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January 10, 2006

Alito veers toward the mainstream on voting rights

Washingtonpost.com reports: Sen. Herb Kohl questioned Alito at length on the 1985 job application he wrote expressing his opposition to the direction of the Warren Court, eliciting some actual news as he sought to settle some of the hottest controversies surrounding his nomination.

Alito stated that he had no objection to the "one-man, one vote" principle" enunciated by the Warren Court in Reynolds v. Simms and Baker v. Carr, and also that he had no objection to Griswold v. Connecticut, the Warren Court ruling establishing a "right to privacy" that later served as the basis for Roe v. Wade. He agreed also, said Alito, with a 1972 Supreme Court opinion barring the executive branch from conducting "domestic security" wiretaps without a proper warrant.

In this exchange, Alito also distanced himself from Judge Robert Bork, who he once praised as a worthy Supreme Court nominee but has since come to symbolize the unconfirmable candidate.

The principle of "one man, one vote" is a fundamental principle of constitutional law, Alito said. "I don't see any reason why it should be reexamined.....I never was opposed to the one-person one-vote concept."

So what was it that concerned him, asked Kohl.
He said his father, then working for the New Jersey legislature, had brought to his attention the question of "how exactly equal districts had to be." It seemed that the Supreme Court, at one point, was saying they had to be exactly equal and "that would have wiped out" some of the New Jersey re-mapping. -- Campaign for the Supreme Court - The Politics of the Nomination of Samuel A. Alito Jr.

Judge Alito's new position is quite interesting to me. Republicans in Alabama have sued to overturn the legislative redistricting on the grounds that it does not have "exactly equal districts." I am one of the attorneys for the Democratic Speaker of the House, who has intervened as a defendant.

January 8, 2006

Alabama: Alito's views on "Reynolds v. Sims"

The Birmingham News reports: A landmark decision from 1964 on drawing political boundaries in Alabama is likely to be an issue during this week's confirmation hearings of Supreme Court nominee Samuel Alito Jr.

The 41-year-old ruling in Reynolds v. Sims established the principle of "one man, one vote" by ordering Alabama's legislative districts nearly equal in population. The decision ended the political advantage of sparsely populated rural areas over more populated urban areas, a situation that evolved over the 60 years when the district lines were not adjusted for population changes. ...

In a 1985 job application to the U.S. Department of Justice under then-President Ronald Reagan, Alito wrote that he was drawn to constitutional law in part by his disagreement with the reapportionment decisions of the Warren Court. The statement has drawn criticism from civil rights and voting rights activists who believe it is a sign that a Justice Alito could be unfriendly to their causes.

"Recognizing the concept of `one person, one vote,' the court enshrined the principle that every citizen has the right to an equally effective vote, rather than the right to simply cast a ballot," according to a written review of the Warren Court's reapportionment decisions by the NAACP Legal Defense Fund. "Judge Alito's strong disagreement with some if not all of these pivotal rulings is extremely troubling." -- Alabama redistricting likely to arise

November 30, 2005

Specter will question Alito on voting rights

Knight Ridder Newspapers reports: Sen. Arlen Specter, serving notice that he intends to take up contentious issues raised in years-old writings by Judge Samuel A. Alito Jr., asked the Supreme Court nominee Wednesday to be prepared to clarify his views on affirmative action and voting rights.

Specter, R-Pa., chairman of the Senate Judiciary Committee, sent Alito "advance notice" of questioning he could expect at his confirmation hearings, scheduled to begin Jan. 9.

In a 1985 memo Alito wrote while seeking a promotion in the Reagan administration's Justice Department, he said he disagreed with Supreme Court reapportionment decisions in the 1960s that enforced the doctrine of "one person, one vote." ...

The senator advised Alito, now a judge on the Philadelphia-based U.S. Court of Appeals for the Third Circuit, that he would ask at the hearing whether Alito considered "one person, one vote" a bedrock principle and whether race was ever an acceptable consideration in drawing voting-district lines. -- Alito to face questioning on affirmative action, voting rights

November 24, 2005

Alito: do we know his views on reapportionment?

The Washington Post reports: One of the mysteries still hanging in the confirmation battle over Supreme Court nominee Samuel A. Alito Jr. is his view of a landmark case that established the legal principle of one man, one vote. The answer varies depending on when you ask -- not to mention whom you ask.

In 1985, when Alito was applying for a political appointment in the Reagan administration, he wrote that he disagreed with decisions by the Warren Court in the 1960s involving "reapportionment." Those rulings required electoral districts to have equal populations and helped ensure greater representation of urban minorities.

Those 20-year-old words are highly inflammatory to civil rights groups marshaling forces against President Bush's choice to replace retiring Justice Sandra Day O'Connor. But the White House and a key Republican ally this week were spreading the word that Alito has privately assured senators he has no intention of overturning the Warren Court's reapportionment precedents. Democrats, for their part, refuse to say what, if anything, Alito has told them on the subject.

The controversy over Alito's beliefs -- in the past and now -- illuminates one of the strange rituals of the modern confirmation process. Supporters usually say nominees should not comment on their views, except at official public hearings -- and often not even then. When it suits the purposes of one side or the other, however, conversations at the ostensibly private courtesy calls nominees pay on senators often are widely publicized, through authorized leaks or secondhand accounts from aides and political operatives. -- Alito's Stance on One Man, One Vote Is Debated

November 23, 2005

Alito: "Pride must go before he falls"

Derrick Z. Jackson writes in the Boston Globe: PRIDE MUST go before he falls. This is why Samuel Alito hopped to liberal burrows on Capitol Hill to proclaim the burial of his conservative ideology. ...

On one occasion, White House spokesman Larry Speakes said Reagan was ''proud" of his record on civil rights. Reagan himself said in 1985, ''We have a proud record on civil rights." That same year, Alito applied with pride for his promotion. In that application, Alito also claimed membership in the Concerned Alumni of Princeton, which called coeducation a ''fad" that ''ruined the mystique and the camaraderies that used to exist." It complained of ''subpar applicants being admitted primarily because they belonged to minority groups" and more students showing ''weak character."

