BeldarBlog

Lawyers permit Ten Truant Texas Dems™ to run amok with (premature) Supreme Court appeal

The three-judge panel in Barrientos v. Texas issued a four-page order yesterday that granted no relief to the Ten Truant Texas Dems™.  It's short, it's sweet, and it's here for you to read in full-text (in a mere 149kb .pdf file).{note1}  It's not completely free of legalese, though, and I'll provide a translation and some commentary before I'm done with this post.

According to an article in today's Fort Worth Star-Telegram, the Dems are already vowing to appeal to the US Supreme Court.  Oh, I would dearly love to make a high-stakes bet with any and all takers on the likelihood of that succeeding!  I'll spot you 20 to 1 odds, in fact, and still count myself mean to be taking your money.  But as I'll also explain in this post, there are serious doubts that the panel's ruling yesterday is appealable yet.

Can the Dems appeal?

The Civil Rights Act of 1965 does offer the highly unusual opportunity for the losing side to take an automatic direct appeal "as of right" to the US Supreme Court — which is an appeal that the Supreme Court has to review "on the merits," even if it doesn't have to write a full opinion.  This extraordinary procedural right — allowing the losing side to bypass the Courts of Appeals entirely, and to force the US Supreme Court to look at the merits — is yet another reason why I find the Dems' race-baiting PR tactics so distasteful in this whole affair:   Minority voting rights are more effectively protected than virtually any other rights secured by the Constitution or laws of the United States!

But in these appeals, as in all others, you do have to let the "court below" — in this case, the special three-judge panel that ruled yesterday — finish what it's doing before you can ask the US Supreme Court to intervene.  And I have very serious doubts that the ruling on Friday was a "final decision" by the panel that even can be appealed.  Instead, it appears to be an "interlocutory order" — a mid-case ruling that isn't appealable.  Yesterday's ruling explains that the panel

promptly issued this brief opinion because of our understanding that another special session of the Texas legislature is imminent.  We reserve the opportunity to issue a more detailed opinion hereafter, if appropriate.

Translation:   "You've gotten a ruling and a quick explanation, but if you plan on making a fuss with the Supreme Court, we're going to write a small book to explain and justify what we've done.  You really don't want us to do that, do you?"

And also still pending before the three-judge court is the Dems' motion to amend their complaint to include issues relating to the threatened "arrest" of the senators and the imposition of fines and other penalties.  As to the former, the panel noted that issue "likely will become moot.  Indeed, the [senators'] fear of being coerced to appear at a legislative session is shifting to a fear of being prevented from appearing."  As to the latter, the panel noted that future developments might also moot that question, and that in any event "neither the facts nor the law on the issue of threatened monetary sanctions are sufficiently developed at this point to permit an informed decision."  Meaning, "come back when this stuff is more than a hypothetical threat." 

But the panel did not enter a final judgment of dismissal of all claims, which would be the normal means both to terminate fully the case before them and to make the panel's decision appealable.  So I think the Supreme Court will likely refuse to "note probable jurisdiction" — that is, will take a look at the Dems' attempt to appeal and say, "Eh — not yet."

Should the Dems appeal?

The fact that you can take an appeal to the US Supreme Court doesn't automatically mean that you should take it. 

Let's start with Common Sense on Appeals 101:   You don't appeal a decision unless you have a reasonable basis for believing that the lower court got something wrong.  You have to be able to say, "The three-judge panel went wrong when they decided _____," and then fill in that blank with something that won't make the Supreme Court explode with laughter.  With all due respect to the lawyers for the Ten Truant Texas Dems™ — and in my opinion, the respect they're due is dropping with just about every day that passes — they can't meet that test here. 

Here's the absolute nub of the panel's opinion:

[W]hat will directly affect the voters in this state is a redistricting bill, not the mere consideration of such a bill or the process by which it comes to the floor of the Texas Senate.

Until you can state a complete, logical sentence to refute that one, you don't have any business taking an appeal to the US Supreme Court.  Period, end of paragraph, end of story — saddle up and ride out of town on the dusty streets of Laredo, podners.

I've written before (for instance, here and here) about the two distinct duties that a trial lawyer owes his clients — the duty to be his clients' vigorous advocate in public (think Russell Crowe in Gladiator), and the duty to be his clients' wise counselor in private (think Yoda in The Empire Strikes Back or any other Star Wars movie except Clones, when he does his own gladiator routine).  Right now, Yoda should be shaking a long green finger and saying to Leticia and the gang, "Told you, I did!  Smite you head and shoulders with the 'Loser Stick,' that did I promise the judges would do!" 

No better fate is in store for this lawsuit in Washington than what it's already met in Laredo.  If, in the privacy of their conference room, any lawyer is giving different advice to the Dems, then I respectfully submit that said lawyer is being motivated by something other than following the law, and he's failing in his own duty to his client and to abide by the oath he took upon admission to the bar. 

If I were Emperor of the World, I'd make each of the Ten Truant Texas Dems™ write the following sentence on the blackboard 1000 times:

While the reach of the [Civil Rights] Act [of 1965] is broad, it is nevertheless still "an extraordinary departure from the traditional course of relations between the States and the Federal Government" ....

So said the panel yesterday, quoting from the US Supreme Court's decision in Presley v. Etowah County Commission, 502 U.S. 491, 500-01 (1992).{note2}  As I've repeatedly blogged, it's not normal for federal courts to second-guess state legislatures on redistricting — much less to micromanage the way they go about it!

C'mon guys.  Look at those special license plates on your own cars, the ones that say "Texas Legislator."  Does that give you a clue as to where you should be fighting these fights? 

Yes, you may lose when a vote is taken.  That's called democracy.  Make your best argument, take your lumps gracefully, and then start polishing up your speeches for the next general election, so you can take your arguments to the public by trying to persuade them to put the Democratic Party back in control of the Texas Legislature.  That's how the process is supposed to work, folks.

Leticia — listen to your inner Yoda, not to those lawyers from Washington that Martin Frost and his buddies have hired to represent you.  Hie thee back to Austin, madam.  Your duty is there.

---------------------------------

{note1}The .pdf file that was earlier linked from Kronberg's Quorum Report is actually a page printed out from the computerized docket sheet for the case that contains a "minute entry" summarizing the court's ruling — which, while useful for some limited purposes, is not the ruling itself.

