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tv   The Presidency Rawn James The Truman Court - Law the Limits of Loyalty  CSPAN  November 8, 2021 4:52pm-5:57pm EST

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and senate floor and key congressional hearings to white house events and supreme court oral arguments. even our live interav morning program "washington journal," where we hear your voices every day. c-span now has you covered. download the app free today. our weekly series "the presidency" highlights the politics, policies and legacies of u.s. presidents and first ladies. coming up next, did president truman set the precedent for a politicized high court? rawn james provided his answer in "the truman court: law and the limits of loyalty." >> welcome to this special truman day, three days removed installment in our virtual signature event series. our guest tonight is rawn james, author of the soon to be released the truman court, law
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and limits of loyalty. james is a graduate of yale university and duke university school of law. he has practiced law in washington, d.c. for the last two decades and is the author of two previous books. root and branch, thurgood marshall and the struggle to end segregation, and how wars protest and harry truman desegregated america's military. before we get started, i want to mention two things. if at any point you have questions tonight, drop them in the chat and we'll get to as many as we can. and if you're interested in purchasing the book, and i hope you will be, you can do so at upress.missouri.edu. and if you use the code truman 21 tonight, you'll receive 40% off the list price. so check that out. all right. so let's get started. rawn, thank you so much for joining us tonight. >> thank you very much for having me. >> thank you. >> so i want to start by asking
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you, you know, when the publisher reached out to me about this book, my first reaction was the truman court, huh? so we have benson, and i was at a loss to name anybody else that truman appointed. but reading the book, i kind of quickly changed my tune and i wondered why has nobody told thor to before. can you share with us how you discovered the story or when there was a point there was a book to be written about this story? >> yes, good to be with you. i haven't been back to missouri since my last book, and i was able to spend some time in kansas city as well as in independence. and certainly without kansas city, no one outside of missouri would have heard of harry s. truman. he provided the political space and good times with the local npr affiliate when i was out
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there a few years ago and hope to be back soon. the truman court -- the idea came to me when i was researching my last book about the double w, how wars protests and harry truman desegregated america's military. what we now know as the civil rights movement began with the effort to desegregate america's military. and harry truman was the first president in the post civil rights era, including franklin roosevelt, the first president to openly express public empathy to all white audiences about the plight of their fellow american citizens who happened to be african american. who are being denied their rights as african americans. and as i delved into the research about america's military, which now is largest
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and most diverse institution, i saw this fork on the side which actually kind of began researching my first book "wheat and branch" in their working through the judicial systems. how harry truman became the first president to do what we now expect of our presidents, and that is to use the judicial branch as offense as well as defense. we recall roosevelt's epic struggles with the supreme court, culminating in what became known as his court packing plan. he preferred to call it judicial reform. presidents up until that time have used the judiciary -- i should say, the judiciary has acted as a kind of goal. and presidents would enact their policies with congress, enact their laws, and hope that their laws and policies would pass muster with the judicial branch.
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harry truman turned that on its head and for the first time we had a president who was using not just with the supreme court but with the federal judiciary, taking full control of the department of justice to aggressively push the policies. and now that what's we expect in both major parties in the united states. it's what we expect that our presidents and our presidential nominees. >> it seemed like it almost came out of necessity, because of the state that the court was in at the time. i wonder, can you set the stage for us, go back to the end of the roosevelt administration. what was happening on the court that made this kind of a special circumstance? >> well, franklin roosevelt, unlike truman's nominees to the court, franklin roosevelt's nominees to the court are well-known by many americans and
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certainly by anyone who has suffered his or her way through law school, because they're widely understood as profound jurists, these giants and pillars of the law. but they didn't like each other. and perhaps that goes hand in hand. they did not get along. and it wasn't just a matter of ideology, which it was. they agreed on new deal policies, but they didn't agree on too much else. but it also was a matter that they personally came to dislike each other in this very insular environment where they had to work closely together without the phalanx of clerks that justices have now. they had clerks, but not what we have today. they had to work more closely together. and they had come to actively, frankly, dislike each other. and to respect each other's ambitions. so that when you end up with a
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situation which franklin roosevelt ended up with -- oh, i should say the supreme court ended up with, were a few justices think that justices appointed by their same president, that the president who appointed them, that that justice wants to be president himself and therefore is perhaps spewing his vote to position himself. and i'm speaking of robert h. jackson, who is possibly the finest writer ever on the supreme court, which is something to say because he was not corrupted by having to go to law school. he still had his writing ability intact. but the justices came to suspect he wanted to be president, and then you had douglas who the justices suspected of wanting to be president. oh, robert h. jackson just wants to be chief justice. there are all these internecine battles happening.