A nominee so willing to prostrate himself to an administration that left virtually nothing to be proud of on civil rights is a solid warning that if Alito gets on the court, he will have no shame exhuming the ideology he claims has been buried. -- The masking of a conservative - The Boston Globe

November 20, 2005

Nathan Newman on "a political rightwing dinosaur"

Nathan Newman discusses the connection between organized labor and the reapportionment decisions of the 1960's and concludes: In opposing the reapportionment decisions, Sam Alito made it clear that this was not merely an abstract legal position but part of his more general alignment with the rightwing politics of the 1960s, including an allegiance to the National Review , which opposed civil rights and democratic equality in the states with all its intellectual vigor in that period.

So how any Democrat could even consider voting for a political rightwing dinosaur of that era is beyond me. -- Labor Blog

Alito: a filibuster over his reapportionment views?

AP reports: The views that Samuel Alito expressed on reapportionment in a 20-year-old document could jeopardize his Supreme Court nomination and provoke a filibuster, a leading Democratic senator said Sunday. ...

Drawing the most attention from Alito's critics today is his comment on abortion.

"I am particularly proud of my contributions in recent cases in which the government argued that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion," wrote Alito, now a federal appeals court judge.

But Biden, D-Del., said he was most troubled by Alito's comment about reapportionment under the Supreme Court when it was led by Chief Justice Earl Warren.

The Warren Court, as it became known, ended public school segregation and established the election principle of one-man one-vote.

"The part that jeopardizes it (Alito's nomination) more is his quotes in there saying that he had strong disagreement with the Warren Court particularly on reapportionment — one man, one vote," Biden told "Fox News Sunday." -- Biden: Alito's Views May Bring Filibuster - Yahoo! News

Cross-posted on DearSenator.org.

November 15, 2005

Nathan Newman on why Alito is "Against Democracy"

Nathan Newman says: The release of Alito's 1985 Job Application is causing ripples because of his clear statement that "the Constitution does not protect the right to an abortion."

But forget Roe-- that's just confirmation of what everyone suspected, and I continue to believe (along with Ruth Bader Ginsburg) that Roe was not particularly helpful to abortion rights in the long-term.

But what is most striking about Alito's statement is this line:

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.

"Reapportionment"?

For the non-lawyers out there, Alito meant he was against the Supreme Court decisions requiring that all state legislative districts be designed to guarantee "one person, one vote", instead of giving some districts with very few voters the same representation as urban districts with far more voters.

While I strongly believe that most judicial activism by the Warren Court was unneeded or even counterproductive for progressive goals since ongoing democratic mobilization was moving civil rights and feminist goals forward, the reapportionment cases-- Baker v. Carr and Reynolds v. Syms-- dealt with a problem that democratic voting inherently could not correct, namely the lack of real democracy in most state legislatures. -- NathanNewman.org

There's more -- and I left out the links in Nathan's original post.

November 14, 2005

"Judge Alito as an Opponent of One Person, One Vote?"

Rick Hasen has this extremely important post: Today the Reagan and Bush (41) libraries released a small set of documents related to Supreme Court nominee Samuel Alito. What has received the most attention so far is this job application for a senior Justice Department position in the Reagan White House, because of the nominee's statements about abortion. But the application (pdf page 15) also includes the following sentence (thanks to Sam Hirsch for pointing this out to me): "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." (emphasis added) ...

But the statement made by Judge Alito against the Warren Court's reapportionment precedents is unqualified, allowing opponents to charge that he would go back to the days of severely malapportioned districts--and all the potential bad consequences for representation that accompany large disparties in voting power. I suspect this issue will be probed at the confirmation hearings, and could prove important. -- Election Law: Judge Alito as an Opponent of One Person, One Vote?

Think of the late Fred Rogers asking, "Can you say 'youthful
indiscretion,' children?"

November 8, 2005

Rhode Island: Senators consider Alito's record, ponder the unknowns

The Brown Daily Herald reports: Though neither has committed to voting for or against Supreme Court nominee Judge Samuel Alito, senators Lincoln Chafee '75, R-R.I., and Jack Reed, D-R.I., have both expressed concerns about his 15-year record as a federal appeals court judge.

"There's no doubt that this is a critical seat - the balance of the court is an issue," Chafee told The Herald, noting that the retiring Sandra Day O'Connor often cast the court's deciding vote, particularly against abortion restrictions.

Chafee said he "certainly" has reservations about Alito on three primary issues - in addition to abortion rights, he is concerned about interpretation of the commerce clause and the separation of church and state. The lattermost of these concerns is "something that Rhode Islanders have a special interest in because of Roger Williams and his staunch belief in (the separation of church and state)," Chafee said. ...

Reed also expressed concern about Alito's dedication to individual rights - specifically, his potentially narrow interpretation of the Voting Rights Act and his "views on a woman's right to choose." -- R.I. senators react to Alito nomination - Metro

Cross-posted on DearSenator.org

October 31, 2005

Alito: another election decision

Cross-posted to DearSenator.org

Ballot Access News reports: Judge Samuel Alito authored a New Jersey ballot access decision in 1999, Council of Alternative Political Parties v Hooks, 179 F 3d 64. It upheld New Jersey’s early June petition deadline for non-presidential minor party and independent candidates. Alito upheld the deadline based on the state’s interest in “voter education” (in other words, if candidates could get on the ballot as late as, say, August, there might not be even time for voters to learn about them). Also, Alito said that a state has an interest in treating all candidates equally. The major parties hold their primaries in June, the same day minor party and independent candidate petitions are due; Alito felt it would be unfair to the major parties if minor parties could enter the race later than the primary. -- Judge Alito’s Ballot Access Decision

I did a quick Westlaw search this morning as I heard the news about Alito. This was the only case I found in the election area.

Alito: People For the American Way report

Cross-posted to DearSenator.org

People for the American Way has issued a report on many of Judge Alito's decisions. There are only two cases in the report dealing with elections:

Rappa v. New Castle County, 18 F.3d 1043 (3d Cir. 1994) -- at the bottom of page 18

Patriot Party v. Allegheny County Dep’t of Elections, 1998 U.S. App. LEXIS 12688 (3d Cir. 1998), aff’d en banc, 174 F.3d 305 (3d Cir. 1999) -- on page 19

October 22, 2005

Miers' position evolved during the redistricting case in Dallas

The Dallas Morning News reports: It was the city's most divisive issue of the time.

