Over the coming days, foes of Brett Kavanaugh will attempt to portray him as hostile to civil rights. By now, these types of attacks have evolved into background noise, like the chirping of birds before sunrise. Whenever a conservative is nominated for anything, the chirping begins -- that thus and such nominee is hostile to civil rights, voting rights, minorities, and on and on.
The background noise has become so familiar, so tiresome, so worn out that you wonder why anyone bothers with it anymore.
And there you’d be mistaken. Chicken Little always sells papers. Or at least it sells copies of the New York Times, where headlines about Brett Kavanaugh become laugh lines. The New York Times published an op-ed by the permanently unhinged alarmist Ari Berman entitled: “Does Brett Kavanaugh Spell the End of Voting Rights?”
Most reasonable and sane Americans would answer the headline's question with “no, of course not.” Instead, Berman answers: “Yes! Panic!”
On the opening day of the hearing, the Democrats have relied on their favorite new tactic -- shutting up debate. That's why a series of objections to the hearing even starting were lodged by Democrats. Loud screams from Kavanaugh foes in the committee room audience have also disrupted the proceedings.
This week, you’ll also hear how Brett Kavanaugh committed the unpardonable civil rights sin -- he rejected the orthodoxy that voter ID laws are a plot to prevent minorities from voting. You might hear how Kavanaugh permitted South Carolina’s voter ID law to become effective. In particular, Kavanaugh noted in his well-reasoned opinion for a three-judge panel that anyone in South Carolina who was unable to procure the underlying documents to obtained voter ID could execute a hardship affidavit under oath and still cast a ballot.
Now you might ask what a federal judge was doing allowing a state election law to become effective in the first place. Before 2013, the federal government -- or a group of federal judges sitting in Washington, D.C. -- had to approve every election-related change in all or parts of sixteen states. These states weren’t just in the deep South. They included Michigan, South Dakota, and that hotbed of Jim Crow, New Hampshire. Eventually, the Supreme Court struck down the formula that grabbed these sixteen states and no others.
Kavanaugh critics never tell the full story about Kavanaugh’s South Carolina voter ID decision. They omit an important part -- the part where Kavanaugh refused to do what some were urging. South Carolina asked the court to trim the scope of the federal Voting Rights Act that required federal approval.
Invoking the constitutional avoidance doctrine, South Carolina has suggested that we should therefore construe the effects test of Section 5 of the Voting Rights Act more narrowly than the statutory text would indicate. But the text and Supreme Court precedent establish that the effects test of Section 5 is stringent and that a voting law change that disproportionately and materially burdens minority voters is unlawful. Any argument to narrow Section 5 in this way must be directed to Congress or to the Supreme Court.
Put another way, Kavanaugh refused to tinker with and limit the underlying law in a way favorable to South Carolina. He found that South Carolina’s voter ID law was entitled to federal approval even using the most stringent interpretation of the Voting Rights Act that the Holder Justice Department and civil rights groups advocated.
Kavanaugh agreed with the same civil rights groups that now claim he is dangerous to civil rights. This is the absurd sleight of hand the modern civil rights movement now employs as duplicitous experts in frightening minorities.
While Kavanaugh steadfastly refused to abuse the power of the judiciary to intrude into legislative functions, a recent alarming decision of another three-judge panel out of North Carolina warrants scrutiny.
A three-judge panel from the middle district of North Carolina delivered an unprecedented ruling adopting extraordinary legal theories striking down the state’s Congressional maps. Instead of exercising the restraint that Kavanaugh did, the North Carolina panel’s opinion written by Judge James Wynn adopted legal theories that the Supreme Court has refused to adopt.
The case in North Carolina was brought to kill off a number of GOP congressional districts. The plaintiffs didn’t claim that the North Carolina congressional maps were drawn with a racially discriminatory intent, or harmed racial minorities. Instead, the case alleged that the maps hurt Democrats and it was therefore unconstitutional under the Fourteenth Amendment.
What the Democrats could not win in the state legislature, they obtained from three federal judges. Worst of all, the decision constitutionalized partisan tussles that belong in the political branches of government -- namely the legislatures.
It is hard to overstate how dangerous it is to give federal judges such unrestrained power to usurp a state legislative function. Under our federalist system, state legislatures have the power to form their own governments. They cannot violate federal civil rights laws, but are essentially free to do as they wish.
If Democrats dominate a state, like Rhode Island, then Republicans can expect to get a political beating in drawing legislative lines. That’s just how it works. If you don’t like it, go win elections.
The Fourteenth Amendment says nothing about proportional representation, or that a political party is a protected class. But the theory of partisan gerrymandering lawsuits brought by Leftist groups is that Democrats are entitled to representation in legislatures roughly proportionate to the number of Democrats in a state.
And to do this, they naturally turn to the federal courts.
The problem for Democratic political fortunes in North Carolina is not that Republicans have drawn maps that put Democrats at a disadvantage. Instead, the problem is that Democratic voters have geographically self-selected to live in just a few large urban centers and leave the rest of the state populated largely by Republicans.
Now, fall Congressional elections in North Carolina have been thrown into chaos.
The Kavanaugh hearing reminds us that rules involving elections are the focus of a well-funded fight apart from policy debates. One side will tell half the story, disrupt, rely on alarmist scare tactics, and run to federal courts to employ novel fringe legal theories in order to elect more Democrats. The other side -- this week represented by Brett Kavanaugh -- respects the boundaries of the Constitution and is unwilling to exert an out-of-bounds judicial power to achieve partisan outcomes.
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