Bench Memos

Reapportionment: The Next Line of Attack

The Senator Biden interview on FoxNews Sunday was quite notable. Not only did Senator Biden suggest the possibility of a filibuster of the Alito nomination has increased, but he also coonfirmed that the new line of attack on the Alito nomination will be that he is “extreme” because he questioned some of the Warren Court’s reapportionment decisions. This opinion, Senator Biden said, was more problematic than Alito’s stated opposition to quotas and Roe.

If you take what he said, it was pretty far on the far side of constitutional scholarship. The fact that he questioned abortion and the idea of quotas is one thing. The fact he questioned the idea of the legitimacy of the reapportionment decisions of the warren court is even something well beyond that. So i think he’s got a lot of explaining to do, and depending on how he does i think will determine whether or not he has a problem or not.

Biden continued saying that if Alito thinks Baker v. Carr was “a questionable decision” then “clearly, you’ll find a lot of people, including me, willing to do whatever they can to keep him off the court.”

Jonathan H. Adler — Jonathan H. Adler teaches courses in environmental, administrative, and constitutional law at the Case Western Reserve University School of Law.

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