REASONABLE MINDS can disagree, I suppose, on the wisdom of Georgia's new voting law. For my part, nothing about it strikes me as especially dastardly, let alone racist — and I say that after having read detailed analyses of the law's main provisions, including a 5,000-word breakdown by The New York Times that was plainly intended to be unfavorable. I haven't found the ferocious attack mounted on the law by progressive activists to be very persuasive, but I acknowledge that people of goodwill might come to a different conclusion.
That said, not every charge made by those condemning the law falls into the category of honest opinion: Some of it is just dead wrong. For example, President Biden, by way of explaining why he considers Georgia's new law to be "sick" and "outrageous" and "un-American," claimed repeatedly that it requires the polls to be shut at 5 p.m., thereby keeping working people from voting.
"You're going to close a polling place at 5 o'clock, when working people just get off?" he said in an ESPN interview. "This is all about keeping working folks, and ordinary folks that I grew up with, from being able to vote."
But as The Washington Post's fact checker concluded, this was a "Four Pinocchio" whopper, completely at odds with the truth. (The Post, it should be noted, editorialized against the new law.) Far from curtailing voting hours, the new law expands them and also adds an extra Saturday of voting.
The new law also confirms that Georgians have the right to vote absentee without having to give a reason, and it provides a three-month window before an election in which absentee ballots can be requested. It authorizes at least one drop box per county for the convenience of early voters (more populous counties can install additional drop boxes), thus institutionalizing a practice that didn't exist in Georgia before the COVID-19 pandemic. It empowers the state attorney general to set up a hotline to report any allegations of possible voter intimidation or fraud. And, yes, it prohibits activists from giving voters standing in line "any money or gifts, including, but not limited to, food and drink." These tweaks may be sound or unsound, but how anyone can honestly call them "sick," "outrageous," or "un-American" beats me.
What I really find incomprehensible, though, is the accusation that Georgia's law amounts to a revival of Jim Crow, the pre-Civil Rights racial oppression that prevailed throughout the South. It is hard to overstate what a smear and a libel that is. Second only to slavery, Jim Crow segregation and persecution was the very worst thing in American history — evil, unconstitutional, and inhumane. Jim Crow was a monstrosity in numerous ways, only one of which was the near-total denial of the right of black Southerners to vote. Eventually Jim Crow was overturned by the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, and a generation of Americans has grown up knowing of it, if at all, only through history books.
To call something "Jim Crow" is the equivalent in American terms of calling something "Nazi" — both are terms so toxic that they should be reserved only for genuine examples of brutal, totalitarian repression and cruelty. Covid lockdown critics over the past year who have likened mask requirements to the tactics of Nazi Germany weren't just engaging in hate speech. They were demeaning the memory of Germany's countless victims, and trivializing the ghastly history bound up in the word "Nazi." Any American who uses the term "Jim Crow" in the same irresponsible, incendiary manner is guilty of much the same thing.
This was Jim Crow: Walter Gadsden, a student at Parker High School, getting attacked by police dogs during a civil rights demonstration in Birmingham, Ala., in May 1963.
And yet there has been no shortage of Americans doing exactly that, from the Georgia director of the ACLU to Democratic politician Stacey Abrams to progressive legal activists to, most dismayingly of all, the president of the United States, who slammed Georgia's law as not merely the return of Jim Crow, but "Jim Crow on steroids."
I understand that politicians and polemicists routinely use over-the-top language to score points and belittle their opponents, but to casually toss about a slur like "Jim Crow" is grotesque and indecent. What occurred under the rubric of Jim Crow was little better than apartheid — and sometimes far worse . Through deceitful voting rules, enforced segregation, and the denial of due process, black Southerners were locked out of any role in the American political system. They were barred from voting, barred from seeking public office, barred from getting a decent public education, and barred from most public accommodations.
But in the 50-plus years since Jim Crow was crushed, black people in Georgia and elsewhere across the South are anything but shut out of the political system. "Georgia's congressional delegation has five black representatives and one black senator," writes Jonah Goldberg . "Its state legislature is 27 percent black. The mayor of Atlanta is a black woman. Georgia has a large and politically powerful black middle class, not to mention plenty of black celebrities and 1-percenters. Do we really believe the state is one election law away from a system of legal lynchings and separate water fountains?"
