Impeachment 2019 won't be like Impeachment 1974

As the impeachment of a president begins to look more and more likely, I have found myself thinking back to the 1974 impeachment proceedings against Richard Nixon. I was working in Washington at the time, reading the Washington Post daily and feeling excited about having a close-up seat for this political drama.

Nixon was not impeached, but the House Judiciary Committee had filed articles of impeachment and sent them to the full House for a vote. Recognizing that the House vote would be overwhelmingly for impeachment, Nixon reluctantly resigned, thereby allowing appointed Vice President Gerald Ford to ascend to the presidency and issue a pardon, which saved Nixon from charges for criminal conduct the impeachment inquiry had revealed.

It took a visit from Sen. Barry Goldwater, the most recognized and admired Republican in the Senate, to convince Nixon that his presidency could not survive an impeachment vote. If Nixon had not resigned, the impeachment trial before the full Senate could have dragged on for weeks, leaving the country nearly rudderless.

The 2019 impeachment debate will play out in a very different climate. Nixon had lost the support of all but the most dedicated Republicans. A recent poll showed Trump’s overall approval rating around 50 percent, but his approval among registered Republicans was more than 90 percent. It’s difficult to explain the disparity in one large portion of the electorate. Trump’s lashing out at every criticism and total denial of every accusation has to be a factor in the polls’ schism. His true believers have been trained to ignore all news reports that do not emanate from Trump himself or his minions.

Another factor in Trump’s favor if impeachment happens is his demand for personal loyalty from all appointees in his administration as well as elected officials. Although federal officials take an oath to uphold, protect and defend the Constitution, Trump demands and usually gets personal loyalty. If enough people in power violate their oath to uphold the Constitution and rule instead in favor of Trump’s interests, any impeachment vote will fail.

For Nixon, the secret Oval Office audiotapes were the deciding factor for impeachment. The Supreme Court ruled unanimously that Nixon had to release the tapes. Would a 2019 Supreme Court, with a 5-4 Republican majority including two Trump appointees, rule against this president? We may find out before this is all over.

Trump has been frequently accused of violating his oath of office and seeking to rule regardless of Constitutional restrictions and balance of power. He also faces lawsuits alleging he is violating the emoluments clause of the Constitution by accepting (and even marketing) stays at his hotels and resorts paid by foreign governments. His latest alleged violation involves telephone calls to the president of Ukraine. Those calls could be problematic on two counts: (1) Trump asks for “a favor” involving a Ukrainian investigation of former Vice President Joe Biden and his son; and (2) Trump uses his elective office to conduct personal business, a vendetta against the Bidens, and brings in his personal lawyer, Rudy Giuliani, and U.S. Attorney General Robert Barr. Using company time, company assets and company resources to conduct personal business is unethical on any level. If true, Trump has committed what amounts to a corporate executive conducting his Amway business from his corporate desk.

What makes this impeachment inquiry particularly difficult is Trump’s insistence that he has never, ever done anything wrong (and claimed the calls to Ukraine were “perfect”), and his followers’ willingness to believe every word from a man with an astounding history of prevarications. A delegation from Congress, like the one that convinced Nixon to resign, will not work with Trump. If he goes down, he will go down screaming his innocence and perfection.

Partisan Gerrymandering threatens democracy

This post originally was published in the Wilson Times July 6, 2019.

The U.S. Supreme Court’s ruling last week that the court has no jurisdiction over partisan gerrymandering constitutes a baffling abandonment of basic democratic principles. The court sent the matter back to the state legislatures, which have been busily making it more difficult for candidates in one party to get elected while the other party, the one drawing the electoral district lines, gets to yawn through elections confident that they have the votes. After all, the latter party got to choose who would vote in the election.

Gerrymandering, having been done by both parties in various states, is a rejection of the Supreme Court’s 1964 “one person, one vote” ruling, which held that one group of voters could not have greater impact than other groups. Congressional districts had to be of roughly equal population so that each voter’s ballot would have the same impact in the House of Representatives. The ruling also applied to state legislative districts. A state could not give each county one seat in the State Senate (as some in North Carolina wanted) because the counties’ populations are not equal.

Like those forbidden voting populations, partisan gerrymandering denies voters equal impact in an election. Although running for office in same-population districts, candidates of the party drawing the lines have far better chances of winning the election. Thus, voters supporting the other political party cast votes that have little chance of winning. In North Carolina, a state with a nearly even partisan division among voters, shrewd gerrymandering has given Republicans a 10-3 advantage in congressional seats.

