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Wednesday, August 27, 2003

The panel picked, Beldar makes a plea and a prediction

Plan1151CThe Fort Worth Star-Telegram (oddly enough picked up by out-of-state papers via Knight Ridder Newspapers before it's on the S-T's own website!) reports that the three-judge panel to hear the lawsuit brought by the Truant Texas Dems™ will consist of —

  • US District Judge George P. Kazen of Laredo, a Carter appointee who's the Chief Judge (based on seniority) of the Southern District of Texas;

  • US District Judge Lee H. Rosenthal of Houston, a GHW Bush appointee; and

  • US Circuit Judge Patrick E. Higginbotham of Dallas, a Ford appointee to the district court who was promoted by Reagan to the Fifth Circuit.

Judge Higginbotham was also on the Balderas v. Texas three-judge panel in 2001 which created "Plan 1151C," the Congressional district map that was used in the 2002 election and remains in effect today.  The panel was selected by Fifth Circuit Chief Judge Carolyn Dineen King of Houston, a Carter appointee.

The US Court of Appeals for the Fifth Circuit is headquartered in New Orleans, and press accounts often misleadingly make it sound as though all of its work takes place there; but its judges live in various cities scattered throughout Texas, Louisiana, and Mississippi, and in fact often hear oral argument on appeals in cities other than New Orleans.  This special three-judge panel could choose to meet in Laredo, but it wouldn't surprise me if for the convenience of all concerned, it decided to convene instead in Houston.

The case is styled Gonzolo Barrientos et al. v. the State of Texas et al., No. L:03CV113 in the United States District Court for the Southern District of Texas, Laredo Division.  The biographies for Judges King, Higginbotham, Rosenthal, and Kazen that I've linked are courtesy of the Federal Judicial Center website.

A nonpartisan panel of professionals

I don't know Judge Higginbotham or Judge Kazen personally.  But I had the privilege of working as a law clerk for Judge King during her second year on the bench in 1980-1981.  And from 1981-1987, before her appointment to the bench, Lee Rosenthal and I were colleagues at Baker & Botts.  My respect and admiration for both of them is boundless; they are among the smartest, hardest working, and most ethical lawyers I've ever met.  I'd willingly play high-stakes draw poker with either of them over the telephone, with either of them dealing.

JusticePeople will assume that these judges' personal politics match that of the Presidents who appointed them.  That may be the case, but it's not necessarily so — and more fundamentally, it's beside the point.  With respect to Judge King and Judge Rosenthal, I've seen them work, and I know their fundamental character.  I can say with 100 percent certainty that to the extent a human being can possibly compel herself to be strictly nonpartisan, each of them does so.  I'm reasonably confident that the same is true of Judge Higginbotham and Kazen.  These are professionals in the very best sense of that word, and the three judges on the panel will be keenly aware at all times of the highly circumscribed boundaries of their proper roles as this political drama plays out. 

In fact, if you were to suggest to me in person over a beer that, for instance, Judge King would ever stack the panel to make sure that Democrats fare better in this fight, I'd probably punch you in the nose before I could help myself — and ditto if you were to make the same sort of comment about Judge Rosenthal and the Republicans.

In theory this three-judge court can take evidence from fact and expert witnesses in a full-blown non-jury trial; it can make credibility evaluations, decide who's lying and who's telling the truth, accept or reject the opinions of the experts.  But frankly, in contrast to, say, the redistricting panel in Balderas — which actually had to create a map, which is a hugely fact-dependent and fact-intensive project! — the underlying facts (as opposed to the spin put on them) are probably going to be essentially undisputed for this case.  I'll be very surprised if the panel agrees to hear much, if any, live testimony. 

Dems face longshot odds

We already have what amounts more or less to an advisory opinion, albeit a preliminary one, from Judge Kazen that's only slightly less lopsided than the ruling on Fox News' request for an injunction against Al Franken.  The Austin American-Statesman quoted a remark from Judge Kazen that pretty well cuts to the heart of matters:

"The fact is, in a legislative body, you win some and you lose some. I know the senators represent people, but if they're in the minority, they're going to lose votes," he said. "That's how the country works. The majority wins."

My personal politics are obviously hostile to the Dems, but strictly on the undisputed facts and the applicable law, I also sincerely believe that there is no merit to the lawsuit brought by the Truant Texas Dems™. 

I'm not saying it's a foregone conclusion.  I don't expect an opinion that says, "There are hard cases and there are easy cases, and this is an easy case."  But notwithstanding the depth of political feeling on each side, based on a nonpartisan application of the law, this just isn't a very hard case to decide.  If I were a betting man with unlimited capital, I'd gladly give five to one odds against the Dems, or maybe better, to any and all takers.

If the Dems lose, they have a direct appeal to the US Supreme Court "as a matter of right" — meaning that unlike the overwhelming majority of other cases, the US Supreme Court more or less has to consider that appeal on its merits (and can't just "deny certiorari" to refuse to hear the appeal).  But all that's likely to produce is the notation "aff'd mem." — meaning "affirmed by memorandum," effectively adopting the three-judge panel's opinion without further discussion.  In my judgment, the odds of the US Supreme Court reversing this panel if it denies relief to the Dems are infinitesimally small.

The Republicans must be smelling victory, million-dollar ad campaign from MoveOn.org notwithstanding.  They have the high cards, frankly, and we're not far from the point where all the cards are going to be in-play, face-up, and on the table — meaning someone's going to rake in all the chips. 

