November 14, 2005

Judge Alito as an Opponent of One Person, One Vote?

Today the Reagan and Bush (41) libraries released a small set of documents related to Supreme Court nominee Samuel Alito. What has received the most attention so far is this job application for a senior Justice Department position in the Reagan White House, because of the nominee's statements about abortion. But the application (pdf page 15) also includes the following sentence (thanks to Sam Hirsch for pointing this out to me): "In college, I developed 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." (emphasis added)

It would not surprise me at all for this reference to reapportionment to become a major issue in the campaign against Judge Alito, with an effort (fairly or not) to paint him as an opponent of the one person, one vote rule and voting rights. This tactic was attempted against Judge McConnell when he was up for a 10th circuit judgeship, where the People for the American Way accused him of opposing the one person, one vote rule. (See page 2 of this response by Professor Doug Laycock to the charges.) The charges against Judge McConnell were easy to rebut because his writings made clear that he did not oppose the reapportionment cases of the Warren Court---only the way in which the Court went about dealing with grossly malapportioned districts. (McConnell would have used the Guarantee Clause rather than the Equal Protection Clause, and would have allowed more deviations from strict mathematical equality than allowed by the Warren Court.)

But the statement made by Judge Alito against the Warren Court's reapportionment precedents is unqualified, allowing opponents to charge that he would go back to the days of severely malapportioned districts--and all the potential bad consequences for representation that accompany large disparties in voting power. I suspect this issue will be probed at the confirmation hearings, and could prove important.

Posted by Rick Hasen at November 14, 2005 02:16 PM