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What the Devil won't tell you

High Court nominee Kavanaugh will likely doom independent redistricting in Az

Supremes' new 'Originalist Bloc' won't be kind to Arizona voters

Everything you are hearing is wrong about the politics of the upcoming battle over the new Supreme Court nominee.

We've been told by the pros in Washington that the opportunity to replace Associate Justice Anthony Kennedy was a huge win for Trump. Truth is, he was all but certain to replace the 83-year-old justice. Kennedy is a conservative — but not a doctrinaire conservative — and was almost certainly going to retire under a Republican president. The next such administration may be six, 10 or 14 years away. Trump won this fight when he won the presidency. For that, Democrats and True Progressives have only themselves to blame.

The net effect of this in Southern Arizona will almost certainly be the loss of independent redistricting — which keeps politicians from packing the opposition party into a few districts and drawing district boundaries to ensure their party stays in power in perpetuity by insulating itself from the whims of the voters.

The Arizona Independent Redistricting Commission will almost certainly be sacrificed on the altar of total partisan control and under the dubious guise of "strict constructionalism," and radical originalism.

For the open slot on our highest court, Trump picked U.S. Appeals Court Judge Brett Kavanaugh and it was a bit of an unforced error. The far right doesn't love him and questions his will to overturn Roe v. Wade, while the left won't trust him even if he said "who? me? nooo." Even so, conservatives aren't that pissed right now. They got a new Camry and not a Rolls-Royce. They'll live.

There are TV talking heads saying Kavanaugh is a reasonable pick, even if he'll radically alter the country's future. He puts Democrats in a tough spot because he's hard to pin down and make sound extreme. He's a self-proclaimed "Originalist." It doesn't get more extreme than believing the government should only reflect the the necessities and proprieties the Founders could foresee 229 years ago.

Kavanaugh's not going to answer questions about how he envisions changing the country, so we are left to apply our imaginations to how far he wants to take the U.S. government back in the direction of 1787.

So, I think the Dems are going to be forced to bomb the silent G-H off Kavanaugh. Screw it it if it's unfair. The GOP is lauded for its tough-minded hardball when it protects a president from a criminal probe. Senate Majority Leader Mitch McConnell is treated with awe for deciding President Obama only got to appoint Supreme Court judges for three-fifths of his term.

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The Kavanaugh pick does play into Democrats' hands — he wrote a legal paper declaring presidents can't be criminally investigated. He's been nominated by a president whose campaign and cronies are under criminal investigation, and who's getting a close look from prosecutors himself.

Left on the table was Amy Coney Barrett, a better candidate for social conservatives to rally around and a much more dangerous pick for Democrats to wale on during the confirmation process. It's sexist as hell, but rhetorically smacking a pretty woman with big blue eyes is a lot dicier than just laying waste to Kavanaugh.

Kavanaugh was presorted by the Federalist Society, a group that vets judicial appointments for their conservative credentials. He's going to fit somewhere between John Roberts and Neil Gorsuch. That's troubling for anyone who though the Space Age was better than the Gilded Age.

No matter. The Democrats can't stop the pick. They don't have a filibuster to force a 60-vote approval.

What's at stake for liberals is a hell of a lot more than Roe v. Wade. I could go on and on about Wickard v. Filburn, Griswold v. Connecticut and Aderand Construction v. Pena. For now I'll stick to Arizona State Legislature v. Independent Redistricting Committee.

For Southern Arizona, Justice Kennedy was the lone swing vote who saved democracy from the partisan lust of the GOP-held Legislature. Kavanaugh fits nicely on the Originalist Bloc that will swing the power to control elections back to Phoenix. 

A case of way too much controversy

If there is a bedrock assumption this country was founded on it's the idea that: “Governments are instituted among Men, deriving their just powers from the consent of the governed.” That's the underlying assumption in the Declaration of Independence. It's not law, but it's source code.

We redraw the lines for congressional and legislative districts every 10 years. Redistricting done right is housekeeping to reflect changes in population after a census. Redistricting done wrong is gerrymandering: pretty much legalized ballot stuffing. Political districts are drawn to assure one-party rule and improving software makes the practice of mapping even more egregious. A party can lose the popular vote by 6, 8, 10 points and retain power because they packed most of the opposition voters into a few districts. It's ballot stuffing without the fuss and muss of having to actually stuff ballots into boxes.

In 2000, Arizona voters adopted a constitutional amendment that created a bipartisan redistricting commission independent of the Legislature.

In 2011, Arizona Republicans threw an absolute stomp-and-scream temper tantrum when the commission secured for them a mortal lock on four of the state's nine congressional districts.

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It was ridiculous. Seriously, their outrage over having to face swing voters in a third of the state's districts was so pronounced they impeached and removed the commission's chairwoman.

Clearly, what the state GOP wanted was something akin to North Carolina, where Democrats and Republicans tend to split 50-50 but the state elects 10 Republicans and three Democrats because the districts are drawn to predetermine that outcome.

When they ran out of legal real estate to stop the commission in state court, the GOP-controlled Arizona State Legislature sued the people who elected them, planning to win back the power to stack the deck in their own favor.

In 2015, the U.S. Supreme Court narrowly upheld the commission's constitutionality. In a 5-4 decision, Kennedy threw in with the commission in a decision that illustrates why the stakes are so high.

At issue was the definition of a "legislature." The Supremes ruled that "legislature" could be broadly defined to include the people when a state's constitution vested in the voters the right to make certain rules.

Justice Ruth Bader Ginsburg wrote the majority opinion.