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so that they came to suspect each other's vote, and that became a very pernicious force on the court that by the time harry truman became president, i mean, this really weeks into his term as vice president in 1945, the supreme court had already in his terms made a mess of itself. >> so truman, you know, you mentioned early in the book that, you know, it took 4 1/2 years before fdr got to appoint a justice and truman matched that number in the first 4 1/2 years, appointed four, right? and he starts with harold burton. it seems like truman's approach is, you know, he's appointing friends or people that he knows, but it's not necessarily that he's appointing these people because he thinks they will support him because they're friends or even because they supported him politically. he's got his eye on -- he's thinking a step ahead. here is the legal steps we need
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to take for me to do what i need to do and i need to find justices that support that legal theory. is that more or less what he's trying to accomplish? >> he is, but not at the time when he appoints harold burton, as you rightly noted, his first nomination to the court. this happens very early in truman's tenure. and harold burton was a senator, most importantly, was a republican senator. and what americans understood then, just to contextualize briefly for everyone, this was the beginning of the gallup polls, the gallup polls being the gold standard of polling in the united states. the gallup polls, when the vacancy came available, one of gallup's most important first major polls was to ask americans do you think that president truman should nominate a republican or a democrat to the supreme court?
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and this question to be would be anathema. and we have leaks from the court about the framing of the questions because we're somehow supposed to believe we're sentient beings, educated beings here in america that an individual ceases to be a republican or democrat when he or she is confirmed to the supreme court. this is not to say that justices act as republicans or democrats, they don't caucus in that way, they don't meet, they don't attend -- certainly not fund raisers but even meetings with the parties. but they have ideas. and at this point, in 1945, we were able at least, average americans, we were able to recognize that it's okay for these nominees to the court to have these ideas. and overwhelmingly republicans and democrats, as polled by gallup, said president truman should nominate a republican to the court because we've had all these nominations from franklin
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roosevelt with the democrats at the core. if i remember correctly, it's 263 federal judges. and four of them were republicans. so americans paid attention to that and said, well, we should have balance, there should be political balance on the courts. and harry truman, who is trying to solidify his own position, as a vice president who is suddenly sworn in to replace a giant, the only president that millions of americans ever knew, franklin roosevelt, our only four-term president, harry truman is trying to solidify his position not just with the congress but with the american people, and he can do this is by recognizing that maybe i should nominate someone from the opposing party. so nominated harold burton, who he knew. and harold burton was a solid, for lack of a better term,
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uprighteous figure. when he was mayor of cleveland, he was known as the boy scout mayor. one of his claims to fame is he appointed elliott ness to run the police department in cleveland to help clean things up. because when harold burton was elected mayor, cleveland was a disaster. he cleaned up crime and crime's infiltration into the local government there. it was a very successful nomination for harry truman. truman and harold burton were friendly. they were not friends in the way truman's later nominees were friends. but this was a political master stroke by the new president who was viewed by millions of americans as an accidental president, who was the senator from missouri who was first sent by the pendergast machine up there, and other senators refused to recognize -- some other senators refused to recognize him as a senator, and even as some staffers said, he
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was sent over here by gangsters. and then he is elected in his own right, strongly reelected to be the senator from missouri. and then chosen by franklin roosevelt, not at all franklin roosevelt's first, second, or possibly even third choice. but harry truman had supported, as senator, had supported roosevelt's so-called court-packing plan. and at the end of the day that was the litmus test. roosevelt said if everyone can get along with senator truman, he can be on the ticket because he didn't oppose my judicial reform plan. truman, when he becomes president so suddenly, uses this first nomination as a chance to seek some political unity, not just in washington but in america as a whole, because americans then were allowed to openly say there should be a republican or a democratic nominee to the court. >> thank you.
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one of the things i really like about the book is the truman court story is great, but then there's also these little bits of history that are dropped in, sometimes relevant, sometimes sidebars. but how much has changed and how much hasn't changed, and one of the things that comes to mind with burton was, you write in the book that truman and burton shared a belief that the government should protect americans from subversive threats even at the expense of their individual liberties. and it strikes me, was that a common thing at the time for a democrat and a republican to agree on something that profound? >> it became more common with the rise and the perceived rise of communism in the 1930s. and there were legitimate concerns in the late 1930s and going forward about not necessarily communist
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infiltration of the federal government but about communist activism in the united states. so that was something that members of both parties were able to -- not all members but some members of major political parties were able to find common ground on agreeing that there will be some costs to suppressing this rising movement, but we must suppress the communist movement. senator burton and then-senator truman found common ground. and when truman was president, he knew -- he understood how senator burton felt about those issues. and it proved to be a good choice going forward into the 1940s from the standpoint of the truman administration. >> and if i recall correctly, at the time there was one republican left on the court, correct? >> yes, that's right, that's right. >> burton made two. >> that's right.