Wanted:  Transcendent statesmanship

And so, paradoxically, this may be the best possible opportunity for a deal to be cut.  Winning in a bloodbath that leaves bitter enemies sucks, and martyrdom sucks even worse.  My personal hope is that someone from each side will undertake the role of statesman rather than politician.  I'd suggest that the structure ought to be an agreed map that is predicted to result in modest Republican gains, based on 2002 voting patterns — one that is likely to result in a change of three seats.  (Easier said than done, I know, if you're one of the gored white male Democratic incumbents — but guys, it's time for about three of you to "take one for the team"; cash in to become a lobbyist or a retired rancher or a professor at the LBJ School or something like that!)  Scratch the fines and penalties.  Hold a huge "welcome home" barbecue on the Capitol grounds, invite both the Aggie and Longhorn Bands to play, set up a vegetarian booth off to one side, and sell really cold beer for a nickel a cup.

But the most important part of a compromise should be this:     Announce a genuine, good-faith, bipartisan commitment to pass a reform bill in the next regular session that ends gerrymandering for good.  Become the first large state in the United States to do so.  End the circus, lead the way, and bask in the resultant respect that both parties could earn through transcending partisan politics.

Do I think this will happen?  Hell, no.  I think several of the Dems are too far out on a limb to back down, and there are too many Tom DeLay-haters egging them on into political suicide.  I predict the bloodbath end-game, frankly. 

And I'm likely to end up punching someone in the nose for insulting one of these judges, I guess, when they do their duty under the law and pour the Truant Texas Dems™ out of court.


UPDATE (Fri Aug 29):   Charles Kuffner's left-of-center blog, Off the Kuff, gets some background facts about the new panel a bit garbled, but reports that "[o]n a side note, a good friend of mine spent a year clerking for Higginbotham and had nothing but praise for the man. Take that for what it's worth." 

Votelaw also has a couple of recent posts up about the current status of the fight (here and here).

Posted by Beldar at 11:07 PM in Texas Redistricting | Permalink


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(1) Steven Jens made the following comment | Aug 28, 2003 10:35:02 AM | Permalink

Pardon my legal ignorance, but why would the Supreme Court be required to hear an appeal? That is, what sort of appeals are they required to hear?

(2) Beldar made the following comment | Aug 28, 2003 2:59:38 PM | Permalink

Steven, the short answer is, "Not very many — except where Congress has specifically said so." And this is one of those rare exceptions.

Now for the "crusty, long-winded answer"™:

One of the quirks of the system of separation of powers and checks and balances is that Congress mostly defines the jurisdiction of the federal courts by statute. It thus has the power to create "special courts" like the ad-hoc three-judge trial courts here. Congress can also say to the Supreme Court, "You must hear this particular kind of appeal — and you must do so outside of your regular discretionary jurisdiction (under which you usually get to pick and choose which cases you want to hear)."

Among the most conspicuous examples of this are cases decided by special three-judge "trial court" panels under the Voting Rights Act of 1965, which is codified in Title 42 of the United States Code, beginning at section 1971. (Just to keep things confusing, the section numbers in the US Code usually don't correspond at all to the section numbers in the original bills as passed by Congress, but on important statutes like this, folks still tend to refer to the original section numbers — e.g., to "section 5 pre-clearance," referring to section 5 of the Voting Rights Act, which is actually codified at 42 U.S.C. § 1973c.)

In part of the Voting Rights Act of 1965 that's codified at 42 U.S.C. § 1971(g), we find the statutory authorization for the three-judge trial court that's about to hear this case, and as part of that same section, Congress has said:

An appeal from the final judgment of such court will lie to the Supreme Court.

The parallel provision in the judiciary code is at 28 U.S.C. § 1253, entitled "Direct appeals from decisions of three-judge courts":

Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.

The effect of this is to give the losing party a special "appeal as of right" to the Supreme Court. And in theory, all such appeals are examined by the Supreme Court on their merits and thus have precedential value — unlike ordinary and vastly more common "petitions for writs of certiorari" from regular decisions of the Courts of Appeals (which the Supreme Court denies willy-nilly, such denials having no precedential effect).

As a practical matter, however, the Supreme Court often simply rubber-stamps what the three-judge court has done by issuing a one-line affirming "memorandum opinion." That's exactly what they did with the three-judge panel decision imposing the current plan in 2001, Balderas v. Texas, No. 6:01-CV-158, slip op. (E.D. Tex. Nov. 14, 2002) (per curiam)[a three-judge panel under Voting Rights Act of 1965, with two district judges and one circuit judge sitting as a special trial court with original jurisdiction], aff'd mem., 122 S. Ct. 2583 (2002):   If you go to volume 122 of the Supreme Court Reporter, page 2583, for the year 2002, you'll find that one-liner, not a full-blown written opinion. In theory they've still looked closely at the substance of such cases before voting to rubber-stamp affirm them; and in practice, they probably actually do give these "direct appeals" a closer look than they do most "cert. petitions."

But think of it this way:   Congress can lead the horse to water, but can't make it drink. The Supreme Court is still very picky about what it spends its time and political capital on. The notion that the US Supreme Court is going to fully involve itself in whether the Texas Senate does or doesn't have a "blocker bill" atop its calendar is ... quaint, but extremely unlikely in my humble opinion.

Unless, that is, I'm wrong and this three-judge panel ends up ruling for the Dems. That would be a fairly unprecedented extension of raw federal power into matters traditionally at the heart of state governance, and the State's appeal as of right might well produce full-blown proceedings, with oral argument and a written opinion, in that event.

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