Thursday, June 30, 2005

Redistricting Reform: The Diversity Issue

The AP follows up on yesterday's committee passage of SCA 3 - the legislative redistricting reform alternative proposal. The main point of contention between Ds and Rs is likely to remain the nature and make-up of whatever non-State-Legislature body does the mapping:

But some Republicans have complained that the Lowenthal proposal would still leave too much power in the hands of legislative leaders, who would pick a majority of the commissioners.

Sen. Chuck Poochigian, R-Fresno, said the University of California president and the Judicial Council also could be influenced by lawmakers in making their appointments to the commission.

"Having retired judges serving makes a lot of sense," he said. "I'm not so sure we can find (other) people who will be as dispassionate and nonpartisan."

But the committee's chairwoman, Sen. Debra Bowen, D-Redondo Beach, said a redistricting commission composed of retired judges probably wouldn't include any women or minorities.

"We still have a retired bench that reflects a previous era of California history when women and minorities didn't much go to law schools," she said.
I respect both of these legislators (Stagwatch: Poochigian's CoS is CMC, and last year's Legislative Staff Member of the Year; Debra Bowen, while not a Stag, would've been my State Senator - 'cept I was gerrymandered into Ed Vincent's district) - and each argument has merit. However, as I told a reader here yesterday, the "white-male-bench" reason for siding with the commission set-up just doesn't fly with me. It is true that the bench is just starting to become more "diverse" (and, arguendo, we'll go with the notion that the bench should be diverse in the conventional usage of the word) and consequently the ranks of retired judges look less like the state of California than the term-limits-shuffled State Legislature. However, lawmakers and Californians alike need to look at this change as one designed to last for decades, if not for the next century. Don't let short-term problems lead us to enact short-sighted policy.

Already, more women than men are attending law school. The number of minorities is rising too - especially here in California. It takes 10 years of good standing as a lawyer to qualify for a seat on a Superior Court bench. Which means, to make an educated guess, in about 4 to 7 years, a new crop of diverse lawyers can start running for (har har - I mean, forward themselves for midterm appointment to) Superior Court judgeships. It will take time from there to age and eventually retire - but the day will come. And, let us not forget, we're talking about a process occurring once every ten years.

California's judicial [s]election process is deeply troubled (at least from a government nerd's perspective). It's also, frankly, ripe for the taking by any number of interests groups. MALDEF, LULAC, any number of API orgs, the NAACP, etc, could - with relatively little effort - put more people of color on the bench because no one is really trying to do anything with the courts right now and they are, in fact, elected offices.

I'm in no way saying I'd be in favor of politicizing - especially not in racial/ethnic terms - judicial elections, but the fact remains: the opportunity is there.

The bottom-line, though, as I said yesterday in the comments of The Monkeys-With-Darts post, drawing the lines is a remarkably apolitical exercise if it's in the hands of disinterested cartographers. Actually, they aren't cartographers - the computer is the cartographer - the Chosen Ones are merely a supervisorial body. If the rules are correctly set, it's hard to mess it up. If. And that's no small thing.

My good friends at the Rose Institute of State and Local Government have some wonderful publications on redistricting reform, as well as draft language and histories of past redistricting efforts. It's a radical, yet obvious, approach to dividing the state and rebuilding how we think about drawing the lines. Unfortunately, they seem to have taken down a lot of these publications - we'll tell 'em to get them back up, stat.

If you set the rules, the attributes of the body guiding the process are immaterial. If you allow the body to set the rules, then, yeah, you got problems. A commission is better than the Legislature, but less desirable than retired judges - who, if you're patient (fat chance in term-limits land), will soon "represent" the state in terms of their ethnic and gender make-up.

[Note: For the second time, I caught myself writing "ACA 3" rather than "SCA 3." I've made the correction now, but please email me if you catch me doing it again. Blame my pro-Assembly bias (and that up until 6 months ago, SCA author Lowenthal would've been authoriing ACAs - damn term limits).]

7 comments:

Jared said...

CD, since you are one of the best bloggers on CA redistricting, how about an analysis of the rules used between the two semi-competing proposals out there now. I think you're right that the rules matter more, especially when it comes to legal challenges after the redistricting. So what are the differences in the rules, and what other rules would you suggest?

Anonymous said...

How about the simple fact that most judges who are not political partisans wont want to spend their retirement years on this type of commission and we will wind up with different political hacks making the decisions. As for ethnic and gender discrimination how about the simple fact that most retired judges are very well to do financially and don't represent middle America.

cd said...

Anon - that is possibly the worst reasoned argument against retired judges I've seen yet.

1.) You think they'll just not show up for work and the state will sit blythely by while someone else does their job? They aren't going to sit there with AAA maps and markers. There will a contentious selection process for consultants with the expertise to draw the lines - under - I hope - constitutionally set rules and judicial guidance/approval, etc.

2.) CALIFORNIA DOESN'T REPRESENT MIDDLE AMERICA. In fact, if you can find me middle America, I'd love to meet it. It no longer exists. We have the falling bits and the rising bits of what once was middle America, but don't give me some "oooh, judges are all Richie Richs and not corn-fed folks like us" crap. Do you want to establish an income ceiling for those who serve? You must be this poor to ride this ride?

