Bench Memos

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Voting Rights & Roberts


Edward Blum and Abby Thernstrom

VIA FACSIMILE (202) 224-9102

The Honorable Arlen Specter, Chairman

The Honorable Patrick Leahy, Ranking Minority Member

United States Senate

Committee on the Judiciary

224 Dirksen Senate OB

Washington, DC 20510

August 30, 2005

Dear Senators Specter and Leahy:

We are writing to you as coauthors of a forthcoming book on the Voting Rights Act to be published by the American Enterprise Institute Press and as co-directors of the Project on Fair Representation.

One of us, Abigail Thernstrom, is a political scientists and Vice-Chair of the United States Commission on Civil Rights. In 1987 she published Whose Votes Count? Affirmative Action and Minority Voting Rights (Harvard University Press) which won four prestigious awards, including the American Bar Association’s Certificate of Merit, one of the ABA’s two annual book prizes.

The other author, Edward Blum, is a Visiting Fellow at the American Enterprise Institute where he studies civil rights law and policy in the electoral process. Prior to this position, he served as Chairman of the Campaign for a Color-Blind America, Legal Defense and Education Foundation where he supervised the legal challenge to racially gerrymandered voting districts throughout the nation.

Our purpose in writing you is to draw your attention to a handful of op-eds and articles, written by us and enclosed, that examine the political and constitutional justification for sections 5 and 2 of the Voting Rights in the context of massive racial change over the last four decades. These issues will likely be discussed during the upcoming Judiciary Committee hearings on the nomination of Judge John Roberts to the Supreme Court.

As you will see in our Wall Street Journal op-ed of July 15, entitled “Do the Right Thing,” the emergency conditions that existed in the Deep South in 1965 to justify the imposition of the radical penalty of preclearance are long over. Federal approval of all election-related changes (from polling place relocations to new districting lines) was justified in an era of egregious violations of Fifteenth Amendment rights. But today, voter registration and election participation rates of blacks are nearly identical to those of whites. Furthermore, our preliminary state-by-state election analysis of those jurisdictions covered by section 5 suggests that white support of minority candidates is no different in Georgia or Alabama than it is in Massachusetts, Arkansas, and other jurisdictions that do not need permissions from remote federal authorities before using, say, new districting maps arrived at through democratic processes.

Preliminary analysis of election data in these section 5 jurisdictions also shows white crossover support for minority candidates is consistently high enough to elect minorities in statewide contests. Moreover, racial polarization rates are low enough to ensure minority success in both Democrat and Republican primaries. The fact that Georgia has elected an African American to the office of Attorney General and Texas has elected a Hispanic and an African American to statewide office speaks volumes to the changes in racial attitudes since the 1965 act was passed. There are over 9000 African American elected officials in the United Sates today. There would undoubtedly be an even larger number if black candidates were more willing to run in majority-white settings.

It is our belief that section 5 and the amended section 2 of the Voting Rights Act are grave constitutional infringements on basic federalism principles. Any concern Judge Roberts may have expressed about either of these provisions is justified in light of the Court’s recent jurisprudence. We are not alone in this opinion. In fact, during Senate floor debate on Feb. 27, 2004, Senator Kennedy spoke out against reauthorizing section 5 until a complete congressional inquiry has been completed, noting: “Critical analysis of issues surrounding preclearance of minority language provisions of the Voting Rights Act have not yet been fully examined and analyzed carefully to reflect the current status of laws, court decisions, enforcement actions, and society. The Supreme Court has made it clear in recent years that it will require Congress to establish a detailed record through hearings and legislative findings in order to ensure that provisions such as these survive constitutional scrutiny.”

We hope that you find our writings of value as you explore Judge Robert’s views on the constitutionality of certain provisions of the Voting Rights Act.

Sincerely yours,

Edward Blum Abigail Thernstrom

Visiting Fellow Co-Chair, U.S. Commission on Civil Rights

American Enterprise Institute Lexington, MA

Washington, DC (781) 861-7634

Articles enclosed: “Do the Right Thing.” Wall Street Journal. 07-15-05

“After 40 Years, It’s Time to Move On.” Richmond Times Dispatch. 08-01-05.

“Roberts, Misjudged.” Los Angles Times. 08-11-05.

Color Inside the Lines.” Legal Affairs. Nov. 2003.

