The top officials of the U.S. Commission on International Religious Freedom –Its Chairperson, Robert P. George, and its Vice Chairperson, Katrina Lantos Swett –recently have been entering the public forum to discuss that freedom. A prior post reviewed their recent essay in the Wall Street Journal entitled “Religious Freedom Is About More Than Religion.”
The Criticism
Now in the Washington Post they have criticized the U.S. Government for its alleged failure to comply with the requirements of the International Religious Freedom Act of 1998 (“the Act“). They assert that the statute requires all administrations to conduct annual reviews and designations of “countries of particular concern,” defined as those governments engaging in or allowing ‘systematic, ongoing, egregious” violations.’” Unfortunately, they continue, “neither Republican nor Democratic administrations have consistently designated countries that clearly meet the standard for offenders.”
Now, the Commission leaders say, “a key deadline for action [is] arriving this month, [and] it is time to confront this unwise failure to act.”As a result, they ask Congress to press the executive branch “to apply the International Religious Freedom Act fully and the country designation process decisively.”
Analysis
George and Swett apparently refer to section 402 (b)(1) (A) of the Act, which states:
“Not later than September 1 of each year, the President shall review the status of religious freedom in each foreign country to determine whether the government of that country has engaged in or tolerated particularly severe violations of religious freedom in that country during the preceding 12 months or since the date of the last review of that country under this subparagraph, whichever period is longer. The President shall designate each country the government of which has engaged in or tolerated violations described in this subparagraph as a country of particular concern for religious freedom.”
Guidance on this requirement is provided in section 402(b)(1)(B) of the Act, which says that such presidential review “shall be based upon information contained in the latest [State Department} Country Reports on Human Rights Practices, the [State Department’s] Annual Report [on International Religious Freedom], and on any other evidence available and shall take into account any findings or recommendations by the [U.S.] Commission [on International Religious Freedom] with respect to the foreign country.”
Given these statutory provisions, I think George and Swett erroneously say that various administrations have failed to comply with section 402 (b)(1)(A) of the Act. That provision, as I read it, invests the president with the exclusive authority to make the determination of whether another country has “engaged in or tolerated particularly severe violations of religious freedom.” In so doing, the president determination shall be based on any available evidence, including said reports by the State Department and the Commission.
Moreover, Ms. Swett undercut her and Mr. George’s criticism when she acknowledged the Commission has limited authority when compared with the U.S. Department of State and implicitly the U.S. President.
In an interview about whether or not the U.S. should grant a visa to an Indian politician, she said, “The State Department has a more difficult job than we do because they are balancing American security interests, American commercial interests, American cultural interests, American exchange interests, a whole range of diplomatic interests, and one of the things that they are putting into that mix is the defense of our fundamental values, human rights and religious freedom and other such things. Because of its much larger portfolio the State Department cannot be as single-minded as we are.”
Maureen Dowd of the New York Times on April 21st criticized President Barack Obama. She said “he still has not learned how to govern” and “doesn’t know how to work the system.” The next day a similar critique was made in the Times by two “reporters”–Michael Shear and Peter Baker–that used the bullying President Lyndon Johnson as a model of what a president should do in these circumstances.
I disagree with these criticisms, and my letter to that effect was published in the Times on April 24th. I said,
“Maureen Dowd asserts that President Obama ‘still has not learned how to govern.’ I disagree.
Last week the Senate, by a good majority, voted in favor of expanded background checks and making straw purchases and gun trafficking a federal crime. Those votes were attributable, in part, to strong advocacy by Mr. Obama and Vice President Joseph R. Biden Jr.
The true outrage lies in two places.
First is the Senate’s filibuster rule, which is being used by the Republicans to require a supermajority vote of 60.
Second is the Republican senators’ determination to prevent Mr. Obama from accomplishing anything. Remember Mitch McConnell’s statement in the last Congress that his top priority was to stop Mr. Obama’s re-election.”
This letter was a synopsis of my post, The Outrageous, Dysfunctional U.S. Senate, and my previous blog posts criticizing the Senate’s filibuster rule and the Republican Senators’ obstructionism.
Two columnists for the Washington Post–Greg Sargent and Jonathan Bernstein–also have taken vigorous exception to the opinions of Maureen Dowd and Messrs. Shear and Baker.