Harriet Miers, a newly elected Dallas City Council member considered to be the choice of the business community, was thrust into the city's voting rights battle as a moderate voice who would become a swing vote. ...

She said she also supported retaining two at-large seats but didn't want to fight the judge's order. Yet she later voted to see whether the alternate plan, approved by voters, would hold up on appeal.

At the same time, she was one of the first two white council members to favor the court-ordered plan that minorities wanted.

When Judge Buchmeyer ordered the city to hold council elections under the plan with all single-member districts, Ms. Miers again voted to appeal. As the swing vote on the issue, she said she wanted to see a legal test of the city's plan since voters approved it.

Continue reading "Miers' position evolved during the redistricting case in Dallas" »

Legal scholars grade Miers' paper -- and find it wanting

The St. Petersburg Times reports: The White House has portrayed Supreme Court nominee Harriet Miers as well-versed in constitutional law, someone who could easily handle the unique legal turf of the nation's highest court.

But law professors who have reviewed Miers' Senate questionnaire say it shows little work on important constitutional issues. And, perhaps more troublesome for Miers, they say she made a significant error explaining her experience, referring to a 14th Amendment protection that does not exist.

"She is unquestionably an intelligent person and a competent lawyer," said Cass Sunstein, a law professor at the University of Chicago. "But she's had very little experience in constitutional law." ...

In her initial 11/2-page response, Miers said she dealt with those issues as White House counsel, as a corporate lawyer and during her two years on the Dallas City Council.

"For instance," she wrote, "when addressing a lawsuit under Section 2 of the Voting Rights Act, the council had to be sure to comply with the proportional representation requirement of the Equal Protection Clause."

But law professors said the clause, which is part of the 14th Amendment, does not have a "proportional representation requirement."

"Whatever she is trying to say there, she didn't say it well," said Cheh, adding that the error "is worrisome because it might be a basic misunderstanding about the Voting Rights Act."

Sunstein, a well-known constitutional scholar, said Miers may have made the mistake because of "a simple brain freeze, the sort that all human beings are subject to. On the other hand, it is at least mildly embarrassing to make a mistake of that magnitude." -- Worldandnation: Miers falls flat with scholars

Miers nomination: another uh-oh moment for the nomination -- this one involves lots of money

Knight Ridder Newspapers reports: Supreme Court nominee Harriet Miers collected more than 10 times the market value for a small slice of family-owned land in a large Superfund pollution cleanup site in Dallas where the state wanted to build a highway off-ramp.

The windfall came after a judge who received thousands of dollars in campaign contributions from Miers' law firm appointed a close professional associate of Miers and an outspoken property-rights activist to the three-person panel that determined how much the state should pay.

The resulting six-figure payout to the Miers family in 2000 was despite the state’s objections to the "excessive” amount and to the process used to set the price. The panel recommended paying nearly $5 a square foot for land that was valued at less than 30 cents a square foot.

Mediation efforts in 2003 reduced the award from $106,915 to $80,915, but Miers, who controls the family’s interest in the land, hasn’t reimbursed the state for the $26,000 difference, even after Bush appointed her to the Supreme Court.

The case raises new questions about Miers’ judgment at a time when her nomination is troubled by doubts about her qualifications for the nation’s highest court and accusations that she was chosen mostly because of her close friendship with President Bush.

Nothing indicates that Miers sought out the judge or engineered the appointments to the panel, but there’s also no indication that she reported the potential conflicts of interest in the case or tried to avoid them. -- Miers family received 'excessive' sum in land case

Lots of detail in the story. It might be useful to have a pencil and paper to draw yourself a chart of all the connections between the dramatis personae.

October 16, 2005

Miers' testimony in the Dallas voting rights case

AP reports: Miers' comments were a brief moment in lengthy testimony during a lawsuit in federal district court in Dallas. Black leaders challenged the way city council members were elected in Dallas. Miers had been elected to the council in 1989, just as the battle over racially charged redistricting plans was heating up. The lawsuit led to a court-supervised redistricting plan that enlarged the council from 11 to 14 seats.

Miers testified that the city should keep some at-large seats whose members were elected by voters citywide, not just from small districts. Black leaders opposed at-large districts, viewing them as a tool to limit minority representation.

Miers said at-large members can consider the entire city's interests while politicians elected from local districts must also consider the interests of their own district.

Miers said, however, that one drawback of at-large seats was that many successful citywide candidates came from north Dallas, which is predominantly white and more affluent than south Dallas.

"We needed to encourage additional African-American, Mexican-American representation on the council," Miers said.

"We needed to encourage additional African-American, Mexican-American representation on the council," Miers said.

Miers added that she would not have run in 1989 if a viable minority candidate had jumped in the race first.

"I felt like the time was right that such a candidate could be elected, and I had other things to do," she said.

Miers testified that voting in Dallas was sometimes along racial lines and "race is an issue" in city politics but that economic differences drove most of the disagreements in the city.

Ideally, each district should have similar numbers of rich, poor and middle-income residents, she said.

Miers rejected a plaintiff lawyer's argument that a heavily Hispanic district would necessarily elect Hispanic candidates. She also said she didn't like the concept of creating safe seats for minorities by drawing heavily minority districts. -- AP Wire | 10/14/2005 | Miers testimony in voting rights case xxx

Remember that Miers ran for (and won) an at-large seat. Thus, she was saying, "I felt like the time was right that such a candidate could be elected [at large]."

White House to re-focus its efforts for Miers

Time reports: Get ready for a whole new Harriet. After a disastrous two weeks, White House officials say they hope to relaunch the nomination of Harriet Miers for the Supreme Court by moving from what they call a "biographical phase" to an "accomplishment phase." In other words, stop debating her religion and personality and start focusing on her resume as a pioneering female lawyer of the Southwest. "We got a little wrapped around the axle," an exhausted White House official said. "As the focus becomes less on who she's not and more on who she is, that's a better place to be."