The court’s decision to let partisan politicians have their way takes America a step toward one-party rule and leaves voters with the possibility that future election ballots may not have any choices. Elections become superfluous, and fair representation is denied. The party in power will stay in power because it gets to choose who votes.

In North Carolina, the Democratic Party and Common Cause have filed suit over the GOP’s highly partisan redistricting plans. If the high court continues to stand behind this new precedent, Democrats will have few options:

1.    They could all abandon the Democratic Party and re-register as Republicans, then carry out a subversive effort to replace that party’s leadership with people more committed to democracy and less dedicated to raw political power.

       2.    They can propose a federal law that clearly defines partisan gerrymanders and makes them illegal. Because many states’ congressional districts are already gerrymandered and Republicans hold a solid majority in the U.S. Senate, it may be impossible to find the votes to get such legislation through Congress.

          3. The plaintiffs can go back to the federal courts and try to persuade the increasingly partisan Supreme Court to reconsider its decision. Chief Justice Roberts says the courts have no jurisdiction over the drawing of electoral districts. Surely the chief justice is familiar with the concept of “checks and balances.” If the courts are not going to be allowed to limit the worst instincts of state legislatures, there are no checks and balances, and there is no representative democracy. The court has been less reluctant to take on matters that, like partisan gerrymandering, are not mentioned in the Constitution, such as same-sex marriage, abortion, and public education.

This ruling will go down in history as an abandonment of liberty. When there are no fairly elected representatives, there is no democracy.

Integration, civil rights came slowly to South

In last week’s column I wrote about Federal District Court Judge Waites Waring and his efforts to bring justice to African-American teachers and students in South Carolina from the 1940s to the 1960s.

            The book set me to thinking about the history I remember from that era as the South dealt with the Supreme Court’s mandate to desegregate schools. That mandate took decades to take full effect, and some would say that racial segregation still exists in public schools.

            When my classmates and I entered the N.C. public school system in 1955, we did not think there was anything unusual in the existence of some public schools being designated for white children and some being designated for black children. It was simply how the world existed. But in 1954 the Supreme Court had found school segregation to be unconstitutional, and gradual movements toward desegregation began (not with the court’s requirement for “all deliberate speed”). I was in high school, in a consolidated, countywide high school, when African-American students and teachers first appeared in my classrooms.

            Southerners determined to keep school segregation in place declared “massive resistance” to any effort to force full integration. Anson County, where I grew up, saw a mandate to make schools for black students better, at least on a par with the white schools, so county officials built a new, consolidated black high school that was to open the year after I graduated from the white high school that was only six years old. Federal officials declared the two segregated high schools illegal. Local officials countered with a plan to send all male students to one high school and all girls to the other school. The feds rejected that plan, too, and my younger sister graduated from the new, fully integrated high school.

            When my family moved to Wilson in 1980, we were impressed with the desegregation solution that was in place here. Former white schools were paired with former black schools so that all students, black and white, would spend four years in their “home school” and then be bused to the paired school outside their racially identifiable neighborhoods.

            This plan gave Wilson a great advantage compared to neighboring Nash and Wayne counties, which still had separate city and county school systems with obvious racial imbalances. Wilson County, thanks to young attorney Jim Hunt and others, had merged city and county schools in the 1970s. This single system made Wilson more attractive for industry.

            Wilson’s desegregation solution did not last very long. Changing residential patterns created school populations with large black majorities in several schools.

          A 50-member citizen task force was ordered to come up with a new, practical and federally acceptable integration plan. The task force worked hard for two years, trying to find a way to evenly balance racial populations in all schools. In a county with a few densely populated areas and some very rural areas, it was extremely difficult to bring about the preferred balance at all schools. Then the Board of Education threw out both plans the task force had recommended. Meanwhile, the federal court that had been overseeing the school system’s compliance with integration law decided the system had attained “unitary” status and ended its oversight.

            When the school board adopted a new neighborhood-based school attendance plan, some black members of the board voted for the plan, even though the plan made no effort to racially balance school populations. Most parents, black and white, have quietly accepted the neighborhood plan.

            The latest concern for public schools and their students is competition from private and charter schools, as well as home schools. Public school systems are losing students and money to the new options, as this newspaper has reported. Change is nothing new for school systems that have been reforming for more than 70 years.