{note2}If you came to BeldarBlog looking for informed speculation and gossip, I'll try to deliver.  Yesterday's opinion was unanimous, with all three judges joining in it by name.  From quirks in the citation form, however, I am virtually certain that it wasn't written by US District Judge Lee H. Rosenthal.  In fact, I'm going to go out on a limb and speculate that it was written by US Circuit Judge Patrick E. Higginbotham — and by him personally, rather than being drafted in the first instance by one of his law clerks.  What tea leaves am I reading to divine these portents?  Very tiny tea leaves.  The "v." (abbreviation for "versus") in the middle of the case citations wasn't underscored, and the underscoring of the case citations is discontinuous (rather than underscoring the blank spaces within the case name).  Also, the citation form used throughout the opinion, while quite acceptable, was still not quite up to snuff under the hyperstrict and elitist rules prescribed and followed by law reviews.  Judge Rosenthal clerked for then-Fifth Circuit Chief Judge John R. Brown, and I know from that, and from my own history working with her as a colleague in the 1980s, that her citation form, and that which she'd permit from any of her law clerks, would be immaculate.  The discontinuous underscoring, by contrast, is something you commonly see among lawyers educated in the East or the Southeast, and it's a little bit anachronistic — but it's exactly what I'd expect Judge Higginbotham to use, given that his law degree was from the University of Alabama in 1961.  How's that for arcane?

UPDATE (Sun Sep 14 @ 12:30am):   Earlier yesterday, the Austin American-Statesman had quoted one of the Dems' lawyers, Renea Hicks, as saying "he would discuss appealing directly to the U.S. Supreme Court with his clients" — which made me wonder if the Star-Telegram had jumped the gun in its report.  But the San Antonio Express-News is also reporting that the Dems plan an appeal to the US Supreme Court now.  Neither the Star-Telegram nor the Express-News cite their source regarding the plan to appeal — so it's possible either that their information is newer, or perhaps that they talked to a different lawyer for the Dems.  My bet is on the latter, and that who they talked to was Washington-based Gerald Hebert, who still — and now more than ever — owes DOJ lawyer Joseph D. Rich an apology.

By the way, I noticed that I've previously neglected to source my point that the Ten Truant Texas Dems™ are being represented by lawyers hired not by themselves, but by Democratic Congressmen who're covering their own butts in this fight.  This came from early in part three of the five-part streaming video of an hour-long interview that the Houston Chronicle conducted with Sen. John Whitmire on September 3, linkable at least for a while longer from the repeating sidebar on Chronicle stories: 

Our lawyers had seriously misled us when they reported on Wednesday after court, "Hey, couldn't have gone better.  Y'all hang tough."  Now these, these lawyers are working for the Congressional delegation, but we didn't know any better until we read the Chronicle and other sources the next day.

Will the New York Times warn us about all the gin joints in all the towns in all the world?

So I'm reading today's New York Times at lunch — section B, "Weekend:   Movies, Performing Arts" — and in particular a very favorable review of "Lost in Translation," a new movie starring Bill Murray. 

The good grey Times tells me that Murray

plays a vodka-and-bitters version of himself and the persona that made him famous. His character, Bob, is an American movie star who is in Tokyo to participate in the celebrity not-so-secret shame: he's picking up a boatload of dough to perform in commercials for Suntory whiskey. He arrives in Japan just in time to gaze, slightly embarrassed, at the sullen billboards of himself that are starting to appear there.

Now with this, the Times' improbably named reviewer — "Elvis Mitchell," uh-uh-huh, huh, hey-yeah — has confused me a bit.  Is it vodka-and-bitters (presumably all shook up)?  Or is it whiskey?

I'm particularly confused because there really is a Japanese company named Suntory, and it really does sell whiskey, or "whisky" (as Scotch whisky-makers and -drinkers prefer to spell it).  I know this because I've seen the caption on the Suntory website page that reads, "Maturation warehouse at Yamazaki Distillery where barrels of molt whiskies, including the ones made in 1924, slumber for aging."  I've taken the free-sample tours at distilleries in the Scottish Highlands, Midlands, and Lowlands, and the overpowering smells of malted barley there I'll never forget.  But I've never had a molt whisky or a molt whiskey, so if I ever go to Japan I'm planning to try both.  (Probably not the 1924 one, though; I might like it too much and then go invade Manchuria.  Let's let that one keep slumbering.)

So anyway, this is a really flattering review, very effusive, and I've about decided that this is one I'll at least add to my Netflix list.  And so I get to the end of the review, and I'm about to flip the page when I read this:

"Lost in Translation" is rated R (Under 17 requires accompanying parent or adult guardian). It has sexual content as well as strong language and alcohol consumption.

Rated R for ... alcohol consumption?

Or is that "strong" intended to modify both "language" and "alcohol consumption"?  As in, "Hey kid, lemme see some ID!  ... What?  No ID?  Hey, youz geddowdahere then! This movie has strong alcohol consumption!  I'm talkin' EverClear-strength, baby, 180 proof!  Just watchin' it'll have a kid like you pukin' an' cryin' fer yer mama!"

A quick Google site-search of the Motion Picture Association of America website reveals no new ratings rules requiring that movie advertisements and disclaimers warn of "alcohol consumption."  Tucked away in the archives, there are some comments made by the MPAA on some proposed FCC regulatory amendments for satellite broadcasting in 1996 which proclaim that "MPA member companies distribute their programming in markets all around the world, conforming to non-discriminatory standards — whether those standards are motivated by public health policies, such as bans on depiction of alcohol consumption, or local cultural values with respect to sex or violence."  But it says nothing about new warnings for boozy scenes.  Which is comforting:   he's never invited me for one, but I've always thought that Jack Valenti would be a great guy to sit down and have a stiff drink with, or maybe two or three.  I'd really like to hear him tell some LBJ stories that I suspect go better with one or more tall whiskies — not much ice.

Now I'm beginning to wonder if I've violated the Kyoto Treaty or the Geneva Convention or something like that by snatching and republishing the photo in this post from the Times, which presumably got it from the film's distributor, Focus Features, which presumably has it copyrighted.  I'm pretty sure I'm okay with the copyright laws under "fair use," and I'm spending my own rather than leaching off the Times' bandwidth.  But should I have a new warning label for BeldarBlog?  I mean, that amber color in Murray's glass probably isn't from apple juice, is it?

"DANGER:  This blog features strong men taking strong measures to satisfy their strong thirst for strong drink!  STRONG alcohol consumption may be depicted here without prior warning or apology!

Still, what would we all do without (respectively) Hollywood to offend, and the New York Times to protect, our sensibilities?  I shall sleep more soundly tonight, boy, knowing that I won't accidentally stumble into a theater and be shocked — shocked! — to be caught unawares watching someone slam down a Miller Lite. 

And hey — maybe I could get the concession for the restickering project, adding the new warning labels to every DVD and videocasette for every film Humphrey Bogart, Cary Grant, and Clint Eastwood ever made!

