Scalia should resign

Patrick O’Heffernan, Host, Fairness Radio

Yesterday’s testimony at the Supreme Court on the Voting Rights Act was historical for many reasons.  The 1965 VRA is the law that Congress passed in response to the 15th amendment, which was ratified 97 years earlier.  In other words it took Congress 97 years to develop the courage, information and creativity to craft a bill to protect the foundational right of our democracy.

It was also historic in than it comes at a time of increased attempts to suppress votes of minorities – not just blacks, but Hispanics, Asians and anyone else who is not white and Republican.  The motivation for this suppression is as much partisan as it is racist, but the outcome is the same…fewer voters of color and fewer faces in the Congress and state legislatures and city councils that look like America today.

But it was also historic for the words of Justice Scalia.  Scalia  told Donald Verrilli, the Administration lawyer defending the VRA, that Congress could not be trusted to amend the VRA because it  is a “racial entitlement” and Congress cannot get out of obsolete racial entitlements through the normal process, so it is up to the courts to eliminate them.

There was a gasp in the courtroom and in the lawyers lounge where attorneys were listening to the proceedings.  A Supreme Court Justice had called the 1965 VRA the “perpetuation of a racial entitlement.”

Justice Scalia, with all due respect, the Voting Rights Act is not a racial entitlement; it is the Constitutionally demanded shield protecting an American Constitutional right.  It is the Act of Congress called for in Section 2 of the Fifteenth Amendment to guarantee for all Americans the foundational right – not an entitlement, but a right – that underpins this and every other democracy around the world modeled on our Constitution.

Fifty people were beaten to near death on Bloody Sunday, March 7, 1965,  marching for their right to vote.  Twenty-five thousand people – including Dr. Martin Luther King – took up their fallen banners and completed the march with Federal troops guarding them.  Four people were bombed and died later on defending their right to vote after the march.  Others were shot or hanged or run over trying to register black people to vote.

President Johnson signed the Voting Rights Act into law in memory of the blood shed by the people who were beaten and died on the Edmund Pettis bridge that day and afterwards defending the right to vote.  Voting is not an entitlement  to be given or withdrawn at the whim of whatever party is in power in Congress or a state legislature. It is the foundation of everything America stands for: equality, democracy, popular election of the government and its accountability to the people.  People died for it, for us, so that we can live in a democracy.

That includes you, Justice Scalia.  You took the same oath to uphold the Constitution, including the 15th Amendment, that President Johnson did.  Bloody Sunday is part of your national history.  Jimmie Lee, whose death at the hands of an Alabama state trooper led to Bloody Sunday,  died so that you could live in a true democracy and rise to its highest court.  The little children blown to bits in a southern church by people who didn’t think Negros should vote died for the democracy you live in today, for the Court that has room for your black and female and Hispanic colleagues.

The fact that you don’t know that;  the fact that you see voting as an entitlement, not a right – the most important right in the Constitution – disqualifies you from the bench. Your 1950’s conservative ideology has blinded you to the history and the basic premise of American democracy.  And your partisanship has led you to an insult to the memory of those who were beaten and fire-hosed and whipped and shot and killed to enshrine this right in the Constitution that you are supposed to know and understand and protect.

You should apologize to every American and especially to those whose deaths gave us the Voting Rights Act.  And then you should resign.