This column first appeared in The Wilson Times.

Hal Tarleton was managing editor, editor and opinion editor of The Wilson Daily Times for 29 years. Contact him at haltarleton@myglnc.com.

           

           

Petitioning the government by screaming

The First Amendment protects "the right of the people peaceably to assemble, and to petition the government for a redress of grievances." This right has been broadly interpreted to allow almost any sort of assembly and petition, from million-man marches, to flag-burning protests, to neo-Nazi parades passing through neighborhoods populated by Holocaust survivors.

The Trump era and the "Resistance" movement have refocused attention on the right to protest. Democratic leaders have not questioned the aggressive protests and shouting-down of speakers, but the mid-term elections indicate that many moderate voters find the behavior at some protests rude, uncivil and crude. During the committee hearings on Brett Kavanaugh's nomination to the Supreme Court, Americans saw opponents of Kavanaugh's appointment shouting down the senators conducting the hearings with coordinated screams of "Shame On You!" "Shame On You!"

As a career newspaper editor, I am accustomed to defending the right of free speech (and press), but I have difficulty classifying shouted insults as speech worthy of constitutional protection. Is it really "petitioning the government" when you verbally attack public officials and call them names?

What's worse, insofar as the protesters are concerned, they are failing to sway the public officials they are "petitioning" and the voters who tend to be turned off by the shouting down of elected officials, regardless of the issue involved. President Trump and other Republican officials used uncivilized, disrespectful behavior of the screaming protesters to ignite the passions of GOP voters.

Democratic leaders would be wise to disavow the aggressive shouting-down tactics and the tendency to portray every judicial or executive appointment as an Armageddon. Those tactics (which are also used by Republican leaders) are not succeeding. Voters are not so foolish as to believe the hyperbolic claims against individual nominees or specific bills. Has Neil Gorsuch been that bad for Democrats? Would Merrick Garland been so disastrous for Republicans?

Americans are sharply divided on many issues, but the behavior of advocates on both sides is doing nothing to bridge the divide and resolving the issue through  mutual agreement and compromise.
 

The truth is, I don't know, and neither do you

Like nearly every single person in America, I do not know whether Christine Blasey Ford is telling the truth about an alleged sexual assault by Supreme Court nominee Brett Kavanaugh. I do not know whether Kavanaugh is telling the truth when he categorically denies the accusations. Many people say they are certain, one way or the other, but their firm beliefs are only opinions. They do not know whether their belief is factually accurate.

That said, I am bothered by the accusations against Kavanaugh. They are either deeply disturbing peeks at some well-hidden character flaws or desperate attempts at character assassination. I don't know which is the correct judgment.

I am bothered by the lateness of the allegations, and the handling of Blasey Ford's accusation by Sen. Diane Feinstein. The timing, if not the accusations themselves, seems to be aimed at postponing Senate confirmation of Kavanaugh. The GOP, on the other hand, has been too eager to push the confirmation through before mid-term elections, which might make a Senatae confirmation more difficult. After the Senate Judiciary Committee held a week of hearings on the Kavanaugh nomination, the accusations of a 35-year-old sexual assault were tossed into the nomination process.

A great many women have come forward to say they believe Blasey Ford, but their confidence is based on their belief that women are frequently abused by powerful men. They do not have first-hand knowledge of the alleged incident at a teenagers' house party. Their cry of "Believe the Women" has been invoked as an axiom for sexual assault cases, and in the "Me Too" era of revelations of sexual misconduct that can even turn "America's Dad," Bill Cosby, into a perverted criminal, that mantra makes some sense. However, that mantra should be used carefully. Thirty years ago, advocates were urging America to "Believe the Children," who allegedly had been sexually abused in several day-care scandals across the country. The children offered details and seemed certain in their testimony. Day Care owners were convicted by juries who "believed the children," although the children had also testified to trips to outer space, savage murders of children at the day cares and "secret rooms" where abuse took place — none of which was true.

Politically speaking, ignoring for the moment the accusations of misconduct, I worry about confirming Kavanaugh to the Supreme Court. Although he was typically coy in responding to questions about judicial issues, Kavanaugh seems to be a proponent of nearly unlimited executive power. He doesn't seem bothered by assertions of presidential powers that are not mentioned in the Constitution and which seem to usurp Congress' legislative powers. If I were a senator, I would probably lean toward denying Kavanaugh's confirmation, not based on his personal conduct but on his judicial philosophy.

