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tv   The Civil War Abraham Lincoln Politics and the Supreme Court  CSPAN  March 3, 2019 10:00am-11:31am EST

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abraham lincoln change the supreme court during his presidency. remarks, he sits down for a conversation for the history of political influence with henry chambers. the american civil war museum in richmond, virginia hosted this 90 minute event. >> let me introduce our guest speaker for tonight. tim three who is the professor at tennessee. he is the author of multiple books. the civil war era and american constitutionalism. addition, he has published numerous articles and op-ed
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pieces have appeared in the wall street journal's market website. the weekly standard. and the new york times name a few. the native of orlando, he received his da from the university of miami and an ma and phd in -- at the university of florida. let's give a warm welcome. >> thank you, kelly and angst to the staff, it is a great honor to be here. thank you for the invitation. we are going to spend some time focusing on the supreme court and politics during the civil war period. all of my slides are -- where is
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my -- there we go. that's ok. >> [indiscernible] >> you have gotten a preview of the whole talk and now i can sit down. [laughter] >> there you have it. we are going to be talking about politics and the supreme court during the civil war era. by the end of the talk, i want us to think about did lincoln and republicans passed the supreme court we will think about what it means and think to puthe opportunities this in a broader context. when it comes to the history of the supreme court. let's start in the civil war era. and let's start in the 1840's and 1850's. as you may know, it is in that period that the nation is
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struggling with the issue of the extension of slavery into the west. it is from 1848 that northerners and southerners are arguing over the state of slavery in the west. this is an issue that it is -- is so significant that it leads to the creation of the republican party in the 1850's. and itally, what happens is boils down to a couple of points of view on this issue of the future of slavery in the west. the republican party, is a free soil party. he wants to keep slavery from spreading to the west. it wants that area to be free soil.
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southve democrats in the who are interested in studying slavery without limits at all. this is the southern rights or slaveholders rights stance. in the, you have those middle, who are arguing for a compromise like popular peoplegnty, to let the as the west, as they organize territories vote on this issue of whether or not those are slaves or free territories. that is the big issue. as is true now, what happens by theend of the 1850's is issue ends up at the supreme in the case ends up
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of an individual who was known as dred scott. case ofus dred scott 1857 is heard by the supreme court and had been making its way through the court system since 1846. they wanted to make an issue of slavery in the west and they were able to do so in this instance. dr. john emerson travels into the free state of illinois, free
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territory, comes back to his scott,ate of missouri, with the helps of the son of his former owner files a suit for his freedom. it goes to the missouri supreme court. scott loses and he loses even though existing law in the state at the time was that if a slave had been taken into free territory and had been a resident there, and was brought back into missouri, he was to be free. that was the accepted understanding at the time. the missouri supreme court is rule in scott's favor. in the meantime, the case ends up in federal court and it ends
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up in the supreme court in 1857. case, roger bis a holding that has two significant points. scott'st has to do with standing to sue, whether he is a citizen. scottds that not only is not a citizen, but he makes a , which is thatnt african-americans have no rights that the white man is bound to respect. famous or most infamous statements ever made in the history of the supreme court
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, more significant in the political context of the 1850's is the second point of law. have a right to into the the right of property in a slave in the constitution. in some ways, trying to settle this larger political issue of
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slavery in the west. by issuing this part of the holding, what he is doing, he is missouring the compromise under which scott had been able to file his suit in the first place and that the in wasry he had ended up based on the terms of that act. what the supreme court is doing is significant. tone for our understanding of the politics of severalt for the next years as we enter into the era of the supreme court. is
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there is some variation if we look at what these seven individuals said, but basically they are on the same page, that scott is not a free man, he is not a citizen, and more politicaltly, in the context of the 1850's, slaveholders rights are absolute. no rights for african-americans and all rights for slaveholders. it is an absolute ruling issued by tani. say the republican party had just been formed,
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arguing that those western territories ought to be free soil. in effect, what the supreme court is doing here, it is saying the foundational principle of a political party is in violation of the constitution. -- if slaveholders had rights to take slaves into the west, the republican party has no platform. that is its platform. shatteringearth ruling when it comes to politics. what happens is the following year in 1858 when abraham lincoln is running for a u.s. senate seat against stephen douglas, they are famously
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debating all over illinois. but what they are arguing over really is the leading of the supreme court's ruling in dred scott. lincoln is challenging douglas in that lincoln thinks the supreme court has gotten it wrong. abraham lincoln thinks the founders were anti-slavery. and roger taney and his six fellow justices have ruled exactly the opposite, that the founders were proslavery, that the constitution is on the side of slaveholders' rights. you remember again the words from taney arguing slaveholder'' rights were expressly affirmed in the text. when lincoln and douglas are arguing with each other, they are basically arguing over what the supreme court has said and done in dred scott.
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while they are debating, douglas says to lincoln, how can you overthrow a ruling of the supreme court? how can you do that? the supreme court. douglas is basically saying to lincoln the supreme court is final, it has settled the issue for us. lincoln has a response. i want us to look at that. in some ways, what he says in his answer to douglas serves as a roadmap for what we will see in the next few years once lincoln is elected president. there is a lot of text on this slide. bear with me as we work through this. once again, this is lincoln challenging douglas in 1858. lincoln says he is desirous of knowing how we are going to
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reverse the dred scott decision. judge douglas ought to know how. didn't judge douglas find a way to reverse the decision of our state supreme court when it decided governor carlin had not the constitutional power to remove a secretary of state? here we go, listen to what he says next. did he not appeal to the mobs, as he calls them? did he not make speeches in the lobby to show how villainous that decision was, and how it ought to be overthrown? did he not succeed too in getting an act asked, passed by the legislature to have it
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overthrown? and didn't he himself sit down on the bench as one of the 5 added judges who were to overslaw the old ones? i think overslaw is a 19th century term. getting his name of judge in that way and no other. again, this is abraham lincoln in 1858 arguing with stephen douglas. and really here, i would say identifying three things that one is able to do in order to try to reverse a ruling of the supreme court. one is to try to shape public opinion, to make speeches, right? second is to try to pass an act of the legislature.
