Eminent Domain

Both sides are throwing around the F word in regards to the Alito nomination. It might be serious, it might be puffery, and it might be purely political. Senator Biden said that a filibuster was increasingly likely, especially after Judge Alito's memo was released. Senator Coburn was on Hugh Hewitt's show, saying that Alito will be filibustered and the Republicans would force a rule change to confirm him. I've explained many times why the filibuster is a stupid tactical move (not to mention just plain wrong), but I guess the Democrats are foolish enough to try it. It's their funeral.

We've seen a change in the attacks on Alito too. I saw Senator Salazar being interviewed outside of his office (wearing a damn cowboy hat), complaining about Alito's view on affirmative action. Now, Biden has taken the reapportionment route. The reapportionment attack is an attempt to inject a non-abortion issue into the discussion. It's also a way to hump the rhetoric of the "one man, one vote" phrase, which I find eye-rollingly saccharine. Opposing the reapportionment cases like Baker, Reynolds, and the rest is a perfectly defensible position. I say that because it's my position and I'm gonna defend it. I'm in the company of Judge Bork, Judge Alito, and Judge McConnell, so I feel pretty secure anyway.

While "one man, one vote" sounds fine and dandy on its face, it is not part of the American system. Maybe Senator Biden of all people could see that not every person's vote has the same weight. Each state gets two senators, regardless of population. By that rule, Biden's Vermont voters' votes have more weight than Senator Feinstein's California voters' votes. That certainly isn't "one man, one vote" but it's our system. Writer Robert S Sargent has asked rhetorically to the reapportionment defenders, "Assuming there are 100 U.S. Senators, would you accept California having ten Senators, and Idaho, Montana, Wyoming, and North Dakota collectively having one?"

The system modeled after the federal one was exactly what the Warren Court saw as a problem within the states. They saw problems with how the states chose to structure their governments and wanted to change it. Warren said that the federal analogy was irrelevant because it was...

...conceived out of compromise and concession indispensable to the establishment of our federal republic.

In Warren's view, the states weren't formed that way, so it's totally different. Judge Bork points out that this statement says that the US Senate "was illegitimate as a matter of political morality but frozen by a compromise made to protect the smaller states..." It's wrong, but we'll ignore it because that's convenient for us. That's an interesting approach to Constitutional law.

Justice Frankfurter, in dissent in Baker v. Carr, said that proportional apportionment

...has never been generally practiced....It was not the English system, it was not the colonial system, it was not the system chosen for the national government by the Constitution, it was not the system...practiced by the States at the time of the adoption of the Fourteenth Amendment, it is not predominantly practiced by the states today.

It was an idea made up by a majority of Supreme Court Justices simply because they preferred it. This was nothing but an abuse of judicial power.

The districts mandated by the Warren Court required precise mathematical equality. This wonderful gerrymandering has given us non-competitive districts where the elections are frankly meaningless. As Judge McConnell said...

In order to bring districts as close to "precise mathematical equality" as possible, states must disregard preexisting political boundaries such as cities, townships, and counties. Adherence to these traditional boundaries was, historically, the principle constraint on creative districting, popularly known as gerrymandering.

I wonder why Biden and company liked this ruling. It let them draw the results of the elections without traditional boundaries getting in the way. The results, as McConnell points out...

Protection for incumbents, a tendency towards homogeneous - and hence more partisan - districts, racial and partisan gerrymandering, and ultimately, a widespread sense that elections do not matter.

Thanks, Earl Warren. You're the best.

But I'm sure Biden will be on this talking point like stink on a monkey. His biggest problem is that he's not nearly as smart as he thinks he is. His embarrassing performance during the Chief's confirmation hearings proved that. Biden was loud, obnoxious, misinformed, and just plain rude. If he thinks he's going to be president, he better find a really good speech to steal this time.

Speaking of the Roberts hearings, I'd like to give a dishonorable mention to Senator Bayh as well. He was one of the speakers who introduced then-Judge Roberts to the judiciary committee. He gave a glowing speech, complimenting Roberts, getting his senatorial face time on TV. Then, he turned around and voted against him. Nice. That's not at all two-faced, opportunist, or dishonest. Maybe it's genetic. His father (who was apparently a tree) led the attack on two of Nixon's Supreme Court nominees. The Alito hearings are shaping up to be an even more disgusting display than the Roberts hearings. Luckily I'm off from school then, so I can watch the coverage, swear, and throw things at the TV.

By the way, I took a break from studying for exams to type this post, so I hope you all appreciate the sacrifices I make to bring you quality material.