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it was 8-1. that led -- that was part of what americans -- we're talking your average newspaper-reading american citizen is thinking that franklin roosevelt was frustrated, saw the frustration, and it became an enormous deal that he wanted to enlarge the court. but now we have eight votes of democratic nominees and one of a republican nominee and they wanted a move toward restoring balance on the court. again, it was a good chance for the very new, unelected president. and he took full advantage of it. it was a political master stroke for him. >> kind of right out of the gate, truman sets the stage for his involvement with the court, when burton is sworn in, truman's in the building, right? he's there in the room. and this is the first time a president has done this? >> that's right. for the first time ever, a
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sitting president walked into the supreme court when it was in session. it was for then senators, the new justices' ceremonial swearing in. he had already been sworn in officially, but the ceremonyian swearing in. all the justices rose, the clerk of the court called everyone to order, told everyone to rise, and all of the sudden to everyone's surprise, harry truman comes in through the side door and sits down behind the counsel's table, he's not sitting at counsel's table, sits down behind the bar, that's still tully the bar. if one's not admitted to the bar, one sits behind the bar. he's glad handing everybody. the justices are not there yet. truman comes in before the justices. so truman is glad-handing, shaking hands with the
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newspapermen, they're almost all men at that point. they're all taking pictures and everyone can't believe the president of the united states is here in the room. the clerk calls order, oh, yea, oh, yea, the justices come in, harry truman rises with everyone else. the justices come in, and they have the ceremonial swearing in. that's when, again, the justices rise, and harry truman exits, and essentially leaves the building to the article iii branch of government. it was an extraordinary moment of comity, not comedy, c-o-m-i-t-y, comity for -- a showing of comity for our government, a showing of respect among the branches for our government that i thought really was something i had not read a whole bunch about. >> was that a calculated move by
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truman? was he thinking at that time i'm going to be there and show that i'm not going to be pushed around or that i'm going to be an influence here? or was he just supporting a colleague? >> i would say without -- hoping not to appear as a cop-out, i would say a bit of both. truman was an extraordinarily astute politician. and that's not a pejorative. one doesn't come from where he came from, having no job after returning as an infantry army captain and living in his in-laws' house, becoming president of the united states, without being an extraordinarily astute politician, being good at the craft that he chose and that in some ways actually chose him. secondly, though, part of why he was so good at it was because he had a good time doing it. and he thoroughly enjoyed himself. when he came into the court by all accounts, when he came into this supreme court room that
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day, he had a grand time. i'm sure we'll discuss later. each time he swore in one of the justices, he threw bigger and bigger parties for them. he had a grand time doing it, he enjoyed it. he enjoyed people. he enjoyed having an effect on what he saw as the better course for america and being at the center of it all. >> there's a chance i'm going to get strung up for making this comparison, living here in missouri, kansas city, but as i was reading some of what you wrote, it seemed to me that there were some comparisons that could be drawn to our most previous president, just in terms of the personality and kind of the perception of kind of a bull in a china cabinet, bullying his way through everything. you had a moment in the book that you talk about, resignations. somebody asked him if he had ask for any resignations. do you remember what he said?
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>> yes, he said i've asked for everybody's resignation, and i expect them all, and i'll accept the ones i want to accept. these are resignations of franklin roosevelt's nominees. what appears to americans as franklin roosevelt's surprising sudden death of roosevelt is traumatizing. had an idea of how thick franklin roosevelt was. harry truman was flabbergasted the first time he had lunch with franklin roosevelt and saw how sick the man was. this is not something the voters who went to cast their ballots for a fourth term for franklin roosevelt had any idea -- they had no idea how sick he was. so they're stunned by his death, which you see in the old footage of people of different races crying in the streets, grown men and women crying in the streets for the loss of this man. and then we get this senator
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from missouri who comes in and -- you know, admiral nimitz who comes later and has nothing to do with it, but admiral nimitz said when you command, command. harry truman had that ethos, he wanted everyone's resignation and accepted those whom he wanted to accept it. >> if you're going to use the supreme court to advance your agenda or you're hoping to use the supreme court to advance your agenda, you need to have solid backing in the justice department. and truman takes steps there, also kind of getting an appointment that's close to him, in tom clark. can you talk a little bit about how he comes to head the justice department? yes, i can. but i don't want to leave you hanging on your previous analogy regarding the immediate past president.