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and third and finally, maybe add new judges to the court to change its makeup in order to change what the court in the future will actually do. once again, in order to be able to overrule a previous ruling of the court. all of us know what happens next. even though abraham lincoln will lose in the 1850's senate race, he wins the presidency a few years later in 1860. he is sworn in in 1861. after he is sworn in, he makes a speech. and in that speech, he expresses his opposition to the supreme court. even the sort of role of the court as a sort of final arbiter of the constitution. listen to what he says. this is lincoln at his first inaugural, march of 1861. he says the candid citizen must confess that if the policy of the government upon vital
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questions affecting the whole people is to be irrevocably fixed by decisions of the supreme court, the instant they are made in ordinary litigation between parties, the people will have ceased to be their own rulers. having to that extent, practically resigned their government into the hands of that eminent tribunal. lincoln here is saying that in some ways, the supreme court is an anti-popular, anti-democratic institution. and if we are simply going to leave this to the supreme court, the people will have ceased to be their own rulers.
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he is already making an argument. he is already making speeches. he is already trying to shape public opinion in opposition to the dred scott case. right? well, what is especially interesting if we think about the civil war and the supreme court is that abraham lincoln very quickly sees not only one, not just two, but 3 vacancies on the supreme court. i want to explain how that happens. one of them happens prior to his actually entering into the presidency. in may of 1860, justice daniel dies. daniel was a southerner from virginia. he was part of the majority in dred scott. he was one of the 7 justices in the majority. i should mention that of those seven, five were from
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slaveholding states. two were northerners. all 7 of those in the majority in dred scott were democrats. understanding that once again in the 1840's and 1850's, the democratic party is a proslavery party. and in the northern states, those who are democrats in the north are sympathetic to the south and to slaveholders' rights in the west. daniel dies. the president at the time, james buchanan, waffles and waits and is unable to decide who he will nominate to take daniel's place. he waits and waits up until his final month in office. in february of 1861, he finally sends a nomination to the senate.
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as you might imagine with just a few weeks left until lincoln will take the oath of office, the senate takes no action and nothing happens. so that they can see is there, primarily because buchanan allows it to be there. that is there when abraham lincoln is sworn in. there's already one opening on the supreme court. the second, about a month after lincoln's sworn in as president, justice john maclean dies. maclean had been on the court for a very long time. he had been appointed by president jackson in the 1830's. he started out as a jacksonian democrat. by this point, he was kind of an anti-slavery whig and ultimately a member of the republican party. he was one of the two dissenters in the dred scott case. he dies about a month after lincoln has actually stepped into the presidency.
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finally, about 30 days after, 20 some odd days after maclean's death, john archibald campbell steps down from his seat on the supreme court. he was a southerner from the state of alabama. he resigns and ends up as the assistant secretary of war for the confederacy. it is interesting if we think about the southerners on the supreme court. there were a few other southerners who were part of the majority in dred scott. they are loyal unionists and stay on the supreme court. john archibald campbell is the only southerner who steps down. he too is part of the dred scott majority. the court is already starting to change. but it is not changed to the extent that even if lincoln were to fill all of the seats with anti-slavery folks who were prounion from the north, he
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still would not have enough justices to overturn the 1857 ruling. we want to think about what happens next. let me just say finally, three openings in 1861. already, abraham lincoln, even though he has only been in office for a year, it is already evident he will have more of an opportunity to shape the supreme court than any of his predecessors except for george washington and andrew jackson. they are the only presidents who have had the opportunity to nominate more than 3 justices of the supreme court. so this is very significant that this has happened already so early in lincoln's term.
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now, understand once again, when the civil war starts, the southerners, all except for a handful, all go home. so congress is dominated by members of the republican party from the north. and so, from their point of view, this is an opportunity. if the supreme court has been a thorn in their side, if it has been a symbol of southern democratic proslavery power and proslavery constitutionalism, then maybe it is not just enough to fill these seats. maybe it is an opportunity to change the court in some fundamental way. so in 1862, prior to abraham lincoln actually filling any of these seats, there are all sorts of ideas floating around in congress.
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i will simply add that not only is there dred scott in 1857 that northerners are upset about, they are also upset in the context of 1861 that chief justice taney has tried to interfere with abraham lincoln's efforts to suspend the writ of habeas corpus in the spring of 1861 in a case which is hard not by the full support in court but only by taney in his role as circuit judge. we will come back to the circuits in just a second. the northerners who were members of the republican party have ample reason to want to try to change things. they are sort of interested in entertaining all sorts of ideas. one of them is that they would expand the court.
