Book Review: ‘On Every Tide,’ by Sean Connolly - The New York Times

My sister Nancy with Muireann Walsh - 

proprietess of a pub in Costelloe, our ancestral village.

Resemblance?

We know little about our ancestors.  My mother gathered a lot of information - we have the names of towns and villages in County clare, Galway and east toward Cork.  But the only one born in Ireland in our family's memory was Thomas Costello.  He arrived at Castle Garden,  The Battery about 1860.  He walked from Costello [Casla in Gaelic] to Galway where he boarded a ship to meet his brother in Brooklyn.  

Thomas  lived to  his mid-eightie , after retirement with my grandparents Teresa Costello and George Washington Conk, Sr.  So my Dad, born in 1920, knew him well.

Teresa and George went back with my parents in the 1970's when at least one kind  man declared he knew the Costelloe family and the story of the boys who lost their parents in the famine.  It doubtless helped that the pub was named Costelloe's - as it was when I took Taisy there in 2002.  Nancy (Clare Ann) is the most recent returnee.  You can see from the picture above that the apple has not fallen far from the tree.

- GWC

Book Review: ‘On Every Tide,’ by Sean Connolly - The New York Times

By Fintan O’Toole

Oct. 21, 2022

When you purchase an independently reviewed book through our site, we earn an affiliate commission.

ON EVERY TIDE: The Making and Remaking of the Irish World, by Sean Connolly

In June 1963, on his sentimental journey to the land of his ancestors, President John F. Kennedy told an adoring crowd in Cork, Ireland, “Most countries send out oil or iron, steel or gold, or some other crop, but Ireland has had only one export and that is its people.” The remark was meant kindly. Kennedy’s own ascent to the White House made the mass exodus from Ireland look like a rags-to-riches story with a glorious ending. Yet, for those who had stayed in Ireland, J.F.K.’s observation cut a little too close to the bone. If a country’s only export is its daughters and sons, it cannot be such a great place to live.

The raw numbers do tell a grim demographic tale. In 1841, a census recorded Ireland’s population as 8.2 million. In 2022, despite the global population having grown around eightfold since the 1800s, and even after a recent period of rapid population growth on the island, the figure for Ireland and Northern Ireland together is only seven million. We must be very careful about exceptionalism, but this decline really is exceptional. All the more so because, with the horrific exception of the potato famine of the 1840s, the Irish have not died in large numbers in wars or disasters.

Rather, they have departed — and after the initial flight of refugees from the famine, the Irish left home by choice, generation after generation. Between the 1830s and the 1950s, eight million people emigrated from an island not much bigger than Maine. (Around another million have since left, most of them in the 1980s when the Irish economy experienced a long recession.) Once gone, moreover, the Irish generally stayed gone.

The Thinking Behind the Zelensky Speech to Congress - James Fallows

 

The Thinking Behind the Zelensky Speech to Congress - James Fallows

December 26, 2022

Five days ago, Ukrainian president Volodymyr Zelensky made his eloquent and powerful speech to a joint meeting of the U.S. Congress and to a live audience of many millions.

Three days ago I explained why I thought the speech was so skillfully crafted and effective. One of the things I said was, “Zelensky and his team knew what allusions to make, what chords to strike, what historical and cultural parallels to draw… Zelensky has someone who is good, and is good in English, working with him.”

Today I have been in electronic touch with one of those “someones”—one of the people involved in creating Zelensky’s sequence of exceptional wartime addresses. This is Dmytro Lytvyn, whose title is advisor to the Head of the Office of the President.1 I am extremely grateful that he took the time to answer my questions today, with everything else that is going on.

Lytvyn emphasized, as effective writers for political leaders always should, that responsibility for a speech’s quality, good or bad, ultimately rests with the leader rather than the staff. This is the person who chooses the writers, who decides what themes to stress or avoid, who conveys a tone when speaking to a camera or a crowd.2

Posted below are a series of questions I sent by direct message to Lytvyn, and the answers he sent back. As you’ll see, my questions mainly concern craft: how a team based in Kyiv manages linguistic and cultural divides in explaining their case to the world.