So, as the White House counsel begins her formal prep sessions this week for a confirmation hearing that's likely to start in early November, President Bush will hold a photo op with former chief justices of the Texas Supreme Court who will testify to Miers' qualifications and legal mind. The White House's 20-person "confirmation team" will line up news conferences, opinion pieces and letters to the editor by professors and former colleagues who can talk about Miers' experience dealing with such real-world issues as the Voting Rights Act when she was a Dallas city council member and Native American tribal sovereignty when she was chairwoman of the Texas Lottery Commission. -- TIME.com: Mike Allen: Why They Can't Hit The Right Note -- Oct. 24, 2005 -- Page 1

October 10, 2005

The Funeral Oration

Still Angry says, Et tu, W?:
Friends, Americans, bloggers, lend me your ears
I come to bury Miers, not to confirm her.
The evil that Justices do lives after them;
The good is oft preserved by rejecting their nominations;
So let it be with Miers.

Read the whole thing.

October 8, 2005

More details on Miers and the voting rights suit against Dallas

The Dallas Observer reports: Mike Daniel is one of a tiny coterie of tough activist lawyers who in the 1970s and '80s pushed through a series of federal anti-segregation, anti-housing discrimination, anti-disenfranchisement lawsuits that changed the city forever. Of that barrage of litigation, the piece that struck the deepest blow was a suit seeking the overthrow of the old city council system.

Daniel represented plaintiffs Marvin Crenshaw and Roy Williams, who argued that Dallas had used a series of tricky arrangements to prevent black people and Latinos from achieving power on the city council. When their lawsuit was coming to a head in 1991, Harriet Miers was nearing the end of her single two-year term as an at-large city council member.

Daniel and Roy Williams, his former client, remember Miers as a smart and thoughtful council member who eventually came to support a version of the all single-member district "14-1" council system they were seeking.

"She's really not an ideologue," Daniel says. "She came over to 14-1 way sooner than the mayor."

The mayor at the time was Annette Strauss, nominally a Dallas liberal, sister-in-law to Robert ("Mr. Democrat") Strauss, who was a former chairman of the Democratic National Committee. Both Daniel and Williams remember Miers as far more interested in fair representation issues than Strauss or any of the other big Democrats still in town in those days. -- dallasobserver.com | News & Features | Schutze | Die-In | 2005-10-06

On how confirming a Supreme Court nominee is like choosing a federal jury

The literature on persuasion says that I must start with something you know and understand to persuade you of the truth of something new. Im afraid I have to violate that rule because many of you will not understand my beginning point.

In the federal courts I have practiced in (and maybe all over the country), the jury is chosen by a method of striking people who are essentially standing in line. If I will have a six-member jury, the clerk presents me with a board with all the jurors names on attached to magnets. All the names are in a line and the first six are in the box that represents the jury box. If I go first, I can strike one or more of those people (I can also strike none). When I strike a person, lets say juror 2, juror number 7 is moved into the box, so that it always contains six people. The total number of people I can strike is limited usually six so I have to be careful that I dont use up my strikes in a way that results in a worse juror (from my perspective) being moved into the box to replace someone I found mildly objectionable.

My job is complicated because the opposing counsel is also striking jurors in alternation with me. I dont know ahead of time who he will strike, but I usually assume that he will want the people I find most disagreeable. And that he will strike those I find most agreeable.

Lets say we get to a point where we each have one strike left, and it is my turn to strike. I dont like juror 12 who has just moved into the box. If I strike juror 12, juror 13 will replace her. If I think that my opponent will strike number 13 (or anyone else), I have to consider what I know about number 14.

I stand there looking at the board in the clerks hands. Beads of sweat trickle down my neck. I can hear Dirty Harry saying, Well, do you feel lucky today PUNK?

Thus it must be for some Senate Democrats who find themselves less than enthusiastic with the nomination of Harriet Miers for the Supreme Court. Whether they take the position of Professor Bainbridge (does she have the chops for the Show?) [believe me, you have to read Bainbridges post to get the whole, rib-tickling argument] or the position of Confined Space that Miers is a corporate lawyer from a union-busting firm so she will be bad for working people, they must be wondering who is the next juror/justice who will step into the box if I strike this one?

I have turned comments on, for this post, so comment away.

Miers urged broad reading of Constitution in 2000

Tim Grieve writes on Salon.com: OK, so we take it all back. It turns out that Harriet Miers does have experience in matters of constitutional law: As the Wall Street Journal reports today, she has argued a case involving the rather obscure 12th Amendment to the U.S. Constitution.

Her client: George W. Bush. Her argument: Dick Cheney wasn't really a resident of the state of Texas even if he was really a resident of the state of Texas.

Continue reading "Miers urged broad reading of Constitution in 2000" »

October 6, 2005

Miers seems pragmatic on voting issues

The Knight Ridder Newspapers report: In what appear to be some of her only public statements about a constitutional issue, Supreme Court nominee Harriet Miers testified in a 1990 voting rights lawsuit that the Dallas City Council had too few black and Hispanic members, and that increasing minority representation should be a goal of any change in the city's political structure.

In the same testimony, Miers, then a member of the council, said she believed that the city should divest its South African financial holdings and work to boost economic development in poor and minority areas. She also said she "wouldn't belong to the Federalist Society" or other "politically charged" groups because they "seem to color your view one way or another."

Miers' thoughts about racial diversity placed her squarely on the progressive side of the 1990 suit, which was pivotal in shifting power in Dallas politics to groups outside the traditional, mostly white establishment.

And some constitutional scholars say that if Miers were to embrace the same views as a justice on the high court, she would fall more in line with the court's pragmatic, moderate wing than with its doctrinaire extremes. -- KRT Wire | 10/06/2005 | Miers espoused progressive views as elected official, records show

This plows much of the same ground as Rick Hasen's post (summarized below).

Miers has real-world experience on redistricting

Rick Hasen has done some digging on Harriet Miers' experience on the Dallas City Council. Dallas was sued in the late '80s by blacks and Hispanics seeking fairer representation on the Council. Miers had been elected to an at-large seat and most public officials I know elected to an at-large seat believe that at-large seats provide the best representation (after all, the at-large system elected me, didn't it?). But Miers testified in the suit that the then-current plan (8 SMD and 3 at-large) was unfair. She supported the plan with 14 SMD and a mayor over a plan with 10 SMD, 4 larger, overlapping districts, and the mayor.