To repeat: Maybe you think that the changes adopted in Georgia's new voting statute are unsound or disgraceful; maybe you think they were deliberately designed to make it marginally more difficult for Democrats to influence elections. Maybe you even think that they were purposely crafted to make it likelier that black voters will be dissuaded from voting. Does that add up to "Jim Crow on steroids"? Only to someone utterly ignorant of Jim Crow's history — or utterly unconcerned with the truth.
To my mind, it is condescending and faintly racist to believe that nonwhite voters are less adept than anyone else at registering to vote and casting a ballot. Black voter turnout in Georgia surged in 2018 and surged last November. It surged yet again in January's runoff, which sent two new Democratic senators to Washington, including Raphael Warnock, the first African American ever to represent Georgia in the Senate. But even if you do believe that black citizens are more easily discouraged from voting than white citizens, nothing about the new law is remotely comparable to the kind of voter suppression that used to be standard in American South.
Here's a glimpse at the history of Jim Crow vote suppression.
"Before a Southern Negro [sic] is allowed to vote, he must often be 'approved' by a (white) Board of Registrars, a Board which proves difficult to locate in many county areas," reported Jack H. Pollack in The American Mercury in 1947. After filling out the necessary forms and paying the required fee, white applicants were usually approved without challenge. But for black applicants, the obstacles were just beginning. Under Jim Crow, Southern officials used "economic pressures, white primaries, poll taxes, 'grandfather clauses,' intimidation, and even outright violence to keep the ballot from Negroes," Pollack recounted. In many Southern polling places, "the visible or implied warning sign ... was: 'Negroes, Vote at Your Own Risk.'"
A favorite means of keeping black men and women from registering to vote was the bogus "literacy test." In Georgia it was common to require black applicants to "read, repeat, or interpret the Federal or State Constitution." That question was used so often that many black citizens intent on gaining the vote would go through a months-long ordeal of memorizing both constitutions, until they knew them word for word, wrote Pollack. "But as one Georgia official reflected, "Negroes can still be required to write the Constitution and then be disqualified if they leave out any commas."
Next to the Constitutional bogey, the most frequent trap "question" in Southern literacy tests is to translate — and spell correctly — obscure Latin phrases. A Negro veteran who recently tried to register in Jackson, Mississippi, was asked, "What is the meaning of Itar, E. Quar Tum Entertia Ventricular?" Shortly afterwards, another Negro was asked, "What does a writ of Certiorari, Writ Error Coraim Nobis, Subpoena Duces Tecum mean?" . . . [R]egistrars reject Negro applicants for not properly answering such "intelligent questions" as "Boy, what's the meaning of delicut status quo rendum hutt?" If the bewildered applicant ponders the phrase, the registrar continues: "Maybe that's too hard for you. Here's an easy one. If the angle plus the hypotenuse equals the subdivided of the fraction, then how many children did your mother miss having?"
In 1964, John Hersey described in the Saturday Evening Post the relentless humiliation would-be black voters continued to face in the Jim Crow South. Applicants would be kept waiting outdoors, in blistering heat, for hours on end before finally being summoned to the registrar of voters. Hersey wrote of Varsell Pleas, one in a group of 17, who was given the registration form to complete, and required to copy out and explain Section 76 of the state constitution: "In all elections by the legislature the members shall vote viva voce, and the vote shall be entered on the journals."
Pleas had been studying the constitution for several weeks, and he knew several of the 28 sections of Article 3, the state's bill of rights, by heart, but there were 285 clauses in the whole document, and he had never happened to find out the meaning of the phrase "viva voce." . . . When Pleas handed in the test, the lady in the office told him to come back in 30 days and find out whether he had passed or not. . . .
[A month later] Varsell Pleas went up to Athens and asked — knowing what the answer would be — whether he had been passed for registration. The lady in the office got out his application and she said, "No, Varsell, you didn't pass."
"Can you tell me, ma'am, just where I didn't pass?"
The lady gave both sides of the sheet a quick look, and she said, "No, it just says, 'Failed.' It doesn't say why. You just failed, that's all."
"Yes, ma'am," said Varsell Pleas, and went home. Not one of the 17 had passed.