It's all over but the shoutin' in Laredo

Or so sez the Associated Press, as reported in the Houston Chronicle:

A three-judge federal panel in West Texas today dismissed a lawsuit filed by senate Democrats hoping to derail a new round of redistricting in Texas.

The Democrats argued that Senate rule changes by Republicans to further the redistricting effort violated federal law.

The judges, who listened to two hours of oral arguments Thursday in Laredo, dismissed those claims but withheld a decision on an amended complaint of threats to arrest Democrats and require them to pay fees for their failure to appear at a special legislative session on redistricting.

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?

How strained shall be the quality of mercy shown the Ten Truant Texas Dems™?

This — from Charles Kuffner of Off the Kuff about what will happen to the fines and other penalties imposed on the Ten Truant Texas Dems™ (my nickname for them, of course, and not his) — I found very thought-provoking:

[M]y best guess is that the GOP will try to impose some sanctions, and the Democrats will tell them to go pound sand. Tactically, I'd guess the Democrats are hoping that the Republicans insist on fining them and restricting their access to supplies, conference rooms, parking lots, etc. It fits in well with their renegade-victim-of-oppression story line, and will serve as a continuing rallying point for them both in Texas and nationally. As such, the smartest thing the GOP can do is to be magnanimous and drop all of the punishments in the name of restoring harmony. The fate of redistricting is entirely in the GOP's control now, so it hardly costs them anything to let bygones be bygones, and it would take a lot of wind out of the Democrats' sails if they did so. I don't think anyone will be surprised to hear me say that I seriously doubt that Rick Perry is smart enough to advocate this. But hey, I could be wrong. Again, we'll know soon enough.

I make no prediction on what Gov. Perry or the other members of the state Republican leadership will actually do, nor any comment on their inate cleverness.  But otherwise I agree with Kuff's observations.  At least in the short term, it would be politically smart — canny, astute, shrewd, efficacious — for the Senate Republicans to forgive everything.

But would it be wise?  Would it be proper?  Would it be sacrificing an important principle for the sake of short-term political gains that will be outweighed by longer-term consequences?

It is important to consider what precedent will be set for the future — and to do so in a manner that is not driven by short-term questions of how being merciful or vengeful will play in the polls.  It is no hyperbole to say that we have had a constitutional crisis in Texas this summer.  This crisis resulted not only in hard feelings and hardball politics, but also demonstrated a paralyzing impotency in the mechanisms of state government — with a heavy resulting waste of both tangible economic capital for the entire State of Texas and metaphysical political capital for members of both parties.  Unless there is a wise and comprehensive course of action undertaken to achieve political closure now, then the bitterness of this summer's fight may make such walkouts and stalemates ever more likely in the future, rather than less.

But how can both sides back down gracefully, claim to have preserved their inconsistent sets of principles, and get on about the business of governing the State of Texas?  The dilemma is clear:

• On the one hand, there can be no doubt whatsoever that the "Texas 11" deliberately violated Texas Senate Rule 5.03, which provides that "[n]o member shall absent himself or herself from the sessions of the Senate without leave unless the member be sick or unable to attend."  I assume that this particular rule has been in place for a long, long time, and at the beginning of the 78th Texas Legislature, it was unanimously approved by both Republican and Democratic senators alike.  The Texas Senate Rules do not bless or allow for the possibility of civil disobedience by senators, no matter what principle is being "defended" by the destruction of a quorum.  This isn't going to change.  And it would be very bad policy to set a precedent for the future that this rule may be violated with impunity (besides the fact that such a precedent would require the Republicans to eat more crow now than they could stomach).

• And yet on the other hand:   As profoundly misguided as I think they are, and as knowingly sloppy with the truth as I think they've oftentimes been and continue to be, I do not doubt that the Democratic senators who fled the state were, ultimately, sincere in their beliefs.  Vengeance or retribution for its own sake would be worse than petty and politically stupid; it would be unjust if carried to extreme measures.  All that nonsense about "poll taxes" aside, it would be counterproductive to insist on any meaningful penalty that would inhibit a senator's or his staff's ability to perform their jobs.  And in the present circumstances (about which, see below), it would be cruel and unrealistic to try to enforce significant monetary penalties against any of these senators in their personal capacities.  (Some of our part-time legislators would likely be driven out of office, if not also to personal bankruptcy, by the fines that nominally are outstanding now.) 

How, then, to cut through this Gordian knot?  As always, with a bold stroke of a sharp, deftly wielded sword.

The vote to impose penalties and sanctions by a majority of the Texas state senators who remained at the Capitol for the second special session — the Republicans plus Ken Armbrister, but over his and Republican state senator Bill Ratliff's opposition — did indeed have an arguable basis in the Texas Constitution and the existing Texas Senate Rules, notwithstanding the absence of a quorum.  If push came to shove, in fact, I think they'd have the better of the argument, in a technical and legalistic sense.   

The only place where push could likely come to shove, though, would be in the Texas Senate, and not in the Texas courts.  As demonstrated by the dismissals of the Republicans' attempts to "mandamus" the missing Democratic senators in both a Travis County District Court and in the Texas Supreme Court (as an "original jurisdiction" proceeding), the Texas courts will have none of this fight; it's a classic example of something that is considered to be a "political question" that, under the doctrine of separation of powers, lacks "justiciability."{note1}  So as a practical matter, the Senate has plenty of running room and flexibility here to write its own ticket so long as it doesn't expressly violate any provisions of the Texas Constitution.

Even if authorized and justifiable, the voting of penalties and sanctions was unprecedented.  That doesn't mean it was wrong.  But it means that, arguably, it came as a big surprise, and an unfair one, even if it was technically justified.  The Republicans can concede this point without any loss of face.  Moreover, they can likewise concede that it's a fundamental notion of "due process of law" that before you can penalize an offender, he has to first have been given fair notice — via a statute or via caselaw — that what he's about to engage in will land him in the soup, and indeed, roughly how hot that soup might be!{note2}

So there's your principled, equitable basis to support an act of sublime mercy — not a pardon that forgives unconditionally, wipes out the offense, and implicitly approves the misconduct after the fact, but rather an amnesty that is a measured decision to forego prosecution just this once.  "Guys, we think what you did was wrong, and we know you don't agree with that; but we can both agree that this was a novel, unprecedented situation, and we can also all agree that it would be better form for the entire Senate to agree on when and how this kind of penalty ought to be assessed."