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this is an idea especially floated by the newspaperman horace greeley, the editor of the new york tribune. he floats an idea to expand the size of the court from 9 justices to 13. that is one idea that is out there. at the end of 1861, keeping in mind lincoln has not told any of these vacancies yet, at the end of 1861, senator john hale of new hampshire introduces a resolution that the supreme court be reconstituted. you may ask, what do you mean by that? he means basically abolish the supreme court as it is and start over with 9 new justices, all of them nominated by president lincoln. that is his plan. this is how he puts it. he says the supreme court as it
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is presently established has utterly failed. he says it is bankrupt in everything intended by the creation of such tribunals. it has lost public confidence. it does not enjoy public respect and ought not. that is senator hale arguing the basically we need to fire all of these justices and start over. the third idea which ends up actually happening is reorganizing the federal circuits to change the makeup of the supreme court. this is a much more moderate view. let me explain what i mean by this reorganizing. understand that in the 19th
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century, the supreme court is very much tied to geography. the justices are not only sitting in washington, d.c., they are also circuit, so they are serving as federal circuit court judges out in the rest of the country. and the practice was basically that justices were to come from the circuits that they represented. so what happens when the supreme court is formed in 1789, president washington nominates two justices from the eastern circuit in the northeast, two from the middle circuit, and two from the southern circuit. there are six members of the supreme court in 1789. it is later expanded to seven and later up to nine justices.
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what this means is the circuits could be reorganized so that the southern slaveholding states would be put into fewer circuits which would mean the south would have fewer seats on the supreme court which would help to justify the idea of having more northerners from free states who were anti-slavery and prounion on the supreme court. now, this is sort of tricky business. where do you draw those lines? which states will be grouped with which states? and it is tied with who is vying for these seats on the supreme court. in the 19th century, a seat on the supreme court is like a patronage job so there are folks asking to be nominated, and who should i nominate, which sort of state is this individual from?
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and if we were to group his state with this other state, then that means we could not if they were from states that were neighboring states that were part of the same circuit, so you would need to separate those into two different circuits. so they are wrangling over all of that in 1862 is why it takes lincoln so long to figure out who he is going to actually put on the supreme court. so what he does is this. and subsequently, i'm going to show you a chart that sort of identifies the circuits for each of these individuals. let's start with swain from ohio. that is the seat that was vacant by the death of justice john maclean who was from ohio. right? so he is sort of filling that seat. miller from iowa, just as john
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mclean, who was from ohio. he was filling that seat. miller from our, this is what was happening. is that basically, the circuit that had been represented in virginia, five circuits, the slaveholding states had basically been spread over 5 circuits and they were whittling that down to three. so that makes it possible for miller from iowa to fill the seat that had they held by daniel in virginia. david davis, it was very significant that they didn't want to put illinois and iowa in the same circuit. that would mean these two individuals wouldn't be nominated. lincoln wanted to nominate davis because davis had been his campaign manager in 1860.
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that's a political favor. and it's part of what's happening in the 19th century, this system of patronage and cronyism. andrew jackson did the same thing back in the 1830's. so that is why we end up with davis. and finally, stephen field. field, this is a brand-new seat on the court in that they add a 10th circuit, and therefore, a 10th justice. right? so, what happens is not only do they reorganize these circuits, which explains what is happening here. what happens here is that they add an extra circuit to deal with all of the population and issues of land titles law, issues of titles and so forth taking place out in california. california settled in the 1840's and 1850's with the 1849
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goldrush. its population is growing, it needs to have its own circuit. so they had this circuit and they add a 10th member of the supreme court. finally, it is chase who will, of course, take the place of roger b tawney. before we talk about ta wney's death and chase, stephen field, let me just add, and that 10th seat on the supreme court, that action is taken right before a landmark case is argued before the court. the prize cases in 1863. this has to do with the constitutionality of the effort on the part of abraham lincoln to blockade certain ports. as congress passes this act in 1873 right before the court is to hear this landmark case, in order to send a signal to the
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supreme court that members of congress have the power to expand your institutions should we see fit. so by sending that signal, and -- shouldn't -- signal, shouldn't be too surprising that what happens a few weeks later, the supreme court in that case will vote to uphold the constitutionality of abraham lincoln's blockade of southern ports. finally, when we talk about chase, who will take the place of roger be taught in a. -- roger the tony -- roger b tawny. tawney had been chief justice, even after the 3 justices are, five justices are added. as the makeup of the court is shifting, he is there. he was old. he had been 84 at the time when
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he incidentally swore in abraham lincoln on the steps of the capitol in 1861, so he is 87-year-old at this point and he -- when he is going to die in october of 1864. october 12, 1864. in some quarters, the death of roger tawney is spoken of in a celebrity or a way. -- celebrity or a way -- itory way.for look no further than the words of republican senator charles sumner, who after hearing roger tawney dies, scribbles a note to abraham lincoln saying "providence has given us a victory in the death of chief justice tawney. it is a victory for liberty and constitution." a few months later, salmon p
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chase, who had made his sort of long-standing reputation as an anti-slavery lawyer and politician is nominated by abraham lincoln to take the place of tawney. for filling this sort of plan of putting on the supreme court individuals who were prounion, anti-slavery, certainly sympathetic to abraham lincoln and his policies, and the sort of larger policies of party. finally, there is a postscript. but this chart, as i mentioned, will indicate or summarize everything i have just said. and it, too, is sort of busy, but i want to highlight a few things. on the left, what you see is how the circuits were organized in 1860 at the outset of the war.