This week's upheaval in the Senate Judiciary Committee is a symptom of a wrecked confirmation process for federal judges. The Founding Fathers tried to insulate the judiciary process from politics, but the courts have grown more and more political over the past 30 years, and so has the confirmation process. We assume, even before a the nomination process begins, that the confirmation vote will be decided along party lines. That is not what the Founding Fathers intended, nor has it always been this way.

Many will point to the divisive 1991 hearings on nominee Clarence Thomas as a turning point in politicization of the judiciary, but I think the genesis of this new era was the 1987 Robert Bork hearings. Before the confirmation hearings began, Sen. Ted Kennedy proclaimed, "Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, and schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of Americans.”

Ted Kennedy was a smart, experienced senator. He knew very well that putting Bork on the Supreme Court would not — could not — bring about the nightmares he claimed. He also knew that Bork could be rejected if a grassroots hysteria succeeded in turning Bork into a pariah. Democrats organized opposition to Bork and succeeded in denying him a seat on the highest court. A new word was coined. He was "borked."

Since that time, most Supreme Court nominations have been political contests similar to elections. The Republican Party has even made the Supreme Court a key issue in presidential races and has allowed the refusal of the Senate GOP leadership to even acknowledge a legitimate nomination to the court by a Democratic president.

The courts, intended to be a sort of final arbiter of conflicts between the executive and legislative branches, has become too much a child of political confrontation. The Senate's duty is to "advise and consent" on judicial nominations, not connive for political advantage.

You can bet on it

The U.S. Supreme Court has ruled that a federal ban on sports gambling is unconstitutional, a ruling that opens the floodgates to gambling on college and professional sport, and, presumably, on high school and middle school sports.

Officials estimate that $150 billion is spent annually on illegal sports gambling, and states are eager to get their hands on that kind of revenue. Thanks to ESPN, "March Madness" and other influences, college and professional sports have become America's favorite pastime. Legalized gambling on college football and basketball and on professional teams could further distract American minds toward sports fanaticism. Some sports leagues are eager to win a share of the gambling revenue their teams generate (although most are already phenomenally profitable). Other leagues are urging caution. Legal gambling could forever change the nature of the entertainment the leagues represent.

In the past 50 years, America has lost most of its aversion to gambling as a hazardous and anti-social offense against family responsibility, financial caution and moral integrity. Today, gambling in some form is allowed in almost every state. All but a handful of states sponsor state lotteries. Casinos operate in many states, either as businesses run by "sovereign" Indian tribes or as ordinary businesses. North Carolina and South Carolina in the past two decades fought off video poker, which had proved itself to be an insidious cancer against productive economy. Today, large casinos, state-sponsored lotteries, online betting and other forms of gambling hardly raise an eyebrow. Office pools for the World Series, Super Bowl or NCAA basketball are the new normal. The problem with gambling is that it is an unproductive activity. It produces nothing but winners (rare!) and losers (everyone else). Unlike manufacturing or even legal advice, gambling does not increase the availability of money; it nearly removes money from one person's pocket and put it in another person's pocket based on an outcome neither person controls.

The Supreme Court found a 1992 law banning sports betting in all states except Nevada (which was grandfathered in) went too far and infringed upon states' authority. Several states are eager to crank up their sports betting parlors and will likely be in business before the year is out. Both states and sports leagues are eager to get a cut of betting revenues.

Little attention is being paid to the potential corrosive effects on sports both amateur and professional. A missed shot or a dropped pass could swing billions of dollars in legal bets if sports gambling is legalized nationwide, and it is nearly impossible to prove that a player intentionally botched a play that could have won the game. Just one scandal could destroy the integrity of an entire league.

Consider Pete Rose, one of the best baseball players in Major League history. Rose is not in the Hall of Fame because he gambled on game results when he was a MLB manager (not a player). Major League Baseball punished Rose because his gambling defamed the integrity of the game he played so well. If sports betting is universally legalized, Rose's offense will be infinitesimal by comparison. 

Halting Supreme Court nominee is a gamble

The unexpected death of Supreme Court Justice Antonin Scalia had hardly sunk into our consciousness Saturday before Republican leaders and presidential candidates were proclaiming that President Obama should not be allowed to nominate a replacement for Scalia. The GOP-majority Senate, they said, must not approve anyone the president nominates.

