A Teaching Moment

Judge Sonia Sotomayor, U.S. Court of Appeals (2nd Circuit)

Judge Sonia Sotomayor, U.S. Court of Appeals (2nd Circuit)

The nomination of Sonia Sotomayor who, if confirmed, would be the first Hispanic to serve on the U.S. Supreme Court, represents a teaching moment for the Republican Party.

This is an opportunity for the Grand Old Party to teach its conservative principles of constitutional law to a much broader audience than its own base, and to teach its individual rights philosophy to an audience sure to include the nation’s growing Hispanic population.

First, there are some facts to face.  The present ideological balance in the Supreme Court is not likely to change as a consequence of this appointment.  Republicans do not have the capacity to stop this appointment.  And finally, any effort to diminish or discredit this nominee risks the alienation of a constituency important to any future electoral success.

The present configuration of the Court has four reliably conservative justices (i.e., Scalia, Thomas, Roberts and Alito), four reliably liberal justices (i.e., Stevens, Souter, Ginsburg, and Breyer) and one right-leaning swing justice (Kennedy).  Swapping Sonia Sotomayor for David Souter does not change that.

At present the GOP holds just 40 seats in the Senate.  It takes at least 41 votes to prevent the Senate from giving its advice and consent to this nomination, and it’s improbable, if not entirely impossible, for the Republicans to get them. 

Finally, while politics is the least consideration, it is an important one.  Consider the Electoral College map: California and Texas are already majority-minority states, and New York and Georgia may be as early as 2012.  Another generation will see the U.S. become a majority-minority nation.  This is being driven primarily by growth in the Hispanic population.  Republicans should be careful not to be seen as attacking Sotomayor.

In 2008 Republican presidential nominee John McCain garnered 31 percent of the Hispanic votes, but in 2004 George W. Bush got 44 percent.  While some of that erosion can be attributed to the presence of another minority on the ballot, battles over illegal immigration clearly alienated them, as well.  A full-throated opposition to Sotomayor would further alienate, perhaps permanently,  this growing and critically important demographic.

So, if you’re a conservative Republican and you can’t make the court more conservative, you can’t stop the appointment of a liberal nominee, and you can’t risk scaring away Hispanic voters, what can you do?  Here are some humble suggestions:

  1. Make “states rights” and “strict constructionist” and “judicial activism” more than buzzwords, and  
  2. Reassure Hispanics that, even if they must oppose the nomination of the first Hispanic nominee for the Supreme Court, Republicans are respectful of their real concerns.

The confirmation hearings provide Republican members of the Senate Judiciary Committee opportunities to ask questions that could serve to draw out the nominee’s liberal judicial philosophy and ethnocentric thinking.

It is important to remind all voters that the states created the federal government, not the other way around.  That the Constitution is not an evolving document.  It must be read as it is, and not as some may wish it to be.  Finally, when it may be necessary to judge something unconstitutional, judges should not take the additional step of prescribing certain actions in order to achieve constitutionality.  If the Court rules something unconstitutional, it is for Congress to decided a remedy.  Republican questioning during her confirmation hearings should focus on these issues.

The 15 percent of the population that is Hispanic will take justifiable pride in this nomination, and they will be watching.  It is a difficult and inadvisable thing to stand in the way of history.  Nonetheless, all those eyes give the Republicans an opportunity to show this important constituency how its conservative principles address their needs and concerns. 

In questioning the liberalism of the nominee, Republicans should communicate to the Hispanic audience that they prefer to empower the individual — including the Hispanic individual — to elevate his own place in society, rather than mandate it from the legislature, or dictate it from the judiciary. 

In exposing the nominee’s belief that her ethnicity should influence her decisions, Republicans should demonstrate that while it is respectful of her background, the nation is better served by justices that judge law without regard to the consequences.  When judges concern themselves with outcomes they construe the law to achieve them, and all citizens — including Hispanic citizens — are not well served by that.

In the end expect Sotomayor to be seated as the first Hispanic member on the Supreme Court, and hope that Republicans, who might be justified in opposing this nominee on judicial and philosophical grounds, do not express that opposition in a way that further alienates an important and growing constituency.  Otherwise, it may be they who learn a hard lesson.