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and the ones indicated with an asterix are circuits that had slaveholding states within them. so once again, the slaveholding states are spread out among five circuits. so, you have 5 members of the supreme court from slaveholding states. by 1864, the first second and third circuit had not changed, so i hadn't put them on the slide, but what you see is that by 1864, only the 4th, fifth and sixth circuits have in them southern states. and what's happened, once again, as i indicated earlier for example, is that the ninth circuit, peter b daniel, after seat is filled by samuel miller of iowa. similarly they moved things around to make it possible for
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davis, swain, and chase to be nominated. and to serve on the supreme court. tol, there is a postscript all of this after the civil war. i will cover this briefly and we will think about the bigger issues here. the postscript is interesting and significant for the story. it's basically this, the republicans and lincoln have added a next seat, a 10th seat. they have reorganized the circuits. as we have said. but after lincoln's death, andrew johnson is president. john patron dies while johnson was president. johnson tries to fill that seat and the senate takes no action on his nominee. not only that, what they do a
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few months later after they failed to act on johnson's nomination, they pass the judiciary act of 1866 reducing the size of the court from 10 justices to seven by attrition. so, has individuals die or choose to retire, their seats will not be filled. partially, it is an effort to keep johnson from being able to nominate any justices to the supreme court. it is also partially a measure supported by chief justice chase who is hoping that the number of justices would go up another -- up. that didn't actually happen. that's an interesting aspect of this, the 18 66 act. even more interesting than that, not only are they keeping johnson from nominating anyone by not acting on the nominations
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and by basically saying, we will reduce the size of the supreme court, so it wasn't 10 justices, now it is at nine and staying at nine, but then in 1869, after another death on the court, the supreme court set the size of the court at nine justices in 1869, and in their it has stayed ever since. that, therefore, will give an -- is going to give an opportunity to president grant to fill that opening. which would not have been the case had the 1866 act stayed in place. so they are trying to manipulate the size of the supreme court to accommodate what is going on politically. we want to think about that. final thoughts, then, right? to come back to our question, did lincoln and the republicans pack the court?
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not surprisingly, the first thing, lincoln nominate justices who are in sympathy with his philosophy in his politics. that is a truism, something that we see really throughout the history of the supreme court. it's interesting, i will just add on this that justice field from california, the 10th individual who was added to the court in 1863, he's not a republican. he's a democrat. but he's very prounion, and lincoln sees that as a sort of unifying measure. in other words, nominating a unionist democrat in 1863 is seen as a wise move. he also thinks that field is in sympathy with his policies. so, to go back to the first
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point, nothing revolutionary, nothing out of the ordinary there. second, this reorganizing of the circuits, this hadn't happened since 1837, when they added two more circuits and to 2 more seats. both of those justices added in 1837. patron and mckinley were added from the southwest, the population was growing at that so there was precedent for point. reorganizing the circuit. what was interesting though was that they hadn't been reorganized in 25 years. one could make an argument that the population had shifted and reorganization would be necessary to ensure the population was roughly equal in all circuits. one could certainly make the argument that certain -- circuit
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reorganization was due. finally, manipulating the size of the court, not only by adding a 10th justice in 1863, but then trying to reduce it in 18 66, then bringing it back up to nine justices in 1869, that was clear evidence that the republicans and lincoln are trying to pack the supreme court. but then i would also step back and take us back to where we started, which is back to dread scott. the overarching purpose of all of this is to try to overturn the supreme court's ruling in dred scott v sanford. we saw how abraham lincoln set out a roadmap for how he might
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do that, making speeches, passage of using federal laws. there is a whole slew of federal laws enacted in 1862 and 1863 that are opposed to dread scott, anti-slavery laws. we can talk about that, if you like. and then finally, adding those justices as he indicated in 1858, certainly that is evidence of trying to reshape the court. once again, in hopes of overturning dred scott. last point is of course, the best way to overturn a ruling of the supreme court is by changing the constitution, which is also, of course, what they do with the 13th amendment. we can talk about that as well.
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i will welcome questions once we get to that part of the program. thank you all very much. [applause] >> thank you very much dr. , huebner. what we are going to do now is take a quick, five-minute break. so if you need to use the restroom, get a drink, stretch your legs. a quick, five-minute break, then come back and we will do the last portion of the program. all right. we are going to start the second portion of our program. we have, joining us, professor henry chambers jr., the research scholar and professor of law at the university of richmond. he is active in the virginia state bar and has been a member of the american law institute since 2002. he has also been with us at a
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previous foundry series. so it is great to have mr. chambers back with her. he is kind of going to be serving as an interviewer and conversationalist. let's just have at it. was a fantastic and illuminating talk you just gave, doctor. the opportunity to talk you just a little bit. i'm curious about something more broadly. how does it compare with what the founders envisioned. >> it's a great question. the founders did not perceive the power of the supreme court. there had never been a supreme court. there had been one under the first constitution of the united states, the articles of
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confederation. precedent for a supreme court worthy state supreme court's. it wasn't clear how much power this institution would actually have. camelf the founders, like 10, hoped they would exercise the power of judicial review. he expressed this in the family -- famous federalist 78 where he made an argument for an independent supreme court whose members would serve during good behavior, which is the language of article 3 of the u.s. constitution, which means for life, unless impeached. and as -- and for as long as they want to serve. unless there was a reason they are forced out. so, hamilton was making an argument for a powerful court at the same time he knew that many people were worried that the
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court might have too much power. so, in that very same essay, federalist 78, hamilton not only argues for judicial review, he also wants to put people's minds at ease by saying, look, don't worry, this will be the least dangerous branch. those are the words he actually uses. he says the supreme court will have the power neither of the purse, nor of the sword, but only the power of its judgment. so it cannot allocate money, it can't raise an army, it can only -- only decide cases. and it will have to explain how it is doing that. so hamilton, i think, in his ambivalence, or his duel argument, there, really
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indicates that in that founding era, there was a lot of uncertainty as to what this institution would look like, how much power it would have, and how much power it should have. really, it is not until the early part of the 19th century under chief justice marshall, probably no stranger to the folks in this room, that the supreme court starts to play a more significant role on the national stage. and i mean, i would only add on that that chief justice marshall issues some significant decisions in the early 19th century, but it is not at all anyonet that point that views the supreme court as of constitutional questions. we see that especially in the showdown with andrew jackson in the 1830's on a couple of questions.
