A note on the Roberts hearings

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As I am writing, I am listening to Sen. Edward Kennedy questioning Judge John Roberts. Kennedy seems to be more deferential and less combative than he was yesterday, when Chairman Arlen Specter felt obliged to tell Kennedy to be quiet and let Roberts answer. Today Kennedy is not interrupting Roberts.

Kennedy and other Democrats have been pressing Roberts hard on two issues: abortion and the Voting Rights Act. They want to preserve Roe v. Wade and the protections inserted into the Voting Rights Act in the 1980s over the objections of the Reagan administration. What strikes me is that these are really academic issues and that the changes the Democrats fear will have no significant effect in the real world.

If Roe v. Wade were to be overturned, states would presumably be free to criminalize abortion. But few, if any, would. You might get majorities voting for criminalization in the legislatures of Utah, Louisiana, and Guam, but not necessarily there and, in my opinion, certainly not in any other state or territory. Others might pass laws requiring parental consent for abortion and banning "partial-birth abortion," but these would affect only a small percentage of all abortions. Yes, many people on both sides of these issues have strong moral objections to the positions they oppose. But the practical effect would be minimal.

On the Voting Rights Act, the political reality is that there is no significant constituency for restricting the voting rights of black Americans. If the Democrats worry that southern legislatures will no longer maximize the number of black majority congressional and legislative districts, they should have no fear. Creating such districts is in the political interest of both black Democratic and white Republican legislators, and in many or most southern states such legislators have a majority of legislative seats. The fact is that maximizing the number of black-majority districts works against the interests of Democrats generally, since they remove Democratic voters from adjacent districts and make it easier for Republicans to carry them. The only practical effect of the change that the Democrats evidently dread would be the election of more Democrats.

I would add that nonblack voters in the South, as in the rest of the nation, have shown themselves willing to vote for black candidates of both parties. They have won statewide elections in states as disparate as Georgia, Texas, and Ohio, and it's possible that the two major party nominees for governor of Ohio in 2006 will be black: Democratic Columbus Mayor Michael Coleman and Republican Secretary of State Ken Blackwell.