That's only half of what's needed, though.  As part of the same unanimous Senate resolution that grants an amnesty and sets aside all fines and penalties with respect to the just-concluded second special session of the 78th Legislature, there must also be the joint statement of the "sense of the Senate" that before the next regular session of the Texas Legislature in 2005, a bipartisan commission (comprising an equal number of Democrats and Republicans, with Lt. Gov. Dewhurst voting only if necessary to break a tie) should meet to draft and propose amendments to the existing Texas Senate Rules.  Those amendments would be designed to put teeth into Rule 5.03.  As such, the rules as amended should contain graduated, automatic penalties (not requiring a separate vote in the absence of a quorum) that become more and more severe, leading all the way up to — but stopping just short of — declaring a vacancy in the seat of the most extreme offenders.  Whether the Senate could engage in that ultimate sanction without violating the Texas Constitution is a question best left for the next extreme constitutional crisis, which hopefully will never come.

To invoke the nickname of a former Texas governor (a native of my hometown, by the way):   PRESTO!  We've achieved an act of bipartisan cooperation and statesmanship that jerks the bloodstained tablecloth off the table without upsetting any of the dishes.  We'll let tempers cool until the 78th Legislature and redistricting are firmly behind us all.  We'll pick cool heads for the intersession commission to launder the tablecloth and prescribe table manners for the future.  And best of all, we'll diminish the likelihood — without necessarily foreclosing it completely — of similar walkouts by either party in the future.

(As my royalty on this proposal when adopted, I ask merely for 0.001 percent of the gross state sales tax revenues for the next five years.  Think of it as an extremely modest contingent fee.)

------------------------

{note1} There's well developed parallel federal caselaw on this, if not much Texas law for understandable reasons.  Compare, e.g., Nixon v. United States, 506 U.S. 224 (1993), with Powell v. McCormack, 395 U.S. 486 (1969).

{note2} See, e.g., Rogers v. Tennessee, 532 U.S. 451 (2001).

9/11

This project is worth some quiet time.

I also agree pretty much with VodkaPundit and Lileks.

My own thoughts on this anniversary are here.

It's all about making people think it's all about race: Fisking Michelle Goldberg's Salon article on Texas redistricting

Writing in the online magazine Salon, Michelle Goldberg has an article out entitled "The Texas stalemate: It's all about race."  (Subscription required, or you can watch a 30-second commercial for a "day-pass"; the one I saw consisted of an ACLU ad that factually misdepicted the USA Patriot Act).  It's subtitled "Few are saying it openly, but the DeLay-Rove power grab in Austin is all about keeping white control of an increasingly Hispanic state," and it's been cited as authoritative, conclusive proof of rampant racism in Texas by such sources as the San Francisco Bay View and left-wing blogger Atrios.  So what's Ms. Goldberg got to say about the Lone Star State from her home in New York?

Sept. 3, 2003  |  ALBUQUERQUE, N.M. — Exile in Albuquerque is not glamorous. The 11 Democratic Texas state senators who fled to New Mexico more than a month ago to block a Republican power grab spend most of their days and nights at a slightly shabby Marriott hotel in the city's grim, sprawling periphery....

To prevent the formation of a quorum in the Texas Senate, the Ten Truant Texas Dems™ had their choice of any place to stay in the world, so long as it was outside Texas.  Tom DeLay didn't pick Albuquerque, much less this particular Marriott.  But in fact, Texans have been escaping the summer heat to their vacation spots in New Mexico for decades.  Ms. Goldberg, I suggest you ask New Mexico Gov. Bill Richardson, a Democrat and a vocal supporter of the Truant Texans, whether he appreciates your characterization of his state's largest city as "grim" and "sprawling."

... While most press accounts cast them as opponents of a Republican plan to grab power by redrawing legislative districts, the lawmakers-in-exile here see something at once more subtle and more important:   the latest chapter in the South's long, ugly war over minority voting rights.

Yes, even though "subtle," this theme makes for much better talking points and fund-raising than saying, "We've fled the jurisdiction to protect white, male incumbent Democratic Congressmen who will likely lose their seats unless we can maintain the pro-Democratic gerrymander from 1991."  Never mind, of course, that it was the southern wing of the Democratic Party who was guilty of the minority voting rights violations that led to the Civil Rights Act of 1965.  The question is, having wrapped themselves in the banner of Martin Luther King, can these modern-day Democrats make the banner fit?

Nine of the 10 senators remaining in Albuquerque are black or Hispanic; the other one represents a district that is mainly minority. And within a few years, experts say, Texas will join California as a state where Latinos, African-Americans and other minorities will outnumber Anglos.

The second sentence is true, and explains why Texas Republicans are so enthusiastic about recruiting and supporting conservative Hispanic candidates (e.g., Orlando Sanchez in the current Houston mayoral race).  But that second sentence doesn't logically relate to the first. 

So what's the purpose of the first sentence?  Each of the Ten Truant Texas Dems™ was elected from a state senatorial district that has already been redistricted by court decision in 2001.  It's not their seats that are at risk, nor the state-senatorial voting rights of any of their constituents that is at issue in the present fight.  The only reason for mentioning the race or ethnicity of these senators is to raise a demonstrably false impression that the Republican desire to adjust Congressional districts is intended to discriminate against them on the basis of their race.  That's not particularly subtle.  And it can't possibly true.

"This is an effort to seriously gut minority voting rights," says Sen. Leticia Van De Putte, head of the Texas Democratic Senate delegation. "We could not protect our constituents without breaking quorum" and fleeing Texas to short-circuit the Republican plot.

With all due respect, Sen. Van de Putte — and I respect you every bit as much as I respect Meryl Streep — your constituents are the people who can choose to vote for you, or not; the boundaries of your senatorial district aren't affected here.  As for the choice of the term "plot" — well, that's a nice, loaded word that appeals to grassy-knoll enthusiasts everywhere.  But it's a pretty poor "plot" when the Governor calls three special sessions for the express purpose of adjusting Texas Congressional district boundaries to make our Congressional delegation reflect the broad and deep state-wide support Texans give to our favorite-son President and his party.  Can it be a "plot" when it's so poor a secret?

If the senators are stubborn, it's partly because they've come to see their stance against redistricting as a civil rights struggle, not a political quarrel. At first, it's difficult to see that the battle over Texas redistricting is all about race. Spurred by Texas powerhouse Tom DeLay, the majority leader in the U.S. House of Representatives, and by White House maestro Karl Rove, Texas Republicans are trying to ram through a redistricting proposal that would virtually ensure that Republicans would replace between five and seven white, moderate Democratic incumbents.

(Emphasis by Beldar.)  Or maybe it's hard to see that the battle is all about race because the battle is not all about race. 