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one is a national bank, even though the u.s. supreme court under martial had already of how -- alreadyution is held up the constitutionality of , the national bank, in maryland. andrew jackson vetoes the bill to recharter the bank and says that he as president has just as much power to interpret the constitution as the supreme court. then finally on andrew jackson, he also expresses his opposition to the supreme court's ruling having to do with the cherokee nation, worcester versus georgia, in the 1830's, where jackson may or may not have actually said "john marshall has made his ruling, now let him enforce it." if he did not say it, he
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certainly acted as if he said it, in how he was able to basically stand up to the supreme court, even though the court had held against jackson's policy of trying to force these members of southeastern indian tribes out of oklahoma. jackson was able to implement that. all that is simply to say that the founding generation didn't necessarily know. they thought such an institution was necessary, but they probably could not foresee the power of the court, especially the sort of power that it came to exercise in the 20th century you -- century. >> you put a lot of things in order, there. and the order is fantastic, mentioning hamilton, marshall,
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jackson, from the 1830's on up through the dred scott period. it sounds like the court has always had a contentious relationship with presidents. is that a fair thing to say, or does it just highlight the times they did clash? >> yeah, so it's an interesting question about justices and presidents. there is no doubt. you mentioned jefferson, no doubt that jefferson is famously feuding with his distant cousin, marshall. i don't like each other, in fact, they hate each other. marshall was issuing his rulings when jefferson was president and a jefferson purposely nominates william johnson from south
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carolina to the supreme court in 1804 in order to stand up against marshall. and johnson does it doesn't. he is on the court for many years with marshall. jefferson becomes so frustrated with him and he ends up writing letters to him and says, why haven't you been challenging marshall all this time? so absolutely, jefferson certainly, andrew jackson, there is, you know, tension there. as we said, and i didn't highlight it earlier and i you think about that moment in 1861 when roger tawney's swearing in abraham lincoln, you have this symbol of the old proslavery pro-southern constitutional order, 84-years-old, he probably knows
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that his days are numbered and here he is swearing in this younger upstarts come i think lincoln was 51-years-old at the time, a frontier lawyer from illinois and he represents this other party with a whole different view of the founders and slavery and the constitution. so there is that moment. but tawney, unlike justice, unlike the justice who decides to resign, he is pro-confederate but he stays on the court in order to support abraham lincoln. so there is a real tension and acrimony there. so i would say that the real flashpoints are with jefferson and jackson and then that first moment with lincoln and tawney, and lincoln and tawney are
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rivals to the very end. >> that is fascinating. let me get into the 20th century, if i can. we will have to go there. fdr, talking about court packing, how did that compare and is it fair to say that they are similar or different? >> great question. the 1930's it was that roosevelt was frustrated with the supreme court because there was an economic crisis, the worst in history of the nation. congress and roosevelt are on the same page, passing this new deal legislation. much of it comes from the supreme court in 1935 and 36. the court is much more conservative. they are struck down and they in theis problem
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to show thest landslide over alf landon. he has something like six or eight electoral votes. a popular vote for roosevelt. so the public, the president, and the congress are all on one side. they are trying to a conference something in order to get out of this crisis. the supreme court is standing in the way of that. i've got theures public on my side, i have just been reelected with a mandate. in 1937 he says -- you know what? we have to expand the size of the supreme court. so, the idea here being put forward by roosevelt and the democrats in congress in 1937 is
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that if a justice has served at least 10 years and if he is 70 years of age, and if he chooses not to retire, then we will add another justice to the court, to just expand the size of the court up to six justices. so, up to 15 justices. it's a handful of justices, four of them, they were known as the four horsemen at the time, thinking about the four horsemen of the apocalypse. it was famine, pestilence. [laughter] >> typical. >> this is not a positive nickname, right? they are all over 70.
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so when roosevelt explains this to the public, it goes nowhere. congress is not in favor of it. the justices aren't in favor of it. it falls fat -- falls flat politically. what does that mean relative to lincoln? episode from 1863 to 1869 really are manipulating the court as the first court packing episode, thinking about both presidents are trying to pass a political agenda. there is no doubt about that. the court stands in the way, they are trying to overturn the rulings of the court. but what roosevelt is doing is a lot more dramatic.
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adding up to six justices? is especially a lot more dramatic when you think about the fact that between 1869, when they had last picked the size of the court at nine and 1937, that's what, 75 years or something like that? that's a long time. it's like the institute -- institutionalization of the size of the court appears to set in and what roosevelt is doing appears to be much more political than any other efforts to try to change the size of the court. simply based on that institutionalization in that time. partand roosevelt had for -- try to justify it by saying the court needed more members on top of its work. to stay on top of its work.
