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UC Law Constitutional Quarterly

Terry Smith

Abstract

The United States Senate is an unsung power in the tripartite division of our constitutional government. Yet, through its advice and consent role in the appointment of federal judges, the Senate's actions permeate the separation of powers and the daily lives of Americans, at times eclipsing the authority of the President himself. One need only witness President Clinton's recent suurender of power to the G.O.P.- controlled Senate in the selection of a federal court of appeals nominee to the Ninth Circiut to understand the extraordinary power vested in this body. See Neil A. Lewis, Clinton Agrees to G.O.P. Deal on Judgeships, N.Y. TIMms, May 4, 1998, at Al.

Perhaps no groups of Americans have been more affected by the Senate's advice and consent power than racial minorities, who have historically looked to the federal judiciary for protection of their civil rights. The increasingly conservative cast of the federal judiciary, however, has led to retrenchment rather than protection of minority interests. The character of the judiciary, in turn, is in large part attributable to the Senate which must confirm members of the federal bench. The vicious cycle perpetuated by a disproportionately White and conservative Senate confirming a disproportionately White and conservative federal bench is abundantly evident in the Supreme Court's recent voting rights jurisprudence, which has erected unnecessary and unprincipled barriers to the creation of majority-minority legislative districts. Without reform of the manner in which Senators are elected, such that minorities have a greater voice in that institution, further erosion of minority voting rights is inevitable.

While other commentators have argued that a constitutional amendment to eliminate the equal representation of the states in the Senate would aid minorities, in this Article, Professor Smith finds the tools for reforming the Senate in the Seventeenth Amendment to the United States Constitution and the Voting Rights Act of 1965. Drawing on his earlier work in which he argued that states may voluntarily create United States Senate districts to aid minority voters, Professor Smith now makes the further and more controversial claim that states can be compelled to create majorityminority or minority-enhanced Senate districts in order to remedy minority vote dilution. Professor Smith discovers support for this novel proposition in the text and legislative history of the Voting Rights Act and in the legislative history of the Seventeenth Amendment, which, contrary to its placid, race-neutral text, focuses primarily on minority disenfranchisement and attempts to prevent the implied repeal of the Fifteenth Amendment.

Employing illustrative Senate districts and original empirical analysis of voting returns, Professor Smith demonstrates that his proposed remedial Senate districts will avoid the obstacles created by the Supreme Court's recent reverse-racial gerrymandering cases and thus will reinvent Black politics by infusing the Senate with more representative voices.

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