abraham Lincoln's, and then George Washington's, birthday.
In return, we studied the significance of these presidents. We learned that Abe was honest, that he freed the slaves and walked 5 miles, or was it 10, to refund a postal customer five cents, or was it a penny? We did not learn, however, that many of Washington's contemporaries viewed him as an amiable dunce, that he was unlearned compared to Presidents John Adams, James Madison and Thomas Jefferson, or that he had a vicious temper that he strove to control.
Deification has been a rocky road for both of these great men. They suffered not only at the hands of revisionist historians and novelists but also at the whim of the very federal government they each did so much to establish, protect and expand.
Their birthdays now are celebrated together, and inaccurately. Washington's actual birthday, Feb. 22, is now both a state and federal holiday, defined as the "third Monday in February," under 5 U.S.C. Section 6103 and California Government Code Section 6700. Lincoln's birthday, Feb. 12, is a state holiday and is lumped together with Washington's on various calendars as "Presidents Day," "Washington-Lincoln Day," and so forth.
This is a shame. Having generic holidays, or no celebration at all for Lincoln in some circles, detracts from celebrating each man's real contributions to our common weal, despite their deficiencies.
And it also unfairly elevates the presidency.
Doesn't President Bush have enough power without there being a particular day denominated Presidents Day?
I don't recall celebrating Congress Day or House and Senate Day. And there certainly is not a Supreme Court Day, Judiciary Day or Chief Justices Day.
This latter is a great lack.
If we focus solely on the personalities involved, rudimentary research shows that since 1789, 42 men have served as president of the United States. During this time, only 16 men have been chief justice of the United States. Just as with the presidents, certain of them have been ineffective. But others have had profound influence on the life and politics of Americans.
Indeed, it ought not be difficult to pick out two chief justices and set up a new holiday.
I nominate myself to do this.
For starters, we can disqualify William Howard Taft. He was a great chief justice but had the bad fortune to be the only person also to serve as president. This is regrettable for his holiday status, since he was a far better chief justice than president.
Chief Justices Warren E. Burger and William H. Rehnquist also should be removed from consideration. It is unseemly to name a holiday after living people.
After that, several chief justices, just as with presidents, have to be stricken because they served so short a time as to not make a significant record. In this group are John Jay, John Rutledge and Oliver Ellsworth, who all three served between 1789 and 1800. These early justices also were historically handicapped because their caseloads were not heavy.
Chief Justice Roger B. Taney also has to go. He served a long time and was well-regarded as a scholar but has had to live with the blight of one horrible decision, the Dred Scott case, which did as much as any one thing to bring about the Civil War. One hates to disqualify any judge for one bad call. Keep in mind, we are talking deification here. Richard Nixon would be the presidential analogue: Did wonderful things but must live with Watergate.
Several chief justices, while nice fellows and basically competent, fall into a sort of historical nonentity status. The chief justiceship nominees of Presidents Franklin Pierce, James Buchanan, Zachary Taylor and Benjamin Harrison, while having had distinguished legal and political careers, fall into this category.
Our list is now smaller. Indeed, it is down to four men, about whom more in a minute.
This listing exercise unfortunately must ignore the many able judges who have toiled away at their benches without ever being elevated to the Supreme Court, let alone the chief justiceship. One thinks of Learned Hand, Roger Traynor and Arthur Vanderbilt.
On the Supreme Court itself, our discussion must remove from consideration Justices Joseph Story, Stephen J. Field, Oliver Wendell Holmes Jr., Benjamin J. Cardozo, Louis D. Brandeis, Felix Frankfurter, Hugo L. Black, William O. Douglas, William J. Brennan, Thurgood Marshall, Sandra Day O'Connor and the two John M. Harlans. Just as Presidents Day ignores George Marshall and Alexander Hamilton, our prospective Judges Day must ignore these justices who never became chief justice.
The chief justices left in our group now are easily identified: John Marshall, Charles E. Hughes, Harlan F. Stone and Earl Warren.
Trying to reduce this eminent group from four to two is difficult.