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he shut that down and it didn't go over politically. what it didn't do was send the signal again, putting pressure on the court. some say violation of the separation of powers. is that it to happen came from a landmark case in 1937, the so-called switch and -- stitch in time that saved nine. mind, taking the other to the side. the court upholding roosevelt's new deal. more significant though than that one switch is what happens later, which is not that roosevelt packs the court, but since he serves as president for 12 years, and a lot of people retire and die during that period, he ends up appointing more justices, 9, than any other
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president since george washington, who was able to name 10 justices onto the court. so he may have lost that court-packing battle, but he wins the war. dr. chambers: there we go. so it sounds as though the justices are just reacting to what's going on and the crazy politicans are just going after them. so let me ask you this question. you think about some of the justices, chief justices in particular. president taft had been president before he became chief justice of the united states. charles evans hughes had been an associate justice on the court, left to run for president, became secretary of state, and then came back to the court as chief justice of the united states. earl warren served as governor of california and was thomas dewey's vice presidential running mate in '48 before he became chief justice of the court. it sounds like there's kind of a close relationship there between politics, politicians, and the
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supreme court. at some point, are the judges and justices on the supreme court just politicians who happen to wear black robes? dr. huebner: these are all the big questions, right? all of the big questions. okay, so, it's a great question. we don't have enough time to answer it fully. but -- so my short answer is no. judges are not politicians in black robes, because judges have a specific role. they, under the constitution, decide cases and controversies. so they don't just issue decisions based on a whim -- let's decide this and let's -- you know. it has to be a case. it has to come up to the court and then they have to explain what they are doing and they can decide to rule narrowly or broadly. so the role of the judge is different than that of a politician in that they're not making policy. now, they are establishing precedent, which in a sense is
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going to establish policy over a period of time, but their role is different. so they can't just -- just legislate or they can't just say or do anything that they want to. so cases have to come up. they have to decide they want to hear them. then they're trying to resolve some sort of legal controversy. all right. now, to your first point, is the court enmeshed in the role of politics? absolutely. and this is the challenge, right? the court is in the world of politics without being of the world of politics, right? it's that idea that yes, it is part of the political realm but it does as i said function differently. now, i mean, all of the examples that you gave are excellent and we could even add some more. john mcclean whom i mentioned earlier appointed by andrew jackson really didn't want to be
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a supreme court justice as much as he wanted to be president. he ran for president several times in the 1840's and 1850's. he was always trying to change parties based on which party might nominate him for the presidency. [laughter] so he was running. salmon chase whom i mentioned earlier was also interested in being president. and then -- and then if you add to the sort of -- you know, to what i said earlier that lincoln is putting his campaign manager on the u.s. supreme court, andrew jackson puts taney on the court. now, taney had been a cabinet member under jackson, secretary of treasury. and, prior to that, he had been a sort of leading advocate of jackson's candidacy for president back in maryland. so there are strong political ties there. you mentioned earl warren. earl warren is put on the court by eisenhower as part of a
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campaign promise that if warren will help him in the state of california, that he'll give to warren the first vacancy on the supreme court. no one knew that the first vacancy was going to be the chief justiceship, right? and this is the final point. warren had never been a judge. he's suddenly chief justice. roger taney had never been a judge. salmon p. chase had never been a judge. it's very common in the 19th century, as you indicated, for justices to come from the political realm, from congress, from the cabinet, from private practice. and that doesn't change until recently, really in the last 50 years that has changed. we've moved toward a very professionalized supreme court made up of people who have experience as judges and especially as federal judges.
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and that's a very recent phenomenon in the longer term history of the supreme court. >> that is fabulous. let me ask one quick question before we open it up to our audience here. we've had a couple of contentious hearings in the last few decades if you've heard. [laughter] maybe justice or i should say judge bork, justice thomas, justice kavanaugh hearings, maybe those come to mind. but we've had some hearings that were not terribly contentious. so -- in fact arguably they were kind of kind of boring. so the question is -- are judicial nominee hearings any more political or any more contentious now than they've been in the past? dr. huebner: no. i think they've always been contentious. and if you look at the 19th century pattern, actually, the evidence from the 19th century is that a lot more nominees were actually voted down in the 19th century than in the 20th century.
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in the 19th century, as i sort of indicated earlier, this is like a patronage position. so still by fellow politicians who maybe have never served as a judge. but it's an insiders' game in the 19th century. it's not -- it's not the sort of media spectacle that it is now. and part of that is the culture, the society, the lack of, you know, media outlets. so it's a sort of political insiders' game in the 19th century with a lot of individuals who don't make it onto the court for a variety of reasons having to do with politics. in the 20th century, i mean, three things happened. there are sort of three trends that change this. one is interest groups start to play a role in the process, in
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the first part of the 20th century. and the first evidence of that is the nomination by president hoover of john j. parker in 1930. it's a very controversial nomination. parker was from -- was from north carolina. he had made some statements that sounded like he was opposed to african-americans having the right to take part in politics. he had issued an anti-labor ruling as a judge. and so the naacp and organized labor expressed their opposition to his nomination in 1930. and interest groups really from that point on start to have a role in this process. now, that's -- so that's sort of the first thing. the second thing is that the process starts to become much more public. and bear in mind that, for most of the history of the supreme court, if you were nominated to the supreme court, you did not go to the senate to testify in
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person. i mean, you didn't have to answer anyone's questions. and as i said, in the 19th century it's an insiders' game and they float this name and they decide based on what they know of that person. not until the 1950's does this start to happen on a regular basis that nominees go and have to answer to the judiciary committee in the senate and not until sandra day o'connor and her nomination in 1981 are those hearings actually televised. so you have interest groups and then you have just the fact this is starting to become more public and has to do with media. and then finally that third trend which i already mentioned is the sort of professionalization of this process. so, you know, again, now it's judges as opposed to politicians.
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so what does all of that mean to go back to your question about politics? i think that our nomination and confirmation process reflects our society and our politics. it's -- interest groups have a big role. media has a big role, especially now with social media, you know, when presidents nominate justices it's not a private insiders' thing. it's a big media rollout. president trump sets aside time on national tv to introduce his nominee to the court. and all of the networks carry it. i mean, that's very recent. back during the bork nomination in the 1980's ronald reagan made something like 33 statements, public statements on behalf of bork. that had never happened before. so public relations campaigns all have to do with the openness of this process, the very public nature of it.
