Tuesday, September 27, 2005

Voting Commission Not Much Help

September 27, 2005

As many of you are no doubt aware, the Commission on Federal Election Reform has recently submitted its recommendations to secure and smooth the U.S. elections process. Among their recommendations are the significant steps of organizing voter registration at the state instead of the local level and rotating regional primaries to prevent early caucus states from having a disproportionate impact on the nomination process.

In an interview with PBS, former President Carter, who has spent a substantial amount of goodwill work inspecting worldwide elections since his presidency ended, said that he felt the main difference between the American elections and those of the rest of the world is that many other countries have bipartisan or nonpartisan election commissions which set voting standards all over the country. Although Carter recognizes that under the federal system of government, individual states must remain responsible for their own election commissions, he encouraged them “to make sure that every election official in charge of the election is patently nonpartisan.”

One of the recommendations that concerns me, however, turns on the recent REAL ID Act, which sets national standards for driver’s licenses that, in fact, amount to the establishment of a system of national IDs on top of Social Security numbers. The Act, which was buried in a bill appropriating funds for the Iraq War, not only establishes specific information the card must carry, it also mandates that they must be “machine readable” in a way to be determined by the Department of Homeland Security at a later time. The DHS has gone on the record saying they like the idea of using RFID tags to fulfill this function, meaning that if a citizen so much as walks through a receiver, their basic personal information and a certain amount of biometric data such as fingerprints or retinal scans can be instantly read and catalogued.

Carter said that requiring Americans to present photo IDs when voting will help not only to secure the election process against fraud but to ensure voter confidence, and he immediately pointed out that the simple addition of a statement declaring the bearer of a national ID card to be a citizen would fulfill this recommendation perfectly. The commission insists that whatever method of voter ID the government eventually settles on, it must be free to avoid becoming effectively a poll tax. Carter specifically referred to Georgia’s $20 charge for a five-year state ID in combination with the requirement that citizens present these IDs to vote as an example of exactly the type of implicit poll tax the commission wishes to avoid. The national IDs proposed by the Act, however, are likely to be extremely expensive thanks to the sophisticated technology the government expects to imbed in them, possibly weighing in at over $100 per person.

In the face of widespread skepticism concerning digital voting booths, the commission has also proposed a paper receipt system that prints a permanent copy for the vote-counters to keep and a copy for the voter himself to keep to back up the digital record. Of course, an alteration causing different outputs from these two printers in addition to the digital record is only slightly more complicated than a simple vote-change hack. A voter receipt system is a band-aid on a gunshot wound. In the face of accusations of an altered vote, such receipts serve no purpose unless every single voter keeps his receipt and can tender it as proof of his vote for a recount and comparison (unless, of course, the government keeps track of who votes which way). The simple fact is that it is a much, much easier job to change a one to a zero in a computer than it is to change a hole in a card, a mark on a slip of paper, or any of the other more substantial methods used to record votes. Something as important as a federal election should not even be placed at risk of such an attack.

In short, the commission came back with a lot of good ideas, several restatements of what everyone already knew were good ideas, and some ineffectual fixes for bad policies. They really can’t be held accountable for the passing of the REAL ID Act, though I think the recommendation that voting rights be tied up in it is abhorrent, and their attempts to mitigate the effects of the touch screen vote are laudable if inadequate. Will it change voting as we know it? Likely not, but it’s nice to have Jimmy Carter’s advice on the record.

Tuesday, September 20, 2005

Closet Originalist

September 20, 2005

Holy crap, if I ever again have to listen to another Republican senator tell John Roberts that he doesn’t have to answer questions, I’ll puke on my own shoes! It seems the Republicans spent more time telling him how great he was and trying to convince him to keep his mouth shut than they spent asking him to articulate his views, but they need not have worried. Roberts has proven himself a true creature of Washington by saying absolutely nothing of significance, and saying it at great length.

The continuous hammering from the Democrats concerning the doctrine of stare decisis was as pointless as it was repetitive. No one before the Judiciary Committee being considered for the position of Chief Justice of the Supreme Court is going to say, “No, I see no reason to bind myself with precedent. Seems kind of silly to promote continuity in American law when so many things are so clearly wrong with the way my predecessors have interpreted it. I actually consider myself a demigod beyond the reach of such piddling rules and regulations. Next question, please.” Anyone who expected Roberts to express anything other than a deep and abiding respect for precedent is as foolish as the senators who wasted time asking about it more than once.

As so many have noted, Roberts is presenting himself as humble; a large part of that is keeping his own views under his hat and promising to defer to his predecessors and the other branches of the government. In the wake of the strong Warren and Rehnquist courts, everyone likes the sound of that. Conservatives think an active court is bound to overextend constitutional freedoms, and liberals backed into a corner by the Republican majority fear that an active court will contract those freedoms. To both, the promise of a humble Chief Justice is a promise to keep the culture war out of the unaccountable judge’s chambers and on the floors of an elected Congress where they feel it belongs.

Roberts was very careful throughout the hearings to say that he believes that the purpose of the judiciary is to interpret the law, not to make it. He referred time and time again to his view that the Supreme Court has a duty to be deferential to the intent of the legislature where there is confusion in the law.

Let me say that again: John Roberts has not espoused a view that the judiciary should base its decisions on what the law says. He has said that the Justices on the Court should follow what the lawmakers intended.

Now, Roberts declined time and time again to allow anyone to plaster him with an ideological label, and this makes sense from both a jurisprudential and a political standpoint. Each school of constitutional interpretation comes pre-packaged with philosophical friends and enemies, ready-made counterarguments, and all kinds of academic flak in addition to the inevitable political baggage. This is not a game a nominee wants to play.

