The Second Indian Conquest


Washington. -- President Clinton, toiling to re-reinvent himself, says he is rethinking racial policies and restraining Washington's overreaching. However, because of appointees he drew from among his party's unchastened and unreconstructed liberals, his administration's tendencies continue, regardless of his rhetoric.

Consider the Justice Department's remarkably meretricious attempt to coerce two Arizona counties into racial gerrymandering. The attempt annoys some of its supposed beneficiaries, local American Indians who understand something that Justice's social engineers either cannot comprehend or consider irrelevant: The change Washington wants to impose would be injurious to the Indians' interests.

Because population growth has produced crowded court dockets, Coconino and Navajo counties each want to add two elected judges. But because of past discrimination, since 1972 Arizona has been one of 16 states entirely or partially "covered" by a portion of the Voting Rights Act that requires it to seek Justice Department approval for all voting "changes."

Deval Patrick, who became head of Justice's civil-rights division when Lani Guinier didn't, insists that merely adding judges constitutes voting "changes." Actually, the only changes relevant to the section of the act that Mr. Patrick cites are voting-process changes that cause "retrogression" in minority voting strength. By his tendentious reading of the act, Mr. Patrick imposes on the counties the burden of justifying their long-standing method of electing judges (in countywide elections) before implementing an increase in the number of judges.

Mr. Patrick's next intellectual somersault is to say that elections in the two counties "are characterized by racially polarized voting." The ostensible proof is that although Coconino and Navajo counties are 29 percent and 51 percent Native Ameri- can respectively, no Indians have been elected to county offices under at-large voting. To remedy this supposed denial of "equal opportunity to participate in the electoral process and to elect judicial candidates of their choice," Mr. Patrick, from his Washington office, proposes Balkanizing each county into judicial districts, one of which in each county would have a huge Indian majority.

His premise is a non sequitur: The absence of Indian judges proves that Indian voters have insufficient voice in judicial selections. Each of the following three facts refutes that.

First, there are probably fewer than half a dozen Indians in each county who have been members of the Arizona bar for five years, a legal prerequisite for judges. Second, tribal and federal courts have jurisdiction over almost all cases concerning Indians living on reservations (where 90.6 percent of Navajo County and 74.2 percent of Coconino County Indians live). Thus even if there were created a judicial district with an Indian majority that regularly elected an Indian judge, that judge would have few cases involving Indians. Third, in the past decade no judge has been elected in either county without winning more Indian votes than any other candidate.

This last explains the opposition the plan provokes among some Indians who actually live where Mr. Patrick seeks to rearrange things. By ending countywide voting and carving within the county an Indian-majority district, his scheme might well produce an Indian judge (on a court to which no Indian has ever sought election). But the scheme would do so at the cost of eliminating the decisive influence that Indian voters currently have on all the countywide judicial elections.

This absurd outcome would flow from the peculiar premise (necessary to justify blocking the counties' new judgeships) that increasing the number of judgeships decreases the likelihood of an Indian winning a judgeship. But such is the politics of diversity-mongering.

Somebody in Washington decides that there is something wrong with the racial composition of the judiciary in two Arizona counties, and that therefore there must be something illegal about the judicial-selection process, and suddenly neither logic nor the plain meaning of words or laws can inhibit the extremism of the diversity enforcers. So now Arizona learns how prescient Justice Hugo Black was when, looking askance at some provisions of the Voting Rights Act, he warned that states required to "entreat federal authorities in faraway places for approval of local laws" seem to be "little more than conquered provinces."

This skirmish in the federal government's ongoing assault on reason and Americans' sensibilities illustrates why when the president talks moderation, people everywhere will do well to remember this adage about judging a politician: Don't watch his mouth, watch his feet.

9- George F. Will is a syndicated columnist.

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