Rick has done a good job on his research. I recommend you read the whole thing. Here's his conclusion:

What to make of all of this? It is not entirely clear. We appear to have someone sensitive to minority voting rights and skeptical of incumbency protection. Miers may not be the next Sandra Day O'Connor, but her vote in upcoming Voting Rights Act and partisan gerrymandering cases may be just as nuanced (and perhaps unpredictable). At least they would be informed by some real-world experience. -- Election Law: Harriet Miers and Election Law: Might She Be a Supporter of the Voting Rights Act and an Opponent of Partisan Gerrymandering?

You know, maybe a little real-world experience might help the Court -- or, at least, a Justice.


October 4, 2005

Meirs' term on the Dallas City Council

Business Week reports: Miers joined the Dallas city council in 1989, at a time when the city's African-American community was pushing for greater representation after decades of segregation and voting-rights violations. Miers was recruited by the Dallas business community to run for the city council as a voice of moderation and conciliation. She attempted to broker a compromise between the defenders of the status quo and the African-American politicians who were demanding all single-member districts to maximize black representation. In the end, despite her efforts, Miers couldn't pull it off and retired from the council after a single term -- with both sides sniping at her. -- The Real Harriet Miers

October 3, 2005

What do we know about Harriet Meirs?

What do I know about Harriet Miers' views on voting rights and campaign finance?

Not much. Well, really ... nothing. This is where you come in. If you know something about her that might lead to information, email me.

September 14, 2005

Graham and Roberts on the VRA

Senator Graham had this colloquy with Judge Roberts this afternoon:

GRAHAM: During your time of working with Ronald Reagan, were you ever asked to take a legal position that you thought was unethical or not solid?

ROBERTS: No, Senator, I was not.

GRAHAM: We talked about the Voting Rights Acts. Proportionality test in the Reagan administration's view was changing the Voting Rights Act to create its own harm. Is that correct?

ROBERTS: The concern that the attorney general had and the president was that changing Section 2 to the so-called effects test would cause courts to adopt a proportionality requirement, that if elected representatives were not elected in proportion to the racial composition in a particular jurisdiction, that there would be a violation shown that would have to be addressed.

GRAHAM: Do you think it would be fair to try to suggest that because you supported that position but you're somehow racially insensitive?

ROBERTS: No, Senator. And I would resist the suggestion that I'm racially insensitive. I know why the phrase, "Equal Justice Under Law" is carved in marble above the Supreme Court entrance. It is because of the fundamental commitment of the rule of law to ensure equal justice for all people without regard to their race or ethnic background or gender.

The courts are a place where people need to be able to go to secure a determination of their rights under the law in a totally unbiased way. That's a commitment all judges make when they take a judicial oath.

GRAHAM: Knowing this will not this line of inquiry but, at least, trying to put my stamp on what I think we've found from this long discussion, basically, the Supreme Court decided in Section 2 that the intent test was constitutionally sound. Is that correct?

ROBERTS: That was its determination in Mobile against...

GRAHAM: And Senator Kennedy disagreed because he wanted a different test. And I respect him. He is one of the great -- first, he's not part of the Reagan revolution. I think we all can agree with that. So I don't expect him to buy into it.

But I respect him greatly for his passion about his causes. He took it upon himself to try to change a Supreme Court ruling, to go away from the intent test to the effects test, and he was able to reach a political compromise with the administration.

And I just want that to be part of the record; that to say that Ronald Reagan or Judge Roberts, by embracing a concept approved by the court, equates to that administration or this person being incensed at people of color in this country I think is very unfair and off base.

You said something yesterday that was very compelling to me. I asked you, could you express or articulate what you thought might be one of the big threats to the rule of law. And I believe you said, Judges overstepping their boundaries, getting into the land of making the law, putting their social stamp on a cause, rather than interpreting the law, because that could over time, in the eyes of the public, undermine the confidence in the court."

Is that a correct summary?

ROBERTS: Yes, Senator. -- Transcript: Day Three of the Roberts Confirmation Hearings

Grassley to Roberts: will you be fair to the VRA?

Senator Grassley had the following hard-hitting exchange with Judge Roberts:

GRASSLEY: Thank you.

Once again, I compliment you on how you've handled yourself at these hearings. You've done very well. It's going to be very hard for people to cast a "no" vote against you.

Judge Roberts, do you believe that every citizen who meets the qualifications set forth in the Constitution and our laws should have the opportunity to cast a free and unfettered vote?

And as a follow-up, will you, on the court, fairly apply the Voting Rights Act?

ROBERTS: I certainly agree that every citizen who meets the qualifications not only has a right to vote but should vote. I think it's a problem that we don't have more people voting. And any issues that come before me under the Voting Rights Act, I will confront those with an open mind and decide them after full and fair consideration of the arguments, in light of the precedents of the court and in light of the recognition of the critical role that the right to vote plays as preservative of all other rights. -- Transcript: Day Three of the Roberts Confirmation Hearings

Hatch and Roberts on the VRA

Senator Hatch and Judge Roberts discussed the Voting Rights Act today. (From Transcript: Day Three of the Roberts Confirmation Hearings)

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September 13, 2005

Sen. Feingold and Judge Roberts discuss the VRA

Senator Feingold questioned Judge Roberts about the Voting Rights. ( and this are from the AP transcript.)

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Senator Sessions and Judge Roberts on the VRA

Senator Sessions engaged in a colloquy with Judge Roberts on the Voting Rights Act and Mobile v. Bolden, a case I know something about because I was one of the attorneys for the plaintiffs. (This and this are from the AP transcript of the hearing.)

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Judge Roberts and Sen. Grassley on the VRA

Senator Grassley discussed the Voting Rights Act with Judge Roberts. This excerpt is from the AP transcript of the hearings.

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Judge Roberts and Senator Kennedy on the VRA

Senator Kennedy engaged Judge Roberts on the Voting Rights Act. The text is "below the fold." (From the AP transcript of the hearings.)

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Roberts dodges VRA questions

AP reports: Chief Justice-nominee John Roberts repeatedly refused to answer questions about abortion and other contentious issues at his confirmation hearing Tuesday, telling frustrated Democrats he would not discuss matters that could come before the Supreme Court.

