Ginsburg Dissent Gives Democrats a Boost
There's one thing we can say about the Texas voter ID dustup with total assurance: Ruth Bader Ginsburg's dissent from the Supreme Court's decision to allow full implementation of the law in this year's election is not the work of a meticulous and impartial judge. That shouldn't come as a surprise. As her recent Elle interview made clear, solid Democratic control of the Senate seems to be a Ginsburg political priority. And it's not just business; she appears to take the threat of losing the Senate personally.
This isn't the first time Ginsburg's gone off the rails. In a July 2, 2014 editorial "The Political Ginsburg" The Wall Street Journal blasted her Hobby Lobby dissent as "unworthy of a junior judge."
Justice Ginsburg's dissent is so far removed from the legal reality that it doesn't qualify as a judicial opinion. It is a political opinion whose purpose seems to be to mobilize opposition to the Court and perhaps even motivate Democrats to turn out at the polls.
The Journal got it right, and her dissent in the Texas voter ID case is exponentially worse. It's more than just a reckless political statement; it has the undeniable effect of inflaming the Democratic base and mobilizing the liberal media at a critical juncture of the campaign.
As if to underscore Ginsburg's radicalism, her shriek of ideological outrage stands in stark contrast to the Supreme Court's order upholding the Fifth Circuit's stay.
The applications to vacate the stay entered by the United States Court of Appeals for the Fifth Circuit on October 14, 2014, presented to Justice Scalia and by him referred to the Court are denied.
That's it. To the point, professional, consistent with a series of recent election-related decisions, and without a trace of political commentary, race-baiting, ideological bullying, or attempts to poison the Fifth Circuit's well by intervening in an appeal that has yet to be heard.
Ginsburg's dissent is the polar opposite, a blatantly partisan, bullying rant in praise of Judge Nelva Gonzales Ramos' Texas voter ID opinion. It's also a study in liberal hypocrisy and judicial truth-twisting.
Refusing to evaluate defendants' likelihood of success on the merits and, instead, relying exclusively on the potential disruption of Texas' electoral processes, the Fifth Circuit showed little respect for this Court's established stay standards.
This is simply not true. Judge Gregg Costa's concurrence makes palpable the conflict caused by his discomfort over staying the district court's injunction and his respect for Supreme Court precedent. Costa was "extremely reluctant to have an election take place under a law that a district court has found, and that our court may find, is discriminatory." But there was a critical "however":
I agree with Judge Clement that the only constant principle that can be discerned from the Supreme Court's recent decisions in this area is that its concern about confusion resulting from court changes to election laws close in time to the election should carry the day in the stay analysis.
That's not disrespect, or even a mistake; it's a correct call the Supreme Court upheld.
In addition to trashing the Fifth Circuit for doing the right thing, Ginsburg unreservedly endorses a district court opinion written by an Obama appointee, a screed that presents grievance industry race-baiting as unassailable fact.
I would not upset the District Court's reasoned, record-based judgment, which the Fifth Circuit accorded little, if any, deference.
Ginsburg takes the Fifth Circuit to task in what amounts to an advisory opinion instructing them to embrace the politically-correct outcome she wants. Incredibly, she does this in the name of the "fact intensive nature of this case," scolding the circuit court for not rushing to judgment on the merits without bothering to verify either the merits or facts. Which is precisely what Ginsburg herself did, in the process committing an embarrassing error, because the politically potent timing of Ramos' injunction left her no time. This is how the left justifies identity politics. In the eyes of an ideologue like Ginsburg the Texas government can't be in the right because it's in the hands of (1) white (2) Republicans who (3) respect the Constitution. That's three strikes and you're out, retiring the side. Besides, some of them are probably men.
It's possible, of course, that Ramos and Ginsburg wrote in good faith. It's more likely the district court timed its decision following a get Ted Stevens strategy. We all remember that disgraceful miscarriage of justice, the work of corrupt, politically partisan prosecutors withholding exculpatory evidence to railroad a United States senator out of office. The Stevens verdict came eight days before the 2008 election, cost Stevens his seat, and handed the Democrats a sixtieth Senate vote for ObamaCare. That, it turned out, was an open-and-shut case of Democratic lawfare, and there's a sense that's what we're dealing with here.