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just so you don't get left alone on that comparison. that actually was something i spent the better part of four years thinking about because there were many americans who simply believed that harry truman was not up to the job, that he simply wasn't smart enough for the job. americans had an idea of certain types of person who should be president of the united states, and that person, especially after having elected franklin roosevelt to four terms as president, that american had a certain pedigree, a certain background. we have calvin coolidge. we have franklin roosevelt. we have herbert hoover, who they threw out on his ear, but no one doubted the man's intelligence and ability to do the job. and suddenly we have harry truman who is using curse words in press conferences. in fact there are two famous cartoons of women pulling their
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children away, the kids are kicking and screaming, she says, "we have to leave now, the president is talking." so there was this idea that we have this crass boor suddenly in the white house. truman was aware of that, as i think our immediate past president was aware of it as well. i think it's more of a stylistic comparison and an example of a shock to the system, in that you have -- if you take president obama with his urbane nature and his harvard education, you take franklin roosevelt with his urbane nature and harvard education, and suddenly the coin is flipped over, it's a shock to the system. i think it's an excellent point, i spent a good amount of time thinking about it in the last few years, thinking about how that was a shock to americans reading the newspapers and
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listening to their radio, and they think, who even is this guy and what's happening here? and he's in charge, and we're at war. and it kind of came to a head in later times, and part of why it came to a head was in part because of his supreme court nominees, as he began to nominate his friends, which brings us to tom clark, one of his friends. he nominated tom clark to be attorney general of the united states. tom clark at the time was -- gosh, a year older than i am now. i'm 44, tom clark was 45 at the time. clark had been an unexceptional law student and actually ended up in washington by accident. franklin roosevelt had wanted to hire tom clark's older brother who was an exceptional law
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student and a big shot lawyer, and was by all accounts on his way to doing grand things. tom clark's older brother said no, i'm doing very well in texas. so the senator from texas said to the white house, well, i've got his younger brother, will you take him? they said, fine, send him up, send him up. they gave tom clark initially something of a lackey job in the department of justice. he worked his way up. what he might have lacked in perhaps academic ability he certainly made up for in work ethic. and he became truman's attorney general and became very successful in being an aggressive attorney general, in part because he recognized that he was not the best lawyer in the building. what he did was manage the department of justice and say, what can we do to advance the administration's agenda. now we expect that of our attorneys general. and the president certainly expects it of the attorney general.
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but at the time -- but prior to that, the attorney general had generally been kind of like what we see of, what lawyers think of as a solicitor general, an exceptional lawyer with impeccable credentials. now you can get someone in there like president trump had senator jeff sessions in there, carrying out his agenda. and president george w. bush had alberto gonzalez. neither of those are great, incredible legal minds. they were effective, though, for the time in which they were there, in carrying out the president's agenda. and that, i would contend that that began in earnest with tom clark working for president harry truman. >> and clark is later -- we're going to come back to him because he becomes one of those supreme court appointees. but is truman thinking that at the time? >> there's no indication that he is.
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>> so, you know, you get some traction immediately with burton. but the real moment for truman is benson, right? this is the guy that if there is a truman appointee that has a legacy, that's probably him? >> yes. and fred vinson is kind of strange and it's sadly ironic how little known he is today among americans. because at the time of his nomination for the chief justiceship, he was one of if not the biggest men in washington, particularly -- not including the president, who always stands, at the time always him, who always stands by himself. but he had held so many jobs of monumental importance to the american economy. he had been treasury secretary.
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he had been -- now we call omb director, at the time it was called emergency management, dealing with the war. he had been a federal district appellate court judge. he had been a member of the house of representatives from the state of kentucky in which he was the preeminent authority. both houses of congress recognized -- it's difficult for the senate to recognize anyone in the house as being a preeminent authority on something. he was recognized as the preeminent authority on taxation. and he was known as a grand orator, one of the finest orators ever to be elected to congress. when he was elected -- when he was nominated to be chief justice by president truman, there were great expectations for him. he was perhaps the only nomination they've had great expectations on his shoulders from the time of his nomination. and fred vinson was truly a public servant.
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major league baseball tried to lure him away with -- by allowing him to be commissioner. and he turned down the salary, turned down the job, much to the chagrin of his beloved wife roberta, it was more money than they even had thought of having in their lives. one year of salary as commissioner of baseball, he was an excellent baseball player in his day, a big baseball fan, excellent with numbers, and major league baseball wanted him and he turned down the job because world war ii was happening at the time, and he thought that he should remain in service to his country. >> if i remember correctly, you say in the book that the baseball commissioner was going to pay $100,000 a year, his government salary was 20? >> that's right, and that was his highest government salary, that was his peak government salary at the time. even his fellow justices, when vinson was confirmed as chief justice, his fellow justices appreciated the sacrifices he had made.