"I think nominees have to draw the line where they are most comfortable," said Roberts, who also sidestepped questions about civil rights, voting rights and the limits of presidential power in a long, occasionally antagonistic day in the witness chair. ...

He twice rebuffed Democratic attempts to draw him into a discussion of his views on lawsuits under the Voting Rights Act - whether a showing of discrimination should be sufficient to prevail as opposed to a more difficult-to-establish intent to discriminate. -- AP Wire | 09/13/2005 | Roberts rebuffs Democrats' questions

August 31, 2005

Reports on Roberts

The Alliance for Justice and the Lawyers' Committee for Civil Rights Under Law have issued reports on John Roberts. (The AFJ report does not have a cover page.)

August 19, 2005

Liberals plan opposition to Roberts

Knight Ridder Newspapers report: Leading Democrats and key interest groups intend to build a case against John G. Roberts' nomination to the U.S. Supreme Court by highlighting his past stands on civil rights and women's issues and downplaying more divisive topics such as abortion and school prayer.

When confirmation hearings begin Sept. 6, Democrats on the Senate Judiciary Committee will concentrate on Roberts' writings that shed light on his views of affirmative action, voting rights, pay equity and discrimination, aides and activists said.

That focus has evolved over the past several weeks, even though the most vocal opposition to Roberts has come from supporters of abortion rights. Senate Democratic aides and strategists said Democrats had more to gain by portraying Roberts as outside the mainstream on broad questions of fairness than on a polarizing subject such as abortion. Even if they can't defeat Roberts, they hope to define his conservative values in ways that will hurt Republicans and help Democrats in the 2006 congressional elections. -- KRT Wire | 08/19/2005 | Democrats to target Roberts' views on race, gender equality

August 15, 2005

Roberts: Rick Hasen predicts Roberts would vote against constitutionality of Section 5

Rick Hasen writes on his Election Law blog: In my recent L.A. Times oped, I wrote about Judge Roberts' views on the 1982 Voting Rights Act amendments. He strongly opposed efforts to expand the Act to make it easier for members of protected minority groups to prove claims of vote dilution:

In these documents, Roberts wrote that the new Section 2 would "establish a quota system" and "provide a basis for the most intrusive interference imaginable by federal courts into state and local processes." He added that it "would be difficult to conceive of a more drastic alteration of local government affairs."

Imposing the new Section 2 nationwide, he concluded, would be "not only constitutionally suspect, but also contrary to the most fundamental [tenets] of the legislative process on which the laws of this country are based."


I concluded that these views provide a good indication that if Judge Roberts is confirmed to the Supreme Court, he would well cast the deciding vote holding that a reauthorized section 5 goes beyond Congressional power under the Court's recent federalism jurisprudence. -- Election Law: How Would a Justice Roberts Vote on the Constitutionality of a Reauthorized Section 5?

The whole post is worth reading. Read it and consider what is at stake, or as a brochure I received from the NAACP Legal Defense Fund (on a different point) today said, "If you think the struggle is over, think again."

August 10, 2005

Liberal groups settle on "message" re Roberts

The Hill reports: A coalition of liberal special-interest groups is settling on three major criticisms of Supreme Court nominee John Roberts that it hopes will resonate with two key Democratic constituencies: African-Americans and women.

The coalition, which includes nearly 90 organizations, is organized by Ralph Neas, president of People for the American Way, whom conservatives view as the mastermind behind the opposition to President Bushs judicial nominees.

By targeting Roberts on issues of importance to blacks and women, the interest groups will make it difficult for Democrats not to pose a strong challenge to Roberts during the Senate confirmation process. ...

Citing documents from Robertss service in the Reagan Justice Department and the Reagan White House, the group asserts that Roberts argued for weakening proposed voting-rights protections, viewed legislation to fortify the Fair Housing Act as storm clouds gather[ing] and government intrusion, and defended legislation that would have stripped the federal courts of their authority to remedy school desegregation. -- Left group refine plans on Roberts

August 4, 2005

John Roberts on why the VRA should not be amended (1981)

The New York Times reports: He produced a torrent of memorandums explaining why the Reagan administration was right to oppose new provisions in the Voting Rights Act that had just passed the House with an overwhelming majority.

He drafted op-ed articles for his boss, Attorney General William French Smith, and he circulated talking points warning that Congress - by trying to make it easier to prove voting rights violations - was on the verge of creating "a quota system for electoral politics." He scribbled angry notes on newspaper articles that showed an official from another department was veering off-message.

It was 1981 and John G. Roberts Jr. was 26, two years out of Harvard Law School and an eager combatant in the political wars - including the one over the landmark 1965 Voting Rights Act, which was up for renewal in Congress. In general, he wrote to one of his mentors after three months on the job: "This is an exciting time to be at the Justice Department. So much that has been taken for granted for so long is being seriously reconsidered." ...

He argued, according to a January briefing paper to prepare Attorney General Smith for Congressional testimony, that the House bill would essentially "establish a quota system for electoral politics, a notion we believe is fundamentally inconsistent with democratic principles." He added that "at-large systems of elections and multimember districts would be particularly vulnerable to attack, no matter how long such systems have been in effect or the perfectly legitimate reasons for retaining them."

He drafted an op-ed article for Mr. Smith warning that the bill would "gradually lead to a system of proportional representation based on race or minority language status." And he prepared Mr. Smith for a meeting at the White House with a memorandum that declared: "The president's position is a very positive one and should be put in that light. He is for the Voting Rights Act and wants to see it extended."

He added, "That is essentially the president's position - if it isn't broken, don't fix it." ...

Richard L. Hasen, an election law specialist at Loyola Law School in Los Angeles, noted that views could change over time, but added that Mr. Roberts in 1981-82 "showed a pretty strong disagreement with the efforts to make it easier to prove vote dilution."

