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.

Reform Groups React to FEC Advisory Opinion 2005-16

Here I have a confidential pre-release copy of a press release that Democracy 21, the Campaign Legal Center, and the Center for Responsive Politics have prepared.

Nov. 18, 2005

Reform Groups Respond to Latest Attempt by Rogue Agency to Undermine Campaign Finance Law

Washington D.C. - Democracy 21, the Campaign Legal Center, and the Center for Response Politics today denounced the decision of the Federal Election Commission in Advisory Opinion Request 2005-16, granting the "press exemption" to a partisan group known as "Fired Up." The Commission had voted 5-0 to approve the Advisory Opinion, which opens major loopholes in campaign finance laws that have been on the books since 1907.

"Once again the FEC has demonstrated its complete and utter contempt for Congress," said Democracy 21 President Fred Wertheimer. "The FEC is an agency designed for failure. Yet it only deadlocks 3-3 or 3-2 about three percent of the time. This 5-0 vote demonstrates once again the disregard this current group of Commissioners has for the law and Congressional intent. Under this ruling, Halliburton, Big Tobacco, Big Oil, corrupt unions, Chinese Communists, scalawags, carpetbaggers, Tom DeLay and even the French will be able to pour obscene amounts of unlimited corporate cash into campaigns. But this corrupt commission, and their apparatchik Chairman Scott Thomas, seem to think their job is to thwart Congress's clear intent, not only by not failing, but by going against the minority of Congress, as indicated in the vote on H.R. 1606, when a clear majority of Congress voted to exempt the internet, but not the two-thirds necessary to pass the bill under special rules."

Trevor Potter, former FEC Chairman and President of the Campaign Legal Center, indicated that the group would probably sue in court to overturn the Advisory Opinion, using its rubber signature stamp to file in the name of Senator John McCain.

A Big Win for Freedom at the FEC

The Federal Election Commission today voted 5-0 to approve Advisory Opinion 2005-16, requested by Fired Up. The opinion agrees that Fired Up is entitled to exemption from the Federal Election Campaign Act as a "press entity." This despite the fact that Fired Up is openly partisan and announced, in its request to the FEC, that it intended to urge readers to contribute to political candidates endorsed by the group. For more, see here or here.

This is a huge win for internet freedom. It means that any group engaging in activity that is "materially indistinguishable" from Fired Up can also claim the press exemption. While it hardly takes care of all bloggers, it is a big step in the right direction, and one I did not think we would see.

Now Congress needs to pass HR 1606, which would codify a broad (but by no means complete) exemption for many internet activities. See here, here, here, here and here for background.

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Ballot Issues: Campaign Finance Reform Takes Two on the Chin; Status Quo Prevails

If voters are terribly unhappy, they sure didn't have much desire to take things into their own hands last night with ballot issues.

California gets the most ink, but Ohio may be the most interesting.

Ohio: A bond issue passed narrowly (no "tax revolt"), but the big interest was elsewhere.

Four election "reforms," generally presented as a package, got trounced by 2-1 margins or better. Most interesting was Issue 3, which lost 67.2% to 32.8%. This was a proposal to add new campaign finance restrictions to the state constitution. Last year, the legislature raised the state contribution from $2500 to $10,000. This effort to roll it back to $2000, and to allow unions to spend funds from their general treasuries, was up with 60% in the last public polling, so the crushing size of the defeat is a stunner. We eagerly await the next Democracy 21/Campaign Legal Center press release about the public clamor for more campaign finance regulation. It seems that campaign finance regulation does well at the ballot box when there is no organized opposition, but whenever there is a serious opposition that makes the case to voters, it goes down to defeat, often by large margins.

Issue 4, a redistricting measure, lost 69.9% to 30.1%. A proposals to make absentee voting easier lost 63.4% to 36.6%. And what might be dubbed the "Anti-Blackwell Amendment," to eliminate the authority of the Secretary of State over elections in obvious "retaliation" for what some perceived as bias by GOP SecState Ken Blackwell in 2004, was defeated worst of all, by a 70.4% to 29.6% margin.

Efforts by Reform Ohio Now, which promoted the measures, to tie opponents to unpopular, scandal plagued Governor Bob Taft (approval rating of just 13%), failed. This suggests that the Democrats effort to beat the Republicans with the "ethics issue" may not be a wise 2006 strategy.

California: A tough night for Ahnuld. Three of the four amendments backed by the Governator were losing soundly: His signature issue, redistricting reform, was trailing 57-43%; and cap on state spending trailed 60-40; limits on teacher tenure was behind 53-47, and a proposal to limit union spending on campaigns was trailing narrowly, 50.7 to 49.3%. Assuming that narrow margin holds, we will eagerly await the next Democracy 21/Campaign Legal Center press release about the public clamor for more campaign finance regulation. Update: Final tally was 53-47 against.