Across the 11 states of the former Confederacy, notes historian Robert A. Caro in the introduction to Master of the Senate, part of his monumental biography of Lyndon Johnson, just 1 in 5 of the more than 6 million African American citizens eligible to vote succeeded in registering. "Of course, even those blacks who had registered to vote often didn't dare go to the polls to cast ballots, because of fear of violence or economic retaliation," Caro added. "In 1957, there were scores of counties in the South which had tens of thousands of black residents, but in which, in some elections, not a single vote had been cast by a black."
That was Jim Crow.
By all means, denounce Georgia's new law, if you genuinely think it deserves denouncing. But don't pretend that it contains anything even vaguely reminiscent of the inhuman Jim Crow obstacles that for decades deliberately disenfranchised black citizens. Georgia today has millions of active black voters, and no law tinkering at the margins with the state's election procedures is going to deny them their rights. In fact, predicts Nate Cohen , the New York Times's elections and demographics guru, "the law's voting provisions are unlikely to significantly affect turnout or Democratic chances. It could plausibly even increase turnout."
Like "Holocaust," "slavery," and "genocide," the term "Jim Crow" is drenched in a history of pain, cruelty, and lethal humiliation. Such terms should be deployed with profound and respectful care, and never merely to score a cheap political point.
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Biden won't try to pack the court
I advocate packing the House of Representatives, big time (see ICYMI), but when it comes to the Supreme Court, I am firmly in the keep-it-at-nine camp. Justice Stephen Breyer, one of the court's stalwart liberals, is firmly in that camp too, as was his late colleague, Ruth Bader Ginsburg. So is a solid majority of the American public, according to a New York Times poll last fall. And so, for that matter, is Joe Biden — or at least he was for many years before becoming president. Is he still?
The topic of court-packing bounced back into the news on Friday, when Biden issued an executive order creating a "Commission on the Supreme Court," and directing it to analyze "the principal arguments in the contemporary public debate for and against Supreme Court reform." The commission's 36 members are supposed to investigate proposals to end lifetime tenure for justices, to alter the court's rules for choosing cases, and — the biggie — to change "the membership and size of the court." Biden gave it six months to hold hearings and draft a report, though he did not ask it to come up with any recommendations.
FDR's 1937 attempt to "pack" the Supreme Court proved to be a colossal political blunder.
The current size of the Supreme Court was not set by the Constitution but by Congress, which fixed the number of justices at nine in the Judiciary Act of 1869. Anytime Congress wants to change that number, it is free to do so — and progressive Democrats, along with allies in the media, have been demanding for months that Congress do so forthwith, in order to neutralize the court's current conservative majority. The issue heated up after the Senate confirmed Amy Coney Barrett to the high court shortly before last fall's election.
But calls from the left to add more seats to the Supreme Court began much earlier than that. During the long runup to the Democratic presidential primaries, when they were asked about court-packing, Senators Elizabeth Warren, Amy Klobuchar, Cory Booker, Kamala Harris, and Kirsten Gillibrand, plus Pete Buttigieg, Andrew Yang, and Tom Steyer all said they were "open to the idea" or favored it outright.
But one Democrat disagreed. "I would not get into court packing," Joe Biden said during an Ohio debate. "I would not pack the court."
Once Biden became his party's nominee, however, he appeared to soften his opposition under relentless pressure from his left flank. After having said consistently — not just for months but for years — that he was against court-packing, he suddenly began refusing to answer when asked whether, as president, he would try to enlarge the court. A couple weeks before the election, he said he would appoint a bipartisan commission to study the matter for 180 days. I took that to mean that he was still against what he had once dubbed a "bonehead idea," but didn't want to pick a fight with his party's progressive activists in the home stretch to Election Day.
But has his view really changed?
Meanwhile, Breyer weighed in last week to urge Congress and the president to "think long and hard" about the risk that packing the court would serve only to politicize an institution that should be above politics. Speaking at Harvard Law School on Tuesday, he said that the justices' authority derives in part from the public's "trust that the court is guided by legal principle, not politics." Rejiggering the size of the Supreme Court after it has been stable for more than 150 years, he warned, would fuel the "perception of political influence" and succeed only in "further eroding that trust." If Americans are encouraged to see judges as merely "politicians in robes," he said, confidence in the courts and in the rule of law is bound to diminish, and that in turn would weaken the high court's "power to act as a check on other branches."
The late Supreme Court justice Ruth Bader Ginsburg firmly opposed any scheme to add more justices. "It would make the court look partisan," she said in 2019.
