First off, thanks to Rick for providing this forum. As Heather and Dan and Rick‘s posts make clear, this is a most useful venue for thought-provoking discussion. At the moment, though, I’d like to move us away from Dan and Rick and Heather’s discussion of the schism between academia and the civil rights community and instead focus on the portion of the extension bill that reverses Georgia v. Ashcroft.
There are certainly plenty of reasons that have been proffered both for and against reversing Ashcroft. Some of these reasons relate to the continuing constitutionality of Section 5, other reasons relate to the great debate over which is better, substantive or descriptive representation, and still other reasons relate to the debate over clear rules versus fuzzy standards (and the closely related possibility that Ashcroft‘s fuzzy standard allows for more partisanship in DOJ’s administration of Section 5).
On this latter point, I’d like to toss out the following intentionally provocative question to think about: If a problem with Ashcroft is that it does not provide a clear rule for DOJ to administer, isn’t the lack of a clear rule for DOJ to administer also a reason not to reverse Bossier Parish II? Put differently, isn’t unconstitutional discriminatory purpose a murky totality of the circumstances test in the same vein that Ashcroft is a murky totality of the circumstances test?
Of course, there could be some basic distinctions to be made. For instance, one might argue that there is more precedent (both from DOJ objections and federal court decisions) in the realm of unconstitutional discriminatory purpose and that these precedents will serve to cabin discretion by DOJ. One might also argue that the benefits of objecting to changes that are unconstitutionally discriminatory in purpose far outweigh the costs of using a murky standard. Perhaps these distinctions (and there are sure to be others) are ultimately convincing. But, at least at first blush it would appear that the consequence of reversing both Ashcroft and Bossier II is that Section 5 will continue to contain a murky totality of the circumstances standard that could give partisan politicians the ability to act like, well, partisan politicians.
Lest this post be misunderstood, I’d like to make clear that I think it makes sense and is eminently defensible for Congress to reverse Bossier II. I’m merely wondering out loud whether the same argument about clear rules and murky standards that has been used to criticize Ashcroft could apply in the context ofBossier II.
More on Ashcroft to come…
-Mike Pitts