Also trailing in California was a measure requiring parental notification before an abortion, by a narrow 50.9%-49.1% margin. Losing by more substantial margins were measures on utility regulation and drug discounts.

Maine: In a relatively close vote, Mainers defeat an effort to repeal a gay rights law.

Texas: Americans are not homophobic, but they're not fans of gay marriage either. Texas becomes the latest and 19th state to enact a ban by an overwhelming margin, with roughly 70% voting for it.

Together, it seems to me that Maine and Texas, different as they are, pretty well reflect where the American center is: tolerant but unwilling to provide a stamp of public approval.

Washington: Repeal of the state's gas tax appears to have failed. Again, voters appear right now to not much want to rock the boat - except where, as in Detroit, the boat rockers are already in office and can be sent packing

Candidate Races: A Good Night for Centrists and Democrats

Quick thoughts on last night's off-year elections:

Centrists have a good night, which this year means Democrats have a good night.

State Races:

Virginia: In the night's most watched races, Democrats held onto two governorships. In Virginia, Democratic Lt. Gov. Tim Kaine defeated the Republican Attorney General Jerry Kilgore 51.5% to 46.3%, with liberal Republican Russ Potts, running as independent, finishing with just 2%. Kaine's margin is slightly better than that by which Democrat Mark Warner defeated Mark Earley four years ago, but the difference can be attributed to the presence of Potts in the race. Virginia is not so "red" as some think, and Kaine won by rolling up large margins in suburban Washington. Kilgore tried to tag Kaine as a classic liberal but couldn't really make the charge stick - Kaine probably is more liberal than Warner but he ran as a centrist and benefited from his connection with the popular Warner, a conservative Democrat. Bush made a late appearance for Kilgore, with no real effect except that, according to veteran analyst Larry Sabato, it may have cost Kilgore "a few votes." Republican Bill Bolling appears to have won the race for Lt. Governor, while in the Attorney General's race, Republican Bob McDonnell holds a very narrow lead over Democrat Creigh Deeds in a race that will probably result in a recount. Democrats appear to have picked up one seat in the state House of Delegates, which would still leave the GOP with a hefty 59-39 majority.

New Jersey: Democrat Jon Corzine was a somewhat surprisingly easy victory, 53%-44%, over Doug Forrester in this Democratic state.

In short, both states opted for the status quo, by comfortable but not overwhelming margins. Nothing too earth shattering. The results were no doubt influenced by the President's sagging popularity, but absent a big GOP year any respectable Democrat would be favored in New Jersey, and Kaine probably would have triumphed absent a remarkably popular Bush.

Mayoral Races of Note:

Manchester: A bright spot for Republicans is the victory of Frank Guinta over incumbent Democrat Bob Baines, in a race in which John Kerry and other national figures campaigned for Baines.

New York: Michael Bloomberg, after a rocky start, has been a remarkably successful mayor, and easily won reelection, 70%-30% over Bronx borough President Fernando Ferrer. This is the 4th straight mayoral election Republicans have won in this very Democratic city. Bloomberg runs largely independent of the national party, and voters stuck solidly with a mayor who is getting the job done in a common sense fashion.

Detroit: Two Democrats squared off, and the callow, far left "hip-hop mayor" incumbent, Kwame Kilpatrick, went down to defeat against Freeman Hendrix, a former aide to Kilpatrick's predecessor, the more moderate Dennis Archer. Again, voters saw that rhetoric and symbolism weren't working, and went with the more centrist option.

St. Paul: In this very liberal city, orthodox Democrat Chris Coleman clobbered Bush-endorsing Democratic incumbent Randy Kelly. This one will be sweet for Democrats - heretics are always more hated than infidels.

San Diego: No results at this time. Late polls showed Republican Jerry Sanders with a narrow lead over Democrat Donna Frye. Update: Sanders wins.

I see no powerful trends here. Republicans are hurting, but the drop was slight - no real sign of a "wave" that might break for Democrats in 2006, and lots of time for the GOP to correct its problems.

The Corruption is Spreading

From the Ohio-based blog Division of Labor, we learn that on the eve of the election, Funky Winkerbean is out campaigning for passage of Issue 1 (note the yard sign), a controversial bond measure in the state. An illegal contribution? Or is Funky protected by the press exemption - even when not appearing in a newspaper? Is his web appearance protected? If so, why do reformers not want to give the press exemption to bloggers?

Tough questions.