I present both questions and answers without comment, and with very minor copy editing. On both sides we were typing quickly, with resulting shortcuts, but of course I had the benefit of operating in my native language.

---

Questions for a member of the Zelensky team.

 

1. How to think about speeches written in Ukrainian, which much of the world will hear in English.

2. How to judge what will ‘sound right’ in English.

3. Where the historical allusions come from.

4. The decision to speak to the Congress in English.

Question: Was it a difficult decision to have the president *deliver* the Congressional speech in English?

Answer: He wanted to speak in English. The main thing of that speech in Congress was to thank to all Americans, and it would only be right to say such words in English.

5. What is different about political rhetoric.

6. The beginning of Zelensky’s leadership through social media.

Question: I wrote, at the time, that President Zelensky’s very early “we are here” video had enormous, history-changing effect. Was that appearance “written” in any way? Or was it in the moment?

Answer: That is him.

The President just went to the street, to the place which every Ukrainian knows, and said what he thought was needed. He often does such things. He feels it.

7. What else Ukrainians would tell Americans.

Opinion | With This Supreme Court, the Way Liberals Dissent Matters - The New York Times

Opinion | With This Supreme Court, the Way Liberals Dissent Matters - The New York Times

Memorandum to the Attorney General -Editorial Board New Jersey Law Journal

 COMMENTARY NEW JERSEY LAW JOURNAL

Memorandum to the Attorney General

There is guidance from the advice then-Assistant Attorney General Theodore Olson gave to his boss Attorney General William French Smith in 1982 during Ronald Reagan’s first term.

December 11, 2022 at 10:00 AM

 5 minute read

Government

By Law Journal Editorial Board | December 11, 2022 at 10:00 AM

Vitriol on both sides of the political spectrum threatens to win out over good-faith debate. The attack on the Capitol at a critical moment, the groundless claims of election theft, pose enormous challenges for the law and particularly the United States Department of Justice. Fortunately for Attorney General Merrick Garland there is guidance—from the founding era and, more recently, the advice then-Assistant Attorney General Theodore Olson gave to his boss Attorney General William French Smith in 1982 during Ronald Reagan’s first term.

The Knight Center for the First Amendment at Columbia via the Freedom of Information Act obtained confidential memoranda of the DOJ Office of Legal Counsel. That office advises presidents and department heads in the way the Judiciary Act of 1789 described the attorney general as: “a meet person, learned in the law … whose duty it shall be to … prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and … give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any departments.”


The duties of that officer are particularly acutely challenged when, as today, the former president of the United States—twice impeached but not convicted of “high crimes and misdemeanors”—is the target of investigation. Today that duty falls to Merrick Garland. He faces an awesome challenge: the subject of the DOJ’s investigations is the former president who has announced that for the third time he will seek the White House.

It is one thing to say—as Garland has many times—that no one is above the law, that justice must be pursued without fear or favor. It is a more daunting task to live up to those words—one made more difficult by the change of hands in the United States House of Representatives. Incoming House committee chairmen have said they intend to make President Joe Biden’s son Hunter and the president himself a principal focus of their investigatory powers. In this environment can Garland live up to his charge in a way that retains public confidence?


Fortunately, the Knight Center has provided us with the benefit of the 1982 memorandum by then-Assistant Attorney General Theodore Olson to then-Attorney General William French Smith. Titled “Re The Role of the Attorney General in the Government of the United States,” Olson—who has long distinguished himself as a premier advocate before the Supreme Court—sets forth the duties in their complexity in a brilliantly lucid and concise manner.

We are not simply agents of clients, or citizens obligated to obey the law. As lawyers we are officers of the courts which license us. We can sign a subpoena, issue a notice of deposition, or demand production of documents. Like executive officers we swear an oath to uphold the Constitution and laws of both the states which license us, and of the United States of America. We usually view ourselves as zealous agents of our clients.

Because in the United States the people are said to be the sovereign, there is no lawyer in the country more subject to diverging and conflicting interests than is the attorney general of the United States of America.

The AG must confront the conviction of many that lawyers and prosecutors are mere partisans. Like the attorney general, each of us is inherently conflicted—we serve both our clients, and the governments and people of the United States. Conflicted because their multiple interests are often in tension.

