Date: January 12, 2006
Senator: Cornyn
Topic:
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SPECTER: Thank you, Senator Biden.
Senator Cornyn?
CORNYN: Thank you, Mr. Chairman.
I guess I just have to express some reservations at trying to predict how Judge Alito's going to rule on the bench. I can think of famous examples where President George Herbert Walker Bush thought David Souter was going to be of a particular frame of mind or approach on the bench. I guess, who was it, Richard Nixon probably had some ideas about Harry Blackmun. And President Eisenhower had some ideas about Earl Warren.
I mean, this is -- judicial independence means something. And what it hopefully means is that exactly what the framers intended in terms of providing the flexibility, the freedom, the independence. They have life tenure. We can't cut their salary. You know, who knows? I mean, this is, I guess, a debate only lawyers can love. But it's important. But I just don't know how we can answer the question comprehensively.
Professor Issacharoff, it's good to see you again. Of course, I got to know you during your tenure at the University of Texas Law School before you came up North to NYU. But I wanted to -- you know, there's been some questions about Judge Alito's statements back about his concerns about the Warren court decisions on reapportionment. And you alluded to that in your testimony.
And, you know, the fact is our nation has a checkered history, doesn't it, in terms of enfranchising people, making sure that everyone's vote counts roughly the same? Back, I guess, at the beginning of our nation, people had to have property before they could vote. We know that some people couldn't vote at all -- African Americans. And we fought a Civil War and amended the Constitution on that. And we know that there is even today the Texas congressional redistricting case is pending before the United States Supreme Court.
But just to -- this remains the subject of a lot of interest and a lot of controversy. But I just want to make sure that we are not guilty, those of us on this side of the dais, about overstating or reading too much, I should say, into what Judge Alito has said. He said in college he was motivated by a deep interest in constitutional law, motivated in large part by disagreement with Warren court decisions, particularly in the areas of criminal procedure, the establishment clause and reapportionment. Let's talk about reapportionment, which is, I know, one of your passions and expertise.
It wasn't until 1962 when the Supreme Court decided that those issues were justiciable in the first place. Wouldn't that have been Baker v. Carr?
ISSACHAROFF: That's correct, Senator.
CORNYN: And then the principle of one person, one vote was decided in Reynolds v. Simms in 1964, I believe. Is that the right time and the right case?
ISSACHAROFF: Yes, yes.
CORNYN: And, of course, notwithstanding what some have tried to make out of what Judge Alito said, he's testified here and other areas that he considers one person, one vote a bedrock of our democracy. And he's said that's -- you know, everybody believes that. At least every American believes that today, although it was fairly controversial not that many decades ago, or at least in terms of the courts' role.
What he did say -- and I want to get your comment on this -- is that -- and maybe it was because of his father's experience, as you alluded to a little bit -- that strict numerical precision in terms of the size of districts, whether they be for city councilmen, whether it be for state representative, state senator or congressman or whatever. There's sort of the troublesome issue of how do you deal with things like municipal boundaries and communities of interest, lines that ordinarily you would think define those communities of interest in a way that you just don't want to run roughshod over. Is that a legitimate consideration on the way to try to achieving that goal of one person, one vote? Or is that just bogus?
ISSACHAROFF: I think, Senator -- and I still have the temptation to refer to you as Justice Cornyn. But, Senator, I think that it is absolutely a legitimate concern. I think that one person, one vote turns out to do two things. One, it's emblematic. It's our aspiration that everybody be equal in the political process. And secondarily and perhaps more importantly, it serves as a check on what those in power can do to try to preserve themselves in power. And that second feature of it has been difficult.
And the efforts to ratchet up mathematical exactitude have usually come in cases that were about something completely different. For example, in the New Jersey case in the mid-1980s, Karcher v. Daggett, the real issue was a partisan gerrymander. And everybody understood that. And the court didn't know what to do about it. Justices had trouble with that issue for the decade since. And so, it fell back on this extraordinary mathematical exactitude, which, in fact, is completely illusory because the census isn't that precise.
So I agree with you fully. I don't think that that was where the controversy had moved in the late 1960s. I'd stay by that statement. But nonetheless, you're absolutely right that this is a legitimate source of concern.
CORNYN: Professor, thank you. My time is up. I appreciate your response to my question. Thank you.
SPECTER: Thank you, Senator Cornyn.
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