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In Praise of Government

Every July 4 we pause to remember and celebrate the day that we became a nation.  However, September 17 passes each year without notice.  It is a day arguably more important to our nation’s history, and even the few that know its significance fail to mark it with the same pomp and ceremony we do our birthday. 

Our nation is now 232 years old, and yet it might never have lasted without the adoption of our government 221 years ago.  In the intervening 11 years the 13 independent colonies were still largely independent of each other.  They were learning that the confederation they created to provide for their government was largely unmanageable and ineffective. 

It was in the face of those challenges, when our grand experiment in republican government was in doubt, that on September 17, 1787, action was taken to replace the original government under the Articles of Confederation with a new one under the Constitution.

Signing of the U.S. Constitution

Signing of the U.S. Constitution

Almost everything important to be understood about our government can be found in the Preamble of the Constitution:

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

No three words in history convey more meaning than the words “we the people.” In our Declaration of Independence we asserted the principle that the individual is sovereign, and cedes only as much authority to the government as is necessary for the common good.  That principle was reaffirmed in the first three words of the document that defined the authority of the government it created.

Its purpose to form “a more perfect union” acknowledged that our first government was failing, but the meaning of this phrase is even deeper.  It modeslty claimed improvement, not perfection, when it added the executive and judicial branches to the existing legislative branch, and then created a system of checks and balances among them. 

More importantly, it acknowledged that more work would remain undone, and so it established a manageable way to make amendments that would address those needs.  What followed were the Bill of Rights, which clarified and amplified the rights of individuals, and a series of additional amendments that made citizens of former slaves and expanded citizenship for women.

By providing the means to course correct, those that authored our new government provided the tools to solve problems as they became known, and in so doing gave it a flexibility and longevity even they could not have expected.  These abilities enabled it to survive a Civil War, a Great Depression, and a threat from competing forms of government.

It defined the limited but important purposes for which the new government was created.  What was a confederation, a loose affiliation of independent states, was bound closer together in the common cause of justice, defense and commerce.  And it dedicated them further to the cause of preserving that government for succeeding generations.

That’s why, on this September 17, it should be the obligation of every citizen to pause and reflect upon the blessings they and their nation enjoy as a result of the government that it adopted this day 221 years ago.

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Celebrate Independence

When I was a young student I recall a teacher administering a test each question on which was a trick question.  One went like this:

Q: Does Great Britain have a Fourth of July?

A: Yes.  Every country has a Fourth of July.

It’s a trick question, of course, because the true meaning of that day has been lost to modern Americans.  Even the name of the day has been lost.  It’s galling to leave work before the holiday with wishes of “Happy Fourth of July,” or to have a supermarket advertize their big “Fourth of July Sale.” 

We don’t celebrate the day, we celebate it’s meaning.  Do Canadians greet each other with “Happy First of July” on their national holiday?  Do shoppers in New Zealand anticipate a big “Sixth of February” spree on theirs? 

It’s not the Fourth of July, it’s Independence Day.  By its proper name we are reminded that we celebrate our nation’s independence from Great Britain.  As thankful as we are to have our independence, what gives it true meaning are the principles upon which it was based.

The Declaration of Independence, the adoption of which we celebrate each July, established a new order among men.  It rejected the claim that God annointed some men to rule over others and based its claim instead on the idea that God created all men equal and that no government rules without their concent.

The concept that the people are sovereign and cede as much of their individual liberty as is necessary to provide for their common good was largely unknown to the world in 1776.  Today it is the standard as more than 120 of the world’s 192 nations are democratic.

On this fourth day of July Americans would do well to remember the reason we celebrate has to do with more than our independence from Great Britain; it has to do with the enduring principles described in our Declaration of Independence and memorized by every school-aged child (even if their parents have forgotten):

We hold these truths to be self-evident: That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.

Happy Independence Day!

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Structural Polarization

President-Elect George W. Bush, December 13, 2000:

“I am optimistic that we can change the tone in Washington, D.C.  Our nation must rise above a house divided.  Americans share hopes and goals and values far more important than any political disagreements.”

The end of any two-term presidency brings with it a desire for change and openness to new ideas; themes often woven into the campaigns of would-be successors.  So it was at the end of the Clinton presidency.  So it is again in the final year of the Bush presidency. 

