[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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