Academic journal article The Journal of Southern Legal History

Consumer Crusade: Justice Hugo Black as Senate Investigator

Academic journal article The Journal of Southern Legal History

Consumer Crusade: Justice Hugo Black as Senate Investigator

Article excerpt

I. Introduction

Theoretically the purpose of Congressional investigations and hearings is to ascertain the facts and truth regarding a given situation or piece of legislation in order to enable Congress to take remedial or corrective legislative steps. When confined to that purpose such Capitol Hill inquiries are healthy and desirable.

But actually few major Congressional investigations hew to such a purpose or achieve such an end. Instead of being truth and fact-finding bodies, Congressional committees frequently become vehicles for witch-hunting, or for the glorification of committee members through publicity channels, or to create a record to sustain preconceived conclusions and opinions.1

Though published eighty years ago, Franklyn Waltman's observations would no doubt be equally at home in today's Washington Post. Criticism of rank partisanship in the guise of congressional oversight is a venerable tradition, and it continues unabated. In 2014, the House of Representatives voted to form a new investigative committee to examine the attack on the U.S. embassy in Benghazi, Libya on September 11, 2012, in which four officials were killed, including the U.S. Ambassador. A cause celèbre of the American right, the House Select Committee on Events Surrounding the 2012 Terrorist Attack in Benghazi was voted into existence on May 8, 2014.2 The new committee promised political fireworks in the autumn of an election year, with the House leadership committing to place at its helm someone even more dogged and credible among conservatives than Darrell Issa, the combative then-head of the House Oversight Committee.3 The committee's chairman, a former federal prosecutor from South Carolina named Trey Gowdy, has "built a reputation on railing against the Obama administration," and his appointment was widely hailed by his conservative colleagues.4

In that role, Chairman Gowdy enjoyed significant power??the subpoena, a dedicated staff, and a prominent media platform used during the 2014 midterm elections and into the presidential campaign of the committee's prime target, former Secretary of State Hillary Clinton. Such a position, no doubt, entails the potential for abuse. The committee's creation was condemned as partisan and election-focused given the numerous prior investigations of the same events. Nevertheless, its first meeting confounded some skeptics, taking up a low-key topic proposed by its Democratic minority and remaining measured and calm.5 At the first hearing, one commentator remarked, "Gowdy did something completely unexpected: He played it straight."6 Even less expectedly, the committee's Democratic ranking member, Representative Elijah Cummings, saluted Gowdy after the hearing, calling it "the kind of oversight that can be productive."7 The collegial tone was not to last. In the wake of House Speaker John Boehner's surprise resignation, Majority Leader Kevin McCarthy described the Benghazi Committee's work in perhaps too-candid terms:

"Everybody thought Hillary Clinton was unbeatable, right?," McCarthy said on Fox News. "But we put together a Benghazi special committee, a select committee. What are her numbers today? Her numbers are dropping. Why? Because she's untrustable. But no one would have known any of that had happened had we not fought."8

Chairman Gowdy's work on the Benghazi Committee invites the same inquiry that Waltman proposed in 1937: was this to be a vehicle for witch-hunting and self-glorification or an earnest fact-finding body? What standards are available to consider such a problem? In fact, an investigation led by then-Senator from Alabama (and future Supreme Court Justice) Hugo Black in the 1930s provides a striking and useful parallel.

In its customary telling, the story of the New Deal is a triumph of modernity over reaction; of idealistic reformers over the forces of business and entrenched power; of pragmatism over outmoded ideology. The story typically occurs as much in the Supreme Court as in the political arena, famously culminating in the "Switch in Time," in which Justice Owen Roberts changed position to provide a fifth vote for upholding New Deal legislation. …

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