He’s baaaaaack…

Here’s how this dreadful piece begins.

First, note Starr’s assumption of how Alito’s confirmation process will turn out (“Justice-to-be”).  More importantly, note that Starr assumes that he knows what Alito meant in 1985.  What Alito said on his 1985 job application was that he had some unexplained “disagreement” with the Warren Court’s decisions on reapportionment.  That is not an “simple observation” that a “salutary” doctrine has “significant problems,” as Starr would have it; quite the contrary, it is a declaration of Alito’s belief that the Court got something wrong.  So unless Starr has had personal conversations with Alito on this subject (and maybe he has, but he gives no inkling on that in his op-ed), Starr is just putting words in Alito’s mouth here, trying to soften what seems to be the clear meaning of Alito’s words.  Next.

To some extent, this paragraph is just stage-setting, correctly noting that the Supreme Court had refused to get involved in reapportionment before 1962.  Even here, though, there’s some misleading going on: notice Starr’s use of “all men are created equal.”  That phrase, of course, is from the Declaration of Independence, written in 1776.  Then he says that “equality” didn’t always mean “equal influence.”  Well, duh – among other things, America was a slaveholding society in 1776 and for quite a few years afterward.  The relevant reference point is not 1776 but 1865 or shortly thereafter, when the Civil War amendments to the Constitution were ratified.  Baker v. Carr, the seminal reapportionment case, was an equal protection case brought under the Fourteenth Amendment, which of course did not exist at the founding.  So, Mr. Starr, spare me your pious invocations of irrelevant bits of history.  Next.

Meaningless pablum.  Next.

Here, Starr tries to disprove the constitutional imperative of one-man-one-vote by pointing to the Senate as a counterexample.  Rubbish.  The fact that every state, however large or small, gets two Senators, whereas the states’ representation in the House varies by population, is of course the “great compromise” that made it possible to ratify the Constitution.  So representation in the Senate is, by design, entirely independent of population.  But that proves nothing at all about how representation that is population-based should work – in particular, it proves nothing about whether population-based representation should have to have roughly equal districts.  Next.

These statements may all be accurate.  But they are so devoid of context as to be useless.  Were these “efforts” to draw districts without disrupting “traditionally established communities” (whatever that means) also trying in good faith to create roughly equal-size districts?  Or were they just trying to keep “traditionally established communities” – some of which may be much more densely populated than others – together?  Were those districts that differed by 0.7% also, by coincidence, racially unbalanced in some curious way?  Starr doesn’t tell us what he’s talking about, so we cannot know.  But Starr ignores the fact that equality of representation – the notion that in general my vote shouldn’t count for more than yours – is a very important democratic value, and to assume that always breaking up “traditionally established communities” for voting purposes is a bad thing without acknowledging that it’s also a bad thing for votes to be grossly unequal is, well, dishonest.  The whole point here is that there are competing values – Starr seems to have missed that.  Next.

This is where Starr goes off the deep end.  Honestly, I can’t even tell for sure what he’s trying to say here – maybe he is urging that judicial interference in redistricting is always a bad thing.  But I seriously doubt that he really thinks that.  The line of cases originating with Shaw v. Reno, which has made it much harder for legislatures to draw district lines creating majority-minority districts, is a particularly extreme form of judicial meddling in redistricting – yet the Republican National Committee urged the Court to rule the way it did in that case.  So unless Starr is parting company with his fellow Republicans on this one, the anti-racial-gerrymandering doctrine is a form of judicial meddling that he likes.

Or maybe he’s saying “look, the Court has allowed all this bad stuff (political gerrymandering, etc.) to happen – what’s the big deal about one-man-one-vote?”  There’s a big difference.  A violation of one-man-one-vote is quite straightforward: if district 1 has 100 voters and district 2 has 10,000, you really can’t dispute that an individual voter in district 1 has more influence in selecting the district’s representative than does an individual voter in district 2.  Of course you will never get exact equality between the two districts, so you will have to draw a line at some point to decide what is “close enough,” but that’s just a question of math. 

Today, all districting has to comply with one-man-one-vote.  But there’s still ample room for mischief: as we know, districts are drawn to protect incumbents, to protect political parties, and to protect racial and ethnic groups, among others.  Figuring out when a district has gone “too far” in protecting one of those groups is simply not susceptible to mathematical analysis the way that one-man-one-vote violations are.  That is why Justice O’Connor made the comment that Starr quotes in a political gerrymandering case.  But the continuing controversy over gerrymandering is the best evidence against Starr’s effort to lump together one-man-one-vote cases with gerrymandering cases.  One-man-one-vote is now part of the political landscape; everyone knows what it means and what it requires, and although it may present technical challenges in drawing roughly equal districts while also trying to advance other values, it’s just a fact.  In contrast, political, racial, and other forms of gerrymandering remain intensely controversial precisely because there are no manageable standards to decide what is “too much” and what is acceptable politicking.  So Starr’s argument is akin to saying “chocolate ice cream tastes bad, therefore all ice cream tastes bad.”  It doesn’t work that way.  Next.

Nice try, Ken, but again, you’re making unwarranted assumptions.  We simply don’t know what Alito’s “position” was in 1985, much less today.  My guess: he probably thought that the Court should never have waded into the reapportionment area – that is, the Court should have continued allowing states to draw district lines that, mathematically speaking, treated some citizens unequally (usually disproportionately poor and minority citizens – though I’m sure that’s a total coincidence).  That point of view is, at best, a highly controversial one these days – even most conservatives go along with one-man-one-vote.

Alito has a great deal to talk about at his confirmation hearings next month.  Ken Starr’s weak-ass efforts to blunt the effect of what Alito wrote in 1985 aren’t going to make Alito’s job at the hearings any easier.

Please share widely!

0

0