But it has become clear that Roberts is in fact an originalist in the mold of Scalia or Thomas, exactly as we were promised. Though he has been very careful to talk around it by making glancing references exclusively to contemporary legislation and the balance of power between Congress and the Court, Roberts has stated multiple times that he considers neither the text of the statute at hand nor the will of the American people to be the prime determinant by which he will resolve disputes over application of the law. Instead, he has referred over and over again to the intent of those who framed that legislation. Roberts is an originalist doing everything he can to hide it without blatantly lying.

He has only spoken about this in the context of the Judiciary’s oversight of Congressional action. The senators questioning him are, of course, concerned primarily with the reach of their branch’s authority, and they are placated when Roberts says he will defer to what the Congress intends when they pass legislation. But it is only a single step from saying the statutory law should be interpreted on the basis of intent to saying that the Constitution should be interpreted on that same basis. After all, anything less would be inconsistent.

Roberts’ mild manner and restraint-laced rhetoric have won him the cautious approval of liberal observers, but in spite of his measured responses he strikes me as a wolf in sheep’s clothing. Completely aside from suspicious connections to the Bush regime (like the fact that Roberts was consulting with Bush concerning a nomination to the Supreme Court only weeks before he decided the case denying Guantanamo detainees trial by court martial in accordance with White House wishes), Roberts looks dangerous.

His years as counsel for the White House and several of his decisions as a federal judge imply that he is overfriendly to executive power, and I fear that in addition to weakening the Congress and the Judiciary, Roberts may well place a proportionately greater amount of power in the hands of the Executive.

But he’ll pass the Committee and the Senate, and likely by a decent majority, too. Everyone who was afraid of a judicial pit bull like Scalia will wipe their foreheads, say a small prayer of thanks, and vote in favor of the guy who doesn’t look as bad as they had feared. And then they’ll take a deep breath and prepare for the inevitable round two as Bush rams yet another conservative through the confirmation process. Hopefully the nation will still be paying attention, and hopefully the Democrats won’t be too exhausted to put the screws to the new one as well.

Tuesday, September 13, 2005


September 13, 2005

I’m sure most of you already know that William Rehnquist, Chief Justice of the Supreme Court, has finally succumbed to thyroid cancer. During his 19 years as its head, Rehnquist led the court steadily to the right as part of its staunch conservative wing. Rehnquist joined with the conservatives and two swing-voting Justices in allowing publicly-funded school vouchers to be used at religious schools, for instance, but some parts of his agenda, such as attempts to outlaw abortion once again, met with little success.

From the time of his appointment to the court by Nixon in 1971, Rehnquist felt his duty to be twofold. First, he sought to correct what he perceived to be the liberal excesses of the preceding Warren court of the 60s. To this end, Rehnquist argued strongly against the “judicial activism” so harped upon by the right wing today, contending that the purpose of the Supreme Court was not to make law but to interpret it. Second, Rehnquist felt that a return to many of the constitutional restrictions from which Congress had largely freed itself was imperative, and to this end he legislated from the bench regularly.

In spite of his reputation as a conservative, Rehnquist was the more moderate member of the Court’s conservative wing. Justices Clarence Thomas and Antonin Scalia round out the trio of reliably conservative judges, and their ideology is fundamentally different. While Rehnquist believes that the Constitution is a living document which must change to meet the needs of an evolving society, both Scalia and Thomas are “originalists” who believe that the Constitution should be interpreted in precisely the way in which the framers intended it.

Thomas has even argued that the establishment clause of the First Amendment, which sets forth the separation between church and state, means exactly what it says and no more: only “Congress shall make no law respecting an establishment of religion.” If the people of a state wish to put up a crucifix in its legislative chambers or mandate prayer to Allah in their schools, that is perfectly in line with Constitutional standards.

Justice Anthony Kennedy and soon-to-be-former Justice Sandra Day O’Connor were the Court’s swing voters, often conservative-leaning but never inflexible. Though O’Connor argued against Roe v. Wade in the beginning of her career, she later contended that because women had come to rely on their right to an abortion, it would be imprudent to overturn the landmark precedent. Kennedy, too, has written in favor of the right to choose, although he did join the Conservative Three in banning partial birth abortion.

Breyer, Ginsburg, Souter, and Stevens constitute the liberal Justices, but it is important to remember that “liberal,” judicially speaking, is very different from the common use of the term. Many of the governmental standards we take for granted today are remarkably liberal by legal standards. The necessity of informing a person of his or her rights upon arrest, for instance, is an artifact of the Warren court and was fiercely attacked by Scalia and Thomas in the 2000 case Dickerson v. United States. These four Justices often take legally liberal opinions that are usually perceived by the general populace as socially moderate, and they are not nearly so inseparable a cadre as the conservative bloc.

We all know that the Neo-Conservatives pulling the President’s strings would like to accelerate the slow drift to the right initiated by Rehnquist’s appointment, and the death of the Chief Justice coupled with the retirement of moderate O’Connor provides a fantastic tactical opportunity to do just that. To this end, Bush has nominated John Roberts, a man with barely two years’ experience as a judge, to replace Rehnquist as Chief Justice. This seems absurd.

Don’t get me wrong, I’m trying very hard not to pre-judge the man. His appointment by Bush alone is enough to set off the alarms in my we’re-screwed-o-meter, but that thing’s been screaming pretty much nonstop since last November anyway. Bush made his intention to appoint a Justice in the mold of Scalia or Thomas a campaign promise, and something tells me this is one of the few times we can expect a politician to deliver.

The Neo-Cons simply have the rest of the nation by the dangly bits when it comes to the Supreme Court and all we can hope to do is mitigate the damage, so the question now is exactly how bad is Roberts? I’m not ready to make a call concerning the man’s jurisprudence until I see him at the confirmation hearings, but one thing is for sure: we can all say goodbye to a well-balanced Court.