Published Tuesday, November 30, 2005, in Washington Times

Biden's risky business

By John R. Lott, Jr.

Could a single word in a 1985 job application letter generate a filibusteragainst Supreme Court nominee Judge Samuel Alito? Sen. Joseph Biden, Delaware Democrat, seems to think so. Mr. Biden warned on "Meet the Press" last Sunday that "then clearly, clearly, you'll find a lot of people, including me, willing to do whatever they can to keep him off the court." It was a matter that concerned him much more than Judge Alito's views on abortion or racial quotas.

If Mr. Biden carries through on his threat, it might result in the opposite of what he intends: Instead of embarrassing Judge Alito, such questioning may actually show Americans how much the Supreme Court has made up its own laws.

The 1962 Warren court case that Mr. Biden is concerned about, Baker v. Carr, is often referred to as establishing the principal of "one man, one vote." It involved legislative districts in Tennessee, where state representatives and senators representing more rural parts of the state had fewer constituents than those in faster-growing urban areas. Many states used to assign state senators by county, just as U.S. Senators are assigned by state, and there were wide discrepancies in how many constituents a state Senator represented.

Many liberals disapproved of these arrangements because the rural less-densely populated parts of states tended to be much more conservative than urban areas. The Warren court struck down these legislative districts as unconstitutional violations of the 14th Amendment's Equal Protection Clause. Much academic research has found that state governments grew much faster after urban areas got relatively more political strength.

Yet, the Supreme Court's decision in Baker and a later similar decision in Reynolds v. Sims surely would have shocked the authors of the 14th Amendment. As the widely revered Justice John Marshall Harlan wrote in dissent, the claim that the court could not find "any possible justification in rationality" made no sense. He pointed to one obvious benefit: political stability. He could have pointed to others, such as avoiding the current redistricting messes that many states find themselves embroiled in.

Many states had made political compromises in setting up their constitutions that were extremely similar to the compromises made in setting up the U.S. Constitution. It is hard to see those compromises as producing any more of an extreme outcome across legislative districts within a state than we currently see federally across states. Today, Wyoming and California both have two U.S. senators even though Wyoming has only about a half-million people and California has around 36 million.

If senators were all required to represent the same number of people, Mr. Biden's own state of Delaware would be much too small. Each two senators should represent almost 6 million people, while Delaware "unfairly" gets away with two senators for just 830,000 constituents. Having just two senators represent Delaware plus Maryland would come a lot closer to a "fair" distribution of senators.

For that matter, extending Mr. Biden's logic, we might as well do away with states for determining congressional districts as well. Using 2004 population estimates, if all congressional districts had the same number of people, there would be about 675,000 people per district. Yet, Montana gets only one representative for 927,000 people and Wyoming gets one for just a half million.

Some on the left, such as the Daily Kos, have already started labeling Judge Alito as "racist" because of his 1985 job application's single-word reference to "reapportionment."

Hopefully, Mr. Biden's selective moral outrage will produce some very educational exchanges. After all, did Mr. Biden ever put forward legislation to stop the unfair practice of giving Delaware and other small population states overrepresentation in the Senate? It will be interesting to see how he attacks Judge Alito without facing such obvious hypocrisy.

* John R. Lott Jr., the author of "More Guns, Less Crime," is a resident scholar at the American Enterprise Institute

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