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Abstract:
The Electoral College has been subject to a constant barrage of criticism. This raises an obvious question: how has the College managed to survive despite its lack of popularity, its opacity and its generally controversial nature?

Commentators look to the wisdom and staying power of the founding generation as well as to the force of history and tradition. In this Article, we look carefully at a third possibility. That is, we look to the foundation of our political structure and the nature of our democratic commitments.

In this vein, we are particularly intrigued by the question of electoral legitimacy. To be clear, we are not interested in the question of legitimacy in and of itself. Rather, it is clear to us that the question of legitimacy - and more generally the larger debate surrounding the use of the College as the method of presidential selection - rests upon an infrequently articulated conception of democracy and an oft-debated notion of federalism.

In so doing, we conclude that before we can meaningfully talk about whether the Electoral College is worth keeping or changing, we must first come to grips with the scope of our democratic commitments. We must also grapple with the nature of the compromise that we have struck between state and federal interest in presidential elections. Until we struggle with and come to appreciate these two crucial foundations of our democratic ethos, the Electoral College debate will continue to consist of recycled ideas that will continue to be rejected.

Abstract:
As has been the case with respect to many political and social institutions in American society, diversity has been demanded, and at times pursued, in the nomination and appointment of state and federal judges. Nonetheless, commentators have long lamented the lack of diversity among judges in the United States.

U.S. Supreme Court appointments epitomize the glaring lack of diversity on the federal judiciary. Not until 1967 did President Lyndon Baines Johnson appoint the first African American Justice, Thurgood Marshall, to the Court. Since then, a more diverse group of judges has served on the state and federal courts than throughout much of U.S. history. Work remains to be done, however. No Latina/os, Asian Americans, or Native American have ever served on the U.S. Supreme Court. Relatively few African Americans, Latina/os, and Asian Americans, and no Native Americans serve on the federal bench today.

Scholars rarely analyze what concrete impact diversifying the judiciary may have on the operation of the courts, including judicial decision-making and the public's perception of the justice system. Even if advocating greater diversity among judges, few observers have been particularly clear about the concrete benefits to be gained by appointing and nominating a more diverse cadre of judges.

This article, which is part of a symposium on judicial selection, explores the substantive impacts that increased racial diversity of judges might have on the decision-making process as well as in how the general public views the courts, as fair and impartial tribunals or not. This article brings to bear fundamental tenets of Critical Race Theory - specifically, the concept of a "voice of color" - on the analysis of the possible impacts of greater racial diversity on the courts. It further analogizes the judges to juries and contends that, as diversity among juries does, pulling a group of judges from a cross section of the community may both benefit the decision-making process and improve public perceptions of the impartiality of judicial decision-making.

Importantly, a more diverse judiciary is more likely to be an independent judiciary. To the extent that judges are racial minorities, they can be expected to be more independent than other judges.

Abstract:
In Vieth v. Jubelirer, the U.S. Supreme Court seemed poised to offer the Court's definitive position on political gerrymandering questions. Yet the Court splintered along familiar lines and failed to offer a definitive answer. This Article focuses on the plurality opinion, and particularly its conclusion that judicially manageable standards are wanting in this area. This conclusion is implausible and masks the real question at the heart of the case. The Vieth plurality is best understood by examining the Court's political and prudential concerns, as cabined by the political question doctrine. One understanding is simply that the plurality is making a call on the merits. A more intriguing explanation is that the plurality is signaling a retreat from its aggressive posture of years past; uncomfortable with the Court's general role in political affairs, the plurality is finally willing to call it a day. This is a worthy inquiry; in the wake of Bush v. Gore, we must revisit the Court's entry into the political arena. Rather than send us in a futile quest for standards, Vieth is best understood as inviting such an inquiry.

law of democracy, gerrymandering, political questions, judicial review

Abstract:
In enacting the Voting Rights Act of 1965, Congress sought to overcome decades of outright refusal to enforce the Fifteenth Amendment. The statute was considered "harsh" and "punitive" by critics, and the Supreme Court partially agreed, calling the legislation "stringent," "inventive," and "uncommon." Yet the Court ultimately sided with the national ruling coalition as represented by the administration and overwhelming congressional majorities. This Article examines the early internal debates over the constitutionality of the Act and concludes that the question of legislative findings played a key role. In particular, internal notes and memoranda from the Katzenbach cases reveal that Justice Brennan worried about the Court's use of legislative findings in upholding congressional enactments. This unease helps explain the different approaches taken by the Court in South Carolina v. Katzenbach and Katzenbach v. Morgan to the question of congressional powers under the Reconstruction Amendments. As we look ahead to future constitutional challenges to the Voting Rights Act and question whether the statute will meet the Court's newfound demands under its federalism revolution, this Article underscores Justice Brennan's implicit admonition: in the end, the question of legislative findings will be nothing more than a smokescreen, as this will be a debate about judicial attitudes and the Court's long-standing role as an integral member of the national ruling coalition.

Voting Rights Act, Federalism, Law of Democracy, Judicial Power

Abstract:
The U.S. Supreme Court has moved beyond its cautious intervention in Baker v. Carr and now firmly controls the law of democracy. Yet political gerrymandering questions so understood have traditionally proven difficult for the Court to examine properly. The recent Vieth v. Jubelirer is but a further example of this phenomenon. This Essay situates Vieth within the reapportionment revolution and ultimately concludes that the central question in gerrymandering cases is the question of judicial will and whether the Court will choose to exercise its power. This Essay closes with a cautionary note: in light of the Court's general performance in the field of democracy and its propensity to wield its power in accordance with its idiosyncratic views of the political process and the maladies that corrupt it, do we really want the Court doing our bidding?

law of democracy, gerrymandering, political questions, judicial review