The description here of the various redistricting proposals on the table isn't far off.  The Republicans' obvious and stated motive is indeed to replace "moderate Democratic incumbents."  Now, it's not an accident that they're targeting "white, moderate Democratic incumbents" rather than black or Hispanic ones.  Regardless of whether there was an intention to target black or Hispanic incumbents based on their race, even a negative effect on such incumbents would run afoul of the Voting Rights Act of 1965.  You remember that statute, the one with a conclusive and binding presumption (based on the actions of the 1960s-and-earlier southern Democrats) that all Texans are racists who are incapable of merely unintentionally diluting minority voting strength. 

No, minority incumbent Democrats like Sheila Jackson-Lee or Rubén Hinojosa have nothing to worry about in this fight because they are bulletproof — any threat to their majority-minority districts would be blown out of the water in a New York minute.  The DOJ and a three-judge federal panel (from which there's a direct appeal to the US Supreme Court) will review any new redistricting map that comes out of the 78th Texas Legislature, and they have an absolute trump card to protect against any harm to minority voting rights.  US District Judge George P. Kazen of Laredo — currently the Chief Judge of the Southern District of Texas and a Clinton appointee — went out of his way to point this rather important fact out on five separate occasions in the first hearing on the voting rights lawsuit brought by the Ten Truant Texas Dems™, along with an express plea to the media to point this out to the general public.  (The plea was, of course, ignored, since it doesn't fit with the agitprop coming from the Dem Senators themselves, nor from MoveOn.org or sympathizers like Ms. Goldberg.)

But the fact that Ms. Goldberg concedes here — that the current redistricting fight is about the seats of "white, moderate Democratic incumbents" — is the least widely known and most misunderstood fact of the whole fight.  And the very next sentence of her article is even more stunning:

The GOP proposal would redraw the state's legislative boundaries so that minorities are concentrated into a few districts, likely leading to a net increase in the number of minority members of Congress.

(Emphasis by Beldar.)  Hello?  Did you catch that?  The Ten Truant Texas Dems™ fled the state to prevent a net increase in the number of minority members of Congress.  Ms. Goldberg calls this the "great irony of this whole imbroglio," but perhaps it's not "an irony," but a central fact!  If it's merely an "irony," then yes, this must be a very subtle anti-minority plot indeed. 

How is it supposed to work?  "[T]he voting power of blacks and Latinos would likely be diluted in other districts, giving Republicans a net gain of as many as seven seats," says Ms. Goldberg, which is why

Texas Democrats insist that the Republican redistricting plan is a deviously clever update on the party's old-fashioned divide-and-conquer Southern strategy. The Republican plan, Democrats argue, would redraw the boundaries so that blocs of Hispanic and black voters would shift from districts where they've voted in coalitions with white Democrats and independents into solidly Republican suburban districts, where their influence will be almost meaningless.

Okay.  There's the nub of it.  The plot against minority voting rights has nothing to do with "majority-minority" districts, but boils down to redrawing boundaries where Democrats — white ones, black ones, Hispanic ones — are currently sufficiently concentrated that when they all join together, they can continue to elect "moderate white Democratic incumbents," if just barely.  Well how'd that situation come about?  By accident?

Hell, no!  The way those concentrations were achieved was by over-packing Republicans into an even smaller number of highly-concentrated Republican districts back in 1991 — which, amazingly enough, Ms. Goldberg also admits much later in her article, when she quotes Rob Richie, whom she identifies as the executive director of the nonprofit Center for Voting and Democracy: 

Texas Republicans have a point that the current congressional map doesn't reflect Texas' voting patterns, Richie says. More than 50 percent of Texans voted for Republican congressional representatives in the last election, but Republicans won just 15 seats, while Democrats took 17. (Of course, given the last presidential election, there's something audacious about Republicans arguing that the system is invalid because its party won the popular vote in Texas but lost the electoral vote.) The Democrats dominate, says Richie, because of the electoral maps that state Democrats drew in 1991.

A panel of Texas judges redrew those maps in 2001, after statehouse Republicans blocked passage of a new map drawn by Democrats, who were then a majority. Republicans defended those court-drawn maps, which gave their party two extra seats, from a challenge in U.S. Supreme Court brought by civil rights groups, who said the map was unfair to minorities. Nevertheless, that round of redistricting didn't reverse all the advantages Democrats had built into the system in 1991.

Indeed, Richie calls the Texas Democrats' 1991 maps the most effective gerrymandering of that decade in the nation....

We'll charitably pass by Ms. Goldberg's parenthetical non sequitur about "electoral votes," which play no part in Congressional or state elections; in 2000, Dubya won both the popular vote in Texas and (of course, therefore) its electoral votes, so I have no clue what "audacity" she's talking about. 

With respect to the other comments she attributes to Mr. Richie, though, the Balderas v. Texas decision in fact didn't reverse any of the advantages that the Democrats "built into the system in 1991" because the panel left untouched all majority-minority districts created in 1991 and then ensured that no incumbents were likely to be unseated — and there were still more incumbent Democrats than Republicans.  The Balderas panel recognized that what it was doing had a pro-Democratic effect, even though that effect wasn't intentional on its part.

So what's the beef?  C'mon, Michelle — get to the plot part!  How's it work?

In exchange for two new minority members of Congress, Democrats say, blacks and Hispanics would lose a handful of white members whose voting records are relatively well-ranked by civil rights groups.

Oh.  I see.  And it's just a coincidence that those same white Congressmen have a moderate-to-liberal record on all other issues?  Everyone knows that it's only the rankings of civil rights groups that count — it couldn't be possible that Texans would care whether, for instance, their Congressmen were supporting our native-son President on foreign policy issues after 9/11?  Or on tax cuts and other economic policy?

The argument that a handful of sympathetic white congressmen beats two minority representatives would sound grossly self-serving if put forth by the white congressmen themselves. But the main proponents of that argument are the Texas 11.

Again, we'll ignore the fact that they're down to ten.  But let's not ignore all the other facts.  Let's notice, for example, that just as Republican Majority Leader Tom DeLay and other national Republicans may be interested in the outcome of this battle, so too are the white incumbent Democratic Congressmen whose seats are on the line.  Was it coincidence that when Sen. John Whitmire returned to Houston last week, he was met at the airport by Congressman Gene Green?  Do you not think Congressman Martin Frost — the mastermind behind the 1991 pro-Democrat gerrymander — no longer cares about his own seat?  And is it a fluke that the lawyers representing the Ten Truant Texas Dems™ in their Laredo lawsuit were hired by the Democratic Congressional delegation, not by the Texas Senators themselves?

As we say in Texas, "I was born at night.  But not last night."

[B]y targeting white congressmen elected by coalitions of minorities and white Democrats, the Republicans have found a way to disenfranchise minorities without violating civil rights laws that prohibit states from gerrymandering electoral districts on racial lines.

