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8 Rejected Supreme Court Justices

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With the Supreme Court ending its 2007-08 term, we thought this week was a good time to answer some questions you probably weren't asking (but will nonetheless find interesting). All week, the honorable David Holzel will be presiding.

Who are the coulda-been nominees?
Since George Washington nominated the first batch of justices, the Senate has confirmed all but 34 of 156 nominations. (Washington, first in everything, is the president with the most nominations confirmed "“ 12, two of whom declined to serve. But even he had two rejected. John Tyler holds the record as the president with the most nominations rejected "“ 8.)

In our time, the most famous rejected nominee is Robert H. Bork, a legal scholar and U.S. Court of Appeals judge with a long paper trail of conservative opinions. Nominated by President Ronald Reagan in 1987, Bork could have tilted the Court decisively to the right. As a known quantity, he was an easy target for liberal opponents, who organized a campaign against him. He was rejected by the Senate Judiciary Committee after 12 days of hearings.

"Oh degraded Country! How humiliating to the friends of moral virtue "“ of religion and of all that is dear to the lover of his Country!" the New-York Gazette Advertiser wailed over President James Madison's nomination of Alexander Wolcott, in 1811. "Wolcott's strong enforcement of the controversial embargo and non-intercourse acts while a U.S. collector of customs had cost him support in the press and the Senate. His qualifications for becoming a justice also were questioned," according to the CRS Report for Congress. The Senate turned him down by a 9-24 vote, the widest rejection in Supreme Court history.

225px-Roger_Taney.jpgRoger B. Taney (pronounced tawny) is largely remembered as the chief justice who handed down the Dred Scott decision in 1857. With his sepulchral countenance, Taney is inextricably linked to the grim ruling that all blacks -- slaves as well as free -- were not and could never become citizens of the United States. But when President Andrew Jackson nominated him in 1835 as associate justice, opposition Whigs were still smarting from Taney's removing government deposits from the Second Bank of the United States, while a recess-appointed secretary of the treasury. The Senate voted to indefinitely postpone the nomination. But after Chief Justice John Marshall died in 1836, Jackson sent Taney's name up again. He was confirmed, this time as chief justice.

You might think the Senate just couldn't stomach elevating to the highest court in the land a man with the name Ebenezer Hoar. But it seems the senators were offended by something other than aesthetics. As President Ulysses S. Grant's attorney general, Hoar had insisted on rewarding merit rather than political loyalty, thus blocking a well trod route for patronage. So when Grant nominated Hoar to the Court in 1869, miffed Republican senators gave the virtuous Hoar thumbs down.

A senator has the right to reject a court nomination simply because the nominee is from the senator's home state. Upon this invocation of "senatorial courtesy" rests the demise of Wheeler Hazard Peckham and William B. Hornblower. Both men were nominated by President Grover Cleveland. Both nominees were New Yorkers, and New York Sen. David Hill invoked senatorial courtesy to squelch their nominations in 1894. (Peckham's brother, Rufus Wheeler Peckham, became a justice in 1896.)

douglas-ginsberg.jpgSome nominees withdrew themselves from consideration before they could be rejected. Such was the case of Harriet Miers, whom President George W. Bush nominated in 2005, but withdrew under criticism that she was unqualified. Another withdrawal was that of Douglas Ginsburg (pictured, and not related to current justice Ruth Bader Ginsberg), the conservative, former pot-smoking federal appellate judge who is a footnote in the Bork saga. After Bork was Borked, Reagan mooted the more moderate Anthony Kennedy for the seat. But Sen. Jesse Helms (R-N.C.) threatened a filibuster. So Reagan turned right again and proposed Ginsburg. Embarrassingly, there was no getting around the revelation that Ginsburg had inhaled. Ginsburg withdrew himself from consideration, Reagan put forward Kennedy and the Senate, eager to move on, easily confirmed him.

Yesterday: What was Marbury v. Madison? And who were Roe & Wade?

David Holzel is a freelance writer who writes the ezine The Jewish Angle.
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5 Things We Know About Stranger Things Season 2
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Netflix

Stranger Things seemed to come out of nowhere to become one of television's standout new series in 2016. Netflix's sometimes scary, sometimes funny, and always exciting homage to '80s pop culture was a binge-worthy phenomenon when it debuted in July 2016. Of course, the streaming giant wasn't going to wait long to bring more Stranger Things to audiences, and a second season was announced a little over a month after its debut—and Netflix just announced that we'll be getting it a few days earlier than expected. Here are five key things we know about the show's sophomore season, which kicks off on October 27.