John Roberts’s “Seclusion”


Some Congressional Black Caucus members are “concerned” about John Roberts’s “secluded” upbringing in Northern Indiana. They think he should be asked about it. After all, one congressman said, if Roberts’s “only knowledge” of black folks is from movies and the Six O’Clock News, “that is a problem.”

It sure is. In fact, any 50-year-old American who has never actually met an African-American –you know, really and in person –is absolutely unqualified to sit on the Supreme Court. That is because such “seclusion” could only mean that the person has been comatose since infancy.

A bigger problem, though, is members of Congress whose “only knowledge” of Northern Indiana seems to be gleaned from Norman Rockwell paintings and from Knute Rockne: All American (starring Pat O’Brian as the legendary Notre Dame coach and, you guessed it, Ronald Reagan as doomed running back George Gipp).

None of the Black Caucus members actually live in northern Indiana, as I do. Maybe some have driven through on the highway. If so, they might have noticed that a short drive past LaLumiere–Roberts’s high school–is Gary, Indiana, where, even in Roberts’s youth, lots of black folks dwelled. And not just Michael Jackson, who has been on the Six O’Clock News quite a bit lately.

Anyway, what we really need to know is this: John Roberts, have you ever
attended a bar mitzvah? If not, why?


The Perfect Spokesperson for the Left


Kim Gandy, president of the National Organization for Women, demonstrated recently that she is both humor-impaired and vicious, as she misconstrued a two-decades old joke that Roberts made about lawyers as a joke about women and labeled Roberts a “Neanderthal.” In a segment yesterday on Roberts and abortion on C-SPAN’s Washington Journal, Gandy also showed that she is severely truth-impaired. To cite three (of many) examples:

1. On two occasions (once after being specifically corrected), Gandy asserted that the current Court is only 5-4 in support of the basic Roe regime. The Court is 5-4 on partial-birth abortion (a topic that was discussed at some length on the segment), but Gandy’s assertion expressly went to the broader Roe regime. The 5-4 lie is apparently commonplace among abortion activists, as this refutation indicates.

2. Gandy asserted that partial-birth abortion is almost always used only in cases of severe fetal abnormalities. But this lie was exploded more than eight years ago, when the executive director of the National Coalition of Abortion Providers repudiated what he called “the party line” and disclosed that “in the vast majority of” the 3000-5000 annual instances of partial-birth abortion, the barbaric act is done to “a healthy mother with a healthy fetus that is 20 weeks or more along.” (See here for extensive detail on this and other points, including underlying documentation.)

3. Long after NARAL has withdrawn its mendacious anti-Roberts ad, Gandy alleged that Roberts’s participation in the Bray case demonstrated that he supported the unlawful conduct at issue.

By the way, Gandy appeared on the C-SPAN segment along with Family Research Council’s Cathy Cleaver Ruse, who did a wonderful job presenting the pro-life and anti-Roe perspective. The contrast between Gandy and Ruse was striking across the board.

That USA Today article on AG Gonzales


USA Today’s account of AG Gonzales’s remarks is so garbled and self-contradictory that it is difficult to believe that it could be an accurate reflection of what Gonzales actually said. In any event, Senate Democrats would reach a new low in politicizing the judiciary if they were to question Roberts about his personal views on abortion. And in order to maintain both the fact and appearance of impartiality, Roberts should adopt the Ginsburg standard—”no hints, no forecasts, no previews”—regarding issues that might come before him.

Confederate Criticism Aside





The AG talks about hearings and questions to USA Today.



If they can get away with it, Senate Dems are going to use the late-coming Reagan docs (reminder: the release was a bad move from the beginning) as an excuse to prolong Roberts’s confirmation. Here’s Chuck Schumer: “Everybody makes mistakes, but blame is not the point here; a thorough evaluation of the nominee’s views is. If these documents reveal significant information about Judge Roberts’ views and we are not getting them until the eve of the hearings, there could well be a need for additional time to question the nominee.”