But before Ted Cruz, Marco Rubio and the others go too far down that road, they might want to consider what refusing to allow the constitutional nomination and consent process to take place might mean. There's an election in November, and none of the Band of Belligerents running for the GOP nomination have any assurance of prevailing against the Democratic nominee. Should the Senate refuse to allow a Supreme Court nomination by President Obama, in January they might find themselves confronted with a nominee from President H.R. Clinton or President Bernie Sanders.

Would a Clinton or Sanders nomination be more comfortable for the Republicans than an Obama nominee? Probably not. Although Obama has been the target of some of the angriest and most scurrilous attacks in recent American politics, he has usually sought to lean toward the center in his judicial appointments, selecting respected lower-court judges and law professors. Another Obama nominee would likely be less distressing to the GOP than the post-election alternative should the Democratic nominee win.

It has been rumored that President H.R. Clinton might appoint Barak Obama, a former law professor, to the Supreme Court. Or, alternatively, she might appoint another former president, a former Arkansas attorney general, to the high court. How would Cruz and Rubio like them apples?

This assumes that the Democrats will win the White House in November. There is close to a 50% chance that the Democratic nominee will win. If the Republican nominee prevails, the gamble on the court will have paid off, but at the expense of making it clear to already disillusioned voters that the Republicans care more about party politics than they care about continuity on the Supreme Court. Whoever a Republican president might nominate to replace Scalia will not be another Scalia, who was an extraordinary legal thinker who bent the trajectory of the Supreme Court over his three decades there. I dare say there is not another like him waiting in the wings.

Supreme Court resuscitates health care act

The U.S. Supreme Court, to the surprise of many, validated the Affordable Care Act Thursday. The 6-3 decision held that it was not the intent of Congress to limit subsidies for health care premiums to only those states with state health exchanges. Residents of states without exchanges, who had to go to the national health exchange to get coverage, would continue to receive subsidies under the ACA. Chief Justice John Roberts provided a key vote and wrote the majority opinion.

Ironically, then-Sen. Barack Obama had voted against Roberts' nomination to the Supreme Court. Now Roberts has twice saved Obama's signature legislation. Three years ago, Roberts' perception of the statutory penalties for not buying health insurance as a tax saved the ACA.

Republican opponents of the ACA immediately jumped on Thursday's decision, declaring that the ACA was "broken" and would have to be repealed in its entirety. None of the GOP spokesmen explained how the legislation was "broken," which seemed to be an odd description considering the millions of people who have signed up and who are receiving health care insurance because of the 2009 legislation.

Republicans may get their chance at repealing the bill if they retain control of Congress and can win the presidency. Congress has taken dozens of votes to repeal the act, but none of them have taken effect because they could not pass in the Senate or because President Obama would veto the repeal if it ever passed Congress.

A controlling majority in the Senate and continued control in the House could make it possible for repeal legislation to pass after the 2016 election. If voters put one of the dozen or more GOP presidential candidates in the White House, then the ACA could be repealed without threat of veto.

But would GOP leaders really go that far? Already millions of Americans are depending on the ACA for health care coverage. Repealing the act would revoke their health insurance, and that would certainly pose a political risk for the party responsible for taking away a benefit Americans want and need, especially if the GOP has no alternative legislation — only a vitriolic hatred of "Obamacare."

Lawsuit nibbles away at presidential authority

Thursday's Supreme Court decision might mark a pivot point in the Obama presidency, and in presidential policies in general. The court's ruling was limited but made it clear that presidential appointments cannot be made without Senate approval except in very limited circumstances. The Constitution's allowance for "recess appointments" without Senatorial concurrence seem quaint in the 21st century's instantaneous communications and rapid travel. In 1789, Congress met for only a few months a year and was in recess for much of the year.

Recess appointments is only one issue that riles congressional Republicans. They also complain that the president has only selectively enforced laws and has even rewritten laws to suit his needs. The Affordable Care Act's provisions are just one example of how the president has ignored, omitted or altered provisions of laws passed by Congress.

Republican Speaker of the House John Boehner has announced that the House will sue the president for failing to carry out laws passed by Congress, which the Constitution requires him to do. The fact that this lawsuit will likely drag on through the 2016 elections is an indication that the case is based more on politics than on constitutional integrity.

The Constitution includes a remedy for a president who fails to do his job — impeachment. Failing to carry out the constitutional requirements of his office should qualify as a "high crimes and misdemeanors." The fact that only a few right-wing yahoos in Congress are proposing articles of impeachment indicates that Congress is not all that serious about retaining the powers granted by the Constitution and about demanding that the executive branch not usurp Congress' constitutional powers.

