Sunday, June 12, 2005

Gerrymander this

Law professor and legal writer Jeffrey Rosen offers this roundabout endorsement of taking the responsibility for drawing Congressional districts away from state legislatures and giving it to nonpartisan commissions. (An idea that California Gov. Arnold Schwarzenhager has proposed for his state.)

Rosen argues that despite what liberal and conservative activists claim, recent federal court decisions--in particular Supreme Court rulings--are more representative of the wishes of the majority of the nation than the agendas of either major party. The reason, Rosen says, is that partisan gerrymandering has created ideologically pure legislative districts, creating an increasingly polarized House of Representatives. (With the Senate following suit, as many representatives go on to become Senators.) At the same time, he says, the Supreme Court, led by moderate Sandra Day O'Connor, has honed its ability to divine the political center and craft compromise decisions on a host of hot-button issues:

In other words, the conservative interest groups have it exactly backward. Their standard charge is that unelected judges are thwarting the will of the people by overturning laws passed by elected representatives. But in our new topsy-turvy world, it's the elected representatives who are thwarting the will of the people, which is being channeled instead by unelected judges.

Clearly, this is not an ideal situation. If O'Connor were still a legislator, she could be applauded for her moderation and political savvy, but Supreme Court justices are not supposed to align with the opinion polls more reliably than the Senate majority leader. Since judges are increasingly acting as political representatives of the people, it's not surprising that they are increasingly attacked in political terms. Consider the recent wave of judge bashing by Congressional Republicans, who accused judges of impeding the will of the people in the Terri Schiavo case. Never mind that in that case, it was actually the state and federal judges, rather than Congressional Republicans, whose decisions comported with the views of a majority of the public. The fact that politicians now feel emboldened to attack judges with whom they disagree suggests that the polarization in Congress may be threatening the public's respect for judges as neutral arbiters of the law.

Because Republicans are in the majority in most state legislatures, the current system benefits them the most. (Though in California they are the minority party, which is why some view Schwarzenhager's position with cynicism.) But it seems to me that no matter how you feel about abortion, gay marriage, stem cell research, etc., if you value representative government, you have to be deeply troubled by a system in which politicians pick their voters, and not the other way around.


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