I Guess It’s Good News


Re: Hopes and Fears


In response to Gerard Bradley’s post below, let me clarify my hopes about the Roberts confirmation. First, I hope Judge Roberts sails through with few votes against him because, objectively, he is unquestionably qualified and deserving of confirmation and I hope for the day when the confirmation process operates as it should, and the confirmation of individuals like Roberts is no longer contested. Now I recognize this is a faint hope, but I’m not sure I read the politics in quite the same way as Professor Bradley. First, I think that if the president were to nominate another conservative to the court, there will be an effort to portray him or her as to the right of Roberts. Given that it is unlikely that the next nominee will have the same pedigree and depth of liberal support within the D.C. Bar as does Roberts, this effort will likely be successful. Thus, if there are 35-40 votes against Roberts, a subsequent conservative nominee will have a more difficult time getting confirmed. The best argument for hoping the Left musters 30-plus votes against Roberts is either a) this will represent the maximum number of votes the Left can muster against a nominee on ideology alone so subsequent conservative nominees will also make it through with equivalent vote tallies, or b) there will be a political backlash against some of those who vote against Roberts that will make moderate and/or “Red State” Democrats less likely to vote against subsequent nominees. These scenarios are possible, but speculative. Thus I would prefer that exceedingly qualified court nominees (of either party) sail through without substantial Senate opposition. In this respect, the Ginsburg confirmation is, and should be, the model. Alas, Professor Bradley and I probably agree that the likelihood of most Senate Democrats, let alone liberal activist groups, accepting this model in the near term is slim to none.

Re: Hopes and Fears


My forecast: The only “single-digit opposition” that Roberts is going to encounter is in the Senate Judiciary Committee–and that’s because there are only eight Democrats on the Committee. At this point, I think it likely that Roberts gets confirmed with somewhere between 55 and 70 votes. It’s possible that he’ll get more than that, but I see no reason to expect it.

Senate Democrats are walking the same tightrope that Tom Daschle fell off of. Their entire campaign and fundraising apparatus is pushing them hard left, at their electoral peril.

As a Supreme Court advocate, Roberts knew where to look for the five votes he needed. In his upcoming hearing, in order to get to 51, all he needs to do is hold his Republican base of support. The riskiest course of conduct would be for him to try to get a landslide vote: an extravagant effort to appease Senate Democrats (probably futile, in any event) could imperil the support of conservative senators.

I see the target as 51, rather than 60, because I think there is no prospect of a Democrat filibuster: The Democrats know that a filibuster of Roberts’s confirmation would trigger cloture reform.

AFJ’s “Decision” on Roberts


In an unusually clear display of the kabuki nature of liberal opposition to conservative judicial nominees, today Nan Aron of the Alliance for Justice “announced” AFJ’s opposition to John Roberts’ nomination to the US Supreme Court:

“Our decision today comes only after a dozen lawyers, working with us, have pored over thousands of documents and prepared an extensive analysis of his record…”

But AFJ’s announcement was a foregone conclusion. In mid April, more than two months before Justice Sandra Day O’Connor announced her retirement, Aron was interviewed on radio by Hugh Hewitt:

Hewitt: Do you oppose, and urge a filibuster for John Roberts?

Aron: Yes, we would.

Hopes and Fears


Jonathan Adler hopes that Roberts “sails through with single-digit opposition.” I don’t. Not because I think Jonathan is wrong in his take on E. J. Dionne or on the liberals in the Senate. In fact, I agree with Jonathan about all that.

The reason our hopes differ is this: Given the political realities of the spectacle looming before us, something will have gone way wrong for conservatives if nine or fewer Senators oppose Roberts. I will be very surprised — no, shocked — if Roberts sails through. I do not doubt he will confirmed. It is just that I expect twenty to thirty “no” votes.

But if John Roberts does sail through it will most likely be because the liberals conceded the battle in order to win the war. They will have successfully used Roberts to define conservatism down. They will have made the strategic choice to christen him by their votes as an “acceptable” or “mainstream” or “moderate” conservative, much like they now say O’Connor was. The thing is, they will have also used Roberts to marginalize those “extreme” conservatives — Bork, Scalia, Thomas, and the other nuts enamored of what they (the liberals) call “the Constitution in exile.” That is the constitution about which Cass Sunstein recently spoke, the one that is not safe for families, privacy, racial harmony, or for the arroyo southwestern toad.

RE: Reagan Docs


John Cornyn responds:

’Tens of thousands of documents have already been released—more than any Supreme Court nominee in history’

WASHINGTON—U.S. Sen. John Cornyn (R-Texas), a member of the Senate Judiciary Committee and a former Texas Supreme Court justice, made the following statement Tuesday regarding the National Archives and Records Administration’s announcement of the availability of additional documents:

“The National Archives and Records Administration has said these documents are likely to contain duplicative documents from previously released material, and if anything, their announcement only reinforces the fact that the Archive’s efforts to be thorough in the production of documents are unprecedented. Tens of thousands of documents have already been released—more than any Supreme Court nominee in history. And with each new release of information, it’s growing increasingly difficult for the President’s opponents to complain with a straight face about the need for more information.”