It is entirely possible, however, that private citizens might bring suit to overturn a presidential action, as in Thursday's decision. If the unanimous recess appointments decision is predictive, the Supreme Court might just undo what the president has done of his own accord.
 

Gay marriage rulings not that far-reaching

Wednesday's widely hailed pair of decisions involving gay marriage might not be as far-reaching as some advocates are asserting. The court struck down a portion of the Defense of Marriage Act on the basis of unequal treatment of married couples by the federal government. The ruling prohibits the government from denying federal benefits to legally married couples because they are in a same-sex marriage. The ruling does not address the legality of same-sex marriage, only the federal government's treatment of it. State bans on same-sex marriage are left untouched by the ruling.

The California Proposition 8 ruling also does not address the legality of same-sex marriage. This case was narrowly decided not on its merits but on the eligibility of the persons bringing the appeal of an earlier court decision. The state of California declined to appeal the trial court ruling that threw out the results of a statewide referendum banning gay marriage. This was essentially a ruling on a technicality: The court found that the appellants did not have standing to appeal the case to the federal court; therefore, the trial court ruling stands. Left unanswered is whether the trial court judge had the authority to overturn a statewide referendum in a state that provides citizen access to the legislative process through direct referendums.

The Prop 8 ruling applies only the California. Gay marriage will again be legal in California, but the larger, national issues involving gay marriage remain unresolved. The tide may be turning on gay marriage, but Wednesday's rulings do not constitute a 180-degree turn, at least not yet.

Free Voting Rights Act from 1965 numbers

The reaction to today's Supreme Court ruling on Section 5 of the Voting Rights Act was more interesting and volatile than the ruling itself. Justice Ruth Bader Ginsberg declared that today's 5-4 majority ruling amounted to the "demolition" of the Voting Rights Act. She takes hyperbole to new heights.

What the Supreme Court ordered Congress to revise, while leaving untouched the remainder of the act, was Section 5 of the 1965 act. That section requires certain states and portions of states that had a history of voting rights violations in 1965, submit to the U.S. Justice Department any change to their voting laws. That means that the Election Board in Wilson, N.C. (one of the covered jurisdictions), cannot move a polling place around the corner without gaining pre-clearance from the Justice Department. Justice has 90 days to respond and can extend that deadline for another 90 days. That can be a serious impediment to timely decision-making, such as when a building housing a polling site burns or is demolished or is closed for renovation.

But that's not the biggest problem with Section 5. The law establishes one voting law for some states and another for other states, thereby limiting state sovereignty and denying "equal protection of the laws" for citizens of those states. Such unequal treatment might have been justified in 1965, when some citizens were being denied voting rights on the basis of their race. But America has changed in the past 48 years, and minority voting power has grown exponentially, even in those states that are still required to submit any change in voting place or method to the Justice Department in advance.

The most recent renewal of the Voting Rights Act did not alter the formula for determining what jurisdictions will be subject to the provisions of Section 5. That formula is still stuck in 1964, a time when few black citizens were registered to vote and black elected officials were unheard of in many locales. Even in cities with black mayors and counties with black county chairmen, the Voting Rights Act considers these jurisdictions racially biased to the degree that federal pre-clearance is necessary. Today's election officials and public officers in the covered jurisdictions, many of them African-American, are presumed guilty of voting discrimination based on actions that took place before many of them were born.

Today's court ruling requires Congress to update the application formula under Section 5 and base it on contemporary standards of voter turnout, voter registration, and acts of voter suppression or intimidation. Those who care about voting rights today, rather than in 1965, should welcome this opportunity to see that the Voting Rights Act enforcement is applied where it is most needed today.

Judicial experience is no criterion

The inevitable battle over Elena Kagan's nomination to the Supreme Court is just beginning, but one aspect of the criticism of her nomination is clearly irrelevant. Some critics have complained that she has no judicial experience, which is true. She has spent her entire professional career in academia and government service. But to claim that never having worn a judge's robe disqualifies her for the bench ignores history. Some of the court's most honored and respected justices had no judicial experience before being nominated to the nation's highest court. Among them: Chief Justice William Rehnquist, Justice Lewis Powell, Justice William O. Douglas, Chief Justice Earl Warren, Justice Charles Evans Hughes, Justice Louis Brandeis, Justice Byron White, Justice Felix Frankfurter, and Chief Justice John Marshall, considered by many historians to be the most important member of the court ever. So lack of judicial experience should not be any impediment to nomination to the Supreme Court.