The duty of independent advice of counsel inheres in the multiplicity of interests which we as lawyers must simultaneously serve. We are not merely agents of our clients or of the law. This fundamental fact is expressed in Rule of Professional Conduct 2.1 Advisor and Counselor. We are directed to “exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.” These are Merrick Garland’s marching orders.

We commend to him the stance expressed 40 years ago by Assistant Attorney General, Office of Legal Counsel, Theodore Olson to William French Smith on the “role of the Attorney General of the United States.” In a “Memorandum to the Attorney General” Olson gave advice that cannot be gainsaid:

“The responsibilities of the Attorney General are unique within the Executive Branch. While he is a policy-adviser and servant of the President like other cabinet members, his peculiar role as a lawyer—the lawyer for the United States—adds a significant additional dimension to his relationship to the President, the balance of the government, and to its citizens.

“While the Attorney General functions as the lawyer for the President and the Executive Branch, he is also charged with representing the government of the United States as a whole, including the Legislative Branch. Finally, he is the Administration official with the paramount responsibility of guiding the President in the performance of the foremost duty under the Constitution—to take care that the laws be faithfully executed.”

We commend to the Attorney General Assistant A.G. Olson’s advice to French Smith.

An ‘Imperial Supreme Court’ Asserts Its Power, Alarming Scholars - The New York Times

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. - John Marshall, C.J.

Marbury v. Madison (1803) - National Archives |

The Supreme Court does so much more than Marshall declared to be necessity two hundred years ago.  In the past year it has solidified what it calls the Major Questions Doctrine - which demands that when the Executive branch seeks to do something "major" it will be permitted to do so only if the Congress has spoken with "particular clarity".  This usurpation of the power of the Congress and the President and executive branch led Stanford law professor Mark Lemley to label it The Imperial Supreme Court..

And now there's data:

A second study*, to be published in Presidential Studies Quarterly, concentrated on cases involving the executive branch and backed up Professor Lemley’s observations with data. Taking account of 3,660 decisions since 1937, the study found that the court led since 2005 by Chief Justice John G. Roberts Jr. has been “uniquely willing to check executive authority.”

This trend was even more pronounced in cases discussed in law school casebooks and featured on the front page of this newspaper. The executive branch in the Roberts court era won just 35 percent of the time in those cases, a rate more than 20 percentage points lower than the historical average.

Also notable is the Court's injudicious eagerness to exercise its equitable discretion without waiting for couts below; its haste to declare a stay appropriate because on an incomplete record the majority concludes that a party is likely (or not) to prevail in the end.   Remarkable is the surging practice of granting certiorari before judgment - a procedure last used in 2004, but fifteen times since 2019.

Whatever happened to denunciations of "judicial activism"?  That was always a polemical, not descriptive charge. It stood for objection to the expansive decisions of the 1954 to 1980 when Ronald Reagan took office. During his two terms he elevated William Rehnquist to Chief Justice, and  nominated Sandra Day O'Connor, Antonin Scalia, and Anthony Kennedy.  O'Connor and Kennedy proved unreliable on  the issues of abortion and gay rights.  It was in the Trump years that Associate Justices Gorsuch, Kavanaugh and Barrett gave Justice Alito and Thomas they the votes they needed.  This year in Dobbs and NY State Rifle & Pistol Clubs they swept off the books Roe v. Wade, and state limitations on the right to bear arms.

- GWC 12/19/22

* Is the U.S. Supreme Court a Reliable Backstop for an Overreaching U.S. President? Maybe, but is an Overreaching (Partisan) Court Worse? Rebecca L. Brown, University of Southern California Lee Epstein. University of Southern California

An ‘Imperial Supreme Court’ Asserts Its Power, Alarming Scholars - The New York Times

By Adam Liptak

Dec. 19, 2022, 5:00 a.m. ET

WASHINGTON — The conventional critique of the Supreme Court these days is that it has lurched to the right and is out of step with the public on many issues. That is true so far as it goes.

But a burst of recent legal scholarship makes a deeper point, saying the current court is distinctive in a different way: It has rapidly been accumulating power at the expense of every other part of the government.