Regrettably, at this point we must leave Stone behind. He was an exemplary justice but pales in comparison to the other three in several respects. His demeanor and effectiveness as chief justice was less commanding, partly because he suffered from having to follow Hughes. In addition, the only public office he ever held other than justice was the attorney generalship, where he only served one year. Most of his pre-bench career was spent as an academic, which is appealing. But in the deification business, we tend to look for people with broader backgrounds in government. Even Lincoln, whose only federal job other than president was to be a one-term congressman, had a broad background in politics and law.
Hughes was the chief justice central casting would send us. His effect on the law itself, partly because of the times in which he sat, however, tended to be technical. He gave leadership to the court in landmark decisions such as Near v. Minnesota and Erie Railroad v. Tompkins, but laypeople today would be hard-pressed to recognize his name, let alone any significant legal developments for which he is responsible. This is not a bad thing for a judge, but it doesn't lead to mythmaking.
Hughes ran for president in 1916 and resigned from an associate justiceship to do so, so he might be disqualified on that ground. He did have an amazing career in public service and at the bar, serving both as governor of New York and secretary of state. He was the only person to have been appointed to the Supreme Court twice, once as an associate justice and once as chief. He was prominent in squelching President Franklin Delano Roosevelt's misguided court-packing plan in the 1930s but also had his hand in the substantive due process trashing of early New Deal legislation. He runs close in our race, but we have to leave him out.
We are left, appropriately, with the two chief justices bracketing the real beginning and the modern terminus of Supreme Court history. We have John Marshall, chief justice from 1801 to 1835, which remains a record, and Earl Warren, chief justice from 1953 to 1969.
This gives us the Marshall of Marbury v. Madison and the Warren of Brown v. Board of Education. We have the judge who made the court, and the one who remade it. Marshall the congressman from Virginia and secretary of state; Warren the only person to be elected governor of California three times. We will forgive Warren's vice-presidential campaign in 1948 and his try for a presidential nomination in 1952.
Warren, as was Marshall in his day, is sometimes seen as an activist judge who remade the Constitution to suit himself. Like most judges, he had his subjective side and questioned lawyers with his famous criterion: "But is it fair?"
Yet Warren led a unified court to the Brown decision, re-energized American government in the reapportionment cases and extended the rights of criminal suspects in ways which have yet to be overturned despite the court's veer to the right. His status as a champion of the institution of the judiciary is as secure as Marshall's.
Why venerate judges? Many laypeople and too many lawyers view the bench as a group of result-oriented political hacks collecting paychecks for working a 20-hour week. And no doubt out of the population of judicial officers, there is a share of toadies, incompetents, slackers and boors.
But just as Presidents Day honors the presidency and its place in the scheme of things, along with the accomplishments of the holders of the office, a holiday honoring Marshall and Warren would do the same for the judicial branch.
Our best judges have protected and inspired us. They have safeguarded our rights, extended our freedoms and have not been afraid, when appropriate, to correct past judicial errors. Just as American history would be far different had there been no presidency, it is hard to imagine, at least since Marshall's tenure, American history without the judiciary and the judges in it.
Marshall's birthday was Sept. 24, 1755; Warren's birthday was March 19, 1891. If we split the difference between these months, we get June, which is coincidentally not overburdened with holidays.
Let me suggest, therefore, that the third Monday in June be henceforth celebrated as Judges Day, to be informally known as Marshall/Warren Day.
The symmetry with Presidents Day is compelling. We would be celebrating a Virginian president and a Virginian judge, a Western president (Illinois was the West in those days) and a Western judge. Lincoln and Warren knew poverty in their youths; the other two were patricians. Lincoln and Marshall were congressmen; Washington and Warren were executives. Marshall and Washington were Federalists; Lincoln and Warren were Republicans.
Felix Frankfurter once commented, "American legal history has done very little to rescue the Court from the limbo of impersonality. ... Until we have penetrating studies of the influence of [prominent justices], we shall not have an adequate history of the Supreme Court, and, therefore, of the United States."
I'll leave Congress Day honorees for a different columnist.
Douglas G. Carnahan is a Los Angeles Superior Court commissioner.
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