All Supreme Court nominations are divisive

"A pox on both your houses," Shakespeare might say, were he around to observe the U.S. Senate's "advise and consent" duties in recent years. 

The Senate is headed toward a filibuster over the nomination of Neil Gorsuch to the Supreme Court. Democrats say they cannot in good conscience approve the nomination of such a man. The Republican leadership appears ready to eliminate the Senate's cloture rule, which has been around since the first years of the Republic, in order to get Gorsuch approved.

President Trump's nomination of Gorsuch came a year after the death of Justice Antonin Scalia, a year in which the Republican-controlled Senate refused to even hold hearings on the nomination by President Obama of moderate Judge Merrick Garland. The Republican rationale was that voters might elect a Republican to the White House in 2016, and that president might nominate someone more conservative and more to their liking. The reasoning they presented to the public was that the 2016 electorate should decide who fills that Supreme Court seat; it shouldn't be filled by the 2008 and 2012 electorate that chose President Obama or by a president who has held office for seven years. It didn't matter whether anyone accepted their thinking, the Republicans controlled the Senate and got their way.

My hope was that Hillary Clinton would win and take revenge by nominating someone far less to Republicans' liking, such as Bill Clinton or Barack Obama. (Check with William Howard Taft about the willingness of former president to accept appointment to the Supreme Court.)

(Not that I wanted Hillary Clinton to be president -- I simply wanted the GOP leadership to learn a hard-earned lesson. I thought voters might punish Republicans for obstinately blockading a qualified nominee, but I was wrong.)

What I've heard of Gorsuch's testimony before the Senate Judiciary Committee and what I've read about Merritt persuades me to believe that both men are well qualified to serve on the Supreme Court. A court with five Gorsuches and four Garlands, or five Garlands and four Gorsuches, it seems to me, would be a good, reasonable court.

Consider this: A recent poll found that more than half of Americans surveyed could name even one current Supreme Court justice. It's true that Supreme Court justices serve for decades and almost always influence events long after their sponsoring president has left office. But most voters don't know a single justice.

Judicial nominations have not always been so partisan. When Robert Bork was nominated by President Reagan, it was assumed that the old rules would apply: a qualified nominee would be approved by the Senate in deference to the president's preferences, so long as no ethical or competency issues arose. But Bork's nomination unexpectedly faced a concerted effort by Democrats and interest groups to stop him. Hence, the verb "borked," meaning to be demonized unfairly by lobbying and media campaigns, was born. Suddenly, Supreme Court nominations became national elections without a popular vote (by people who can't name a single justice).

The nomination of Clarence Thomas by George H.W. Bush took a similar path, but he eked out an appointment, 52-48, after an extremely emotional and divisive hearing.

Since then, the partisanship has extended even to federal district court nominations, prompting Democrats, who then controlled the Senate, to change the time-honored rules and stop debate on lower-court nominations, but not Supreme Court nominations. 

Now Majority Leader Mitch McConnell appears ready to use the "nuclear option" and halt debate with a simple majority vote on Supreme Court nominees. If that happens, the Republic will not fall, but this change will likely only make the nomination process more partisan and divisive.

Race, testing and hiring: It's complicated

Only a week after dodging a racially charged controversy in a Voting Rights Act challenge, the Supreme Court on Monday grabbed the high-voltage issue and declared that fear of a racial discrimination lawsuit is no reason to discriminate on account of race. The case involves New Haven, Conn., firefighters who studied for and passed a promotion exam, only to have the city throw out the professionally designed test because no African-Americans passed the test.

The court ruled, 5-4, in favor of the white firefighters, who claimed they had been discriminated against on account of their race. Given the facts of the case, it's hard to conclude otherwise. The city had a consultant design a promotion exam that would be racially/culturally neutral. Firefighters took the test. Upon discovering only white firefighters qualified for promotion and fearing a racial bias lawsuit by minority firefighters who scored lower on the test, the city of New Haven threw out the results and declared that the exam would not be used in the promotion process. No one denies that the city's decision was based on race.

The fundamental problem lies in civil rights law. Federal law prohibits not only "disparate intent," i.e., deliberate discrimination on account of race, but also "disparate impact" — anything that affects racial groups differently. Although New Haven had no intention of discriminating against minority firefighters, its promotion exam, professionally designed and carefully cleansed of any racial or cultural bias, did have a disparate impact. The city found itself in a "damned if you do, damned if you don't" situation.

The court's majority focused on the fact that, once the test results were in, the city's subsequent reactions were based on race. Justice Ruth Bader Ginsburg and three colleagues argued that disparate intent and disparate impact are complementary and, therefore, New Haven' actions were justifiable. It's hard to imagine how the city could create a new exam or promotion process without risking disparate impact.

Civil rights law has led to an exponential complication of the hiring process, especially in large corporations and governments. Each step of the process must be carefully vetted for any possibility of racial or cultural bias, and only tangible, documentable evidence can be used as a basis for hiring. New Haven's promotion test counted for 60 percent of the promotion consideration, for example. But, generally speaking, people are not hired to take tests; they are hired to perform tasks, manage others or delegate responsibilities. Tests might give an indication of occupational knowledge and familiarity with management processes, but it's hard to design a test that assesses one's work ethic, interpersonal skills, work demeanor and ability to get along with others. Those attributes often are the difference between success and failure in any job. I once told a somewhat under-qualified job applicant that if I hired her to be a reporter, I could teach her to write, but I couldn't teach her to work. To learn to write, she would have to be a hard worker, and that's an attribute neither I nor a college degree could grant her. She assured me she would be a hard worker; I hired her, and she did very well in the job as she worked hard at learning to write. Had I gone entirely by the applicant's experience and test scores, I probably could not have hired her.

