Tuli Can't Stop Talking

These are just my thoughts on contemporary issues and an attempt to open up a dialogue.

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A citizen who cares deeply about the United States Constitution and the Rule of Law.

Saturday, December 10, 2005

High Jacking Democracy and the Courts.

When you want to destroy democracy and consolidate your power what better way to do it than to control and undermine the electoral process and voting? Well, the Bush Administration has finally gotten around to the sure fire way of doing it. They have decided that the Civil Rights Division of the Department of Justice will be a political wing of the Republican Party.

Now as my two readers know, I don’t think that BushCo. is either Republican or Conservative. As we all know the Conservative American endorsed John Kerry in the last election as did the Economist by endorsing “Incoherence over Incompetence.” I believe that for some bizarre reason the Repubs and the Conservatives have let the Corporatists and Christofascists take over the party. Why this happened is still a mystery to me. The only reason I can come up with is that the GOP and the Conservatives have decided that Power is more important than Principle. But that is a story for another day.

That said, this takeover and politization of the Civil Rights Division of the Department of Justice is nothing more than a high jacking of the democratic process and thus democracy itself. The recent exposure of the staff memos which analyze the Voter ID legislation in Georgia and the redistricting of Congressional Districts in Texas as illegal, underming voter rights, and thereby democracy, which were rejected and overruled by Bush political appointees is a frightening development.

More frightening, however, is that in light of this exposure, this administration has decided to implement a structural change in DOJ and keep the non-political and career lawyers from having any say on Voter Rights Legislation.

As the WAPO reports:

The Justice Department has barred staff attorneys from offering recommendations in major Voting Rights Act cases, marking a significant change in the procedures meant to insulate such decisions from politics, congressional aides and current and former employees familiar with the issue said.

Disclosure of the change comes amid growing public criticism of Justice Department decisions to approve Republican-engineered plans in Texas and Georgia that were found to hurt minority voters by career staff attorneys who analyzed the plans. Political appointees overruled staff findings in both cases.


"It's an attempt by the political hierarchy to insulate themselves from any accountability by essentially leaving it up to a chief, who's there at their whim," said Jon Greenbaum, who worked in the voting section from 1997 to 2003, and who is now director of the Voting Rights Project at the Lawyers' Committee for Civil Rights Under Law. "To me, it shows a fear of dealing with the legal issues in these cases."

Many congressional Democrats have sharply criticized the Civil Rights Division's performance, and Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) said this week that he is considering holding hearings on the Texas redistricting case. Sen. Edward M. Kennedy (D-Mass.) said in a statement yesterday: "America deserves better than a Civil Rights Division that puts the political agenda of those in power over the interests of the people its serves."

Thankfully, Arlen Specter, a Republican from Pennsylvania, and the Senate Judiciary Committee Chairman, is going to call for hearings on this development and structural change at the DOJ. If it were just the Dems interest in this it would die a fast death in the Senate and elsewhere.

Now say Senator Spector is really concerned with preserving our fragile democracy, he would then also take an interest in questioning SCOTUS nominee, Judge Samuel Alito as to his disagreement with the Baker v. Carr decision that one man one vote is basic to democracy and the role of the Judiciary in our democracy. The Judiciary committee should closely question the nominee on why he is one with Justice Frankfurter’s dissent in the case.

Edward Lazarus has written a good analysis at Findlaw on the Baker decision and why it is important to democracy. He has also made the case that the Committee must thoroughly examine the nominee’s stance on this apportionment case and the philosophy of the role of the Supreme Court in our democracy as well as the ramifications for our fragile democracy.

Lazarus says:

To be sure, apportionment cases can raise difficult questions about what standards to apply in evaluating whether a given electoral scheme is lawful. Basically, the problem boils down to a judgment about how much gerrymandering is too much gerrymandering. But this is a practical problem of how to devise and apply a set of reasonably objective standards; it does not implicate the kind of moral judgments that can really enmesh the Court in the political thickets that so concerned Frankfurter.

Moreover, in my view, it is hard to imagine an area of law more appropriate to judicial intervention or more essential to furthering the goals of our Constitution, than the area of apportionment. Our whole system depends on ensuring the accountability of our elected representatives. That these representatives actually reflect the will of the people, is the very reason we give them power, and the reason the judicial branch will generally defer to legislative judgments. Without a truly representative voting system, democracy is, by definition, shattered.

Put another way, if the elected representatives are rigging the system for accountability, either by tipping the electoral scales in favor of incumbency, or by undermining the franchise of some particular group of citizens, then the core integrity of our democratic system is put in jeopardy.

Moreover, it borders on the silly to argue in Frankfurterian fashion, that the elected representatives themselves can be trusted to police this system. After all, they are highly self-interested in the outcomes here - with the temptation to ensure their own re-election, and that of allies, especially others from their party.


Put simply, the problem today is not too much judicial intervention to police the channels of democracy, but too little. For instance, two years ago, in Vieth v Jubelirer, the Court made a terrible mistake when, by a 5-4 vote, declined to stop a blatant instance of political gerrymandering in Pennsylvania.

For this reason, one of the most important questions Alito has to answer at his confirmation hearing is whether he is still a devotee of Frankfurter's antiquated views - or whether, with the perspective of time and age, he now grasps the historical lesson of Baker v. Carr: the lesson that there is no higher or better judicial calling than to help clear away the arterial sclerosis that ails our body politic.

That this administration would attack democracy through attacking the Voter Rights Act and the Civil Rights Division of DOJ is made all the more explicit by the nomination of Samuel Alito to the Supreme Court.

Anyone who thinks that those of us who are decrying the electoral process as corrupt, and tinfoil hat wearers, need look no farther than this as the expansion of the felony voter registration lists, and the whole Diebold paper less voting scandals.

When the College Republican’s run classes on Voter Suppression it isn’t just quixotic it is a plan. From whence we got Abramoff and Norquist.

It is all connected folks.

UPDATE: For those who may have missed the connection, and there are some, the connection is hubris.


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