1. WE'LL BE GETTING EVEN MORE EPISODES.

The first season of Stranger Things consisted of eight hour-long episodes, which proved to be a solid length for the story Matt and Ross Duffer wanted to tell. While season two won't increase in length dramatically, we will be getting at least one extra hour when the show returns in 2017 with nine episodes. Not much is known about any of these episodes, but we do know the titles:

"Madmax"
"The Boy Who Came Back To Life"
"The Pumpkin Patch"
"The Palace"
"The Storm"
"The Pollywog"
"The Secret Cabin"
"The Brain"
"The Lost Brother"

There's a lot of speculation about what each title means and, as usual with Stranger Things, there's probably a reason for each one.

2. THE KIDS ARE RETURNING (INCLUDING ELEVEN).

Stranger Things fans should gear up for plenty of new developments in season two, but that doesn't mean your favorite characters aren't returning. A November 4 photo sent out by the show's Twitter account revealed most of the kids from the first season will be back in 2017, including the enigmatic Eleven, played by Millie Bobby Brown (the #elevenisback hashtag used by series regular Finn Wolfhard should really drive the point home):

3. THE SHOW'S 1984 SETTING WILL LEAD TO A DARKER TONE.

A year will have passed between the first and second seasons of the show, allowing the Duffer brothers to catch up with a familiar cast of characters that has matured since we last saw them. With the story taking place in 1984, the brothers are looking at the pop culture zeitgeist at the time for inspiration—most notably the darker tone of blockbusters like Gremlins and Indiana Jones and the Temple of Doom.

"I actually really love Temple of Doom, I love that it gets a little darker and weirder from Raiders, I like that it feels very different than Raiders did," Matt Duffer told IGN. "Even though it was probably slammed at the time—obviously now people look back on it fondly, but it messed up a lot of kids, and I love that about that film—that it really traumatized some children. Not saying that we want to traumatize children, just that we want to get a little darker and weirder."

4. IT'S NOT SO MUCH A CONTINUATION AS IT IS A SEQUEL.

When you watch something like The Americans season two, it's almost impossible to catch on unless you've seen the previous episodes. Stranger Things season two will differ from the modern TV approach by being more of a sequel than a continuation of the first year. That means a more self-contained plot that doesn't leave viewers hanging at the end of nine episodes.

"There are lingering questions, but the idea with Season 2 is there's a new tension and the goal is can the characters resolve that tension by the end," Ross Duffer told IGN. "So it's going to be its own sort of complete little movie, very much in the way that Season 1 is."

Don't worry about the two seasons of Stranger Things being too similar or too different from the original, though, because when speaking with Entertainment Weekly about the influences on the show, Matt Duffer said, "I guess a lot of this is James Cameron. But he’s brilliant. And I think one of the reasons his sequels are as successful as they are is he makes them feel very different without losing what we loved about the original. So I think we kinda looked to him and what he does and tried to capture a little bit of the magic of his work.”

5. THE PREMIERE WILL TRAVEL OUTSIDE OF HAWKINS.

Everything about the new Stranger Things episodes will be kept secret until they finally debut later this year, but we do know one thing about the premiere: It won't take place entirely in the familiar town of Hawkins, Indiana. “We will venture a little bit outside of Hawkins,” Matt Duffer told Entertainment Weekly. “I will say the opening scene [of the premiere] does not take place in Hawkins.”

So, should we take "a little bit outside" as literally as it sounds? You certainly can, but in that same interview, the brothers also said they're both eager to explore the Upside Down, the alternate dimension from the first season. Whether the season kicks off just a few miles away, or a few worlds away, you'll get your answer when Stranger Things's second season debuts next month.

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Food
The Gooey History of the Fluffernutter Sandwich

Open any pantry in New England and chances are you’ll find at least one jar of Marshmallow Fluff. Not just any old marshmallow crème, but Fluff; the one manufactured by Durkee-Mower of Lynn, Massachusetts since 1920, and the preferred brand of the northeast. With its familiar red lid and classic blue label, it's long been a favorite guilty pleasure and a kitchen staple beloved throughout the region.