The phenomenon was documented last month by Mark A. Lemley, a law professor at Stanford, in an article called “The Imperial Supreme Court” in The Harvard Law Review.

“The court has not been favoring one branch of government over another, or favoring states over the federal government, or the rights of people over governments,” Professor Lemley wrote. “Rather, it is withdrawing power from all of them at once.”

He added, “It is a court that is consolidating its power, systematically undercutting any branch of government, federal or state, that might threaten that power, while at the same time undercutting individual rights.”

The arguments this month over the role of state legislatures in setting rules for federal elections seemed to illustrate the point. The questioning suggested that the court was not prepared to adopt a novel legal theory that would upset the ordinary checks and balances at the state level in election litigation.

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‘Freedom’s Dominion,’ by Jefferson Cowie - Book Review: The New York Times

George Wallace ran four campaigns for President. 

He demonstrated there is a base for anti-Blackness

beyond the southern states

Book Review: ‘Freedom’s Dominion,’ by Jefferson Cowie - The New York Times

By Jeff Shesol

Dec. 12, 2022

When you purchase an independently reviewed book through our site, we earn an affiliate commission.

FREEDOM’S DOMINION: A Saga of White Resistance to Federal Power, by Jefferson Cowie

Americans, Ralph Waldo Emerson remarked shortly after the Civil War, were “fanatics in freedom; they hate tolls, taxes, turnpikes, banks, hierarchies, governors, yea, almost laws.” It might not have surprised him, then, had he been alive in 1963, that George C. Wallace, the newly elected governor of Alabama, invoked freedom in nearly every passage of his inaugural address. That speech, made infamous by its call for “segregation now … segregation tomorrow … segregation forever,” was focused, principally and relentlessly, on Wallace’s idea of freedom. “I have been taught that freedom meant freedom from any threat or fear of government,” he proclaimed. As for the Black citizens of Alabama, they were “free,” too — free to live and toil and teach and learn within their “separate racial station.”

The Wallace inauguration serves as an overture, a thunderous rehearsal of themes, in the opening pages of “Freedom’s Dominion,” Jefferson Cowie’s important, deeply affecting — and regrettably relevant — new book. Cowie, a historian at Vanderbilt University, traces Wallace’s repressive creed to his birthplace, Barbour County, in Alabama’s southeastern corner, where the cry of “freedom” was heard from successive generations of settlers, slaveholders, secessionists and lynch mobs through the 19th and 20th centuries. The same cry echoes today in the rallies and online invective of the right; though Cowie keeps his focus on the past, his book sheds stark light on the present. It is essential reading for anyone who hopes to understand the unholy union, more than 200 years strong, between racism and the rabid loathing of government.

“Freedom’s Dominion” is local history, but in the way that Gettysburg was a local battle or the Montgomery bus boycott was a local protest. The book recounts four peak periods in the conflict between white Alabamians and the federal government: the wild rush, in the early 19th century, to seize and settle lands that belonged to the Creek Nation; Reconstruction; the reassertion of white supremacy under Jim Crow; and the attempts of Wallace and others to nullify the civil rights reforms of the 1950s and 1960s. Throughout, as Cowie reveals, white Southerners portrayed the oppression of Black people and Native Americans not as a repudiation of freedom, but its precondition, its very foundation. Thus were white men, in the words of the scholar Orlando Patterson, whom Cowie quotes, “free to brutalize.” Thus were they free “to plunder and lay waste and call it peace, to rape and humiliate, to invade, conquer, uproot and degrade.”

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Insurrection - then and now - December 16, 2022 Heather Cox Richardson

 

Insurrection then and now

Heather Cox Richardson December 16, 2022

Some interesting developments as we head into the weekend:

On Monday the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol will hold its final public meeting. Today, Kyle Cheney and Nicholas Wu of Politico reported that the committee will vote on referring former president Trump to the Justice Department for at least three criminal charges. Those charges include insurrection, obstruction of an official proceeding, and conspiracy to defraud the U.S. government.

