Thursday, February 28, 2013

Justice And Records

Before we get to one of the most important questions regarding Wednesday's Supreme Court hearings, we hope you'll excuse us if we take a moment to gloat - with a purpose.

As we repeatedly said, time, and time, and time again over the last two months, Chuck Hagel would be our next Secretary of Defense. Legions of pundits on both the left and right kept saying those like us were foolish, and many in the GOP kept stabbing their former colleague in the back. Yet on Wednesday morning, former U.S. Senator from Nebraska Chuck Hagel was sworn in to became the 24th Secretary of Defense of the United States. We were also proven right on another nomination we said would succeed, that many said would fail - that of Jack Lew for Treasury - who was confirmed solidly by the Senate on Wednesday.

It's not just for the sake of our egos that we begin today with this very public embarrassment of our critics. If that were the case, we might also dwell on both their opinions and ours prior to, and surrounding the Supreme Court's decision on ObamaCare in the summer of 2012.

Instead, we want to move back to our initial focus today, that of the Supreme Court's hearing on the the Voting Rights Act, which happened on Wednesday.

Based on a summary from SCOTUSBlog's Lyle Dennison, Wednesday's hearings were longer than normal. As expected, the four conservative justices quite obviously wanted to strike down Section 5 of the Act, if not the entire law. The four left-leaning justices took more nuanced approaches, looking at everything from standing to constitutionality - but it was also quite obvious they would be upholding the Voting Rights Act.

Not surprisingly, Justice Scalia made an ass of himself again. Even less surprising is that much of the media focused on Scalia's theatrics instead of focusing on what was really important about the hearing.

Justice Kennedy, the swing vote, may not only save the Voting Rights Act - he might expand it.

According to an interview by Greg Sargent of Myrna Perez, of the Brennan Center for Justice, Supreme Court Justice Kennedy's decision on the Voting Rights Act will likely boil down to two key questions regarding constitutionality and effective remedies.

On the question of constitutionality, if Congress did not do all all the investigation, research, and debate they should have before reauthorizing the Act, the law may be unconstitutional. On the question of effective remedies, Justice Kennedy seemed very interested in the idea that Congress may not be able to limit the scope of the law to just states that have a proven problem with voting - but instead may have to expand the law to the whole nation.

The first question, of constitutionality, is actually easy to answer. As Rachel Maddow pointed out last night, when Congress approved the Voting Rights Act for another twenty-five years in 2006, they spent ten months on debate and discussion, held twenty-one hearings, and compiled 15,000 pages of research all verifying that yes - the Voting Rights Act is still, sadly, necessary. That level of due diligence blows away any doubt surrounding the answer to Justice Kennedy's first question.

The second question, however - and Kennedy's queries during the hearing - may indeed give a solid view on what Kennedy's ultimate decision will be.

Kennedy seems to want to not only keep the Voting Rights Act, but also Section 5 of the Act. Justice Kennedy also has a history of not wanting to be involved in significant judicial overreach, as he might be if The Court blew past all the work Congress did to reauthorize the Act.

Unlike many in the media who are already bemoaning the death of fair voting in America, we're siding with the experience and wisdom of Mr. Dennison and Mr Sargent on this case, and we believe the Act will be upheld when the decision is released this summer.

For those who'd bet against us, we'll be willing to put our record of judgement calls up against theirs, any time.