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so if interest groups and openness and sort of professionalism are sort of starting to drive this, the sort of one other thing that i would layer on to that is ideology. and what i mean by that is that especially in the late 1970's, conservatives thought they were sort of losing, right, in the sense that the legal establishment seemed to have liberal assumptions. and from the new deal up through the first years of the burger court, up until the early 1970's, if you think about all that's happening during those years, it's basically a center-left, you know, set of policies. conservatives starting in the late 1970's feel like they're on the margins in law schools. they're losing on the policy side and politics. and they form organizations like the federalist society.
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and they begin to develop a sort of infrastructure in law schools, a sort of farm team for people to be appointed to federal judgeships and ultimately to the supreme court. and so it's these sort of rival camps then that start to stake out a sort of place for themselves at the same time that the professionalization is happening. so you have kind of professional ideologues over here and kind of professional ideologues over here. and i'll only add on that, in 2005, george w. bush tries to break this pattern. you may remember -- you may not remember the name of harriet miers. harriet miers was george bush's old friend, had been a family member, trusted friend,
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attorney, very close to the bushes for years, was white house counsel. george bush nominates harriet miers for a seat on the supreme court to take the place of sandra day o'connor. there's outrage because those on the left feel like she's too close to bush, a family friend. she doesn't have experience. she's never been a judge. she hasn't gone to one of the top law schools. she graduated from s.m.u. so there's all of that kind of emphasis on what we expect now from nominees. those on the right were also critical because is she approved by the federalist society? is she going to be conservative? or is she going to be like david souter? is she going to be a friend of the white house chief of staff which is how souter was -- how his whole nomination?
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so it was this whole question of what is our sort of model for nominating justices to the supreme court? bush has tried to go back to the old sort of crony model. abraham lincoln, andrew jackson, in some ways franklin d. roosevelt and even lyndon johnson who puts his personal friend abe fortas on the court in 1965. he had never been a judge. he was a practicing lawyer elevated to a seat on the supreme court. he's the last of the sort of crony justices, is fortas. and george w. bush is sort of trying to go back to that older model. but by 2005, no one is having anything of that. so we want somebody from a top law school who's been a federal judge and if you're a conservative, you want someone who you -- who you know is going to vote in the way that you think that person ought to vote.
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so miers's nomination goes nowhere. and instead who ends up filling that seat? anyone know? samuel alito. approved by the federalist society. professional judge. experienced. from a top law school. that is the model. is it any less political? it's more professional but political and ideological at the same time. so it's -- things have changed in some ways. but in other ways they haven't changed at all. >> on that note we'll open it up to our brilliant crowd here. [laughter] what do you have? >> what are your thoughts on the nomination of ruth bader ginsburg? dr. huebner: well, i've seen the movie. [laughter] >> where does that fall in everything?
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dr. huebner: when -- this is true not only of ginsburg but of many other justices -- when presidents are relatively popular, and when their party is in control of the senate, usually this -- these are not controversial. and usually the votes aren't close. especially if it's some individual who seems to be breaking a sort of glass ceiling or seems to represent some change. and that's true -- and that holds for many nominations in the last 30 years. i mean, so certainly part of the story is that every supreme court justice up until thurgood marshall is a white male. so part of the story is that the composition of the court has
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become more diverse in some ways over the last 40 years. in other ways, as i said, it's not so diverse. same law schools. same backgrounds. but with ginsburg and then you could add on to that o'connor, scalia, italian american wins confirmation 98-0. you know, several of these recent nominations -- and you can even add justice sotomayor really there who represents something different. nominated at points in time when the president is relatively popular and that president's party is in charge of the senate. but that's not the moment we're in right now. and that's part of the explanation for where we are right now. >> how does lewis f. powell fit in your analysis of being a nonjudge even though he's a
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prominent lawyer, bar association president, good schools, prominent law firm but how does he fit within your analysis? dr. huebner: right, it's a good question. lewis f. powell fits in the sense that he's the -- so in the same way that fortas is the last of the crony nominees, powell is the last justice who comes from private practice to serve on the supreme court. there's been no one since powell who's come straight from practice to be elevated to the highest court in the land. so in that sense, he also represents sort of the end of that other pattern. and, i mean, i think you make a very good point. i mean, are there other qualities that we would look for in justices of the supreme court? i happen to think that there are or that there should be other qualities. and again, we can go through the
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list. i mean, so i mentioned warren had never been a judge. chase, taney had never been a judge, john marshall had never been a judge. you know, so we've had many very significant justices who had had no judicial background. i'm not saying that we don't want judges to serve on the court. i'm saying having a broader experience can be beneficial. and i think there's plenty of evidence of that because understanding the legislative process, understanding the world of politics, understanding what goes into the making of a statute, all of those things can be helpful. >> powell was a business lawyer primarily, not a litigation lawyer. dr. huebner: right, right. and having that practical experience and understanding all
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those things, i mean, i would think that would be very useful. >> term limits -- good or bad for the country and if it's something that would be positive, how would we get there? dr. huebner: term limits for supreme court justices? i would not be in favor of that. i think that -- if you go back to the founders' vision, if you go back to hamilton, and really if you think about the history of the court, it is important that we have an independent judiciary and the only way to keep the court from becoming just justice -- sort of political actors in black robes as you mentioned earlier is not to subject them to the political process. which hamilton wanted to keep them out of. term limits i fear would make them less independent in the sense that we would always be thinking about when these