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justice william douglas, who had very, very little nice to say about fred vinson, and many of his other colleagues as well, but he really appreciated the sacrifice that fred vinson had made, because they knew that he did not have very much in the way of money, finances, or insurance, as douglas put it at that time. >> vinson, if i recall correctly, he actually gets on the bench and then leaves the bench, right, and goes back into bureaucracy, and then is nominated for supreme court, not as an appellate judge but as a member, right? >> right, he's on the bench, he's nominated by franklin roosevelt to the dc circuit court of appeals, which seems even to this day, inaccurately so, as the second most important
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federal court in the united states. and he serves on there, and then world war ii breaks out and franklin roosevelt says i need you, and frankly vinson is eager to get off the bench and participate more actively in the war effort. in world war i, america's involvement in the war ended just as fred vinson had finished basic training. so in his mind he felt like he had missed out on world war i and so wanted to contribute now in his later years in world war ii in a more direct manner. so he left his lifetime appointment with tenure and the pension and everything that comes with it, and agreed to become a cabinet member for franklin roosevelt, hopscotched to different jobs. he was holding so many different jobs. the senate actually stopped holding confirmation hearings for fred vinson, then they stopped holding votes for fred vinson. the white house would send the nomination sheet down and say, fred vinson is nominated for
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this, office of emergency management, and when he was nominated for treasury secretary, they said we'll do a voice vote. they stopped having any debate, because they all knew him, they had voted on him so many times, they said this is a matter of course for us, and he was serving as treasury secretary, which was -- for president truman, which was a job that he loved, he loved that job. i think perhaps the only job he would have left it for would be to become the chief justice. >> i hope that people will read the book. but if they don't, i hope they will do their own research on vinson, because this guy is just such an incredible character in american history. in baseball parlance, he was kind of a utility player, right? presidents over the years would plug him into whatever position and whatever job they sent him to, he was tremendously successful, right up to his
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stint as chief justice, right? >> yes. he was. but he was unable to continue that success for too long as chief justice, in part through some faults of his own and in other parts through no fault of his own. it's an extremely difficult job. frankly, as we're seeing now, how difficult the job of chief justice is. you have to be first among equals. and that's a very nice phrase, but in pragmatic terms, in practice, it makes for a tough job. >> but he was probably the guy that was needed, right? because his predecessor, as chief justice, stone, right, very much believed in debate, in argument. and vinson comes into this environment where consensus building has kind of gone out the window. was he uniquely qualified to play that role?
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>> he was believed to be. he wasn't successful. again, he did replace chief justice stone, who was a superb legal mind, and a fantastic justice of the court, but not a very successful chief justice of the court. as you noted, he loved debate, he was a former columbia law professor and he enjoyed debate. the debates would happen at the conference. even though the debates between justices, which they still do to this day, they hammer out their ideas and thoughts on each individual case, it's in a room, nobody else is allowed into this room when the justices are there. the junior justice, now justice amy coney barrett, when they run out of water, she has to go fill up the pitcher and get the water. if they need a book, she has to go out and get it. when there's a new justice, and that justice becomes a junior justice, he or she will have to do that because no one else is
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allowed in when they are having these debates. and chief justice stone loved this, loved the conference. it would go on for hours. what he didn't recognize was that it was ruining the court. justices were dying to get out of there. votes were not changing, they were just having these academic discussions. chief justice vinson, as a manager, as a master manager, as you said, he had worked in the bureaucracy, he was an excellent manager. he was able to get the conferences going, as justice frankfurter said, under chief justice stone, we were never able to get out of conference. so just imagine, if you're in a meeting with your job and you can just never leave because the boss never lets you leave to go home. and the conferences were held on saturday. this is after, you know, the workweek. so you can imagine the effect this is having on morale. and fred vinson was interested in getting results.
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what's the vote, what's your reason for your vote. let's move on. next person. what's your vote, what's your reason. and be able to have some sort of discipline into the conference. >> to i don't want to shortchange tom clark and sherman minton, but we have a lot of audience questions and i've been moving slowly with follow-ups here. i wonder if we can kind of lump the two of them together, because tom clark and sherman minton, here is where we really hit a tipping point with kind of public and political pressure on truman for cronyism, right? >> that's right. that's right. that's when it begins. it begins with tom clark, who at least had been attorney general. and then it continues, it reaches a frenzy -- "frenzy" might be strong. it reaches a furor with justice sherman minton, because sherman
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minton had served on the seventh circuit court of appeals for years and had an outstanding record there. he's a former senator from indiana, had been a hard core new dealer, even more hard core than harry truman, who had been representing his state in the middle of america, had been a middle of the road person who stuck with his president because it was his party and he knew it was politically the right thing to do, and where his state's constituency was. sherman minton when he was senator was a rabid name, he only lasted one term in the senate. it's tough to do these days, to be a one-term senator, very tough to do it back then. he was so fervent for the roosevelt administration's policies. and that came back to haunt him even after he had served for years and distinguished himself on the seventh circuit court of appeals.
