Friday, September 12, 2003
Earth to Democratic state senators: Courts writing Congressional district maps is not "normal"
The press accounts of yesterday's hearing before the three-judge panel in Laredo in Barrientos v. Texas all suggest that there was little encouragement for the Ten Truant Texas Dems™ in the judges' questions or comments. But one particular passage from the Dallas Morning News' story was shocking:
Earlier, some Democrats had expressed hope that Judge Higginbotham, an appointee of GOP President Ronald Reagan who helped craft the current congressional map two years ago, would look dimly upon Republicans trying to rewrite the plan.
But the only reference to the judge's role was when Mr. Smith, the Democrats' lawyer, jokingly offered, "It's such a good map, your honor." Judge Higginbotham laughed and muttered, "I don't think anybody liked that map."
If this wasn't just some kind of political spin — and it's hard to imagine why you'd "spin" to make yourself look this naïve — this betrays a stunning lack of understanding by the unnamed Democrats of their own role in the great constitutional scheme of things as compared to that of the federal courts.
Earth to Leticia et al.: It's not normal or desirable for federal courts to draw Congressional districts! That job — with all its potential for bloodfeuding over gerrymandering and its unfortunate history in Texas and elsewhere as a means for odious racial discrimination — is still a function of state legislatures. So says the US Constitution as interpreted by the US Supreme Court, and so said the three-judge panel in the 2001 Balderas decision (on which Judge Higginbotham also served).
The notion that Judge Higginbotham would have some sort of personal pride or nostalgia or preference for the map produced by the Balderas panel is simply absurd. Anyone who actually has read the Balderas panel opinion has to know that. Is it possible that during their month-long vacation in New Mexico, the Ten Truant Texas Dems™ didn't find time to read that short decision?
How could they not understand that panels of federal judges who are forced to act when the Legislature defaults on its constitutional duty have no relish for that task?
The Balderas panel explicitly recognized that on redistricting matters, it, like all such three-judge panels, lacked "political legitimacy" as compared to the Texas Legislature. Federal judges certainly understand that in a democracy, redistricting is supposed to be a democratic process — and of all branches of the state and federal governments, the federal courts are the least democratic by nature and the least well equipped to represent the diverse interests of the voting public.
I can almost understand how a left-wing journalist like Dr. Josh Marshall — one who, despite reminders, is apparently too busy and/or too unconcerned about the truth to acknowledge or correct significant errors of basic historical fact in his public writings — might fail to grasp this. Maybe he was absent the week they covered the separation of powers doctrine in high school civics, and maybe the course of studies which led to his PhD in American History sort of skipped the history of American politics and our federal-state system of government.
But how is it possible that Texas state senators — part of the very mechanism of democracy entrusted with this solemn responsibility — could have failed to understand these fundamental truths before they rushed out of Texas and rushed back into federal court?
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