A good hiring decision sometimes comes down to a gut feeling, the positive impression that someone makes in an interview, but it's impossible to defend a gut feeling against a claim of bias.

Court gives Voting Rights Act a reprieve

The U.S. Supreme Court dodged a valid constitutional issue Monday, and the civil rights establishment dodged a bullet. The court ruled, 8-1, that a utilities service district, which did not exist in 1965 but was nonetheless subject to the 1965 Voting Rights Act, could ask to be exempted from the law. Therefore, the court need not decide whether the Voting Rights Act's punitive provisions were constitutional.

This narrow ruling saves the VRA from a constitutional test that it almost certainly would lose. The challenge to the 44-year-old law by the Northwest Austin Utility District created a perfect vehicle for testing the constitutionality of the Voting Rights Act. It seemed clear at oral arguments that a majority of the court doubted the constitutionality of the law, but the court's conservatives, except for Justice Clarence Thomas, were reluctant to strike down a law that has transformed American elections (see Barack Obama, 2008). It seems likely that this reprieve for the VRA was the work of Chief Justice John Roberts, who wrote the majority opinion signed onto by conservative and liberal justices.

Section 5 of the law presents several problems. The law singles out several electoral districts (whole states or individual counties, mostly in the South) for special treatment. These electoral districts must pre-clear any changes in election laws or procedures through the U.S. Justice Department. This singling-out conflicts with the equal protection clause of the 14th Amendment, the very clause upon which much civil rights legislation is based. The law also usurps the authority of the states to determine their own election procedures, as specified in the Constitution.

The most glaring problem with Section 5 is that it pretends nothing has changed since 1964. The affected jurisdictions are those where minorities were under-represented in voter registration in 1964. When Congress reauthorized the Voting Rights Act for another 35 years in 2006, it did not re-examine voter registration to determine which jurisdictions were discriminating against minorities. It used the 42-year-old voter statistics from 1964. Anyone who thinks electoral politics in the South has not changed since 1964 is disconnected from reality.

With its diplomatic decision not to rule on the constitutionality of an iconic landmark of civil rights, the court has given the Voting Rights Act a reprieve, but Congress should take the hint and revise the VRA. Its provisions for ensuring fair and open voter registration and voting should remain, but its pre-clearance provision should be revised to reflect current conditions, not the long-buried statutory segregation of the 1960s. Pre-clearance was designed as a means of punishing those states and other jurisdictions that refused to open the voting process to minorities and that built fanciful new obstacles each time an old obstacle was struck down. At the time, such punitive measures were probably justified, but they aren't today. Those jurisdictions are now electing minority sheriffs, commissioners, legislators and members of Congress. In many cases, minorities now control the reins of power.

The VRA includes a "bailout" provision for jurisdictions that are no longer discriminating, but that provision has been narrowly interpreted. Wilson County is subject to pre-clearance, and when I asked 25 years ago why the county, which had elected minorities at-large, did not apply for bailout, I was told that the procedure was hopeless and any effort would be futile. Since 1965, I have read, only 17 jurisdictions have successfully sought bailout.

The VRA, which has been called the most effective civil rights legislation in history, today has a primarily symbolic purpose. If Congress wants to keep that symbol in place, it must revise the law to comply with the Constitution and with simple logic before the Supreme Court has another opportunity to consider the law's constitutionality.

Supreme Court's ruling will have broad impact

Monday's U.S. Supreme Court ruling on a North Carolina voting rights case could have a profound impact on the state's redistricting and voting process, and on Wilson County's elections. A five-member majority of the court found that the 1965 Voting Rights Act, as amended in 1982, did not require the creation of electoral districts that gave minority voters a substantial share of registered voters. Only when districts could be formed with a majority of minority voters, so-called majority-minority districts, would special consideration for minority voting rights be necessary, the court ruled. The case came out of Pender County, which was divided in order to create a district with 39 percent minority registration, even though the state constitution requires that counties not be divided in creating legislative districts.

This ruling will not affect majority-minority districts, such as the 12th or 1st congressional districts, but it will likely prohibit districts with a near-majority of minority voters when maps are redrawn after the 2010 census. (The much-litigated 12th District has a plurality of minority voters but not a majority.) The ruling could affect electoral districts drawn by cities and counties, including Wilson and Wilson County. The court's ruling might even hint at the court's willingness to reconsider the efficacy an applicability of one of the Voting Rights Act's key provisions, which requires federal approval of any change to voting laws or practices in areas that had few black voters nearly 50 years ago.

Both Democrats and Republicans have made accommodations to the Voting Rights Act. Democrats have used the law to establish safe minority districts that are also safely Democratic. Republicans have abetted the shepherding of Democratic-leaning minority voters out of other districts, leaving substantially safe Republican districts adjacent to the majority-minority districts.

The court's ruling might even give some impetus to changing the city of Wilson's voting districts. The city's population is roughly divided between white and black residents. Three City Council districts are majority white. Three are safely in minority hands. The seventh is roughly evenly divided. Ever since this arrangement was implemented, with the blessings of the U.S. Justice Department's Civil Rights Division, some Wilson voters have complained about being able to vote for only one council member. But few City Council members are willing to risk the political upheaval that a change would entail.

Wilson County, which has a larger percentage of whites, has divided the County Commission with three majority-minority districts and four majority-white districts. The Wilson County Board of Education uses the county's electoral districts.

In a nation that has just elected an African-American president, this concentration on the race of voters seems archaic. The court's majority admitted Monday that racial discrimination is not just a historical fact, but three of the five justices were unwilling to go too far in setting aside legislative seats for minorities. Justices Thomas and Scalia opposed all race-based considerations in redistricting.