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so by the time president truman nominated sherman minton who he had passed over to nominate tom clark, everybody was so certain that sherman minton was going to be the third nominee when a vacancy became available that president truman calls sherman minton to the white house to tell him in person that he was not nominating him, which is kind of a bit of heartbreak hotel, you can imagine going to the white house you're thinking i'm going to be nominated, you get there only to be told you're not going to be nominated. but -- so he's not nominated, tom clark was. the fourth nomination at that point, truman didn't consult with anybody. he knew he was going to nominate sherman minton. and he nominated sherman minton to the court. sherman minton did not serve long but he was a force on the court in large part because of his personality. yes, he suffered from heart disease, he was kind of an explosive personality particularly in the area of civil rights, he would literally
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pound on the table, telling justices they need to do the right thing here, the constitution forces them to do the right thing and they need to essentially have some guts and do the right thing. in fact at one point they thought when we get to the brown case in 1952, the first argument of them, some of the fellow justices were worried, actually before that, back in '49, '50, they were worried he might have a heart attack during the conference, he was so exercised over this. he thought, why are we debating issues that are so clear under the constitution, in sherman minton's mind. >> there's also a story, i think it was with clark, maybe it was with minton, that made me retrace my steps and think there are some pretty solid differences here as well, because truman asked that "hail to the chief" not be played at the swearing-in for -- was it clark, because he wanted it to be his day? >> that was for chief justice
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vinson. and to put that in perspective for folks, very briefly, harry truman did not have an inauguration when he became president. he was sworn in by the chief justice, who actually did not even have time to put on a robe, he was just wearing his suit. so truman -- this is my own thought in reading into it, from reading correspondence, my conclusion was that truman decided that he was going to give the chief justice the inauguration that he had not had. so he had the swearing-in at the white house, which we saw was actually is still a bit -- it's still controversial to this day when presidents do that. but president truman did it and had a huge party and invited members of the public, this is back when members of the public could come on through the white house. and they had the band and everything. but you're correct, he asked that "hail to the chief" not be played, so that it would be the chief justice's day, for chief justice fred vinson to be sworn
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in. >> i want to get to a few audience questions here. so somebody asked, how do we get back the balance of power among the three branches? kind of interesting in this context, because in a lot of ways, truman was working to bust that balance of power in order to get things done. but how would you address that, how do we restore kind of the balance of the three branches of government? >> i would not say he was trying to change the balance of power. i think he was trying to bring in another player, the most reticent player in our government which is our article iii branch. they're supposed to be the most reticent player. i agree with the premise of the question that we are out of balance. we're deeply out of balance right now as a country. it's extremely problematic. and the bottom line is as i see
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it, in my opinion, it's because congress has to start doing its job. there's this constant talk, we have these three co-equal branches of government. no. congress is supposed to be the most important, powerful -- is supposed to be the most powerful branch of government. that's the way the constitution is written, that's in article i. however, congress has decided and began deciding during the truman administration to accede its authority. its first duty, to declare war, we're going to allow the president to have what they called a police action. part of why truman lost the case is because he had his solicitor generals arguing to the justice we're at war, and you have the justices saying back to him the president has said last week this is not a war. is this a war or not a war? the administration was tying itself in a knot. that knot is a result of congress not doing its job. since then, congress has
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abdicated that responsibility. the passing of a budget, congress doesn't pass a budget. you get these continuing resolutions that go on and on, you get these government shutdowns. there does need to be a restoration to the balance of power. it has to happen in congress. literally when we're talking about the congress, we're talking about the senate. because the house still functions. whether we like what the house does or not, the house moves. the senate has stopped functioning, has stopped fulfilling its basic responsibilities. i think it's a matter of individuals -- frankly, i've been in washington for more than two decades now. in private practice, local government, in federal government. i think it's a matter of too many individuals enjoying the lifestyle and not fulfilling their responsibilities which is supposed to be, which is make hard decisions. if you get thrown out, you get thrown out. sherman minton was thrown out of office by the voters of indiana. if you get thrown out, you find something else to do. but that's how we restore balance.
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you can't have three players and one player just decides it's not going to show up. >> that plays nicely into another question here. they mention a recent interview you did with gary goldman and you mentioned that congress might be the weakest branch of government right now. what can the people do? you know, we've seen -- we vote for different votes and things don't necessarily change. how do we effect change in the senate? >> it's difficult when we get corralled. congress is certainly the weakest branch but not by design. the branch that's designed to be the strongest ends up being the weakest, that's going to be problematic. we get corralled into these gerrymandered districts we have. so that the officials get to choose the voters rather than the voters choosing officials. but again, the larger issue
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still exists statewide with the senate. and i've just been -- you have to get votes, you have to call these votes. it began, i don't like the what-about-ism, i think what the the current senate majority leader has done, i think he has taken the baton and run with it, what he did during the obama administration, and i'm still flabbergasted by just saying we're not even going to meet with supreme court nominees. but if you rewind the tape all the way back, we go back to senator chuck schumer, we had miguel estrada, who was president george w. bush's nominee for the d.c. circuit court of appeals, whiches we mentioned earlier, is still the second most powerful federal court in the united states. and everyone who pays attention to these things knew if miguel estrada got on to the d.c. circuit court of appeals, he would end up on the supreme
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court unless something catastrophic happened. and so the democrats decided, we're not voting on the miguel estrada and chuck schumer at a press conference, they asked him what can mr. estrada do can get a vote, and the senator said at the microphone, nothing. so we begin to break down the process then. we just end up in a very -- in a very bad place. >> what do you think about the composition of the court with these three trump appointees? are you fearful of an extreme right shift on the court or do you think it will be maybe a more reserved move to the right? or maybe not at all. >> first, i don't blame -- i think that president trump did what -- he actually did his job, if there's a vacancy, you nominate someone. i would never fault the president -- it's hard to fault the president for not fulfilling
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a vacancy on the court for any reason. i don't care if it's 8:30 in the morning on january 20th, here is the name i'm putting forward. my big problem right now with the court is, almost with the description of court. i can't -- it incenses me, the constant discussion of the conservative justices and the liberal justices. no. there might be -- there may be two liberal justices on the court, maybe justice kagan, justice sotomayor. chief justice roberts is a conservative on the court. justice thomas is not a conservative. he is a right-wing justice. he's trying to move the court. and what i'll give him is that he owns up to it. he's constantly writing about this, we need to say what we're doing. justice thomas owns up to what he's trying to do.
