Posted on 12/03/2003 6:44:11 AM PST by Theodore R.
Cries of bias greet remapping ruling Partisan vote fuels debate over politics in court
By Chuck Plunkett and Howard Pankratz Denver Post Staff Writers
By breaking along party lines in its redistricting decision Monday, the Colorado Supreme Court provided a reminder of the clanging public debate over partisan judicial activism that started with the 2000 presidential contest.
In rejecting a new GOP plan for how congressional districts are to be drawn in Colorado, the court's five Democratic members voted on the opposite side from its pair of Republicans. In doing so, the court opened itself to criticism from Republicans, and some legal experts.
"I think it's a shame - a real shame - that this came down in that way," said Michael Ratner, president of the Center for Constitutional Rights, in New York.
"Let's say the Democrats might have been right," Ratner said. "You could say, 'Yeah, this is legal.' But because none of the Republicans joined them, it looks like it's a partisan decision."
Advertisement
Colorado Supreme Court judges are appointed by the governor through a complex nominating procedure meant to strip politics from the process. But governors are political, and tracking the affiliations of appellate judges is as old a sport as politics itself.
Still, experts point to historic examples they say illustrate the necessity of court involvement in redistricting questions.
"There is a long tradition of the courts overlooking legislatures in the areas of reapportionment," said former Gov. Dick Lamm, a Democrat.
"Reapportionment is absolutely, totally political," Lamm said. "There has been terrible gerrymandering, abuse of civil rights, unequal districts. If there is anything you should not leave to the legislature unsupervised it's reapportionment. In terms of where modern democracy should be, we'd be back in ancient times if it wasn't for the courts intervening."
An often-cited example is the U.S. Supreme Court's decision in Baker vs. Carr. The 1962 decision gave courts the power to decide the constitutionality of congressional districts. Justices had found that several states were using outdated district maps to exclude blacks from voting and representation.
Prior to that ruling, the courts had considered the job of drawing congressional maps a "political thicket" they declined to enter.
So no one is questioning the Colorado court's unanimous decision to take the case.
But by breaking along party lines, the court has stoked the controversy surrounding the U.S. Supreme Court's involvement in Bush vs. Gore.
"You have a situation that is open to people saying, 'This is an obvious political decision,"' Ratner said. "'How can we trust the courts to decide this?"'
Ratner said a high court in reality has two responsibilities, and only one of them lies in deciding right from wrong.
The second is for a court's members to be able to compromise, and craft decisions that provide a sense of finality and a sense of comfort to people that justice has been served.
"Law is really about avoiding people picking up their fists and hitting each other," Ratner said. "In my view the courts are giving up their responsibility, unless they can come up with a way that makes people satisfied that they're a fair arbiter. And I don't think you make yourself a fair arbiter by voting party politics."
Other legal observers agreed.
They point to another civil rights-era decision, in which justices opted to present a united front and vote 9-0 in favor of desegregating the nation's schools. They were only able to do so, experts say, by compromising certain positions and crafting their decision in such a way that, overall, the members could agree.
But that was a civil rights decision handed down by nine white justices in support of minority rights. When judges enter politics, as they did Monday in Colorado, compromise can be tougher to find.
"This is one of the reasons that I am particularly frightened about courts getting involved in political disputes," said Nathaniel Persily, professor of law at the University of Pennsylvania Law School. "Because it naturally leads people to question the motivation of judges and question the integrity ... and the independence of the judiciary."
Some crossover among the justices from each party would have helped in Colorado, Persily said. He added that, using Colorado's laws, he could make valid arguments both for and against Monday's ruling.
The court ruled that redistricting could only occur once each decade, following the findings of the census and before the first general election. The chance to redraw district lines should've occurred during the 2002 legislative session, the court ruled. Because legislators failed to redraw the districts, a district-court-approved map is to remain.
"You have a vague provision," Persily said. "It could've gone either way."
Even with the occasional decision angering partisans, the court system remains the most respected governmental body in America, experts say.
After a loss of public confidence in the U.S. Supreme Court following Bush vs. Gore, the high court has regained its respect, polls have shown.
"It looks like a very fair, deliberative process from the outside, I think," said Heather Gerken, professor of law at Harvard's law school. "It doesn't have the stench of politics. People don't get the sense that there are votes being traded like they do about Congress."
And yet, a committee of the American Bar Association has recently released a report it titled "Justice in Jeopardy," that sounds several alarms.
"Increased political involvement in the judiciary, diminished public trust and confidence in the justice system, and uncertain resources supporting the courts place burdens on the judiciary's capacity to provide fair and impartial justice," the report says.
"Indeed, the escalating partnership and corrosive effects of excessive money in judicial campaigns, coupled with changes at large and in the courts themselves, have served to create an environment that places our system of justice, administered by independent and impartial judges, at risk."
The decision in Colorado comes as Texas and Pennsylvania are preparing to fight their own redistricting questions in court.
U.S. House Majority Leader Tom DeLay led the drive in his home state of Texas to redraw lines to give Republicans six more seats.
But unlike Colorado, Texas political boundaries are subject to special review by the Justice Department to ensure they do not dilute minority voting rights. The requirements are an outgrowth of Southern desegregation.
A three-judge panel is scheduled to hear challenges to the Texas map next week, but those challenges will be moot if the map doesn't pass Justice Department muster.
On Dec. 10, the U.S. Supreme Court is to hear arguments in a case brought by Democrats who complain that Pennsylvania's partisan redistricting violated their rights.
Colorado's decision is certain to be reviewed in those cases, experts say.
"My impression is that the Colorado Supreme Court acted wisely and judiciously," said Thomas Mann, a senior fellow at the Brookings Institution, a liberal think tank. "A partisan arms race in within-decade redistricting threatens the legitimacy of American democracy much more than the court's intervention to dampen it."
Denver Post staff writers Mike McPhee and Mike Soraghan contributed to this report.
Gerymandering is ever with us.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.