missing Sandra Day

While Justice Kennedy has written some pretty great opinions lately, without the presence of Justice O'Connor, Kennedy has been left to steer the court.

The results have not been pretty: 4-1-4 decisions, vague concurring opinions, multipart multi-split opinions and generally bad law all around.

Why are the police able to turn knock-and-announce warrants into no-knocks at their discretion? Why has the Clean Water Act been, um watered down? Why has mid-decade re-redistricting been upheld? Because Kennedy is the lone swing vote.

Vieth v. Jubilander was also a terrible case, and these are hard issues, but allowing redistricting purely because the legislature changes political hands sets an awful precedent. This is in effect makes the U.S. House of Representatives the pre-Seventeenth Amendment U.S. Senate-- a federal legislative body whose members are chosen at the whim of each state legislature. The House will now represent the majority party in their home state's state house (and governor's mansion), and not the people of their district. With advances in statistical analysis and computer programming is it possible to create districts which virtually lock in a seat for a particular party.

The Framers of the Constitution intended the House to be the more representative body, which is why they made it larger, based on population, and gave it the power to originate spending and tax bills, the power to impeach, and the power to choose the president in the case of an electoral college tie/plurality. The Senate was supposed to be the more deliberative, tempered body (the saucer to cool the hot coffee of the House's cup) filled with more learned, wise men [now a few women], which is why they had the power to ratify treaties, advise and consent on presidential appointments, and vote to remove the President or Supreme Court Justices from office.

Gerrymandering has turned this all on its head. I am sure that the Founders were political and believed in Gerrymandering (after all, it started with the first Congress) but I highly doubt they ever dreamed mapmakers would ever wield the precision and predictability they possess. If they had known where it all would lead, I doubt they would have approved of such counter-majoritarian abilities.

Maybe the court looked the other way because Democrats in 1990 redistricted Texas overly favorably to their cause and the DeLay Gerrymander was just a wing in the opposite direction that made the state Congressional delegation match the statewide voting percentages. But now other states will be emboldened to reredistrict not just to "correct and injustice" but to counter the will of the people. The very fact that elected officials are now beholden more to mapmakers and party bosses than the electorate violates the spirit, and I believe the letter of the Constitution.

Bush has a sense of humor

Appearantly, Bush wants the Line-Item Veto, despite the fact that SCOTUS was pretty definative against such power in Clinton v. City of New York (although dishonest partisans like Thomas, Scalia, and Alito might change their minds). Bush's claimed reason for having increased executive powers? To cut spending.

"And I'm not going to deal myself out of the budgetary process," he said. "So my point is, they can meet the size of the pie, but I may not like some of the slices of the pie. And therefore, what do we do about it? And one way to deal with it is the line-item veto. The president could approve the spending that is necessary, could red-line spending that is not, and then let the Congress decide whether or not the president is right."

Just like how he let Congress decide whether or not to use the NSA to spy on American citizens' phone records, library records, financial transactions, and internet activity. Or just like how Bush let Congress pass a ban on torture, only to seemingly veto the bill without allowing the Congress a chance to override the veto.

Bush's signing statements violate the Constitution. specfically, Article I, Section 7, Clause 2 ("The Presenment Clause"):

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law.

This is a radical agenda by Dick Cheney and his cabal. Having already reclaimed whatever executive power presidents had prior to Watergate, Cheney, John Yoo et al are trying to use Article II, Section 2, Clause 1 ("Commander-in-Chief") to grab as much power as the Rubber-Stamp Do-Nothing Republican Congress will allow.

Right now, Specter has another Kabuki Theater effort of "reigning in the president" and being a "moderate savior of the Constitution." One wonders how many days he will keep up the charade.

Dems sell out Voting Rights

House Democrats must not be that confident that they will win back the House in November. The Hill Reports

The prospect of a Texas House Republican chairing the Judiciary Committee motivated Democrats to compromise earlier this year on a bill that would reauthorize and amend the 1965 Voting Rights Act.

Amazingly enough, they prefer James "lock up the illegal immigrants" Sensenbrenner to Lamar Smith. It just goes to show how radically conservative the House GOP leadership is. It also shows how Democrats have no spine to stand up for the right thing, and trust the voters to help them.

Democrats and civil-rights leaders compromised on measures regarding voter protection, including those to curb the use of photo-ID laws, to ensure that a bill would be passed before the bill sponsor, committee Chairman James Sensenbrenner (R-Wis.), gives up his gavel at the end of the legislative session, according to several Democratic sources in the House, including multiple committee staffers.
...
One House staffer who works for a CBC member said the Democratic leaders’ concern was so great that they told CBC members not to campaign too intensely for the bill for fear that it would splinter the bipartisan coalition and delay a vote. This deal was brokered long before tension between Pelosi and the CBC surfaced after Pelosi asked Rep. William Jefferson (D-La.) to step down from the Ways and Means Committee.

In my book, the only legitimate complaint that Southern House Reps have against the VRA is that the section 5 clearance by the DOJ should not be limited to the South. There is racism in New York, in Maryland, in Massachusetts, in Indiana, in Illinois, in California...in every state. Both parties use racial demographics to draw line for state legislative and congressional districts, but they pretend it is "communities of interest" and the like.

Republicans like to pack the minorities into as few districts as possible, and CBC-type minority politicans love to have a safe seat. Democratic leaders tend to try to spread out the minorities, especially African-Americans as much as possible so as to increase their chances at picking up seats.

So why would House Dems allow tried and true voter suppression tactics like ID cards be permissible under the VRA? Because they are afraid of a different chairman? Shouldn't they be licking their chops at having African-American and voting rights champaign John Conyers in charge in January if the Dems take back the House? Why cave now when you can beat the GOP over the head with it and get a better bill later?

No matter what, Dems are going to pick up seats in both chambers and the Senate will be able to craft a better bill than this. So why the rush? Are they too chicken?

UPDATE:Rick Hansen over at Election Law Blog reports:

Last night the Rules Committee voted to table H. Res. 878, which had provided for the rule on debate of VRA renewal (that's the deal that allowed two proposed amendments, the Norwood amendment and the Westmoreland amendment). It appears then that the details of the VRA renewal debate will have to be renegotiated, and that's likely not to happen until after the July 4 recess.

Is this because of the compromise that the Dems made? Even with 152 co-sponsors and the political goldmine of holding up VRA? I hope I am wrong.