"Disenfranchising minorities" is of course a nicely loaded term, but it literally means preventing someone from voting.  The Voting Rights Act of 1965 was passed because Southerners were "disenfranchising minorities" with "subtle plots" like lynching them when they tried to vote.  But that act also prohibits acts and practices that have the intent or the effect of substantially harming minority voting rights, and Ms. Goldberg accuses the Republicans of being "subtle" enough to avoid doing that.  So what we're left with is this argument:   Anything you do to disadvantage white incumbent Democratic Congressmen is a racist plot, because those white boys are friendly to minorities, and in fact they do a better job of representing minority points of view than would additional Congressmen who are actually minority members themselves.

Right.  Gotcha.  I have just experienced an epiphany as to the full meaning of the term "diversity."

But ... but ... Is there actually any evidence — you know, facts and stuff — that this is all racially motivated?  Well, sez Ms. Goldberg, you have to be "attuned to the signals":

One might think the senators were being oversensitive, even paranoid, if a key Republican operative hadn't confirmed their suspicions that Republicans, led by Rove and DeLay, are playing a devious race card.

In May, the Denver Post reported on GOP attack dog Grover Norquist's strategy, saying, "The GOP can live with urban liberals, such as [California Rep. Maxine] Waters; it's moderates such as [Texas Democratic Rep. Charlie] Stenholm who are its main target." If the Texas redistricting plan is adopted, Norquist was quoted saying, "it is exactly the Stenholms of the world who will disappear, the moderate Democrats. They will go so that no Texan need grow up thinking that being a Democrat is acceptable behavior."

For those attuned to the signals, Norquist's message was clear — redistricting would drive Southern whites out of the Democratic Party. In July, he went further, telling the New York Times that Sheila Jackson-Lee, a African-American congresswoman from Texas, "will be the spokesman for the Democratic Party."

"Basically you'll be labeled a nigger-lover if you're a Democrat," [Garnet] Coleman [a Democratic state representative from Houston] says of the Republican plan. "We've already been through those times. It's all part of the Southern strategy."

Aha.  Well, now it's clear.  If you're "attuned to the signals," you'll understand that the millions of Texas voters who voted Republican in 2002 — who put both chambers of the state legislature into Republican hands, along with both the governorship and lieutenant-governorship, for the first time since Reconstruction — were all actually mindless, thoughtless robots doing the bidding of Grover Norquist.  (Never mind that not one Texas voter in 20 or probably 50 could tell you who Grover Norquist is.)  And when Mr. Norquist says he's out to make the "moderate Democrats" like Charlie Stenholm disappear, it's not possible that it's Charlie Stenholm's voting record which he objects to.  No, it's that Charlie Stenholm is a friend to minorities, that's the only possible objection any Republican could have to him. 

So, you see, the proof is in the subtext of what Grover Norquist said, as quoted in a Colorado newspaper.  Yes indeedy, that is conclusive and indisputable proof that Texas redistricting is really about labeling white Democrats as ....

Well, I can't quite bring myself to type that odious phrase; it's bad enough to have cut-and-pasted it.  But you'll know what I meant — if you're "attuned to the signals."

"Our Senate colleagues, they think we did this for show. They're very uncomfortable every time we bring up the black or Hispanic issue," says Van De Putte. "But this is about the consolidation of power and trying to direct control of the U.S. House for the next 20 years."

Umm.  Sen. Van de Putte, it's actually about who Texas elects in the next four Congressional elections (2004, 2006, 2008, 2010) before the 2010 Census and another round of redistricting in 2011.  Maybe your colleagues are uncomfortable because they don't want to point out your math deficiencies.  Or maybe they're uncomfortable because you're accusing them — without evidence, and indeed contrary to the evidence! — of being racists.  That might do it.

No Republicans returned calls for this story. But the redistricting standoff comes at a time when blacks and Latinos are on track to become majorities in Texas, leading some Texas Democrats to believe Republicans are using redistricting to limit the effect of demographic changes. One exiled Democrat recalls the candid comment of a Republican colleague: "We have 10 years until Hispanics take over."

That's just delicious.  I've been meaning to explain, Ms. Goldberg, why I didn't return your call .... But, yup, you caught us, there's obviously no Republican anywhere who can refute what you've written.  And that line from an unidentified Democrat about an unidentified Republican ... man, that is powerful evidence.  Stronger'n train smoke.   That pretty well nails us, every one of us, on just about any issue for that matter, and at any time and place.  I don't understand why this little nugget wasn't a New York Times headline for six weeks running.

Ya know, I wonder now why Ms. Goldberg bothered to write this whole article.  Anyone who's "attuned to the signals" already knows that all Texas Republicans are hard-core racists.  That would run from Dubya down to the peach-fuzz-cheeked members of the Sam Houston State University Young Republicans.  And of course we can't leave out Presidential Counsel and former Texas Supreme Court Justice Alberto Gonzales (Hispanic) or current Texas Supreme Court Justices Dale Wainwright and Wallace Jefferson (both black).  I suspect Rep. Coleman can come up with some nice terms to describe them as well.

If you're sufficiently "attuned to the signals," you don't need or want facts — or screeds like Ms. Goldberg's — anyway.

---------------------------

UPDATE (Sun Sep 14 @ 7:30pm):   Even when he or she disagrees with you, it's always flattering to have something you've written read closely and discussed at length by another blogger, especially one as articulate as Ginger Stampley, who blogs in the cleverly named Perverse Access Memory.  I appreciate her taking the time and trouble to write and to link here via a Trackback. 

Is it "all about race" if it's about white incumbents?

Ms. Stampley writes:

One of the things that amuses me about Beldar’s comments is that when it’s about white representatives, it’s not about race. I can’t decide whether this blind spot is deliberate or not. To Republican strategists, it’s never about race, except when somebody who isn’t white points out that white people are stomping their metaphorical dick and does something about it. Then it’s anti-white racism and reverse discrimination.

Of course, my original piece started with Ms. Goldberg's use of the phrase "it's all about race" — but I'll plead guilty to some imprecise language.  As I originally stated, it's no accident that the Congressional districts being most heavily targeted for change in the Republicans' proposed redistricting plans are those with Anglos incumbents, and to that extent, I agree that the Republicans' redistricting efforts are indeed "about race."  But that's not because of an intent to discriminate against any members of minority races, which was very clearly what Ms. Goldberg meant when she said that redistricting was "all about race." 

To the extent that the Republicans' redistricting proposals discriminate against Anglos, I actually do agree that is unfortunate — even though I don't have much personal sympathy for these "good ole [white] boys" as the victims of this reverse discrimination.  But it's a discrimination that is effectively mandated by the Voting Rights Act of 1965, which makes those districts the only ones that are "up for grabs," so to speak.  So what Ms. Stampley characterizes as a "blind spot," I'd characterize instead as recognizing the practical political realities imposed by the Act.