Kagan's nomination will likely turn on her work at Harvard Law School, where her record gives ammunition to her critics from the left and the right. At Harvard, she denied military recruiters access to the campus because of the armed forces' prohibition against homosexual conduct. Harvard lost a court battle over its policy. Conservatives are still unhappy with her defense of the Harvard policy against military recruitment. But as Harvard Law's dean, she also revitalized the school by bringing in new, conservative faculty so that the school boasted of the highest academic credentials, regardless of political leanings, and liberals are still unhappy with her cozying up to conservatives. Because Kagan's Harvard tenure gives both sides something to complain about, those criticisms will likely even out, paving the way to her confirmation.

But if critics harp on her lack of judicial experience, they should be laughed out of the Senate hearing room.

Supreme Court justices seem to agree

An interesting thing happened at the Supreme Court Tuesday: Justices from both ends of the political spectrum expressed their skepticism about legal restrictions on videos. These were not just any home movies; they were videos of dog fighting, and the videos had been found in conflict with a federal law against videos depicting animal cruelty. A federal appeals court had overturned the conviction of the videographer, and the High Court seemed inclined to agree with the appellate court.

Maybe the court has rediscovered the First Amendment. Courts have long held that free speech entails a lot more than linguistic vocalization. It includes various forms of protest and artistic expression. It might even include videos of detestable, offensive behavior. From Antonin Scalia to John Paul Stevens, the justices seemed unanimously skeptical that the videos could be exempted from the First Amendment, no matter how gruesome or inhumane the scenes might be. The law was also so vague about just what is "animal cruelty," that any number of activities, from Spanish bullfights to slaughterhouse activities could not be filmed. Hunting videos would be banned, most justices agreed. At one point, an attorney tried to suggest that "killing" would be considered animal cruelty. That would be a surprise to millions of meat-eating Americans.

Justices suggested that rather than attempting to ban the filming of cruel acts — and thus run afoul of the First Amendment — Congress could specifically ban the cruel acts themselves. Dog fighting already is covered by state laws.

When the Supreme Court hands down this decision, it will likely be condemned by defenders of helpless animals, but such protests miss the mark. This case is not about animal cruelty; it is about the First Amendment right to record factually accurate depictions of daily life. When an act is not a federal crime, filming it or writing about it cannot be a federal crime, either. It's one of the few things the often-divided High Court seems able to agree on

It's not age discrimination if you can't prove it

Forget about winning an age-discrimination lawsuit if you get laid off in this lousy economy. The U.S. Supreme Court ruled Thursday that a plaintiff has to prove that age discrimination was the singular cause of a job action. That sets an almost impossible standard for plaintiffs, no matter how blatant the discrimination might be.

I've talked to a number of people who were certain that their age was what prompted their layoff or change in job or pay. None of them had filed a lawsuit because they knew how difficult it is to prove age discrimination. You almost have to uncover a written memorandum stating "Joe is too old for this job; let's replace him with someone younger." If you lose a job or a promotion to a younger, less experienced, less qualified applicant, it's still difficult to prove that age discrimination was the reason for the snub. A discrimination suit can drag on for years. As one attorney told me, "it can consume your life." Few victims of age discrimination want to go through that ordeal. They'd rather just "move on" and try to find a new career. This economy makes moving on harder to do.

Age discrimination has been a particular concern in this recession, and age discrimination claims are rising. Millions of baby boomers, approaching retirement, tempered by decades of solid experience, have found themselves laid off as companies reduce payrolls. The seniority of these workers make them tempting targets for penny pinchers. Their experience and seniority come with higher pay rates. Replacing them with younger, lower-paid workers might be a good fiscal decision, but it's also age discrimination — you just have to be able to prove it.

Five members of the Supreme Court made that even more difficult Thursday. The majority ruled that age must be the sole motive in the discrimination if a plaintiff is to succeed. The plaintiff in this case had won a $47,000 judgment at trial, but the court reversed that. You can be certain that the legal fees have exceeded the size of the judgment, which is now canceled.

