Thursday, July 04, 2013

Justice Ginsburg And The Other Three Liberal Justices

Shelby County V. Holder

I previously blogged about this decision here.

Again the famous four US Supreme Court justices dissented in this decision about provisions in the Voting Rights Act of 1965 (VRA), i.e. Ginsburg, Breyer, Sotomayor, and Kagan. Their dissent comprises more than half of the pages of the entire Opinion.

I have previously analyzed the Four Judges contorted reasoning in my blog post about the Obamacare decision, see here.

Justice Ginsburg’s Permanent Conflict Of Interest

Justice Ginsburg will be forever infamous for her incredible remarks in Egypt that she would not recommend the US Constitution anymore as a model. I think, these remarks by a Justice of the US Supreme Court in a foreign land are bordering on impeachable or treasonous. Her views represent a permanent conflict of interest, which would require any decent judge to resign immediately or recuse herself from any future case.

Why Did Justice Ginsburg And The Three Other Liberals Dissent?

Once more these Four Liberals come up with not much more than mediocre reasoning as if ideological bias is clouding their judgment.

Quotes from their dissent opinion and comments (Emphasis added):
1.       “With overwhelming support in both Houses, Congress concluded that, for two prime reasons, §5 [of the Voting Rights Act of 1965] should continue in force, unabated. First, continuance would facilitate completion of the impressive gains thus far made; and second, continuance would guard against backsliding.”
[If there was or will be any remotely possible backsliding, Congress is free to enact a new law when the time comes.]

2.       Then these Four summarize their credo ““[V]oting discrimination still exists; no one doubts that.”” 
[I do doubt it.]

3.       “Early attempts to cope with this vile infection resembled battling the Hydra [between 1865 – 1965]. Whenever one form of voting discrimination was identified and prohibited, others sprang up in its place. This Court repeatedly encountered the remarkable “variety and persistence” of laws disenfranchising minority citizens.”
[Yes, without the VRA, the Justices would have been busy for another few decades. Instead the big, central government became busy to supervise a few states in contravention to the US Constitution. There is a huge difference between a high court carrying out justice and a big government mandating and coercing its subjects.]

4.       “Answering that need, the Voting Rights Act became one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our Nation’s history.” 
[No exaggeration her or?]

5.       ““The Justice Department estimated that in the five years after[the VRA’s] passage, almost as many blacks registered [to vote] in Alabama, Mississippi, Georgia, Louisiana, North Carolina, and South Carolina as in the entire century before 1965. … On that matter of cause and effects there can be no genuine doubt.”
[Would not something similar even have happened anyway without the VRA thanks to civil unrest and activism? These Four Judges feel so cocksure.]

6.       “…auguring that barriers to minority voting would quickly resurface were the preclearance remedy eliminated.”
[This is laughable!]

7.       “Congress reauthorized the VRA for five years in 1970, for seven years in 1975, and for 25 years in 1982.”
[Looks like Congress was much smarter and more responsible in the early years to reauthorize than in 1982 and 2006.]

8.       “In mid-July [2006], the House considered and rejected four amendments, then passed the reauthorization [of the VRA] by a vote of 390 yeas to 33 nays. … The bill was read and debated in the Senate, where it passed by a vote of 98 to 0.”
[Seriously, there were only 33 no votes in the House and 98 yes votes in the Senate! Incredible and irresponsible by our elected representatives. And President Bush signed this into law?]

9.       “In the long course of the legislative process, Congress” amassed a sizable record.” … (describing the “extensive record” supporting Congress’ determination that “serious and widespread intentional discrimination persisted in covered jurisdictions”). The House and Senate Judiciary Committees held 21 hearings, heard from scores of witnesses, received a number of investigative reports and other written documentation of continuing discrimination in covered jurisdictions. In all, the legislative record Congress compiled filled more than 15,000 pages. … The compilation presents countless “examples of flagrant racial discrimination” since the last reauthorization … Congress also brought to light systematic evidence that “intentional racial discrimination in voting remains so serious and widespread in covered jurisdictions that section 5 preclearance is still needed”
[Unfortunately, I do not have the time to verify the substance of this claim, but I have my serious doubts about the merit. We all know, that so called witnesses before hearings in Congress are sometimes like a Sandra Fluke. Investigative reports are often not much more than biased misrepresentations.]

10.   “For three reasons, legislation reauthorizing an existing statute is especially likely to satisfy the minimal requirements of the rational-basis test.”
[What kind of test is actually the so called rational-basis review, whose modern version dates back to 1938 New Deal area? I don’t think this phony test has any basis in the US Constitution. So anything enacted by Congress that sounds rational and is supposedly supported by 21 hearings and 15,000 pages is constitutional as long as it can somehow be based on the US Constitution? You got to be kidding! The judiciary has a more important role to play in the Checks and Balances. I don’t think these Four Justices understand the full scope and weight of Checks and Balances.]