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i want to overturn the precedent. or he says, the court just overturned a precedent and acted like it didn't. he's speaking with i think an honesty that i wish the others would, because it's not a matter of conservativism, that's not conservative, that's the opposite of conservative. if you're trying to move the court, just say i'm trying to move the court because i think that's wrong. justice thomas, i think, whether one agrees or disagrees with his positions, is very clear when he's trying to move the court. he doesn't try to hide it and say, no, it's not a conservative position, i want to move this because i believe this was wrongly decided. and i think that honesty i think is good for the american people. i also think that justices should try to write their opinions, make their opinions on our biggest issues accessible to regular newspaper reading american public. >> you see that a little bit with gorsuch too, right?
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on at least the topics that are important to him, like the fourth amendment, he will signal pretty clearly that i want to change this and here is what i want you to bring me in order for me to do it. >> correct. correct. and that's why i think it's lazy for so many of our leading commentators to consistently refer to the liberal wing of the court, the conservative wing. no, no, that's not the situation. that's not the situation. we should particularly read the justices' opinions and take them at their word when they're trying to do something, they're telling you what they're trying to do. >> so some questions, getting more back to the topic of the book. somebody asked truman's court are strong supporters of church/state separations, the rulings are controversial, it's a big political issue now. can you discuss the truman court's positions on church/state separation? >> whew. it was controversial because it
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was largely new then. and we had the beginning of many of the jehova's witnesses cases and objections to policy. and so it was one of the court's initial forays into what we now call the culture wars. but back then the court was very reticent. what the court tried to do, repeatedly, a pejorative way to put it would be to punt, i think that's a lazy way to put it. i would say they tried to restrict their rulings to the facts that were presented before them. that's why we got larger rulings later with the school prayer cases and other things that happened during the warren court because many of those issues had been decided as narrowly as possible during the truman times. and that was due in no small part to the work of justice felix frankfurter who,
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particularly as the only jewish member of the court, had -- during a time of great -- you know, great open prejudice, had a large voice on the court in that respect. so i think we have the beginnings of those issues then but they became larger later. >> somebody else asked what got you interested in truman to begin with, and where would you rank him among presidents in the last hundred years. >> i became interested in president truman in researching my first book "root and branch" and seeing how he struggled, the legal struggle for in what we now call the civil rights movement wound its way through the courts and how truman had such an outsize effect on it, particularly with the blinding
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of isaac woodard, which was the subject of a recent "american experience" pbs documentary, which i had the privilege of being in, if you have a chance to see it, i encourage everyone to watch that. i was intrigued by him in no small part because, and i can say that now, after having spent 2021, a good part of the last 12 years, doing a lot of research about president truman, and i thought at the beginning, you know, 1948, i don't think i would have voted for him. and i can say now that having done all the research and everything, i don't think i would have voted for harry truman in 1948. i think i would have probably voted for thomas dewey. and that i think allowed me a remove from which to approach the subject and approach the man, not just politically as a political science major, as an attorney, but also just as, you
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know, an american citizen going through life and getting older. when i started this, i was 28, and i'm 44 now. and i still find him a highly intriguing subject based in large part because of where he came from, where he ended up. and it's a cliche, you see it in all the bad movies, you make your own luck. if there's anybody who made his own luck, for the love of god, it's harry s. truman. he was there, in the right place, putting in hard work, hard work at every single level, whether it's in the mud, in missouri, trying to get money for the roads, or as a county judge, or as an army captain, out in the mud in europe, or whether it's as a back bench senator who is being ignored, literally ignored by members of his own party in the united states senate and he's still showing up to work, writing letters to the roosevelt white
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house and being ignored, and still working and working. and then you find out years later, oh, roosevelt says -- he's literally like, okay, fdr, on a proposal for truman to become vice president, and the man ends up as president of the united states. >> so we have one last audience question here, then i'll ask you a question to wrap up. somebody asked how hands-on truman was in picking his supreme court justices. very, right? >> he wasn't asking anybody else any questions by the time he got to the third one. he had a list in his mind. in fact when tom clark came to him, when tom clark came to the oval office with a list, he had a list of catholic nominees, we're going to have a catholic nominee to replace justice frank murphy and harry truman said, no, i'm going to nominate you. so he had a list in his mind of who would be his nominees to the court.