Sargent sees this recent criticism of Obama as focusing on his alleged failure “to put enough pressure on red-state Democratic Senators like Mark Begich.” However, says Sargent, even if all four of the red-state Democrats [who voted against the measure instead] had voted for the measure, it still would not have passed because of the 60-vote requirement of the Senate’s filibuster rule. Moreover, if these four Democrats “were basing their vote in the calculation that they need to achieve distance from the president and signal cultural affinity with their red state constituents, as many have speculated, any open pressure [by Obama] would only make the vote harder for them.”
The plain conclusion for Sargent was “the Republican Party — and the 60 vote Senate — are the prime culprits in the killing of [the bi-partisan background-check bill].”
Bernstein has had enough of others comparing Obama to President Lyndon Johnson. Bernstein pointed out the following reasons why such a comparison is inappropriate:
The situation for Johnson was very different. He had huge majorities in both chambers of Congress, and in the aftermath of a presidential assassination, there was a strong national desire for unity and action.
In the mid-1960s, political parties were much weaker and not as polarized as today.
Although Johnson faced filibusters on key civil rights legislation, he did not face filibusters on every single thing he proposed. Nor did he have to fight a dedicated partisan opposition over every judicial and executive branch nomination.
Obama, on the other hand, to get anything through the Senate needs the votes of Republicans, every one of whom has strong partisan incentives to oppose him. Johnson really never faced anything like that.
“Generally, the political science literature on presidential persuasion emphasizes how little presidents are able to accomplish when it comes to swaying votes in Congress.
“Johnson wasn’t just any president; he was a president who had been a very effective Senate Majority Leader. He came to the White House with years of relationships with many senators; to the extent he was successful, it’s probably not something that’s easy for anyone else to duplicate.”
“Johnson’s bullying style was successful … for a while. By the end of his presidency, it wasn’t working any more. Getting a reputation as an effective negotiator has a lot of advantages, but getting a reputation as a bully who can’t be trusted creates a lot of problems — even if bullying can be effective in the short run.”
I, therefore, continue to be a strong supporter of our President and a severe critic of the dysfunctional U.S. Senate (and the House of Representatives too).
On February 27, 2013, the U.S. Supreme Court heard oral arguments in Shelby County, Alabama v. Holder, No. 12-96, which raises the following issue:
“Whether Congress’ decision in 2006 to reauthorize [for 25 years] Section 5 of the Voting Rights Act [of 1965] under the pre-existing coverage formula of Section 4(b) of [that] Act [requiring certain states to obtain preclearance from the U.S. Department of Justice or a special federal court for any changes in their election laws] exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.”[1]
As has been frequently reported, during the argument Chief Justice John Roberts and Associate Justices Antonin Scalia, Samuel Alito and Anthony Kennedy asked questions and made comments strongly suggesting that they were prepared to invalidate this statutory provision,[2] a conclusion that already had been reached by Associate Justice Clarence Thomas in a prior case. If this is a correct reading of the recent argument, then there would be at least a 5-4 majority on the Court to declare the provision unconstitutional.
According to Linda Greenhouse, a leading Supreme Court follower, the “goal of [the petitioner] Shelby County and [apparently a majority] . . . on the Supreme Court is to depict Section 5 as an anachronism, a needless cudgel held by the big bad federal government over the head of a transformed South.“
Here are just a couple of examples of that attitude from the argument.
Chief Justice John Roberts
Chief Justice Roberts asked or, as Greenhouse put it, “taunted” the U.S. Government’s lawyer (Solicitor General Donald Verrilli) with the following questions (and Roberts’ own answers) apparently to express Roberts’ belief that Mississippi has a better record than Massachusetts on black voter registration and turnout and that the Voting Rights Act provision at issue is no longer needed and, therefore, unconstitutional:
“Do you know how many submissions there were for preclearance to the Attorney General in 2005?” (Roberts: “3700.”)
“Do you know how many objections the Attorney General lodged?” (Verrilli: “There was one in that year.”)
“[D]o you know which State has the worst ratio of white voter turnout to African American voter turnout?” (Roberts: “Massachusetts.”)
“[W]hat [state] has the best, where African American turnout actually exceeds white turnout?” (Roberts: “Mississippi.”)
“Which State has the greatest disparity in registration between white and African American?” (Roberts: “Massachusetts. Third is Mississippi, where again the African American registration rate is higher than the white registration rate.”)
“[I]s it the government’s submission that the citizens in the South are more racist than citizens in the North?” (Verrilli: “It is not.”)