Is it all about making people believe "white = Republican"?

Ms. Stampley also asserts that "[t]he goal of Republican strategists in Texas is to make every Democratic face in the statehouse and in the Congress black or brown," and says that she doesn't "like the idea that white liberals have no place at the table in Texas. And that is a message of this redistricting effort:   White=Republican." 

I certainly agree that such a message would be profoundly offensive.  However, the only people I see who are trumpeting that message are Democrats like State Rep. Garnet Coleman, an example of whose extremely distasteful rhetoric is quoted in Ms. Goldberg's article. 

And it's quite odd to hear Dems make this "white flight" argument at the same time they're ridiculing past and persisting efforts by the Republicans to attract minority candidates and voters — especially Hispanics who tend to be conservative on "culture war" issues.  Again, consider the 2002 elections in which two black Republicans won seats on the Texas Supreme Court, and a Hispanic Republican candidate was favored by party officials (but lost, to their chagrin, in the primary).  That's supposed to send a message from the Republican Party that "white = Republican"?

Is it all about drawing up districts on the basis of race, or on the basis of voting patterns?

Ms. Stampley concedes that "yes, the Republican party will gladly take your money and your vote if you are black or brown."  I think she's right about that, and I'd add that the Republican party will gladly consider what Congressional district you should be included in based on how you and your neighbors are voting, without regard for whether you're black, brown, or any other color.

With all due respect, Ms. Stampley comes up with no more evidence — facts, examples, specifics other than innuendo and presumptions of bigotry — than Ms. Goldberg did.  Ms. Goldberg says you have to be "attuned to the signals"; Ms. Stampley says "it takes blinders to miss it."  Okay, maybe I'm not attuned and I'm wearing blinders.  So help me out:   point me to the evidence of racial discrimination.  Ms. Stampley mentions an effort to "get blacks in Ft. Bend County out of Tom DeLay’s district to keep it safe for him."  I don't know what specific proposals have been made with respect to Mr. DeLay's district, but if what Ms. Stampley says is so, then where's the evidence that it's those voters' race — as opposed to their liberal politics — that is the motivation?  To ask it a slightly different way, is there any evidence — not speculation, not innuendo, but actual evidence, either direct or circumstantial — that it's those voters' race, rather than their past voting patterns, that's motivating any changes that are being proposed with respect to the Congressional district they'll next vote in?

Direct evidence of public racism is, I'll admit, hard to find; a politician who harbors racist views would be stupid to reveal them by admission or by other direct evidence (Cruz Bustamante's "slips of the tongue" notwithstanding).  But if race really is driving the decisionmaking, and not voting histories, then you ought to be able to find some examples of folks whose districts are being switched in a way that is irrational, inefficient, and inexplicable on the basis of their voting histories.  When and if you find that, if those voters are also members of minority groups, then you'd have at least circumstantial evidence of racism.  So, are there any such examples?  If so, I've yet to see them documented.

Does it make political common sense for redistricting to be all about race or racism?

I don't doubt the sincerity of either Ms. Goldberg's or Ms. Stampley's beliefs that — evidence or the lack thereof notwithstanding — some or most of the Republicans pressing for redistricting are motivated by racism, or at a minimum are consciously taking advantage of others' racism.  But that's all they have — a sincere but essentially unsupported belief that someone else is a bigot. 

Neither I nor anyone else can directly disprove that.  All I can say with any certainty is that I'm a Republican who's pressing for redistricting too; I can see inside my own heart, and I'm very comfortable that racism isn't any part of my motivation. 

But I can make an argument based on reason and inference.  If your goal is to gerrymander for the purpose of undoing a previous gerrymander and to benefit your own party with the new one, then in counting and classifying the blips on the map that you're trying to draw Congressional district boundaries around, it would be entirely reasonable to consider those blips' voting histories and trends, and to aggregate them based on that.  You can say, "The blips in this precinct pretty much have been straight-ticket [Democrats/Republicans], whereas the blips in this precinct have been ticket-splitters tending toward [Democrats/Republicans] on national and statewide races, but toward [Republicans/Democrats] on more local races."  I believe that the Republicans who are drawing up various maps have that goal, and I presume that they're going about it in a reasonable and efficient manner — reasonable, at least, if you accept as a given that partisan gerrymandering is both legal and customary — so I infer that they're looking at those blips' voting histories and trends pretty much to the exclusion of any other data about them. 

If you had no data about voting histories and trends, but did have data about race, then perhaps it would be reasonable to use race as a proxy based on statistically significant correlations between race and voting histories and trends.  But we do have very particularized data on voting histories and trends on a precinct-by-precinct basis now, and by contrast, the race-based correlations are imperfect and quite probably growing weaker.  One could also presumably develop data about concentration of Chevrolets versus Fords versus Toyotas on a precinct-by-precinct basis, and there might be some correlation between that and voting patterns; but why would I use that data as a proxy either?  If your goal in politics is to get yourself and members of your party elected, then it doesn't make sense to base your redistricting decisions on race, no moreso than it would to base your decisions on voters' car brands or household income or SAT scores — if you're deciding based on any of those characteristics, you're passing up a more effective and direct means to your goal.

No one can dispute that in days past, there were Anglo legislators whose irrational, racist desire to suppress political participation by either blacks or Hispanics predominated over their desire to see themselves or members of their own political party elected.  I doubt if many lynching parties stopped to ask their victims whether they intended to vote Republican or Democrat, and their basis for selecting those victims was emphatically racial and racist. 

But with all due respect for the sincere contrary beliefs of Ms. Goldberg and Ms. Stampley, I have no reason to believe that many, if any, of today's Texas politicians are being driven by those ugly motives.  I'm loathe to make that presumption because I know it's false in my own case, and because I think better of the modern American character, and because I've seen no current evidence to support it, and because it runs contrary to political common sense and efficiency. 

So I continue to believe that Texas redistricting is not all about, or even mostly about, racism.  There's no good reason for it to be about that — unless your party is in the minority, and you're desperately looking for some basis, any basis, to win either a PR battle or one in the courts that you can't win through democratic means in the Legislature.

In memoriam: J. Michael Bradford (1952-2003)

According to press accounts (here and here), Mike Bradford — an acquaintance and contemporary of mine at Texas Law School in the late 1970s who later served as the United States Attorney for the Eastern District of Texas during the Clinton administration — apparently took his own life this week.  When I was a "freshlaw" at UT (what they call a "1-L" at many other schools), Mike was the first upperclassman I had many dealings with — and what he taught me then has influenced my practice of law on a near-daily basis ever since. 