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they were going to be men, they were all men at the time, they were going to be men whom he knew and trusted. >> and clark cited no religion but his supporters pointed out that his wife and kids were catholic. >> that's right. his wife's catholic. come on, that's got to count. now most of the court is catholic. it's incredible. >> throughout the book you weave two great narratives about how truman used the court. a couple of the cases relate to unions and a couple relate to civil rights. we don't really have time to get into too much of those, i would encourage people, buy the book or get it from the library, it's a fantastic read and you'll learn so much. but i wonder if you can in closing summarize how truman used the supreme court to advance his civil rights agenda.
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>> truman was the first president to address the naacp. and he became convinced, again, particularly after the blinding of sergeant isaac woodard, that something had to be done at the federal level to protect the rights of american citizens who happened to be african-american. and he knew from his time in the senate as a democrat that nothing would be able to get through the southern democrats in the senate. so began to think of two things, one, what can i do by executive action, which he was able to do with desegregating america's military, and secondly, what can i do with my department of justice. and in order to get the thing through with his department of justice, he needed a good manager at the top, which he had with tom clark, and tom clark had good people. and they were all on the side of the administration, pushing forward, not just defending what
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the president had done, but pushing forward to move the country forward by common law, which is what we call it, it's common law, building on common law, in the federal district building on common law. and the federal district courts and appellate courts. but he realized in order to bring it to fruition, things would end up at the supreme court. again, we get back to it, the man got lucky and he got four nominations, four men on the court who ended up not just going with the administration, but helping to lead their fellow justices to what was right. there are still questions once we get to brown versus board of education, but truman was not in office at the time. during the truman presidency, the court unanimously, consistently, without
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equivocation in very clearly written opinions that any american could understand, argued to their fellow citizens that the constitution guaranteed rights to all american citizens, regardless of race. and, again, if there's anyone who made his own luck professionally and politically, it was harry truman, but as well with the three justices and chief justice to the supreme court. >> it kind of embodies the adage luck is where preparation meets opportunity. i want to close with something that i hope might give people a little bit of hope for the supreme court going forward. one of the things that you write in the prologue about truman's appointees is they often supported the president who had nominated them not for a sense of loyalty, but rather because
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they agreed with his administration on critical questions of constitutional law. and i wonder, how true is that today? do people worry too much about republican appointees and advancing a republican agenda or democratic employees and advancing the democratic agenda? or are they just having legal arguments or theories with those they think are going to support them? >> i think it's a result that the major parties, particularly the republican party, simply are ideologically diverse. so back then, and even as recently as the 1970s, you had republicans, rockefeller republicans, different kinds of republicans. back then you had democrats who were segregationists and those from the daily machine in chicago. so they had desperate interests.
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it wasn't a matter of pushing forward what might be seen as a democratic agenda because the so-called democratic agenda sas so diverse back then. senator russell from georgia had a different agenda than the democratic mayor of chicago, or the republican governor of new york. now it's so clearly drawn, the ideas so clearly align with parties that it becomes easy -- it's a matter of common sense to construe the justices' opinions with the ideology of the particular party. >> is that a problem? >> i think it's an extraordinary problem. i think it's a very big problem. i think it's the primary problem
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with that the chief justice is wrestling with and has quite publicly in opinions. i don't think it's a matter of personal loyalty. i think we're very far from that. i think the days of the justices getting conferred and saying thank you very much, i'm here, but the fact that so many decisions seem to conform so much with party ideology. but i know we have to wrap up, but i just want to see the judicial branch actually has to produce. that's the difference here. whether one agrees or disagrees with what the supreme court decides, come the end of the term, they had decisions for you. you can read them. congress just comes out two years, they're out, and you see the congressional leaders talk about this congress and that congress. and i pay very close attention to it. they come in, they come out, and
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nothing happens. but the judicial branch -- the executive branch has to produce because someone has to run the government, someone has to turn the lights on. and the judicial branch has to produce each other, and they do. they produce each other. when you do that, you're going to upset some people and make some people happy. the problem is that we have the most powerful branch that is not producing, not doing its job, and someone is going to fill that vacuum. >> i would love to have you back some day to talk more about the current supreme court and how we fix the problems we're facing if you would be willing. >> i would love to talk to you. >> weekends on c-span2 are an intellectual feast. every saturday "american history tv" documents america's stories. and on sundays, book tv brings you the latest in nonfiction books and authors. funding for c-span2 comes from
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these television companies, and more, including cox. >> cox is committed to bridging the digital divide one connected and engaged student at a time. cox, bringing us closer. >> cox, along with these television companies, support c-span2 as a public service. >> our weekly series, the presidency, highlights the politics, legacies of u.s. presidents and first ladies. up next, how should we address woodrow wilson's complicated legacy? that's before the presidential library and the international center for scholars. >> woodrow wilson international center for scholars aims to unite the world of ideas to policies by supporting pre-eminent scholarships and linking that to issues

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