More Doublespeak from "Reformers" on Internet Regulation

Why are bloggers and other internet activists are up in arms over the increased regulation of the internet being promoted in the name of campaign finance reform? You need only read this statement, released yesterday by the Democracy 21, the Campaign Legal Center, Public Citizen, and USPIRG, the groups promoting such regulation. The groups were celebrating the fact that the House failed by a vote of 225 in favor to 182 opposed to exempt the internet from one portion of the McCain-Feingold law. The majority wasn't enough to pass the measure: due to a procedural hurdle, a two-thirds affirmative vote was needed.

If you were a blogger, would this excerpt soothe you?

We have consistently stated that we support affirming that bloggers communicating on their own Web sites are not covered by the campaign finance laws, as long as it is done in a way that does not undermine the nation’s laws to protect against corruption.

Let's see - it must be "your own" web site; and "must be done ina way that does not undermine the nation's laws." Of course, those familiar with the issue know that these same reformers have been talking out of both sides of their mouths ever since the issue began to catch the public eye. And when was the last time they favored any measure loosening restrictions on any part of the public? Can one envision these guys ever admitting that increased political activity does not "undemine the law?"

Update: Here is a nice column by the Skeptic, Allison Hayward. And a very complete analysis, with lots of links, from Mat Johnston at Going to the Mat. Lots on Red State, too. And Daily Kos, too - this really is a left/right issue. The first of the Kos posts linked is interesting because Adam Bonin, the lawyer who has been representing bloggers on this issue, notes that the reason the freedom side could not muster the two-thirds majority required by the rule under which the bill was brought to a vote is because the reform groups are loaded with big money and lobbyists.

Hold on Tight to Your Mouse - Here Comes More Regulation of Internet Politics

The House today voted in favor of H.R. 1606, exempting internet communications from some campaign finance regulations, but because of a procedural quirk, the vote will have the opposite effect - internet regulation will increase.

The House vote was 225 to 182 in favor of exempting internet communications from the definition of "public communications" under the McCain-Feingold campaign finance law. However, because the bill was brought to the floor as a "suspension" bill, a two-thirds majority was needed for the bill to pass.

I won't try to recap the bill here. See here for a bit. It is enough to note that even if it had passed, the internet would not be entirely free of regulation, but that the failure of the bill to pass means that the Federal Election Commission, pursuant to Court order, will now issue further regulations. (For background, see here.) For now, I'll just point to two things of interest.

First, there is virtually no doubt that the so-called "reform" community intentionally sought to mislead Congress and the press about the content of the bill. See here, here, and here, and note that these characterizations of reformers' behavior have gone unrebuted (because, in fact, they are accurate).

Second, I wonder what the reform community's spin will be. A majority of Congress wants to at least partially deregulate the internet. For years, reformers cried "foul" when a minority of the Senate filibustered McCain-Feingold. Yet I suspect they have no qualms now about pocketing a win on the strength of a minority vote, and indeed, I predict they will trumpet this as a great success and as continued evidence of congressional support.

Read This Op-Ed

from Francis Fukuyama, by clicking here. I'm not usually a big Fukuyama fan, but he hits some key points here that we need to think about and understand if we are to get serious in the war on terrorism.

A few excerpts:

... a critical source of contemporary radical Islamism lies not in the Middle East, but in Western Europe. ***

We profoundly misunderstand contemporary Islamist ideology when we see it as an assertion of traditional Muslim values or culture. ***

Contemporary Europeans downplay national identity in favor of an open, tolerant, "post-national" Europeanness. But the Dutch, Germans, French and others all retain a strong sense of their national identity, and, to differing degrees, it is one that is not accessible to people coming from Turkey, Morocco or Pakistan. Integration is further inhibited by the fact that rigid European labor laws have made low-skill jobs hard to find for recent immigrants or their children. A significant proportion of immigrants are on welfare, meaning that they do not have the dignity of contributing through their labor to the surrounding society. ***

The real challenge for democracy lies in Europe, where the problem is an internal one of integrating large numbers of angry young Muslims and doing so in a way that does not provoke an even angrier backlash from right-wing populists. Two things need to happen: First, countries like Holland and Britain need to reverse the counterproductive multiculturalist policies that sheltered radicalism, and crack down on extremists. But second, they also need to reformulate their definitions of national identity to be more accepting of people from non-Western backgrounds. ***

One has to note that not only have Americans been fooling themselves on the roots of Islamic extremism, but also about Europe. As Fukuyama notes, Europe's politics have stifled economic opportunity for those at the bottom, and failed to assimilate immigrants into the country. One of the many results has been turning Europe into a breeding ground for radical Islam. Yet these are the same policies many want the United States to adopt.