11.   “I [Justice Ginsburg] begin with the evidence on which Congress based its decision to continue the preclearance remedy. … In fact, Congress found there were more DOJ objections between 1982 and 2004 (626) than there were between 1965 and the 1982 reauthorization (490). … All told, between 1982 and 2006, DOJ objections blocked over 700 voting changes based on a determination that the changes were discriminatory. … Congress found that the majority of DOJ objections included findings of discriminatory intent … On top of that, over the same time period the DOJ and private plaintiffs succeeded in more than 100 actions to enforce the §5 preclearance requirements.”
[These Four Justices are incredible how they selectively filter statistical data to suit their own narrow minded preconceived notions. The Voting Section of the DOJ receives around 14,000 to 22,000 voting changes per year. “The Department of Justice reported that roughly between 4,000 and 6,000 submissions have been received annually from jurisdictions covered by the VRA” (Source: Same as the Four Justices, i.e. H. R. Rep. No. 109–478) Thus a few hundred objections over 20 years is a big joke! I don’t know how many jurisdictions are exactly covered under the VRA, but it may very well be hundreds if not thousands.]

12.   “The number of discriminatory changes blocked or deterred by the preclearance requirement suggests that the state of voting rights in the covered jurisdictions would have been significantly different absent this remedy.”
[This is idle conjecture by these Four Justices!]

13.   “In addition to blocking proposed voting changes through preclearance, DOJ may request more information from a jurisdiction proposing a change. In turn, the jurisdiction may modify or withdraw the proposed change. The number of such modifications or withdrawals provides an indication of how many discriminatory proposals are deterred without need for formal objection. Congress received evidence that more than 800 proposed changes were altered or withdrawn since the last reauthorization in 1982. … This number includes only changes actually proposed. Congress also received evidence that many covered jurisdictions engaged in an “informal consultation process” with DOJ before formally submitting proposal, so that the deterrent effect of preclearance was far broader than the formal submissions alone suggest.”
[Now Justices Ginsburg, Breyer, Kagan, and Sotomayor this is a heroic assumption to make! To think that when a bully like the DOJ makes a request from a jurisdiction then the underlying modification must have been discriminatory is highly presumptuous. It reveals an ideological bias unbecoming of a good judge.]

14.   “Congress also received evidence that preclearance lessened the litigation burden on covered jurisdictions themselves, because the preclearance process is far less costly than defending against a §2 claim, and clearance by DOJ substantially reduces the likelihood that a §2 claim will be mounted.”
[I think such cost considerations are almost completely inappropriate in this case.]

15.   On pages 15 and 16, the Four Justices list a number of specific, localized VRA violations. I suspect, at closer examination some or the majority of these cited cases will not really hold up.
16.   “Following the 2000 census, the City of Albany,Georgia, proposed a redistricting plan that DOJ found to be “designed with the purpose to limit and retrogress the increased black voting strength in the city as a whole.” Id., at 37 (internal quotation marks omitted).”
[Here is what House of Representatives had to say: “Testimony from other Non-Governmental Organizations (NGO) revealed the impact that discriminatory tactics, such as the discriminatory redistricting plan administered in the City of Albany, Georgia, have had on minority voters and the necessity of Section 5 to prevent enforcement: Following the 2000 census, the City of Albany, Georgia, adopted a new redistricting plan for its mayor and commission to replace an existing malapportioned plan, but it was rejected by the Department of Justice under Section 5. The department noted that while the Black population had steadily increased in Ward 4 over the past two decades, subsequent redistricting had decreased the Black population `in order to forestall the creation of a majority black district.' The letter of objection concluded it was `implicit' that `the proposed plan was designed with the purpose to limit and retrogress the increased black voting strength in Ward 4, as well as in the city as a whole.'”. So let me quickly interprete this the DOJ wants to gerrymander to create majority black districts? What kind of a perversion is this? NGO testimonials for whatever they are worth!]

17.   “A recent FBI investigation [in 2010] provides a further window into the persistence of racial discrimination in state politics. See United States v. McGregor, 824 F. Supp. 2d 1339, 1344–1348 (MD Ala. 2011). Recording devices worn by state legislators cooperating with the FBI’s investigation captured conversations between members of the state legislature and their political allies. The recorded conversations are shocking. Members of the state Senate derisively refer to African-Americans as “Aborigines” and talk openly of their aim to quash a particular gambling-related referendum because the referendum, if placed on the ballot, might increase African-American voter turnout.”
[I did not know that the FBI would attach recording devices to state legislators to eavesdrop on other legislators. This is truly shocking. I thought, J. Edgar Hoover is long dead. These Four Justices do not condemn this kind of action? This is absolutely shocking! Were these legislators who cooperated with the FBI not indicted or impeached? This is a serious threat to federalism or democracy if private conversations of legislators are eavesdropped like this!]


Congress Reauthorization Of The Voting Rights Act In 2006

The report by the House of Representatives regarding “FANNIE LOU HAMER, ROSA PARKS, AND CORETTA SCOTT KING VOTING RIGHTS ACT REAUTHORIZATION AND AMENDMENTS ACT OF 2006” is a contradiction in terms.

