The Lonely Centrist

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Wednesday, November 23, 2005

Alito Nonsense

The predictable left wing attack on Judge Alito's nomination to the Supreme Court seems to be focusing on whether or not Judge Alito favors the principle of "one person, one vote." See reports of the New York Times here and the Wall Street Journal here.

This is complete and total nonsense. The hook for this attack is a 1985 application for a job in the Reagan Administration, in which Alito wrote, "In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment."

Now, here is how the New York Times is describing this:

"[i]n a 1985 memorandum seeking a promotion in the Reagan administration he expressed strong disagreement with the Warren Court's landmark reapportionment
cases. The cases, most notably Baker v. Carr in 1962 and Reynolds v. Sims in 1964, required states to draw electoral districts with equal populations, preventing the creation of uneven districts that dilute the representation of black voters."

1) Where in Alito's actual comment is the "strong" disagreement?

2) Baker v. Carr and Reynolds v. Sims were not cases about diluting black votes. Indeed, the companion case to Reynolds v. Sims, Lucas v. General Assembly of Colorado, is a Colorado case (as the name implies!), a state that in 1964 had a population that was approximately 2% black and 97% white. These cases were decided simply on the basis of a simple proposition - districts that are not equal in population violatte the 14th Amendment. Here is what the Court Majority wrote in Reynolds:
"Diluting the weight of votes because of place of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discriminations based upon factors such as race, ...."
In other words, the Court specifically reasoned that these were not race cases, but that the law was as unconstitutional as if they had been race questions.

In his concurrance in Baker, Justice Clark argued that the real goal of the states - at least the Southern states, which were the most malapportioned, was to maintain "invidious discrimination," presumably against blacks (Clark doesn't say this last flat out, but it is clearly implied). Clark then dissented in the Reynolds group of cases precisely because the Court went beyond holding only that racial discrimination in districting was improper, to hold that any population deviations, even if based on other, rational, non-discriminatory interests, were unconstitutional.

So no, Alito did not express disagreement with cases allowing dilution of black votes.

As to the legal principle that Alito actually did disagree with, he was in good company - Supreme Court Justices Stewart, Clark, Harlan, and Frankfurter, for starters. Then Justice Department official, later Watergate prosecutor and liberal icon Archibald Cox, disagreed with the decisions. Other giants of the legal academy, such as Robert Dixon, Carl Auerbach, Philip Kurland, Nelson Polsby, and Phil Neal, voiced vigorous disagreement.

The one person/one vote decisions continue, in fact, to be criticized. In a 2000 law review article, The Redistricting Cases: Original Mistakes and Current Consequences, published in the Harvard Journal of Law & Public Policy, then Professor Michael McConnell criticized the decisions, yet the matter wasn't even raised when he was overwhelmingly confirmed to the U.S. Court of Appeals in 2002.

As the Supreme Court's dissenters pointed out back in the 1960s, the idea that the Constitution mandates one person/one vote is, in the words of Justice Stewart, "woefully wrong.... It has been unanswerably demonstrated before now that this 'was not the colonial system, it was not the sytem chosen for the national government by the Constitution, it was not the system exclusively or even predominately practices by the states at the time of adoption of the 14th Amendment, it is not predominantly practiced by the states [at the time of the cases].'" (quoting Justice Frankfurter).

As a practical matter, one person/one vote sometimes borders on the absurd - for example, because redistricting takes place once a decade, and people move, and because the first election under each redistricting takes place on the basis of census date already two years old, the one person/one vote principle is violated right from the start, and gets worse with each election in a decade. And because it is based on population, rather than eligible voters, voters from districts with lots of children, immigrants, or others not eligible to vote have a "greater" say than voters in other districts.

Having said all this, nobody is going to change the basic principle of one person/one vote. At most, it will be adjusted to reflect voters, not population, which would be more equal in any case. I noted Arch Cox's opposition to the cases - over time he became a supporter, simply as a matter of practical reality. So it is generally. One person/one vote will not be changed. (Aside: if it were, would people really care? People like the slogan, to be sure, and believe each person should only vote once, but do they really believe in that only equally populated districts are fair? Do people see the U.S. Senate as illegitimate? The presidency? Neither are elected on the principle of "one person/one vote" as applied in these cases).

So, bottom line:

1. It is perfectly within the mainstream to be critical of the holdings in Baker and Reynolds.
2. It is perfectly within the mainstream to be critical of the reasoning in Baker and Reynolds, even if supporting the holdings.
3. Such criticism has nothing to do with "minority vote dilution."
4. Alito is describing his thoughts about the cases while in college, about 30 years ago.
5. Neither Alito nor anybody else has the slightest intention of trying to change the basic proposition of one person/one vote at this time. It is a non-issue.

I think Americans are really tired of this type of hysterical overreach by the left every time Bush appoints a judge they don't like. (I think, by the way, they were also tired of it when Clinton appointed a judge the right didn't like, but that's history).

Alito will be confirmed, and this little one person/one vote flap is just a little nonsense we have to put up with.

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