Why is it we laud the American Dream (almost entirely centered around showing up our parents and becoming rich, by the way) and the immediately distrust and dislike those who have achieved things in life - like becoming financially secure?

Superior Court judges aren't out living the highlife. They may, however, be drinking it.

Jared - thanks for the compliment - it is something I'm planning on doing once I amass the materials I need to do so effectively. The materials and the time, that is.

NoJudges said...

CD, you have still not explained why judges would make up the best candidate pool. If criteria are set forth that require the mappers to use specific data, then why should it matter. Why couldn't a office tech or a computer programmer do just as fine a job?

Whether you like it or not the California Judicial Council is 89% male, 70% white, 12% Hispanic, 12% African American, 5% Asian Pacific Islander and 1% Native American. This is hardly repesentative of California's diverse culture or gender balance. I guess we can wait 40 years for all the women and minorities now entering law school to retire before we have porpotionate representation. In the meantime we should sleep soundly knowing that a bunch of old white men will take care of our redistricting needs.

By the way, judges are political. They were either A) elected, an overtly political act, or B) appointed by a politician. Unless that politician just happened to pick their name out of a hat, they were probably selected because they represented a particular viewpoint that appealed to the appointing authority.

cd said...

At what point have I said judges are not political? In this situation, I find them desirable to a commission. But as an Article I devotee, there is no moment I hate more than the obligatory law school discussion about separation of power and why some things vest in the judiciary and how they're all "independent" and somehow blessed to be without the same lesser angels affecting the rest of us.

They shouldn't be elected, either.

To your other points (and if you, nojudges, are the same as anon from earlier, thanks for adopting a handle, there can be too many anons to have a good conversation):

Basically we will be using an office tech and a computer programmer. But someone with a constitutional role needs to sign off on it.

Setting this up isn't easy. It's a messy, complicated process that's a cross between keeping 35 million plates simultaneously spinning in the air and those little puzzle things you get as a kid with the 15 little numbered squares you have to shift around until they're in order. All the more reason to buckle down and not pass some wishywashy commission structure with all kinds of authority to just go nuts on their own. Yes, that is a problem that could face an improperly set-up judicial panel as well.

"Whether you like it or not . . . ."

Whether I like it or not? Dude, whoever you are - and you're probably someone I know anyway - I'm a woman - and a minority woman at that - don't go schooling me in state demographics, I know the breakdown. Again, people, I say to you: thesis.

But here's a fundamental question:

Whom do judges represent?

Okay,

What do judges represent?

What is a Chinese American judge more inherently able to do under the rule of law that a white judge cannot? Do the laws magically change when they are in front of a Latino judge?

Here's another question: you ever been to law school? There is no place on earth more hellbent on establishing homogeneity within a profession than law school. Oh yeah, you can take your little seminar courses on this or that subset of underrepresented legal issues - but you know what - that Bar isn't going to test you on critical race theory. It'd be nice if it, and law school, however, tested you on statutory interpretation - which is A JUDGES PRIMARY JOB in this context.

Yup, kids, the judges' are not to make up policy, not to get their advocating on. The reason why it is SO IMPORTANT to have a carefully written, complete, deliberative redistricting framework is because the panel of judges shouldn't be doing anything more than making sure the plans have been correctly implemented.

This means your beef would correctly be addressed to the body intended to "represent" California's diverse culture: The State Legislature. The people you vote for. The body that is, in fact, swiftly becoming more facially similar to California, demographically speaking.

And either way - you are absolutely right we can wait 40 years. We're going to have to do so to change the make-up of the bench anyway. And you will never, ever find me arguing against farsightedness in legislation when the opportunity to be farsighted presents itself.

I'll sleep soundly when I know the legislature has done it's job and has written comprehensive, logical districting standards that preserve communities of interest and respect establish boundaries like cities, counties, neighborhoods, etc.

"Bunch of old white men." How offensive. How incredibly narrow. There is a tiny, tiny window here to do something great that can help true representative government for generations to come. And you're happy to sit and hurl antique insults at some retired jurists whose only crime is . . . well, I'm not sure . . . being white? Aging?

Whether I like it or not. Please. Demographics are destiny - the bench you despise today won't be there tomorrow. But this redistricting reform will.

Independent commissions are noble concepts - but will quickly succumb to exactly what judges are – theoretically – constitutionally prohibited from doing: setting policy. I elected – ELECTED – people to do that for me, and I’d love if they’d do that. I still believe they can – even if they choose not to so damn often. Here’s a chance. Let’s make them go for it.

Doug @ the Rose said...

Let's not forget to check the facts in addition to the theory: in 1973 and in 1991, the job of redistricting was given to a panel of 3 white, male judges, and the result (both times!) was compact, community-oriented, competitive districts, where the party with the most seats changed as the voters' moods changed. And many more districts were created by these white, male judges for under-represented ethnic and language minorities than by the 'diverse' legislature. And more facts: the legislature in 1982 and 2001 drew districts that super-protected incumbents -- so much so that more state senators went to prison in the 1980s than lost their re-election campaigns. Unfortunately, most bipartisan commissions (AZ being the exception) end up in gridlock or bipartisan sweetheart gerrymanders nearly as bad as CA's 2001 experience. Retired judges certainly aren't perfect, but they are the best option out there.

An Binh said...

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