Under “Findings” the report states “(1) Significant progress has been made in eliminating first generation barriers experienced by minority voters, including increased numbers of registered minority voters, minority voter turnout, and minority representation in Congress, State legislatures, and local elected offices. This progress is the direct result of the Voting Rights Act of 1965.”. How nice how our elected representatives pat themselves on their shoulders, i.e. “This progress is a direct result”.

However, then the elected representatives justify their reauthorization for another quarter of a century that there are still existing “vestiges of discrimination”. When you look up the word “vestige” means: 1) 1.trace of something gone: a trace or sign of something that is no longer present; 2) the smallest quantity or trace. Whether any discrimination of humans by other humans will ever be completely eradicated is an ideal. Thus, to reauthorize this extraordinary law for another 25 years was again an overreach/excess by the US Congress in violation of the US Constitution and the Declaration Of Independence.

No. (6) of the Findings reads (Emphasis added): “The effectiveness of the Voting Rights Act of 1965 has been significantly weakened by the United States Supreme Court decisions in Reno v. Bossier Parish II and Georgia v. Ashcroft, which have misconstrued Congress' original intent in enacting the Voting Rights Act of 1965 and narrowed the protections afforded by section 5 of such Act.”. Thus, one has to suspect some members of Congress were just too eager to get even with the US Supreme Court?

No (8) of the Findings reads (Emphasis added): “Present day discrimination experienced by racial and language minority voters is contained in evidence, including the objections interposed by the Department of Justice in covered jurisdictions; the section 2 litigation filed to prevent dilutive techniques from adversely affecting minority voters; the enforcement actions filed to protect language minorities; and the tens of thousands of Federal observers dispatched to monitor polls in jurisdictions covered by the Voting Rights Act of 1965.”. Our opportunistic busybodies in Congress are ever looking for new clientele. Thus, they stress here now language minority voters. Why does Congress not pass a new law to protect language minorities, which would be the proper thing to do? Perhaps they tried to avoid that the general public finds out about this.

Tens of thousands of Federal observers were dispatched to monitor polls? This is incredible! Is the US Congress treating a number of states like Banana republics? This is simply preposterous! The Founders would certainly be confounded.

“Despite these successes, the Committee finds that the temporary provisions of the VRA are still needed. Discrimination today is more subtle than the visible methods used in 1965. However, the effect and results are the same, namely a diminishing of the minority community's ability to fully participate in the electoral process and to elect their preferred candidates of choice.”. Again here the elected representatives use an expansive interpretation of the VRA. What minority communities? What are subtle discriminations? Only those discernible by activists and congressional busybodies?

It is also interesting to observe that the first two reauthorizations of the VRA happened to be reasonable 5 year periods each, then Congress lengthened to 10 years, then 25 years in 1992, and in 2006 for another 25 years.

Under the heading “COMMITTEE FINDINGS--PROGRESS” we read how successful the VRA was. Just look at the dozen or more charts provided in this report regarding “Voter Registration Rates”. In some states these registration rates for “Blacks” have been higher than those for “Whites” for some time.

The Report notes: “Increased Number of African-American Elected Officials The Committee finds that … significant increases in the number of African-Americans serving in elected offices. As of 2000, more than 9,000 African-Americans have been elected to office, an increase from the 1,469 officials who held office in 1970. As of 2004, 43 African-Americans currently serve in the United States Congress, with 42 individuals serving in the United States House of Representatives, and one serving in the United States Senate. At the State level, more than 482 African-Americans serve in State legislatures, with thousands more African-Americans serving in county, township, and other locally elected positions.”

In “COMMITTEE FINDINGS--SUBSTANTIAL DISCRIMINATION CONTINUES TO EXIST IN 2006” we finally learn what Congress is really up to. Our elected representatives bemoan the low voter registration rates among Hispanics, a group not really covered by the VRA of 1965. Is this why President Bush did not veto this reauthorization?

The elected representatives tend the issue of “Racially Polarized Voting”. Is it not true that perhaps as many as 95% or so of African-American voters voted for President Obama? So is this reverse discrimination? However you define “Racially Polarized Voting” it is stupid anyway and I am not sure what our elected representatives can do about it by enacting laws against it.

The Reauthorization for another 25 years in the name of Ms. Parks and others is just another glaring example of too many of our elected representatives acting as mindless opportunistic do gooders without a spine to do right.

For sake of time, I have to stop here going further into this Report. But I suspect I will find more disturbing rationalizations etc.

Four Justices Voting Like A Soviet Bloc

These four mediocre Justices vote Soviet style and they are obstinate. It is astounding and disappointing.

The Future Is Promising

As an eternal optimist I hope that either Justice Kagan or Justice Sotomayor in the course of their probably long career at the US Supreme Court will change their mind.


One day either one or both will hopefully better understand the true meaning of the US Constitution and the Declaration of Independence and will give these documents and their framers more respect.

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