The Trail: A Daily Diary of Campaign 2008


Supreme Court

Senators Warn Court Against 'Activism' on Voting Rights Law

By Robert Barnes
The Supreme Court hasn't even ruled in its examination of the constitutionality of a key provision of the Voting Rights Act, but key senators are already warning that a decision striking down the law will be seen as "conservative activism pure and simple."

That was the phrase used by Senate Judiciary Committee Chairman Patrick Leahy (D-VT.) in a speech to the law school at the University of the District of Columbia. Questions about Supreme Court nominee Sonia Sotomayor's impartiality ring hollow, he implied, based on the performance of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito, the court's two newest members, both nominated by President George W. Bush.

"For all the talk about 'judicial modesty' and 'judicial restraint' from nominees at their confirmation hearings, we have seen a Supreme Court these last four years that has been anything but modest and restrained," said Leahy.

Leahy, like others who watched the April 29 oral arguments in the Voting Rights Act case, said the majority of the court seemed skeptical about Congress's overwhelming votes in 2006 to reauthorize the act and its provision that some states, mostly in the South, must receive advance approval from federal authorities for any change in their election laws and procedures. But Leahy said the finding that Congress had overstepped its authority would be a radical departure for the court.

"Since the initial court challenges in 1966, whenever the Supreme Court has reviewed or even cited to the Voting Rights Act, it has affirmed the Act as a valid exercise of congressional authority. The court should not depart from these precedents," Leahy said. "Striking down the Voting Rights Act would be conservative activism pure and simple."

Leahy is not the only senator with his back up. Newly turned Democrat Arlen Specter of Pennsylvania today released a letter he sent to Sotomayor that outlines questions he wants her to answer at her July hearings about "the adequacy of congressional fact finding to support legislation." But it is as much a complaint about Roberts and a court increasingly dismissive of some of Congress's conclusions.

Specter said that Roberts, at his 2005 confirmation proceedings, said that judges sometimes "transgress into the area of making a law" when they are "in a position of re-evaluating legislative findings, because that doesn't look like a judicial function." He added: "It's not our job. It is your job."

But Roberts during oral arguments in the Voting Rights Act case aggressively questioned whether Congress's prescriptions for protecting minority voting rights "are sweeping far more broadly than they need to."

Such statements, Specter wrote, "suggested a very different attitude on deference to congressional fact finding than he expressed as his confirmation hearing."

The court's decision in Northwest Austin Municipal Utility District Number One v. Holder is expected to be one of the last the court issues before finishing its work at the end of the month.

Posted at 4:51 PM ET on Jun 17, 2009  | Category:  Supreme Court
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What Congress needs to do before we get a new President is put a limitation on the terms of Supreme court justices. It's obvious that the latest picks under Bush weredesigned to hold back progress with an clandescent form of ultra conservatism meant to eat at the very fabric of the current social structure. Justices should not be able to serve for life, esp since it's obvious that the recent picks aren't as dynamic as the constitution itself.

Posted by: lidiworks1 | June 18, 2009 9:22 AM

Senator Patrick Leahy (D-VT) was one of the key figures who has helped to inject partisanship into the Supreme Court and who has helped to make the confirmation process for Supreme Court justices the ordeal that it is today.

It has led to stealth nominees who have to hide their light under a bushel to avoid having a confirmation fight. Previously, the Senate would show deference to the president's nominees unless they were clearly unqualified. Under this system, the court would be balanced over time as Democratic and Republican presidents would come and go and we would get the best legal minds on the court instead of someone who was "confirmable."

Now, like everything else in politics, the selection of Supreme Court justices is just another partisan political game.

I hope the Senator told the law graduates that he has set the stage for a generation of mediocrity on the Supreme Court. Nice work, Senator.

Posted by: danielhancock | June 18, 2009 1:44 AM

As a pre-empt to a comment by JakeD, since his criteria of professionalism is opposition to abortion these four intemperate men would be leaders of the community. JakeD can't think beyond the abortion issue. Could it be he has experienced a botched abortion?

Posted by: Gator-ron | June 17, 2009 5:43 PM

The four conservative judges ruled that giving a supreme court judge 3 million dollars should not be considered as undue influence on that judge. Their concern was there would be a backlog of cases if judges had to recuse themselves if large contributions were considered a reason for recusal. The poor unimaginative souls could find no other way to prevent the back log.

I suppose those same four justices would consider that having one's spouse as a litigant would not be cause for recusal, unless the judge were having sexual relations at the time the judgement is being rendered.

These four are an embarrassment to the court.

Posted by: Gator-ron | June 17, 2009 5:39 PM

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