May 2009

  • May 6, 2009

    Amid news of Justice David Souter's pending retirement and predictions that the Supreme Court stands poised to strike down Section 5 of the Voting Rights Act, Professor Heather Gerken is lauding Souter's understandings of race and politics.

    "Souter is perhaps the least politically connected person on the Court, and his home state of New Hampshire is a racially homogenous area that hasn't had much of a record either way with the Voting Rights Act," writes Gerken, a frequent ACS contributor. "Despite his lack of experience, Souter has carved out a position on the Voting Rights Act that is both more nuanced and more pragmatic than his brethren's."

    Gerken proceeded: 

    It is odd for the conservatives to demand that the state be color-blind when voters are decidedly not. In a world of racial bloc voting, race-blind districting is simply a recipe for disempowering racial minorities. But the dominant story of race told by the liberals on the Court - one that treats racial minorities as "objects of judicial solicitude, rather than as efficacious political actors in their own right," in the words of Stanford law professor Pamela Karlan - similarly misses something important. It misses the idea that putting representatives of the minority community into positions of power gives racial minorities the power to protect themselves, so that eventually they no longer need be wards of the Court.

  • May 5, 2009
    Guest Post

    By Mark A. Posner, Senior Fellow, Lawyers' Committee for Civil Rights Under Law; Former Special Sec. 5 Counsel, Civil Rights Division, U.S. Department of Justice

    Ever since July 2006, when Congress acted with overwhelming bipartisan majorities to reauthorize the "preclearance" requirement of Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, the civil rights community has waited with a mixture of anticipation and trepidation for the day when proponents and opponents of this key voting rights provision would stand before the Supreme Court to argue its constitutionality. That day, April 29, 2009, has finally come and gone, in the case of Northwest Austin Municipal Utility District Number One v. Holder. The Court's decision is expected in late June, and until then one is left to ponder and dissect the over 60 minutes of intense questioning offered up by eight of the nine Justices. Unhappily, this review strongly suggests that trepidation should be the predominant feeling while we wait for the Court to rule.

    By way of background, Section 5 requires certain jurisdictions with a history of voting discrimination to obtain federal approval ("preclearance"), from either the Justice Department or the U.S. District Court for the District of Columbia, before implementing any change in a voting practice or procedure. Preclearance is obtained by demonstrating that the change does not have a discriminatory purpose or effect. The covered jurisdictions include all or parts of 16 states located primarily in the South and Southwest. Congress initially adopted Section 5 in 1965, and then reauthorized the statute in 1970, 1975, 1982, and 2006. The Supreme Court has upheld the constitutionality of the statute in four previous cases. In the current case, a three-judge panel of the D.C. District Court unanimously found the reauthorization to be constitutional, 557 F. Supp. 2d 9 (2008), and the plaintiff appealed to the Supreme Court.

    As the oral argument began, much attention was focused on Justice Anthony Kennedy, as the justice who might be a swing vote on a Court that often has been sharply divided on civil rights issues. Justice Kennedy asked questions of all three attorneys who argued, the attorney for the plaintiff (an obscure municipal utility district located in Austin, Texas), the Deputy Solicitor General of the United States, and a civil rights attorney who spoke on behalf of several individuals and organizations that had intervened to defend the statute. Justice Kennedy's questions repeatedly returned to the single issue which he apparently believes is paramount: whether the record before Congress when it reauthorized Section 5 in 2006 justified Congress's decision to treat different states differently, keeping some states covered by Section 5 while leaving other states not covered. As the Justice colorfully put it, the question presented for him is whether Congress has justified treating the "sovereignty" of the covered states as being less than the "sovereign dignity" of the non-covered states.

    Making this issue the sine qua non of whether Section 5 is constitutional puts Section 5 on shaky ground, in large part because this fundamentally alters the test the Court previously has employed to decide Section 5's constitutionality. In 1966, when the Court first upheld Section 5, the Court concluded that the coverage decisions made by Congress were rational, and thereafter the Court held that the validity of a Section 5 reauthorization depends on whether Congress has compiled a record demonstrating that voting discrimination continues to be a widespread and substantial problem in the covered areas. In reliance on this clear precedent, Congress created a massive pre-enactment record that made what was thought to be the necessary showing. This record also indicated that voting discrimination is a greater problem in the covered, rather than the non-covered, jurisdictions, but Congress did not make this question its primary focus. At oral argument, Justice Ginsburg nonetheless sought to suggest that there was quite a bit of information presented to Congress prior to the 2006 reauthorization that compared the covered and non-covered jurisdictions.

  • May 5, 2009

    Sen. Jeff Sessions (R-Ala.), pictured at right, is replacing Sen. Arlen Specter (D-Pa.) as the minority party's leader in the Senate Judiciary Committee.

    According to The Los Angeles Times

    Sessions, 62, couldn't be more different from Specter, as far as Republicans go. The latter is a moderate from Philadelphia who favors abortion rights and gun control. Sessions hails from the Bible Belt and has worked as a Sunday school teacher. He's known for his hard-line stance on immigration, having virulently opposed the massive reform bill that failed to pass the Senate two years ago.

    The AP reports: 

    McConnell's Republicans are turning to a conservative Southerner as their point man on Obama's nominee, signaling that they won't shy away from a protracted fight despite risks of being cast as obstructionist.

    Sen. Jeff Sessions' ascension as the top Republican on the Senate Judiciary Committee comes more than 20 years after the panel rejected him for his own federal judgeship during the Reagan administration over concerns that he was hostile toward civil rights and was racially insensitive.

    And The Guardian published a piece subtitled "Jeff Sessions's New Role on the Senate Judiciary Committee Brings His Hostility to Civil Rights Laws to Light," offering this: 

  • May 5, 2009

    Christopher Eisgruber, provost and Laurance S. Rockefeller Professor of Public Affairs at Princeton University, is calling for diversity in President Obama's pick to replace Justice David Souter on the high court. His recent piece on NPR included the following: 

    So what can Obama do to change the court? He can diversify it. The most obvious opportunities are demographic. Only one woman now serves on the court, and no Hispanic-American or Asian-American has held a Supreme Court seat.


    Obama Could also diversify the court in terms of experience. The current justices are cut from similar cloth. Every sitting justice was a federal appeals court judge before his or her appointment. Never before in our nation's history had that been true. No sitting justice has ever held elected office. Political experience was a common credential for justices in the past. 


    The concentration of Washington lawyers is especially intense. The court's four staunch conservatives -- Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito -- spent time in the administrations of Republican presidents. Stephen Breyer worked for the Justice Department and the Senate Judiciary Committee. Ginsburg was an appeals court judge in the District of Columbia.

  • May 5, 2009
    Following the recent ACS event announcing the release of Keeping Faith with the Constitution and a companion volume, called It is a Constitution We Are Expounding, co-author of Keeping Faith, Goodwin Liu talked to ACSBlog about the void in constitutional debate the book will fill.

    He also said that Keeping Faith, which explores the weaknesses of "orginialism" and "strict construction," and offers an approach to interpreting the Constitution that is faithful to its principles, would prove useful in approaching debates over judicial nominations. Liu said, "There is going to be a lot of disagreement of how our Constitution should be read and interpreted and what kinds of qualities a judge should bring to that interpretation." Liu, associate dean and professor of law at UC Berkeley School of Law, co-authored Keeping Faith with Pamela H. Karlan, professor of law at Stanford Law School, and Christopher Schroeder, professor of law at Duke University School of Law.

    Watch Liu's interview below, and download a podcast of the interview here.