Redistricting Ruling Reveals Supreme Court's Lack of Political Experience

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Published July 10, 2006

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The opening pages of David Halberstam’s classic book about the Kennedy administration, “The Best and the Brightest,” describe the scene when then Speaker of the U.S. House Sam Rayburn had just returned from meeting the members of President John F. Kennedy’s Cabinet.

He is reported to have said to a confidant that these new cabinet members were very smart but he would feel a lot better if any of them had ever run for sheriff.

Experience in elective politics is valuable for many people serving in an appointive position in government.

A current example of this is unfolding in the makeup of the U.S. Supreme Court. All the current Justices served as appeals court judges before being elevated to the high court. None of them have ever held elective office. President Bush is expected to have at least one more vacancy to fill during his term due to the age of some members of the court. It will be interesting to see if he gives the court a little real world political experience.

A number of previous Supreme Court Justices did hold elective office at some point in their careers. Chief Justice Earl Warren had been governor of California, Hugo Black had been a U.S. senator from Alabama, Chief Justice William Howard Taft had been president of the United States. And more recently, Sandra Day O’Connor had been a state senator in her native Arizona.

Each of them contributed a sense of the real world to the Court’s deliberations.

A classic case of the need for some real world political experience on the court occurred in the recently decided Texas Congressional redistricting case.

Plaintiffs in the case challenged the redistricting plan passed by the Texas Legislature in 2003 as being in violation of the Voting Rights Act in the way it treated Hispanic voters in south Texas and black voters in north Texas.

The court found a violation of Hispanic voting rights and has sent the case back down to the lower court to redraw the 23rd Congressional district because Hispanic voting strength had been diluted below a level where Hispanics could determine the outcome of the election.

However, the Court balked at making a similar ruling involving black voting rights in the 24th Congressional District in north Texas, the district I had previously represented in Congress for 26 years.

The 24th District, as originally drawn, was overwhelmingly Democratic, so whoever won the Democratic primary would be elected in the fall. The Court ignored evidence in the record that black voters in the 24th District determined the outcome of the Democratic primary and thus deserved to be protected. In effect, the Court allowed the Legislature to entirely dismantle a district that African Americans controlled.

A lack of real world political experience may explain the Court’s refusal to accept clear testimony that the black community determined who represented this district. The result was particularly galling to the black community because the Court let stand new lines that plucked 100,000 black voters in Ft. Worth out of the old 24th District and combined them with white, suburban voters in the new 26th Congressional district which extended 100 miles north to the Texas-Oklahoma line.

The black community was now an insignificant factor in the 26th District and had nothing in common with the rest of the district.

Here’s where a lack of real world political involvement may have influenced the Court. Clear testimony in the record demonstrated that 65 percent of the Democratic primary vote in the old 24th district came from the black community even though the black population of the district was only 22 percent.

The combined white and Hispanic population (78 percent of the district’s population) accounted for only 35 percent of the Democratic primary vote.

What the Court couldn’t comprehend was that the reason blacks constituted such a high percentage of the Democratic primary vote was that Southern whites don’t vote in Democratic primaries anymore. They either vote in the Republican primary or they just wait for the general election to vote.

Additionally, Hispanics, particularly those in urban areas far removed from the Mexican border, barely participate in Texas elections (constituting between 5 and 10 percent of the vote even when their population exceeds 30 percent).

The Court, due to lack of political experience, assumed that a viable white candidate in the primary in the old 24th District would beat a viable black candidate because whites and Hispanics would combine to outvote the black community. The real world was just the opposite. The candidate who received the lion’s share of the black vote would win, whether the candidate was black or white.

The Court assumed that whites and Hispanics would come out of the woodwork to overwhelm the choice of the black community in the primary because the two groups constituted a majority on paper.

Nothing is going to change the political reality that southern whites don’t vote in Democratic primaries no matter who is running. And it will be a long time before urban Hispanics vote in any significant numbers because so many are not citizens, and because such a large percentage of Hispanics are young and below the voting age even if they are citizens.

If just someone on the Court had ever run for sheriff, black voters in Ft. Worth might not have been sent to the political version of Siberia.

More Redistricting Intrigue

Speaking of the federal courts and Texas redistricting, there is a fascinating case regarding Tom DeLay’s name on the general election ballot currently working its way through the lower federal courts.

A Texas federal district judge (appointed by a Republican president) has ruled that DeLay, who is under indictment for criminal campaign violations in Texas, may not withdraw from the general election ballot after having won the March Texas Republican primary even though he now says he lives in Virginia. This case is on appeal to the U.S. Fifth Circuit.

Should the Fifth Circuit uphold the lower court and require that DeLay’s name appear on the November ballot (rather than letting local Republicans replace him with a clean, more viable candidate), we may have a replay of the 2000 U.S. Senate race in Missouri. In that race, the Democratic candidate (Mel Carnahan) was killed in a plane crash too late for him to be replaced on the ballot.

Missouri Democrats then conducted a campaign urging their party members to vote for the dead man so that the Democratic governor could appoint his widow to the seat after the election. That’s exactly what happened. A dead Mel Carnahan defeated the live candidate, Republican Sen. John Ashcroft.

Should DeLay’s name remain on the ballot, Texas Republicans may be forced to urge their party members to vote for the (politically) dead man as a way of defeating former Congressman Nick Lampson, the Democratic nominee. If DeLay were elected, he could then resign and have the Republican governor immediately call a special election (there is no provision in the Constitution for appointments to the U.S. House) where the Republicans could field a clean candidate who could win a normally Republican district.

Martin Frost served in Congress from 1979 to 2005, representing a diverse district in the Dallas-Ft. Worth area. He served two terms as chairman of the House Democratic Caucus, the third-ranking leadership position for House Democrats, and two terms as chairman of the Democratic Congressional Campaign Committee. Frost serves as a regular contributor to FOX News Channel and is a scholar in residence at the Woodrow Wilson International Center for Scholars in Washington, D.C. He holds a Bachelor of Journalism degree from the University of Missouri and a law degree from the Georgetown Law Center.

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