Senator Barack Obama (D-IL), January 3, 2008:

“We’re choosing unity over division, and sending a powerful message that change is coming to America.”

Congressional candidates, as well, campaign on themes of change and cooperation.  Cynics argue that such pledges are hollow; meant only to secure favor with voters then quickly scuttled after election.  If the sincerity of politicians is to be believed, something else must explain the inability to make good on those pledges once elected.

The answer can be found in the structure of our politics.  We have built a system for electing presidents and members of Congress that has made both parties more strident with stricter adherence to ideology and little room for the kind of unity and cooperation politicians promise.  Fixed congressional membership, front-loading presidential primaries, campaign finance laws and the tools of the Information Age have made polarization structural and permanent. 

Membership in the U.S. House of Representatives was fixed at 435 following the 1910 U.S. Census.  That year a population of 92,228,496 resulted in an average of just 212,020 per congressional district.  In the ninety-eight years since our population has passed the 100, 200 and 300 million milestones, and still we elect only 435 members of Congress.  If that remains unchanged, a projected 2010 population of 308,935,581 will result in an average population of 710,198 per congressional district. 

As a result we’re left with the House of Less-Representatives.  The capacity of the legislative body intended to represent citizens changing needs has been diminished by two-thirds.  Average district size has grown 300 percent, which means Americans were better represented in 1910 than they are today.  The body intended to represent shifting political trends has likewise been diminished by two-thirds.  In the first 50 years of fixed membership control of the chamber switched parties 6 times.  In the last 46 years only twice.

It should be noted that before the Supreme Court ruled in 1964 that congressional districts be approximately equal in size there was no assurance that, even within a state, one district would be as representative as another.  Before 1964 districts were apportioned to states based on population, and state legislatures would draw as many districts as it has been assigned; often without regard to whether they were equal in size.

Since 1964, however, approximate equality among districts has been required by law.  In fulfilling its constitutional mandate to draw equal congressional districts, state legislatures have increasingly relied upon new technological tools, which has compounded the problem.

In the 1960s extensive databases of registered voters and digital map-making did not yet exist.  Today both are applied to the task of redistricting, with increasingly exacting results.  Districts that once were comprised of units as large as counties or townships, are now comprised of census tracts, precincts and neighborhoods.  One can see the day when congressional district boundaries will separate neighborhoods by household.

Technology has made gerrymandering exponentially more effective.  Both parties, seeking to gain advantage over the other, have successfully achieved partisan purity with population parity.  Extensive databases of partisan voter registration and election data have helped identify voters that vote reliably for one party or another, and digital map-making tools have ensured the consentration of these voters in party-specific districts.

The Cook Political Report for January 17, 2008 estimates that only 8 districts in the U.S. House of Representatives are toss-ups in the 2008 election cycle.  Eight.  In the previous decade 89 percent of those incumbents that sought re-election to the U.S. House of Representatives won re-election.  In the first decade after membership was fixed at 435 incumbent candidates won election 72 percent of the time. 

There are consequences for districts that are reliably Republican or reliably Democratic.  In such districts the action is in the primary, not the general election.  Winning the primary provides reasonable assurance of election in November.  When that’s true candidates have no need to broaden their appeal; to reach out to voters of whichever party is in the minority in that district. 

Furthermore, voter participation, which has declined overall for decades, is remarkably low in primaries.  According to American University’s Center for the Study of the American Electorate, only 15.4 percent of eligible voters participated in the 2006 mid-term primaries, 57 percent lower than the high-water mark set for primaries when, in 1966, 33.5 percent voted.  Only 17.2 percent of eligible voters participated in 2004 presidential primaries, compared to the record turnout of 32.5 percent in 1972. 

In papers presented before professional associations in April 2004 and September 2004, authors Brady, Han and Pope found “that candidates who are ideologically closer to their general election constituency have lower vote margins in congressional primaries and, particularly among Democrats, are more likely to lose.”  They conclude, “this offers preliminary support for the idea that primary elections pull candidates away from median district preferences.”

One can infer from their studies that the electorate in primary elections is more ideologically driven, and to prevail in primaries candidates must support positions that may be more strident than they or the broader electorate would prefer.  

As shown earlier, Once elected, of course, these congressmen must toe the ideological line or risk a challenge within their

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