Mr. Hasen added, "I certainly think that had the Roberts view prevailed, we would have many fewer minority elected representatives in Congress and in state and local government." -- Roberts Helped to Shape 80's Civil Rights Debate - New York Times

August 1, 2005

More on Roberts in the Reagan administration

The Washington Post reports: In the early 1980s, a young intellectual lawyer named John G. Roberts Jr. was part of the vanguard of a conservative political revolution in civil rights, advocating new legal theories and helping enforce the Reagan administration's effort to curtail the use of courts to remedy racial and sexual discrimination.

Just 26 when he joined the Justice Department as a special assistant to Attorney General William French Smith, Roberts was almost immediately entrusted to counsel senior department officials on such incendiary matters of the day as school desegregation, voting rules and government antidotes to bias in housing and hiring. ...

Other memos by Roberts similarly argued for reining in the federal government's role in civil rights disputes. They indicate, for example, that he was at the center of articulating and defending the administration's policy that the Voting Rights Act -- a seminal law passed in 1965 and up for renewal in 1982 -- should in the future bar only voting rules that discriminate intentionally, rather than those that were shown to have a discriminatory effect.

After the House rejected administration concerns and passed a bill embracing the more broad "effects" standard in October 1981 by a vote of 389 to 24, Roberts wrote in a memo to Smith, "my own view is that something must be done to educate the Senators on the seriousness of this problem." He argued in a memo to Starr that the House bill made sense only if "our laws were concerned with achieving equal results rather than equal opportunity."

The Senate eventually backed the House version after then-Sen. Robert J. Dole (R-Kan.) added a brief passage stating that the revisions were not intended to mandate "proportional representation" by minorities -- a viewpoint that backers of the House bill had insisted was already clear. It is not apparent from the disclosures so far what position Roberts took on that amendment, which Reagan said he supported after Dole introduced it. -- A Charter Member of Reagan Vanguard

July 31, 2005

Roberts opposed 1982 change to Voting Rights Act

The Washington Post reports: THE THOUSANDS of pages of just-released government files involving Judge John G. Roberts Jr. offer a tantalizing glimpse of the Supreme Court nominee as a young lawyer. While it's dangerous to make judgments based on a quick and necessarily spotty reading of quarter-century-old documents, the picture that emerges from the first wave of papers, including a huge batch unveiled from Judge Roberts's tenure as an adviser to President Ronald Reagan's attorney general, shows a lawyer fully in tune with the staunchly conservative legal views of the administration he was serving -- and indeed, at times to the right of some of its leading conservative lawyers.

Those who fear or hope, depending on their political positions, that Judge Roberts might be a stealth nominee in the mold of Justice David H. Souter -- a supposed conservative whose performance on the bench turned out to be far more moderate than predicted -- will find no support for such predictions in the papers that have emerged so far.

The memos show a younger Mr. Roberts expressing hostility to affirmative action programs and to a broad application of the Voting Rights Act. Congress was rewriting the law, and Mr. Roberts was vocal about making certain that it apply only to practices that were intended to harm minority voters -- not to those that simply had the effect of doing so. He criticized the solicitor general's office for failing to "be sufficiently sensitive" to the administration's civil rights views. In one memorandum, Mr. Roberts recommended against having the Justice Department intervene in a sex discrimination case involving disparities in vocational training programs for male and female prisoners -- even though William Bradford Reynolds, the administration's staunchly conservative civil rights division chief, wanted to participate. One particular area of concern is Mr. Roberts's writings on the ability of state prisoners to have their claims heard in federal court, something that he argued the Constitution does not require. "The current availability of federal habeas corpus, particularly for state prisoners, goes far to making a mockery of the entire criminal justice system," Mr. Roberts wrote in a 1981 memorandum that foreshadowed the high court's subsequent moves to restrict state prisoners' appeals in federal courts. Some tightening was justified, but the high court and Congress have since gone too far in eroding meaningful review. -- Young Lawyer Roberts

July 30, 2005

Roberts: Dems ask for documents on a list of cases

The Village Voice reports: Senators charged with vetting Bush nominee John Roberts for a lifetime appointment to the U.S. Supreme Court finally adjourned their tea party late this afternoon and began the investigation.

First, the Senate Judiciary Committee set a start date of September 6 for confirmation hearings. Then, the Democratic committee members lobbed their first shot. They wrote Attorney General Alberto Gonzales, demanding an intriguing set of documents from Roberts's days as a powerful lawyer for the Bush Sr. administration.

The letter reminds Gonzales that similar documents were requested and provided before the confirmation hearings of rejected Reagan nominee Robert Bork. ...

The Dems provided reporters the following list summarizing the cases on which they want Roberts's past papers. Of course, they are also obligated to satisfy the concerns of their constituents: ...

Voinovich v. Quilter, 507 U.S. 146 (1993)A Voting Rights Act case in which the Solicitor General filed a brief opposing claims by minority voters in Ohio. Roberts co-authored the Solicitor General's brief. -- Dems Begin Digging into Bush Court Nominee

July 29, 2005

Roberts: liberal groups begin to attack

The Washington Post reports: After sitting mostly silent for more than a week after the Supreme Court nomination of Judge John G. Roberts Jr., liberal activist groups and their allies in the Senate yesterday expressed growing concern about the conservative positions Roberts advocated while working as a young Justice Department lawyer in the Reagan administration.

Memos and other documents from Roberts's work as a special assistant to Attorney General William French Smith show that Roberts took positions that some of those groups regard as hostile to civil rights. The documents show that he advocated a narrow interpretation of a variety of civil rights laws, and presented a defense of congressional efforts to strip the Supreme Court of jurisdiction over busing, abortion and school prayer cases.

The emerging portrait of Roberts, liberal activist groups say, is not that of a dutiful advocate who was a step above the political fray, as Roberts has been described by his White House sponsors and supporters. Instead, they say, the documents reveal Roberts as an intense and ambitious partisan who appears to have been at the center of the Reagan administration's efforts to put a conservative stamp on government.

"With every passing day, it is becoming clearer that John Roberts was one of the key lieutenants in the right-wing assault on civil rights laws and precedents," said Ralph G. Neas, president of People for the American Way, a liberal advocacy group. -- Judge's Reagan-Era Work Criticized

July 28, 2005

Roberts: a "rather cramped view of the Voting Rights Act"

AP reports: After days of Democratic deference to John Roberts, Sen. Edward M. Kennedy said Thursday that documents made public so far indicate the Supreme Court nominee holds a "rather cramped view of the Voting Rights Act."