Roberts did not identify the source of his statistics, but afterwards the Massachusetts Secretary of State, William F. Galvin, and political scientists speculated that Roberts drew his conclusions from the U.S. Census Bureau’s “The Current Population Survey,” which collects information on voting and registration every other year. This data, however, should not be used in the way that Roberts did because of their large margins of error, as reported by Nina Totenberg of National Public Radio.
Indeed, Secretary Galvin said that Roberts’ assertion about Massachusetts and Mississippi is just plain wrong and that the only way that the Census Bureau source supports Roberts’ assertion is by including Massachusetts’ non-citizen blacks who are not entitled to vote. To do what Roberts did, according to Galvin, is “deceptive” and “a slur on black voters in Massachusetts.”
Nate Silver, the statistician, also criticizes Roberts’ trumpeting these figures about Mississippi and Massachusetts apparently to justify a conclusion that the Voting Rights Act provisions in question are no longer needed and, therefore, unconstitutional.
According to Silver, “If [Roberts] . . . meant to suggest that states covered by Section 5 consistently have better black turnout rates than those that aren’t covered by the statute, then his claim is especially dubious.” Moreover, says Silver, it is outright fallacious to conclude from this simple comparison of two states, however flawed the data, that the provisions of section 5 of the Voting Rights Act and the formula in section 4(b) are no longer needed. For example, such data say nothing about whether whatever gains have been made in racial minority voting “might be lost if the Section 5 requirements were dropped now.”
I also fault the Chief Justice for focusing on only one small piece of evidence, however flawed or subject to qualification. Instead, he should be focusing on fundamental principles of judicial restraint as repeatedly proclaimed by the U.S. Supreme Court itself and as cited by the D.C. Circuit in its opinion in this case.
These precedents emphasize that “Congress’s laws are entitled to a ‘presumption of validity’” and that “when Congress acts pursuant to its enforcement authority under the Reconstruction Amendments [including the Fifteenth Amendment], its judgments about ‘what legislation is needed . . . are entitled to much deference.‘“ Such deference is paid “‘out of respect for [Congress’] . . . authority to exercise the legislative power,’” and in recognition that Congress “is far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon legislative questions.” (Citations omitted.)[3]
Justice Antonin Scalia
Associate Justice Scalia also interrupted Solicitor General Verrilli to make this long statement:
“This Court doesn’t like to get involved . . . in racial questions such as this one. It’s something that can be . . . left to Congress.
“The problem here, however, is . . . that the initial enactment of this legislation in a time when the need for it was so much more abundantly clear . . . in the Senate, . . . it was double-digits against it. And that was only a 5-year term. Then, it is reenacted 5 years later, again for a 5-year term. Double-digits against it in the Senate. Then it was reenacted for 7 years. Single digits against it. Then enacted for 25 years, 8 Senate votes against it.
“And this last enactment [in 2006], not a single vote in the Senate against it. And the House is pretty much the same.
“Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is . . . very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. I don’t think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity . . . unless a court can say it does not comport with the Constitution.
“You have to show, when you are treating different States differently, that there’s a good reason for it. That’s . . . the concern that those of us . . . who have some questions about this statute have. It’s . . . a concern that this is not the kind of a question you can leave to Congress.
“There are certain districts in the House that are black districts by law just about now. And even the Virginia Senators, they have no interest in voting against this. The State government is not their government, and they are going to lose . . . votes if they do not reenact the Voting Rights Act.
“Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?”
These remarks are shocking and totally inconsistent with the Court’s long-established principles of judicial restraint mentioned above and with Justice Scalia’s persistently stated views about judicial interpretation of statutes.
Indeed, Scalia’s remarks provoked the Washington Post’s Editorial Board to proclaim that Scalia was in “contempt of Congress.” The editorial concluded with these words, “Congress, after careful review, came to an overwhelming conclusion that protection of the franchise in America is much improved but not guaranteed, especially in certain areas. We heard in . . . [the Supreme Court] argument no grounds for the court to claim superior wisdom on that question.”
Conclusion
What is your opinion on how the Voting Rights Act issue should be resolved? Some argue for holding that provision unconstitutional.[4] Others agree with me that the provision should be upheld.[5]
I went to the University of Chicago Law School before Mr. Scalia was on the faculty, and I have never met him. By all reports, he is a brilliant man who is gracious and funny in social settings. But his comments in this and other Court arguments along with some of his opinions lead me to believe that life tenure for Supreme Court Justices and perhaps other federal judges causes at least some of them to believe that they are omniscient.