Such a referral creates no legal obligation on the Department of Justice to act, but it certainly creates political pressure. If a bipartisan congressional committee—and the January 6th committee has two Republicans on it, no matter how often Trump supporters say it is all Democrats—many of whose members are lawyers, tells the Justice Department it thinks crimes have been committed, the Department of Justice will need, at least, to explain why it disagrees.

In the shorter term, though, Representative David Cicilline (D-RI) and 40 colleagues yesterday introduced a bill in which the term “insurrection” matters a lot. The measure bars Trump from holding office under the restrictions imposed by the Fourteenth Amendment. Written in 1866, after President Andrew Johnson had pardoned most of the Confederate ringleaders and constituents had voted them back into office, Congress wrote:

“No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

The states ratified that amendment in 1868.

Texas v. U.S. : Solicitor general Elizabeth Prelogar challenges judicial power to compel government enforcement of immigration laws Mark Joseph Stern

Solicitor General Elizabeth Prelogar argued to the Supreme Court that states have no standing to challenge the resident's discretion in pursuing removal of persons here without legal authorization.

She also argued that the Courts lack the power to by "universal vacatur" or nationwide injunction declare unenforceable federal regulations and enforcement actions.  The use of such devices has been the source of celebration and warning.  Among the skeptics is Vox's Ian Millhiser who embraced a skeptical view of these powers by Neil Gorsuch the Associate Justice.

Prelogar embraced the critique offered by Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417 (2017). The critique is that a single judge overreaches when issuing a "nationwide injunction" which extends beyond the parties before the court and the District in which the controversy arises.

I have been a skeptic about Bray's argument because courts properly blocked the Trump administration's defiance of the Asylum Act 8 USC 1158 mandate that asylum requests must be considered regardless of the point of entry.

The Administrative Procedure Act, 5 USC 706, declares that a 

reviewing court shall—

(1)

compel agency action unlawfully withheld or unreasonably delayed; and

(2)hold unlawful and set aside agency action, findings, and conclusions found to be—

(A)

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law

S.G. Prelogar was challenged by the Chief Justice:

...doesn't that mean that no state would ever have standing to challenge immigration policies concerning apprehension or removal of aliens?

GENERAL PRELOGAR: That's right. We think that the Court articulated a principle there that an individual or a state doesn't have a judicially cognizable injury in seeking enforcement of the law against a third party. 

The government argues that such orders must be confined to the particular parties in the matter before the reviewing court; that voiding by "vacatur" or injunction is beyond the court's authority.  So here I find myself allied with the Court of Appeals for the District of Columbia Circuit whose jurisdiction over federal agencies is wide.  The Supreme court -   has been almost stripped of lawyers with substantial political experience (think for Governors Earl warren and Frank Murphy) - but packed with former judges of the D.C. Circuit who relish the powers they once exercised.

 It has been an unwritten rule that the courts do not interfere broadly with the discretion of the executive branch on how to "faithfully execute" the laws, as the Presidential oath of office demands.  But in this case the states - whose immigration policies are preempted by federal law.

- GWC 12/13/22

Texas v. U.S. : Solicitor general Elizabeth Prelogar challenges judicial power to compel government enforcement of immigration laws

By Mark Joseph Stern

During oral argument on Tuesday in United States v. Texas, an important immigration case, the Supreme Court got sidetracked over a question that has major implications for the executive branch and its ability to function: Can a plaintiff walk into court, challenge a federal regulation, and win a victory that halts the entire government’s ability to enforce that regulation anywhere, against anyone—even parties that played no role in the litigation?

The answer to this question is important, because this tactic has rapidly become an obstacle to governance.

Under President Barack Obama, conservative judges began using a specific power to “set aside” policies, granted to them by a provision of a 1946 law, to halt executive policies nationwide, claiming that Congress intended to award them this sweeping power. Left-leaning judges used the tool to limit President Donald Trump’s efforts to rewrite federal statutes, particularly asylum law, and prompted a huge backlash among Republicans. Today, with President Joe Biden in office, conservative judges have transformed the power to “set aside” policies into an unprecedented weapon of obstruction, voiding agency rules and executive policies so frequently that they have turned the federal judiciary into a kind of shadow president with a permanent veto over the actual, elected president.

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