Scalia: lawmakers are political cowards

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Commentary: Justice Scalia shows his politics
By Bob Ray Sanders, March 9, 2013

Surely by now Supreme Court Justice Antonin Scalia knows that his Feb. 27 comments from the bench about a voting rights case were at best insensitive.

At worst, Scalia's remarks had a racist tinge that was offensive to anyone who has fought against discrimination in this country, and especially to those of us who have been the victims of Jim Crow.

Ironically, the justice's statements came on the same day the nation dedicated a statue in the U.S. Capitol to Rosa Parks, the "first lady of the Civil Rights Movement." And the judicial insult occurred just a few days before commemoration of "Bloody Sunday," that march for voting rights in 1965 in which demonstrators were severely beaten as they tried to cross the Edmund Pettus Bridge in Selma, Ala.

That brutal attack on peaceful demonstrators on March 7, 1965, coming just a few months after three young voting rights workers were slain in Mississippi, set official Washington moving toward passing a bill to ensure and protect the right to vote for all citizens.

Just 10 days after the attempted march from Selma to Montgomery, President Lyndon Johnson sent a bill to Congress. The Voting Rights Act passed on Aug. 4 of that year, and Johnson signed it on Aug. 6, proclaiming it "a triumph for freedom as huge as any victory that has ever been won on any battlefield."

Congressional passage was overwhelming: 328 to 74 in the House; 79 to 18 in the Senate. Scalia especially should take note, because he's expressed concerns about the intent and courage of Congress on this matter.

The battle Johnson fought in 1965 is still being waged today as cities and states (Texas included) have continued to devise schemes to discourage, deny and suppress voting among some minority groups.

Realizing that there might be attempts to circumvent the law, Congress included Section 5 in the Voting Rights Act, requiring certain states and subdivisions (eventually including Texas) that had a history of voter discrimination to get "preclearance" from the Justice Department or federal court in Washington, D.C., before making any changes in their voting rules.

Since its approval, the act has been reauthorized four times, the last being in 2006, when lawmakers overwhelming extended Section 5 for another 25 years to 2031. The House vote was 390 to 33, and the Senate passed it 98-0.

Some say because of progress, particularly in the South, there is no more need for Section 5. Others say, because voting suppression occurs in states not covered by Section 5, the provision ought to be expanded.

That's a debate we can have, and one that is occurring in the Supreme Court as a result of Shelby County (Alabama) v. Holder. It was during oral arguments in that case, which aims to have Section 5 declared unconstitutional, that Scalia showed his politics and his prejudice.

And for a strict constitutionalist (or "textualist") who believes Congress should make the laws, the long-serving justice seemed to want to do what he thinks members of Congress are afraid to do.

While acknowledging that this issue is one that should be left to Congress and that lawmakers had overwhelmingly approved it, Scalia suggested that the only reason Section 5 continues to be supported is because lawmakers are political cowards. The reason, he surmises, is because of "a phenomenon that is called perpetuation of racial entitlement."

He implied that the court should knock down this provision to give Congress cover, saying, "Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes."

Since when did protecting the right to vote become a "perpetuation of racial entitlement?" This is not affirmative action we're talking about, but a constitutionally guaranteed right.

Although I've gotten used to Scalia's conservative pontifications, I never thought I'd hear such a blatant prejudicial rant coming from a sitting member of the highest court in the land.
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