A possible solution to such arrogance, as I suggested in a comment to a prior post, is to amend the U.S. Constitution to impose a term limit on U.S. Supreme Court Justices and perhaps other federal judges. All 50 states in the U.S. and all major nations have age or term limits for high-court judges. The International Criminal Court limits its judges to one term of nine years. Such limits are not seen as restrictions on the necessary independence of the judiciary.
The U.S. Constitution does not specifically grant life tenure to the justices or other federal judges. The Constitution merely says, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour . . . .” Paul Carrington, a Duke University law professor, has suggested that the “good Behaviour” provision was not intended to provide life-time appointments and that term limits could be imposed by statute.
[1] This issue was phrased by the Supreme Court itself in granting review of the case. Previous posts have reviewed the Voting Rights Act of 1965; the Voting Rights Act of 2006; the prior Supreme Court case regarding the latter statute (Northwest Austin Municipal Utility District No. One v. Holder); and the decision of the U.S. Court of Appeals for the District of Columbia Circuit in the Shelby County case. The transcript of the recent Supreme Court arguments in Shelby County is available online as are the petitioner’s brief, the respondent’s brief for the U.S. Government and the reply brief for the petitioner in the case. Other briefs in the case for three intervenors, 19 amici curiae (friends of the court) supporting the petitioner and 28 amici curiae supporting the U.S. Government can also be found on the web. Excellent commentaries about the case are available on the respected scotusblog.
[3] Roberts’ hostility to the Voting Rights Act apparently goes back to 1981 when as a young lawyer in the Department of Justice he was working on Reagan Administration efforts to weaken the Voting Rights Act.
[5]E.g., Room for Debate: Is the Voting Rights Act Still Needed?, N.Y. Times (Feb. 27, 2013) (Wydra; Charles & Fuentes-Rohwer; Garza; Smith), supra; Savage, Decision on Voting Law Could Limit Oversight, N.Y. Times (Feb. 28, 2013), supra.
An editorial in the Washington Post admits that the Senate’s filibuster rule is broken and needs revision, that the Republican Senators have been abusing the rule, that the proposed changes by Senator Harry Reid are “rather restrained; if anything, they would go not far enough” and that the Republican opposition to these changes is “overblown.”
Nevertheless, the Post declares that “using the nuclear option [adoption by a simple majority vote] is the wrong way to achieve these changes.” Instead, the editorial urges Reid “to try, again, to negotiate. Surely the two leaders could craft a set of bipartisan rules changes that would ease gridlock while being tolerable to whatever side, in a future Congress, finds itself in the minority.”
Sorry, Washington Post, I am not persuaded. There is no indication that the Senate Republicans are willing to even discuss Reid’s “rather restrained” proposals. If they want to negotiate the changes, they could initiate such discussions by simply calling Senator Reid and asking to do so and by making any counter-proposal they wish. Given the “overblown” Republican rhetoric about the “rather restrained” Democratic proposals, it is ridiculous to urge such negotiations.
The Post does not even discuss the constitutional basis for adopting the rules by a simple majority vote. Under Article I, Section 5(1) of the U.S. Constitution, a majority of the Senate “shall constitute a Quorum to do Business.” Under Article I, Section 5(2) of the Constitution the Senate has the power to “determine the Rules of its Proceedings.” (Emphasis added.) This necessarily means that the Senate may establish such rules by a simple majority vote.
Furthermore, to achieve reform of the filibuster rule under the existing Senate rules would require all 53 Democratic and the 2 Independent Senators plus 12 Republican Senators to vote for the change. No one has suggested that is even remotely possible. As a result, the approach advocated by this editorial would leave the Senate with what the Post admits is a broken filibuster rule that needs revision.
In the same issue of the Post is an article by one of its regular columnists, Katrina vander Heuvel, contradicting the editorial and calling for adoption of filibuster reform by a simple majority vote.
Vander Heuvel also points out the work of a broad coalition of public supporters for such reform under the name “Fix the Senate Now.” Organized by the Alliance for Justice, the Brennan Center at New York University, the Communications Workers of America, Common Cause, the Sierra Club and the United Auto Workers, this coalition in December 2010-January 2011 organized over 40,000 calls to Senate offices, more than 100,000 petitions and many editorials in support of such reform. Its website has many useful resources.
Finally the Senate Republicans abuse of the filibuster this session has not yet ended. Last week the Republican Senate Steering Committee sent a letter to all Republican Senators that it would not grant unanimous consent to passing bills this month if they were not first sent to the Committee by December 18th.