"The Framers may not have imagined the modern initiative process in which the people’s legislative power is coextensive with the state legislature’s authority, but the invention of the initiative was in full harmony with the Constitution’s conception of the people as the font of governmental power. It would thus be perverse to interpret “Legislature” in the Elections Clause to exclude lawmaking by the people."

I love that "people as the font of governmental power" line.

The four Federalist Society conservatives dissented in that case, arguing that "legislature" means the elected Legislature and nothing else. Chief Justice John Roberts, soon to be the swing vote, about threw a legal tantrum at the notion. "No! No! No! No! The framers said legislature; they mean the Legislature only.":

The Constitution includes seventeen provisions referring to a State’s “Legislature" ... Every one of those references is consistent with the understanding of a legislature as a representative body. More importantly, many of them are only consistent with an institutional legislature — and flatly incompatible with the majority’s reading of “the Legislature” to refer to the people as a whole.

See, that there is "strictness of the construction." The idea is to limit the powers of the federal government with a word-for-word interpretation of the Constitution. Game. Set. Match.

Strict about what?

Not so fast.

Here's Article I, Section 2 of the U.S. Constitution, which says legislatures don't get to decide the outcomes of congressional races: "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States ..."

The people, not the legislatures, control the outcome, as Ginsburg lays out. Roberts ignores this, myopically focusing on the definition of "legislatures." He's so bogged down with that single question that he forgets (or ignores) that the term "redistricting" does not appear in appear in the Election Clause. 

Alexander Hamilton assured the nation that the Elections Clause would be be limited to housekeeping. "Its authority would be expressly restricted to the regulation of the times, the places, and the manner of elections." The Federalist No. 60, at 371 (emphasis in original).

Set the poll times. Pick out the polling places. Draw up the ballot. That's the Elections Clause. It's not, "decide for a decade which party represents what district." That strict limitation doesn't help the Legislature's cause. So Roberts ignored it. Broadly defining a word is beyond the pale. Amplifying words beyond their meaning is just a natural progression of logic if it helps his team.

Stern fathers don't always know what they're talking about, Founding Fathers or not. They are especially ignorant when they say protection of public health should be limited to the wisdom of men who didn't know what a germ was and might have thought "carcinogen" was a cheap French port. We should regulate tech under limitations of dudes who never saw a steam engine, let alone a wristwatch or a slide rule? The Founders argued about mules versus horses. What are their thoughts on the proper handling of jet fuel?

Strict constructionalism is the "Dad rock" of political theory. I mean that because it's fatherly in nature.  It's the "dad voice" in the political debate and dad voices can be highly effective. Dad's role is basically every once in a while to just shout "knock if off!" But it works. In political terms, the country may want clean air but then dad tells us, "Sorry, kids, I'm going to be strict and say that power is not afforded to government in the Constitution's text. It's for your own good. Someday you'll thank me."

We're hardwired from age four to go along with that sort of thing but it's B.S. because those who employ that tactic are hiding behind a doctrine to achieve their own ends. They're ignoring over here, redefining over there and seeing rights that don't exist. Corporations enjoy the right to worship? What the hell are you talking about?

A judgment call

If the Legislatures are using their Article I, Section 4 powers to undermine my Article I section 2 rights, something's gotta give. If my only remedy is to amend the Constitution and ask three-fourths of the state legislatures to give away their powers, I'm on the losing end of that one.

Forcing me to give way helps the Republican Party. John Roberts is a Republican. Guess who he wants to yield? It sure as hell ain't his side (and yes, he did seem to choose political sides with the Legislature's freakout in his dissenting opinion, grousing about how unfair the process was to his GOP).

The problem with gerrymandering is there is no viable fix. The losers would have to beat the winners in a rigged game, where the ump is bought and paid for. The courts are the traditional remedy but the Roberts is dangerously close to saying any fix to a rigged game is against the rules.

The conservatives are right to warn broadly interpreting law is a dangerous game. The written enumeration of laws was seen as a major advancement of social progress. It's step one in making law equally applicable. We're all screwed once judges start asking, "What's murder really? Can anyone say with certainty? I mean, the bullet did the killing."

Society will devolve into something ugly if we apply an agrarian government to a post-industrial world. The government will run amok if any nifty new power is fair game. We need people who know when the Constitution is dynamic and when to strictly apply its provisions.

There's a word for that person I'm trying to remember. It's a noun describing the ability to recognize arbitrary capriciousness from actual justice. What's it called? Oh, that's right. Judgment. What would someone be called who applies that judgment. Oh! A judge! We should get some of those — preferably some able to see beyond the words to when the constitutional republic is on the line.

“Governments are instituted among Men, deriving their just powers from the consent of the governed.”

Blake Morlock is a journalist who spent 17 years covering government in Arizona and also worked in Democratic political communications. Now he’s telling you things that the Devil won’t.


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1 comment on this story

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22 comments
Jul 17, 2018, 8:54 am
-0 +0

The supposedly Independent Redistricting Committee had a Democrat disguised as an Independent last time around.

They took a legislative district that was competitively split almost exactly 1/3 Republican, 1/3 Democrat, and 1/3 Independent, which means we always sent someone who could appeal to a broad spectrum of voters, sometimes a Democrat, and sometimes a Republican.  The moved a whole neighborhood of generally Republican voters into another LD (including myself, though I am an independent). It turned my old LD into a reliably Democratic District, and nullified the votes of the neighborhood they moved into another reliably Democratic LD.

So don’t even try and tell me that “Independent” Redistricting Committees are the solution to partisan redistricting.

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