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moments are. in other words, we would sort of know in advance when a justice was going to have an expiration date, if you will. and i think that would make this more political than it already is just in the sense that people would be running for president not sort of speculating oh, so there might be an opening on the court or there might be two openings but saying, yes, there will be two openings on the court and, you know, it would also probably add to something that we've seen recently which is unprecedented, and it is the idea of saying publicly who you would nominate to the supreme court. donald trump did that. no presidential candidate had ever said, "i will pick from a list." now, i suspect -- i mean, i expect, though, you know, sort
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of on this point, that he will not be the last president who will do that. because that was -- that was actually beneficial in some ways. that helped him to seem like less of an anti-establishment candidate for some on the right who were willing to vote for him since he was promising to nominate candidates from this list. so i think that phenomenon would be even more present and would be even more a part of our politics if we knew when justices were going to have to step down. so, i mean, i haven't given it that much thought, but my initial thoughts are that i would not --- i would not be in favor of that. >> i think we have time for one more question. >> am i it? >> go for it. >> i was kind of interested and
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intrigued by the whole idea of nine justices that moved to 10 and then there were seven and might have been 16 and i had no -- i had no idea. who initates -- if somebody wanted to change this, which i assume it's so institutionalized at this point it would not change. dr. huebner: yeah. >> but where does that change happen? does it happen in the -- could the supreme court decide that they want to now be 13 instead of nine? >> let me add one more -- dr. huebner: please. >> what do you do or functionally what do you do with those folks who argued when merrick garland was nominated, oh, we don't really need nine, we can go with eight for a while? i just want to add that. dr. huebner: right. ok, so the only way that the size of the court can change is by federal statute. so it's up to congress. so there's nothing in the u.s. constitution that says what the size of the supreme court is.
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in fact, article three is very brief. it says there shall be one supreme court and such inferior courts as congress shall from time to time establish. so it's up to congress to set up the whole structure of the federal court system. and this is what they did in 1789. so they set up all the circuits. and then they said there will be six justices of the supreme court. so george washington nominates the first six justices. and then, as i said, the court expands to seven. i think in 1807. and then to nine in 1837. and then the story that i've just told. so there's nothing fixed about the size of the court, but it takes an act of congress to change it. and as i said, i think that the weight of history is such that it's not likely to change. now, this question of can the court function with eight justices? yes. and it can function with seven
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justices. and it has. and with eight, so -- so in other words, if you -- if you look back at the opinions of the court, based on certain circumstances, who might have just died, who's absent, who has to recuse themselves, sometimes you'll see some 7-1 rulings and some 4-3 rulings. you know, so the court can function with fewer justices. but if federal statute says that it's at nine, and if there's a vacancy, and if the president has nominated someone to fill that vacancy, then the senate has a constitutional obligation to act on the vacancy. i mean, to act on the actual nomination. so they can vote it down, right? or they can vote it up. but it seems to me that they should at least act on that nomination. and history is certainly on the
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side of -- in almost every instance. now, i did mention one instance here which was buchanan in 1860. that was buchanan's fault. he just dithered. he just waited too long. if he had actually named someone in 1860, it would've probably gone through. certainly the senate would have acted on the nomination. in almost every instance, they had done that until a few years ago. now, what that means for the future is anyone's guess, but the senate doesn't have a sort of obligation to vote in favor of the nominee. but they do have an obligation to act on the nomination. and that's -- and that's what they didn't do last time. many senators wouldn't even meet garland, much less give him an actual vote. so i think figuring out if that will be the new norm -- i think
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that's an open question. so we'll see. >> i think that's going to have to be our last word. thank you very much. [applause] >> thank you both. and thank you all for being here. and come back and join us for our next series. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] [captions copyright national cable satellite corp. 2019] >> you are watching american history tv, all weekend, every weekend on c-span3. to join the conversation, like us on facebook. weekend on a new america, apollo nine. we look back 50 years ago to march 3, 1969, when apollo nine
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blasted off for a 10 day mission that would be essential for the july 1969 apollo 11 moon landing . here is a preview. 's -- scott alone in the command module, the two vehicles undocked. ♪ looking more in abstraction than a machine, the lunar module does a pure wet before its loan partner in space -- puro at -- oruette before its partner in space. ♪
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>> firing its descent engine, the lunar module will pull away from the command module to a distance of 100 miles. ♪ >> now, with the support of mission control, they will locate scott alone in the command module and perform declared -- critical rendezvous maneuvers, each representing a firing that would one day take men from the surface of the moon to the spacecraft which would take them home again.
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>> burn looks good. >> good burn. >> very good. thank you. >> watch the entire film on apollo nine unreal american this sunday at 4:00 p.m. eastern. you are watching american history tv. ♪ >> c-span's washington journal, live every day with news and policy issues that impact you. coming up monday morning, philadelphia inquirer's jonathan to marring -- jonathan to mari previously ahead consumer credit rating agencies. be sure to watch washington journal live at 7:00 eastern monday morning. join the discussion.
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next, purdue university graduate student nancy brown talks about the aids crisis in the 1980's. she describes how those with aids often faced discrimination in housing, jobs, and when seeking medical treatment. she also outlines some of the protections leader provided in the americans with disabilities act. was 12 minute interview recorded in chicago at the american historical association annual meeting. >> nancy brown, when did aids rise to the national consciousness? >> it first came to public attention in 1981 with a few articles in "the new york times" and other places. there were reports of homosexual men who had some strange types of cancers and pneumonia. 1982, there were a few more reports and at the end of 1982, there were reports that it had been seen in infants and also there was some discussion about


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