“Reagan Library Discovers Additional Roberts Records”


WASHINGTON, Aug 30 /U.S. Newswire/ – The Ronald Reagan Presidential Library, one of 11 Presidential Libraries that are part of the National Archives and Records Administration, has approximately 55 million pages of materials related to the Reagan Presidency. To date, the Library has opened 51,285 pages of records relating to Judge John G. Roberts.

In processing requests, the Library followed its standard search procedure by searching for Roberts records using his name. During the expedited processing of these records, the Library noticed a code, “CU AT 18,” associated with tracking sheets in the Roberts materials. The Library ran a search on that code, and on Monday, Aug. 29, discovered a large volume of White House Office of Records Management Subject case files that were entered into the system only by the code for John Roberts (instead of his name). Some of these materials will be duplicative of previously opened files.

The Library is now in the process of determining what documents within these case files relate to John Roberts. In order to make this material available as soon as possible, the National Archives has directed additional personnel from Washington, D.C. and other libraries to assist the Reagan Library staff in the expedited review of these records.

Kerr on New Anti-Roberts Ad


GW law professor Orin Kerr dissects the new anti-Roberts ad (mentioned here) on the Volokh Conspiracy. He generally concludes that the ad is likely to create a false impression about Roberts’s views.

The Alliance Speaks


The Alliance for Justice has released a 100-plus page report that, the Alliance claims, raises “serious questions” about Roberts’s fitness to serve on the High Court. Of course, Nan Aron promised to oppose, and urge a filibuster of, Roberts months ago, so we know what conclusion the Alliance will reach. For those interested, the report is here.

Small, Annoying Mistake


Both the PFAW and Alliance for Justice reports on Judge Roberts claim that the vote for rehearing the “hapless toad” case (Rancho Viejo) was 7-2. Maybe so, but neither group knows this. Although only two judges on the court wrote dissents from the decision, this does not mean only two judges voted for rehearing. As the D.C. Circuit handbook explains: “An order granting rehearing en banc does not indicate the names of the judges who voted against rehearing, but an order denying rehearing en banc does indicate the names of the judges who voted to grant rehearing en banc, if they wish” (emphasis added). In other words, judges can vote for rehearing, but then keep their votes private when the order is released. For all we know the vote was 6-3 or 5-4. I know this is a tiny detail, but the mistake still annoys me every time I see it.

An Important Birthday, Spoiled


One week after Constitution Day, another important date in constitutional history will come around. September 24 is the 250th anniversary of the birth of the great chief justice, John Marshall. At a hotel near Marshall’s Richmond home (which has been kept up wonderfully by the Association for the Preservation of Virginia Antiquities) there will be a gala dinner on the 24th under the auspices of the John Marshall Foundation. Black tie, moderately pricey tickets, almost worth the drive to Richmond, until one sees that the featured speaker, and recipient of the Inaugural Award of the John Marshall Medal in Law, will be . . . Justice Anthony Kennedy. I understand that the organizers of such events strive to be nonpartisan, and eventually they’ll probably get around to every one of the justices. But the inaugural medal to Justice Kennedy? On the quarter-millennium birthday of the greatest jurist in American history? What a letdown. I’ll stay home and save the gasoline.

Scalia on “Moderate” Interpretation of Constitution


The AP reports on comments made by Justice Scalia at Chapman University in California:

Scalia . . . railed against the principle of the “living Constitution,” saying it has led the Senate to try to appoint so-called politically “moderate” judges instead of focusing on professional credentials and ability.

“Now the Senate is looking for moderate judges, mainstream judges. What in the world is a moderate interpretation of a constitutional text? Halfway between what it says and what we’d like it to say?” he said, to laughter and applause.

Scalia didn’t make any direct references to the looming confirmation battle for Supreme Court nominee John Roberts, but he did allude to it.

“Each year the conflict over judicial appointments has grown more intense,” he said. “One is tempted to shield his eyes from the upcoming spectacle.”

It Was Early-Morning Wishful Thinking


Make sure you’re all rested for the long September.


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