[Congressional Record Volume 151, Number 163 (Saturday, December 17, 2005)]
[House]
[Pages H12144-H12145]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXTREME ALITO VIEWS
(Mr. FRANK of Massachusetts asked and was given permission to address
the House for 1 minute and to revise and extend his remarks and include
therein extraneous material.)
Mr. FRANK of Massachusetts. Mr. Speaker, I am struck by the extent to
which the right wing seems not to understand how unpopular their agenda
is. It is their inability to get a majority for it that keeps us here
so many days after we should have gone.
It is also interesting to watch them try to deny the very, very deep
conservatism of the nominee for the Supreme Court, Judge Alito. They
are hiding his views on abortion. Recently, in the Boston Globe, an
article by Kenneth Starr and Ronald Cass tried to explain away one of
the most astounding examples of his extreme conservatism: his
opposition to the basic principle of one man, one vote as articulated
by the Warren Court. And given the difficulty of trying to get someone
confirmed who has views that extreme, these two advocates tried to
explain it away by claiming it was all about gerrymandering and
proportional representation.
Fortunately, Professor Michael Tolley of Northeastern University
wrote a very good letter exposing the inaccuracy of this attempted
defense of Judge Alito and reaffirming that in fact what was involved
in his 1985 statement was an objection to that basic principle of
democracy articulated by the Warren Court, that it should be one man,
one vote.
The following are the inaccurate article and the correction:
Alito's Sticky Thicket
(By Kenneth W. Starr and Ronald A. Cass)
A Political sidebar that made surprising news the last few
weeks is a phrase in a 1986 job application from now-Judge
Sam Alito questioning the Warren Court's reappointment
decisions. That tidbit sent shock waves through the political
and pundit classes.
It shouldn't have. Justice-to-be Alito's statement wasn't
an attack on equality, voting rights, or protecting victims
of racial discrimination. It was a simple observation that a
liberal court created a doctrine that, however salutary, has
significant problems.
Americans have long embraced the idea of equality from
``all men are created equal'' forward. Equality did not mean
identical political influence in every respect. Yet the past
40 years have seen repeated judicial efforts to prescribe
something that looks like
[[Page H12145]]
identical influence for voters. Prior to 1962, the Supreme
Court rejected efforts to draw the judiciary into the
``political thicket'' of apportionment. That changed with
Baker v. Carr, when the court decreed that states could not
depart too far from the principle of ``one-man, one-vote'' in
allocating legislative representatives. Since then, the
problem has been figuring, out what is too far.
Politicians often attempt to allocate political
representation in ways that both dramatically increase and
decrease the influence of citizens' votes. But the Framers
designed checks and balances to prevent any group from
dominating another permanently or from taking property or
liberty to serve prejudice or politics. Integral was a
division of government power reflecting different influences,
some defined by historical boundaries, others by more local
populations. The Constitution does not sweepingly embrace one
theory of political representation but instead allocates
power in several disparate ways.
Useful as ``one-person, one-vote'' is, it isn't a universal
directive. Consider the Senate. The Constitution decrees that
each state has two senators, regardless of the state's
population or acreage. In contrast, the House of
Representatives is based mostly on population, except for the
requirement that each state have at least one representative.
Making House districts roughly equal has been a source of
dispute for 200 years. In the early 1800s, Elbridge Gerry
redistricted Massachusetts to help his political allies,
creating one district shaped like a salamander--thus giving
birth to the term ``Gerrymander.''
After Baker v. Carr, the courts have insisted on greater
degrees of mathematical equivalence in votes across
districts. Since then, the problems associated with
apportionment have grown. The Supreme Court rejected a plan
with less than seven-10ths of one percent difference among
districts. Courts have repeatedly invalidated efforts to draw
lines between districts without totally disrupting
traditionally established communities. At times the result
has been to divide neighborhoods.
Added attention to other aspects of the reapportionment
process, encompassing equality along racial and ethnic lines
as well as across geographic districts, spawned further
opportunities for realigning political districts to suit
political interests rather than historical ones. Although
boundary adjustments probably have increased minority
representation in Congress, the jurisprudence of
reapportionment has become needlessly complex and largely
ineffective. The court has permitted a realignment of
political power to advantage incumbents, create more safe
districts, and facilitate greater division among elected
representatives who no longer have to appeal to swing voters.
After fragments on the standards on racial gerrymandering,
the court came up with no realistic way to assess what
constitutes political gerrymandering. As Justice O'Connor
said in Davis v. Bandemer in 1986--roughly contemporaneous
with Judge Alito's statement--the court's effort to identify
political gerrymandering was ``flawed from its inception.''
Justice O'Connor charged that the court's decisions have been
``contrary to the intent of [the] Framers and to the
traditions of this Republic.''
No one should be alarmed that Alito--like many other
justices--found some aspect of the court's reapportionment
decisions unfortunate. His position should reassure us that,
as a justice, he will be open to seeing the flaws as well as
the virtues of constitutional decision-making by judges. That
is an important virtue in a Supreme Court justice.
Alito's Views and O'Connor's
(By Michael Tolley)
Be alarmed when two partisan advocates--Kenneth W. Starr
and Ronald A. Cass--say ``no one should be alarmed''
(``Alito's sticky thicket,'' op ed, Dec. 11). Their attempt
to defend Judge Samuel Alito's disagreement with the Warren
Court's reapportionment decisions by linking his position to
Justice Sandra Day O'Connor's views fails for two reasons:
The two quotes they rely on in Davis v. Bandemer (1986)
express O'Connor's view on whether the 14th Amendment's equal
protection clause requires the principle of ``proportional
representation,'' not the principle of fundamental voting
equality--one person, one vote. Second, Baker v. Carr (1962)
and Reynolds v. Sims (1964), two of the landmark Warren Court
decisions on reapportionment that Alito disagreed with, are
actually treated favorably in O'Connor's concurring opinion
in Davis v. Bandemer.
O'Connor was careful to distinguish the Supreme Court's
legitimate concern about racial gerrymandering from partisan
gerrymandering at issue in Davis v. Bandemer. Only by
misreading O'Connor's opinion can Starr and Cass bring
Alito's views in line with moderate justice he has been
nominated to replace.
Does Alito believe, like O'Connor, in the principle of
``one person, one vote''? Or is he against the use of federal
judicial power to remedy discrimination resulting from
malapportioned legislative districts? The difference between
disagreeing with the extension of the principle ``on person,
one vote'' to issues such as partisan gerrymandering and
disagreeing with the principle of ``one person, one vote'' is
the difference between a moderate and someone out of the
judicial mainstream.
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