This gooey, spreadable, marshmallow-infused confection is used in countless recipes and found in a variety of baked goods—from whoopie pies and Rice Krispies Treats to chocolate fudge and beyond. And in the beyond lies perhaps the most treasured concoction of all: the Fluffernutter sandwich—a classic New England treat made with white bread, peanut butter, and, you guessed it, Fluff. No jelly required. Or wanted.

There are several claims to the origin of the sandwich. The first begins with Revolutionary War hero Paul Revere—or, not Paul exactly, but his great-great-great-grandchildren Emma and Amory Curtis of Melrose, Massachusetts. Both siblings were highly intelligent and forward-thinkers, and Amory was even accepted into MIT. But when the family couldn’t afford to send him, he founded a Boston-based company in the 1890s that specialized in soda fountain equipment.

He sold the business in 1901 and used the proceeds to buy the entire east side of Crystal Street in Melrose. Soon after he built a house and, in his basement, he created a marshmallow spread known as Snowflake Marshmallow Crème (later called SMAC), which actually predated Fluff. By the early 1910s, the Curtis Marshmallow Factory was established and Snowflake became the first commercially successful shelf-stable marshmallow crème.

Although other companies were manufacturing similar products, it was Emma who set the Curtis brand apart from the rest. She had a knack for marketing and thought up many different ways to popularize their marshmallow crème, including the creation of one-of-a-kind recipes, like sandwiches that featured nuts and marshmallow crème. She shared her culinary gems in a weekly newspaper column and radio show. By 1915, Snowflake was selling nationwide.

During World War I, when Americans were urged to sacrifice meat one day a week, Emma published a recipe for a peanut butter and marshmallow crème sandwich. She named her creation the "Liberty Sandwich," as a person could still obtain his or her daily nutrients while simultaneously supporting the wartime cause. Some have pointed to Emma’s 1918 published recipe as the earliest known example of a Fluffernutter, but the earliest recipe mental_floss can find comes from three years prior. In 1915, the confectioners trade journal Candy and Ice Cream published a list of lunch offerings that candy shops could advertise beyond hot soup. One of them was the "Mallonut Sandwich," which involved peanut butter and "marshmallow whip or mallo topping," spread on lightly toasted whole wheat bread.

Another origin story comes from Somerville, Massachusetts, home to entrepreneur Archibald Query. Query began making his own version of marshmallow crème and selling it door-to-door in 1917. Due to sugar shortages during World War I, his business began to fail. Query quickly sold the rights to his recipe to candy makers H. Allen Durkee and Fred Mower in 1920. The cost? A modest $500 for what would go on to become the Marshmallow Fluff empire.

Although the business partners promoted the sandwich treat early in the company’s history, the delicious snack wasn’t officially called the Fluffernutter until the 1960s, when Durkee-Mower hired a PR firm to help them market the sandwich, which resulted in a particularly catchy jingle explaining the recipe.

So who owns the bragging rights? While some anonymous candy shop owner was likely the first to actually put the two together, Emma Curtis created the early precursors and brought the concept to a national audience, and Durkee-Mower added the now-ubiquitous crème and catchy name. And the Fluffernutter has never lost its popularity.

In 2006, the Massachusetts state legislature spent a full week deliberating over whether or not the Fluffernutter should be named the official state sandwich. On one side, some argued that marshmallow crème and peanut butter added to the epidemic of childhood obesity. The history-bound fanatics that stood against them contended that the Fluffernutter was a proud culinary legacy. One state representative even proclaimed, "I’m going to fight to the death for Fluff." True dedication, but the bill has been stalled for more than a decade despite several revivals and subsequent petitions from loyal fans.

But Fluff lovers needn’t despair. There’s a National Fluffernutter Day (October 8) for hardcore fans, and the town of Somerville, Massachusetts still celebrates its Fluff pride with an annual What the Fluff? festival.

"Everyone feels like Fluff is part of their childhood," said self-proclaimed Fluff expert and the festival's executive director, Mimi Graney, in an interview with Boston Magazine. "Whether born in the 1940s or '50s, or '60s, or later—everyone feels nostalgic for Fluff. I think New Englanders in general have a particular fondness for it."

Today, the Fluffernutter sandwich is as much of a part of New England cuisine as baked beans or blueberry pie. While some people live and die by the traditional combination, the sandwich now comes in all shapes and sizes, with the addition of salty and savory toppings as a favorite twist. Wheat bread is as popular as white, and many like to grill their sandwiches for a touch of bistro flair. But don't ask a New Englander to swap out their favorite brand of marshmallow crème. That’s just asking too Fluffing much.

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