[I]n recent rulings on applications involving voting procedures, this Court declined to upset a State’s electoral apparatus close to an election. Since November 2013, however, when the District Court established an expedited schedule for resolution of this case, Texas knew full well that the court would issue its ruling only weeks away from the election. [my emphasis]
Ginsburg's blowing partisan smoke, but she may be telling us more than she intended. The issue's not what Texas knew but what an Obama-appointed Hispanic judge knew and the turmoil her injunction caused by arriving a mere nine days before the polls opened. Innocent or not, the judgment's late arrival was certain to sow confusion in Texas, as well as guarantee that an opinion vigorously endorsing grievance industry memes would have the maximum impact on the Democratic base, boosting voter turnout and solidifying the monolithic black vote. Oddly enough, the Ramos and Ginsburg opinions just "happened" to coincide with an outbreak of last-minute race-baiting from desperate Democratic candidates and PACs in several states, including Maryland, Georgia, North Carolina, and Texas. Not to mention the instant and entirely predictable orgy of media tub-thumping triggered by Ginsburg's rant.
According to Ginsburg and the two SCOTUS obamabots who joined her opinion, none of that matters. After all, every liberal knows divisiveness and racially polarized voting are the fault of white Republicans. So why not pour gasoline on the fire?
The District Court noted particularly plaintiffs’ evidence -- largely unchallenged by Texas -- regarding the State’s long history of official discrimination in voting, the statewide existence of racially polarized voting, the incidence of overtly racial political campaigns, the disproportionate lack of minority elected officials, and the failure of elected officials to respond to the concerns of minority voters.
Want to know how the left’s "reasons"? Then check out "largely unchallenged," or Ramos' word, "uncontroverted." Just how does a state "controvert" history? Was Texas obliged to deny that racist Democrats used white-only primaries or a poll tax to suppress the black vote over half a century ago? The suggestion that grievance industry "evidence" is largely unchallenged is an especially obnoxious bit of sophistry indulged in repeatedly by Ramos to create the illusion that only one conclusion (hers) could possibly fit the facts, with no concern for how speculative, irrelevant, cherry-picked or absurd the facts are, or how partisan and untrustworthy their source. Ramos' rhetorical sleight-of-hand receives a special stamp of approval from Ginsburg. Which makes sense, since speculation based on cherry-picked evidence is a favorite weapon of Ginsburg and her ilk.
Just so there's no misunderstanding, here's a sample of the "reasoned, record-based judgment" Ginsburg berates the Fifth Circuit for refusing to rubber stamp. It should be set right next to Reverend Johnson's claim that "Anglos" are engaging in white-on-black terrorism to keep blacks from voting.
State Senator Rodney Ellis testified about the horrific hate crime in the east Texas town of Jasper in the late 1990s in which James Byrd, an African-American man targeted for his race, was dragged down the street until he died.
Ellis is a black Democrat, so Ramos dutifully characterizes Byrd's murder as an "anecdote demonstrating Texas's racially charged communities." Never mind that two of the three men who murdered Byrd were executed and the third sentenced to life in prison, or that the "racist" Texas legislature responded by passing the James Byrd, Jr. Hate Crimes Act, signed into law by Rick Perry in 2001.
Finally, there's the standard Democrat canard that there's no such thing as voter fraud because "between 2002 and 2011, there were only two in-person voter fraud cases prosecuted to conviction in Texas." Let's see. That would be before the new photo ID law took effect. As if on cue, the first week of Texas early voting saw reports of Cook County voting machine tampering and the discovery of 1425 registered voters who lack citizenship in North Carolina. The North Carolina case is exceptionally interesting because over 100 of the ineligible voters were registered under an Obama immigration initiative, Deferred Action for Childhood Arrivals (DACA). Other states had better double-check their rolls.
Fortunately for Texas, the latest polls show Republicans in statewide races doing very well, with abortion queen Wendy Davis set to be swept away in a Greg Abbot landslide. So Ginsburg's intervention will probably have a minimal effect on the outcome.
Unfortunately for the country that may not be the case in close Senate races in states like Georgia and North Carolina. In close races in states with large black populations the Ramos-Ginsburg political broadside may have the potential to decide the outcome. That is not the Supreme Court's job. At best Ginsburg's politicking from the bench is the poor judgment of a reckless and partisan judge. At worst it's her deliberate -- and very troubling -- meddling with the electoral process. Either way, she owes America an apology.
Mr. Stewart is a freelance writer living in Austin, Texas. He is writing a book on the establishment clause and welcomes feedback at email@example.com