From Virginia Capitol Connections

Another Missed Opportunity

When a member of the academy offers a commentary on or a call for reform to the political process, it is important that he or she bear in mind that the classroom does not compare with the world of practical politics. Bearing all this in mind, I offer the following thoughts on another failed attempt at political reform in the Commonwealth.

This session, the General Assembly once again defeated a proposal to reform the redistricting process. Sadly, this is becoming a predictable ritual: in each of the last several sessions, a small group of legislators—now with the support of the governor–propose to take the first steps to reforming the redistricting process. Each year, somewhere the proposal fails. In 2009, a proposal to establish a bipartisan redistricting process passed the Senate 39-0. But, alas, it died in the House Committee on Privileges and Elections.

The skeptical reader or voter can reasonably ask whether, with so many grave problems such as crime, education, the economy, we need to preoccupy ourselves with an issue as mundane as the drawing of legislative district boundaries. It’s a fair question. Whether a legislative or congressional district boundary runs through my neighborhood or yours certainly pales in importance to whether or not the highways are financed and the public schools funded. Voters don’t march in the streets about the shape of their voting districts. Nonetheless, redistricting reform is as important as it is subtle—and it merits scrutiny.

Perhaps the most misleading comment I have heard about the demise of this session’s redistricting reform proposal came from a member of the General Assembly who suggested that we should leave control of the process to the elected officials because this would ensure that the voters could hold the legislators who draw the lines accountable. Who could argue with that? The legislator had a point. If his constituents were not lighting up the phones or filling up the emailboxes in his office, there really was no reason to believe that the public was concerned about the redistricting process.

On the other hand, “the public” in Virginia is not marching in the streets about much these days. Yet, we still pass laws, and look to govern ourselves well. Thus it’s also fair to ask whether a lack of public outcry is a good reason not to solve an ongoing problem. I suggest that it is not. “Doing the right thing” should not require a public outcry.

This particular legislator was asking a lot of the voters. One of the reasons why the American Founders called for representative democracy (instead of direct democracy) was that they understood that citizens did not need or desire to be preoccupied constantly with the many minute details of politics. We would elect representatives to deal with the minutiae of legislation and check in with them periodically on Election Day. Citizens, therefore, were not expected to pore over the transcripts of each legislative session or read through the many pages of proposed and passed legislation. That was and is the job of the elected officials—and we trust them to do it well.

A redistricting map is no different than a budget plan. If it takes the entire General Assembly many hours, days and sometimes a special session to work out the details of new voting districts, it is unreasonable for any elected official to expect a constituent (or even a group of them) to do the work of the entire General Assembly, its staff and the Division of Legislative Services and scrutinize the details of a redistricting plan to see whether and where it might need reform or improvement.

If one were to review the news coverage of the last two rounds of redistricting in Virginia, it would quickly become clear that something needs to be done. Districts cross bodies of water and mountain ranges. They wrap around cities and towns and split counties. In 1990, the Democrats drew them in a manner that lumped Republican incumbents together (forcing some to retire). In the 2000 round, the Republicans returned the favor, lumping for example, Ward Armstrong, Barnie Day and Thomas Jackson together in one district and former Speaker of the House Richard Cranwell and fellow Democrat Clifton Woodrum into another.

Such practices demonstrate that it is disingenuous to suggest that voters can do something about this abuse of power by simply calling up their elected officials and expressing concern. In cases such as these, it is obvious that the process takes elected officials away from the voters—and by the time the voters can actually try do anything about it (at the next election) it is too late. Instead of enabling voters to choose their representatives, our redistricting process allows the representatives to choose their voters. That is democracy in reverse.

The basic problem with the redistricting process as it currently stands is that there is no mechanism for oversight. Our elected officials have complete control over the process by which they are returned to office. With no disrespect intended, I’d like to note that similar processes of self-policing got us into the savings and loan scandal and the current financial and banking crises. Free markets and democratic government both require oversight.

The various proposed reforms would turn the actual line drawing process over to a non-partisan or bipartisan committee. The General Assembly would retain final control over the process insofar as any districting proposal would have to be passed by both houses and signed into law. Such a modest reform would remove at least the veneer of self-interest from the process and inject into it a sense of best practices.

Redistricting reform will not solve all of our political problems. It may not even solve a few of them. But, it will at least improve upon a practice that generates controversy and criticism while undermining the integrity of the electoral process.

As soon as President Obama nominated Sonia Sotomayor to succeed Justice David Souter on the Supreme Court, the chattering classes began protracted discussions about the role that race, gender, empathy, etc. should play in court nominations. Those who support her nomination celebrate the potential diversification of the court. Those who oppose it condemn her for joining women’s groups, having the chutzpah to advise a group that opposed Robert Bork’s nomination to the court many years ago, or suggesting that one’s life experiences will and should play a role in how he or she interprets the law.

Sadly, Supreme Court nominations have become a terrible stain on our politics. Does anyone doubt that a key basis for a judge’s nomination is whether or not the president and his advisers like him or her? If a nominee wants to be appointed, he or she has to demonstrate, more than anything else, patience with the speechifying and campaigning emanating from the Senate Judiciary Committee. Politics (of the Senators and the interest groups who flood their mailboxes) determines a nominee’s fate as much as his or her qualifications.

Critics question whether Sotomayor is the “most qualified” nominee. This strategy is as disingenuous as it is unproductive. A fairer and more honest inquiry would ask whether any nominee could ever claim to be the most qualified at the time of his or her nomination. An honest answer to this question would acknowledge that there are perhaps hundreds of potentially legitimate nominees at any given time. The successful one is the one who can navigate the politics of the appointment process.

It would be unwise and destructive for Sotomayor ‘s opponents to overplay a weak hand and, essentially, re-fight the battle over the nomination of Robert Bork. The Bork debacle remains a sordid episode in the history of Supreme Court nominations. Bork certainly was qualified to be on the court. Politics kept him off.

Bork would have added diversity to the court’s thinking in the same way that Sotomayor’s supporters suggest she will. Whether Bork would have pulled the Supreme Court to the right or Sotomayor will pull it to the left is irrelevant. Members of the Court who drift too far to the extremes tend to find themselves writing lonely dissenting opinions. That is a good thing.

A court of nine should not be of one mind, one color, one gender, etc. Diversity of opinion is vital to the development of constitutional law and politics. Dissent and debate among the justices have played a vital role throughout the Supreme Court’s history. Those who fear such debate within the court should pause to ask themselves one important question: Why did the Founders choose to create a plural court? They could just as easily have called the third branch of government “The Supreme Judge.” But, they did not. Apparently, they appreciated differences of opinion.

Partisan divisiveness has poisoned or threatened to poison every Supreme Court nomination hearing since the Bork debacle. Re-fighting that sordid episode while deciding the fate of Sonia Sotomayor will demonstrate that the Senate learned nothing from the unproductive ugliness of the Bork nomination. Let’s hope this does not happen.