The late Justice Ginsburg, a progressive heroine, voiced similar views in a 2019 interview with NPR's Nina Totenberg:
Nine seems to be a good number. It's been that way for a long time. I think it was a bad idea when President Franklin Roosevelt tried to pack the court [in 1937]. . . .
If anything, it would make the court look partisan, it would be one side saying, "When we're in power, we're going to enlarge the number of judges, so we would have more people who would vote the way we want them to."
Biden knows all these arguments. He has made them himself. In a speech on the floor of the Senate in 2005, Biden recalled some of the history of FDR's 1937 court-packing plan, which turned out to be a stunning political blunder:
It was the summer of 1937 and President Roosevelt had just come off a landslide victory over Alf Landon, and he had a Congress made up of solid New Dealers. But the "nine old men" of the Supreme Court were thwarting his economic agenda, overturning law after law overwhelmingly passed by the Congress. . . .
In this environment, President Roosevelt, corrupted by power, in my view, unveiled his court-packing plan: He wanted to increase the number of justices on the court to 15, allowing himself to nominate these additional judges. In an act of great courage, Roosevelt's own party stood up against this institutional power grab. They did not agree with the judicial activism of the Supreme Court, but they believed that Roosevelt was wrong to seek to defy established traditions as a way of stopping that activism.
In May 1937, the Senate Judiciary Committee — a committee controlled by the Democrats and supportive of his political ends — issued a stinging rebuke. They put out a report condemning Roosevelt's plan, arguing it was an effort "to punish the justices" and that executive branch attempts to dominate the judiciary lead inevitably to autocratic dominance, "the very thing against which the American Colonies revolted, and to prevent which the Constitution was in every particular framed."
Our predecessors in the Senate showed courage that day and stood up to their president as a coequal institution. And they did so not to thwart the agenda of the President, which in fact many agreed with — they did it to preserve our system's checks and balances. They did it to ensure the integrity of the system. When the Founders created a different kind of legislative body in the Senate, they envisioned a bulwark against unilateral power. It worked back then and I hope that it works now. . . .
In the end, Roosevelt's plan failed because Democrats in Congress thought court-packing was dangerous, even if they would have supported the newly-constituted court's rulings.
It is worth emphasizing: FDR couldn't get a court-packing scheme passed despite having the most lopsided Democratic supermajority in congressional history. What is the likelihood that such a plan could be enacted today, when the Democrats' Senate majority is the narrowest possible?
Roosevelt's attempt to enlarge the court fatally drained momentum from the New Deal. It caused his popularity to plummet and led to sweeping gains for Republicans in the 1938 midterms. My hunch is that Biden has no intention of repeating FDR's mistake. He knows from a lifetime in politics that when presidents overreach, they often pay with a shellacking the next time voters go to the polls. The commission he appointed last week isn't intended to pave the way for court-packing legislation but to defer the issue for another six months. And when those six months are up? My guess is he'll put it off again.
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My column Sunday made the case for quadrupling the size of the US House of Representatives. The lower chamber was designed to grow with the nation's population, and for the first 120 years, it did: After each decennial census, new congressional districts were authorized and more representatives were elected. But after being enlarged to 435 members following the 1910 census, the number of House seats was frozen. As a result, ever more Americans have had to be encompassed in ever more populous congressional districts. Today, the average House member has 760,000 constituents. Whatever else that is, it isn't representation . My proposal: Increase the number of congressional districts to 1,500, and turn the "people's house" once again into a body that reflects the American people.
My column last Wednesday was headlined: "The problem with Holocaust education." Over the past generation, countless school districts and at least 17 states have mandated that public school students be taught about the Holocaust. But it is far from clear that all that instruction has had any lasting impact: Ignorance of even the most basic facts about the Holocaust is extensive among Millennials and Generation Z, and the spread of curricula on the Nazi genocide has occurred even as antisemitism surges on both the left and the right. Never has the Holocaust been so earnestly and widely "taught." Yet never has it been so clear that its lessons are unlearned.
The last line
"'For me,' said Sherlock Holmes, 'there still remains the cocaine-bottle.' And he stretched his long white hand up for it." — Arthur Conan Doyle, The Sign of Four (1890)
(Jeff Jacoby is a columnist for The Boston Globe).
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