Materials that Roberts drafted while at the Justice Department and White House counsel's office during the Reagan administration "certainly raise some questions in my mind about his commitment" to civil rights, said Kennedy, D-Mass.

Kennedy's remarks showed a willingness to raise pointed questions when most other Democrats have stuck to pleasantries about Roberts' credentials ahead of his confirmation hearings. ...

At the time, Congress was considering an extension of the 1965 Voting Rights Act against the backdrop of a Supreme Court ruling that held that "proof of intent" was needed to demonstrate someone's rights had been violated.

House Democrats sought legislation to change so election results would be sufficient.

In a draft opinion article he sent to a county commissioner in San Antonio, Roberts wrote that the proposal would "not simply extend the existing and effective Voting Rights Act, but would dramatically change it. ... It's not broken so there's no need to fix it."

In another document, Roberts, then working in the White House, wrote that legislation designed to overturn a different Supreme Court ruling would "radically expand the civil rights laws to areas never before considered covered." He recommended against it.

In a third, he wrote that the administration could "go slowly on housing legislation" without fearing political damage. -- AP Wire | 07/28/2005 | Kennedy questions Roberts on civil rights

July 27, 2005

John Roberts had key role in 2000 election recount

The Miami Herald reports: U.S. Supreme Court nominee John Roberts played a broader behind-the-scenes role for the Republican camp in the aftermath of the 2000 election than previously reported -- as legal consultant, lawsuit editor and prep coach for arguments before the nation's highest court, according to the man who drafted him for the job.

Ted Cruz, a domestic policy advisor for President Bush and who is now Texas' solicitor general, said Roberts was one of the first names he thought of while he and another attorney drafted the Republican legal dream team of litigation ''lions'' and ''800-pound gorillas,'' which ultimately consisted of 400 attorneys in Florida.

Until now, Gov. Jeb Bush and others involved in the election dispute could recall almost nothing of Roberts' role, except for a half-hour meeting the governor had with Roberts. Cruz said Roberts was in Tallahassee helping the Bush camp for ''a week to 10 days,'' and that his help was important, though Cruz said it is difficult to remember specifics five years after the sleep-depriving frenetic pace of the 2000 recount. -- Herald.com | 07/27/2005 | Roberts had larger 2000 recount role

July 26, 2005

White House will release some Roberts memos

The New York Times reports: The Bush administration plans to release documents from Judge John G. Roberts's tenure in the White House counsel's office in the mid-1980's and his earlier job working for the attorney general, but will not make public papers covering the four years he spent as principal deputy solicitor general starting in 1989, two senior administration officials said Monday.

The decision fulfilled a request for disclosure of the documents made on Monday by Senator Arlen Specter of Pennsylvania, the chairman of the Judiciary Committee, which will hold the confirmation hearings for Judge Roberts, President Bush's choice to fill the Supreme Court seat being vacated by Justice Sandra Day O'Connor, said the senator's spokesman, Bill Reynolds.

But it falls short of the disclosure sought by Democrats, who have been demanding access to files from the nominee's work in the solicitor general's office at the Justice Department from 1989 to 1993, under the first President George Bush. Democrats say those files could shed light on the nominee's thinking about issues that could come before the court, and are especially important because Judge Roberts has not produced much of a paper trail when it comes to issues like abortion. Mr. Specter did not seek access to the papers from Judge Roberts's work as deputy solicitor general, Mr. Reynolds said. -- Some Documents of Supreme Court Choice Will Be Released - New York Times

I will be particularly interested in seeing the memos regarding the 1982 amendment to the Voting Rights Act.

July 25, 2005

Roberts advised Jeb Bush in 2000 Election controversy

AP reports: Supreme Court nominee John Roberts' brief meeting with Gov. Jeb Bush during the 2000 presidential recount in Florida has some Democrats questioning whether he would be a politically partisan justice.

Roberts, who was in private practice at the time, accepted the governor's invitation to come to Florida at his own expense to volunteer advice as Bush's brother was trying to clinch the election win over then-Vice President Al Gore.

Roberts spent about a half hour with the Florida governor and never played a major role at a time scores of attorneys swarmed into the state with legal advice for both sides during the 36-day recount.

"He came down and met with the governor briefly and shared with him some of his thoughts on what he believed the governor's responsibilities were after a presidential election, a presidential election in dispute," DiPietre said. "There were several experts, including professors, scholars, constitutional experts who came down to Florida at that time and Judge Roberts was one of them." -- AP Wire | 07/21/2005 | Supreme Court nominee helped counsel Gov. Bush in 2000 recount

A roundup of interest groups against the Roberts nomination

This list is limited to group that at least mention voting rights concerns:

The Alliance for Justice

ADA Watch

NAACP ("Senate should carefully scrutinize ...")

MoveOn.org

National Asian Pacific American Legal Consortium ("Urges Senate to Closely Examine ...")

Civil rights groups concerned over John Roberts

The Boston Globe reports: Supreme Court nominee John G. Roberts Jr. has a history of working to roll back government affirmative action and voting rights programs enacted to help minorities overcome the effects of past discrimination, leading some civil rights groups to eye him warily.

As an aide in the Reagan administration, Roberts helped develop legal arguments to narrow the scope of the Voting Rights Act and curb court-ordered busing for school desegregation purposes. The Bush administration has released only heavily redacted versions of Roberts's memos from this era, and some civil rights groups are calling for the full versions to be made public.

''We have concerns about Judge John G. Roberts mainly because we have very little information on his judicial philosophy with respect to the important issues of affirmative action, voting rights, and civil rights," Marc Morial, president of the National Urban League, said this week. ''Because the next Supreme Court justice will make decisions affecting the lives of all Americans, it is crucial that they have a strong, positive, and demonstrated commitment to civil rights."

The blacked-out memos show that Roberts drafted op-ed pieces, talking points, and letters to the editor that went out under the name of Attorney General William French Smith to help promote the Reagan administration's efforts to limit the circumstances under which minorities could bring voting-rights claims. -- Civil rights groups cite concerns over Roberts - The Boston Globe - Boston.com - Washington - News