Interestingly, the oldest member of the court, John Paul Stevens, 89, wrote the dissenting opinion. He said the five-member majority (Thomas, Roberts, Scalia, Alito and Kennedy) had displayed "utter disregard" for precedent and the intent of Congress in passing the age discrimination law. The minority (Stevens, Ginsburg, Souter and Breyer) said that if a plaintiff can show that age was a factor in the job action, then the employer must show that he had legitimate other reasons for taking the action.

Sen. Patrick Leahy, D-Vt., compared the case to the Lilly Ledbetter sex discrimination case from last year, which infuriated Congress and led to corrective legislation. Age discrimination is rampant, perhaps exceeding gender or race discrimination, but plaintiffs have a very hard time proving this discrimination. Five members of the Supreme Court just made matters even more difficult.

Sotomayor's confirmation appears likely

President Obama's nomination of Sonia Sotomayor to the U.S. Supreme Court should come as no surprise to anyone. It seemed obvious that Obama would select a woman and a minority. With Sotomayor, he gets both the gender and ethnic bonus. By all accounts, Sotomayor is well qualified and highly competent (summa cum laude at Princeton, Yale Law Review). Her confirmation seems assured, but the highly politicized Supreme Court confirmation battles of the past 20 years leave no room for certainties.

Sotomayor is a liberal, but what would you expect? Liberal presidents nominate liberal judges; conservative presidents nominate conservative judges (though some nominees turn out to be less than what their sponsors had imagined). Get over it. If you want one of your own on the court, elect a president who will nominate them. Political leanings, or ideological disagreement, are a poor reason to oppose a nominee, but President Obama had no other reason to vote against Chief Justice John Roberts or Associate Justice Samuel Alito. Some Republicans opposed Associate Justice Ruth Bader Ginsburg on purely ideological grounds, and some will oppose Sotomayor on the same grounds.

Sotomayor will get some justifiable scrutiny over her ruling in the racial discrimination lawsuit brought by New Haven, Conn., firefighters. Her unsigned opinion failed to address the fundamental constitutional issues in the case. She ruled that New Haven could throw out the results of a carefully prepared, assiduously unbiased written test for promotion because minority applicants failed to earn promotion, but she offered no rationale or constitutional basis for her ruling. Racial preference was the only explanation for the city's action; is that constitutional? The case is now before the Supreme Court, which seems skeptical of the city's actions.

Sotomayor will also be questioned about some impolitic comments she has made. In one instance, she told a judicial conference at Duke University that appeals courts are "where policy is made." The interesting thing about the inflammatory but essentially truthful statement is that she was so inarticulate in stating it. Look at this video:

Sotomayor also said that a Latina woman could make a better judicial decision than a white male. The implication seems to be that the Constitution, far from being colorblind, means different things to different people, depending on their ethnicity and gender. That assertion is a recipe for dissolution of the union.

Despite these gaffes, Sotomayor will almost certainly be confirmed, unless an Anita Hill-type of skeleton falls out of the closet. One interesting omission I've seen in every news article and bio I've seen on Sotomayor: There's no mention of marriage. I assume she's never been married, given the omission, but the failure to say so, or to explain her personal life, seems to be a serious oversight.

Obama, Souter both get what they want

Here's a win-win situation: President Obama gets to name a Supreme Court justice, and Justice David Souter gets to go home to New Hampshire and resume his monastic, rural life. Both the president and the unhappy justice win. Whether the country as a whole and jurisprudence wins depends upon whom the president selects to replace Souter.

To say that Souter has been a disappointment to conservative Republicans almost since the day President George H.W. Bush appointed him is an understatement. Republicans wanted a reliable conservative who would shift the dynamics of the court away from the active liberalism embodied by Justice William Brennan, whom Souter replaced. But Souter's conservatism seemed to be lodged in his distaste for change, whether it was the change from his rural New Hampshire lifestyle to urban Washington or change in the form of a shift in precedent. Souter's dominant judicial philosophy seemed to be stare decisis, the principle that once a court establishes a ruling it should stand and guide future decisions. Souter would have voted to uphold Plessy v. Ferguson ("separate but equal" accommodations) had he been given the opportunity. It has also been said that he preferred the 19th century to the 21st.

Obama's replacement of Souter is unlikely to change the court's dynamics. The new justice, who will be approved by an overwhelmingly Democratic Senate, will be reliably liberal, unless Obama misjudges his nominee as badly as GHW Bush misjudged Souter. This nomination is unlikely to alter the course of the court. As important as Supreme Court nominations are (justices serve, on average, 26 years, but presidents serve no more than eight), this one looks less than seismic.