I mourn his passing.

One of the traditions at Texas Law School, going back many decades and persisting still, is that volunteer third-year (senior) students serve as "Teaching Quizmasters" to instruct small groups of first-year students in a pass/fail course on legal writing and, in particular, on legal citation form. As an undergraduate, I had always been annoyed by what seemed to me to be overly picky and archaic rules for listing one's sources in formal research papers — "op. cit." and "ibid." and the like struck me as silly. So I was decidedly unenthused, bordering upon annoyed, when I learned that the law has its own system for citing to sources of all sorts — appellate court decisions, statutes, law review articles, treatises — and that it was considerably more complex and picky than the system used by nonlegal academics.

I was very fortunate, then, to have been assigned to a TQ named Mike Bradford — a tall, lanky third-year student whose patience, fortunately for me, seemed unlimited.  Mike introduced me to the "Bible of legal citation form," the so-called "Bluebook" — the Uniform System of Citation jointly published by the law reviews of Harvard, Columbia, Penn, and Yale Law Schools. And very gradually, under his tutelage, our group of first-year students began to appreciate the distinctions between, for instance, a citation that began with the "signal" called "see, e.g.," and one which began with just the signal "e.g.," or instead with "see also" or "but cf." — each of which tells the knowledgeable legal reader a little something different about what to expect if he goes to look up that particular source. 

Mike also began walking us through the Texas Law Review Manual on Style (a/k/a "the Whitebook"), which was a sort of "Strunk & White" for legal writing; and the Texas Rules of Form (a/k/a "the Greenbook"), which overlaid the Blue Book's citation rules with yet another set of citation rules peculiar to Texas.

Eventually, TQ Bradford not only managed to drag me through all this dry but essential ritual of written legal protocol — although "Legal Writing and Research" was a pass/fail course, no one was allowed to fail it — but he actually got most of it to sink in. Ever so slowly, he imbued in me a growing appreciation for the utility and — I know this sounds very wonkish to say — the elegance of the system:

• Yes, it does matter whether you include a parenthetical to indicate whether the Texas Supreme Court refused the application for writ of error on that opinion from the Eastland Court of Civil Appeals on the basis of "n.r.e." (no reversible error) or "w.o.j." (without jurisdiction). 
• No, you don't need to include the year that the decision was announced in the first "court-and-date" parenthetical in the citation, since it's the same year you're listing in the later part of the citation to demonstrate that the US Supreme Court denied certiorari; but if the cert. denied subsequent history was in the following year, then yes, you list both years. 
• Yes, it does matter whether you underscore that signal. Why?  [Deep sigh.]  Because if you don't, then professors and eventually lawyers and judges who are reading what you've written will conclude that you either don't know the rules or don't care about them, and they'll also conclude that you really are an ignorant hick from the prairies of West Texas who's better suited to cotton farming than arguing constitutional law!

And so forth. Of course, Mike never actually said anything to me about my being an ignorant hick from West Texas, and I don't know anything about his own background. But if, as I think likely, Mike was a Texas boy of modest means with the same kind of chip on his shoulder when he started law school that I had, he had probably figured out that fellows like us badly needed to learn this sort of stuff cold in order to compete with the Ivy Leaguers and the well-connected who populated the seas in which we were learning to swim. 

I realize now that compared to, say, medical school, law school has comparatively little "scut work" and rote memorization. But this was the worst of what we had, and it simply had to not only be gotten through, but absorbed. Fluency in these rules is essential, because a lack of it is the quickest way to destroy one's credibility as a legal writer. As I learned later, snobbish law clerks for appellate court judges, for instance, can be extremely harsh critics of such formalities, assessing disproportionate subjective consequences for a misplaced comma or an inappropriately omitted parenthetical.

Service as a TQ was a nice résumé credential and may even have earned the third-year student some minimal course credit. But it was a lot of work, of the most tedious sort. It was very definitely the performance of a service to the law school and the legal profession. It wasn't until my second year in law school — when I qualified for the staff of the Texas Law Review and became a mega-wonk on citation form myself — that I realized how good a job Mike Bradford had done with our group, and how much to his credit it was that he had demanded more of us than is typical in most pass-fail student-taught courses.

I bumped into Mike from time to time over the next twenty-five years when he was a state district judge in Jefferson County and then a U.S. Magistrate and eventually the U.S. Attorney for the Eastern District of Texas. Probably his most famous case as U.S. Attorney was when he successfully defended the government against the claims brought by family members of the Branch Davidians killed during the debacle outside Waco. I was certainly not a close friend of his — more likely in a courtroom crowd I was one of those noddingly familiar "Where do I know him from?" sort of faces to him.

But I'm grateful for what he did for me as my Teaching Quizmaster back in 1977-1978, and I admire his later contributions to our profession. I don't know what demons and nightmares may have led him to take his life, but I knew him well enough to be able to say with assurance that his premature death is a tragedy, and I wish it hadn't ended for him that way.

------------------

UPDATE Sun Sep 14 @ 11:45pm:   The Beaumont Enterprise has a report on the funeral services here.

Third time's the charm on Texas redistricting

Last Friday, I predicted that Texas Gov. Rick Perry would call a third special session of the 78th Texas Legislature "for Monday, September 15."

Ta-da!  From today's Austin American-Statesman, we learn that "Republican Gov. Rick Perry has set high noon Monday for the start of the next legislative shootout over congressional boundary lines."

I'm patting myself on the back over getting this prediction right to the very day, but otherwise I'm in a sour mood — too sour to blog at any length tonight.  In fact, I'm going to stick the explanation for my mood into a "continuation," because I don't want to be reminded of it too frequently.

I'm too depressed after reading the back-and-forth sniping between Atrios and Tapped over "identity politics."  Specifically what depresses me is how, in the course of this "I'm holier than thou" pissing match between far left blogs, both sides can throw out casual accusations that everyone who supports legislative redistricting in Texas — what Atrios refers to as "the Texas redistrcting [sic] shenanigans" — is ipso facto a racist. 

Atrios tosses out a line like this:  "... in states like Texas and California where Fear of the Brown Horde is a steady theme of right wing politicians, it's odd to criticize the Brown Horde itself for uniting and standing up for itself."  No proof, no specific facts, no limit to the scope of who he's accusing, which at a minimum seems to include "[p]aranoid Texan politicians, from the House Majority Leader on down to the governor and the Texas Legislature." 

And nobody blogging or commenting on either website even blinks. 

Excuse me?  "Fear of the Brown Horde"?  As a "steady theme" of Texas Republicans?

This is so disgusting, I don't know how to even begin to address it.  It makes me angry, but it also makes me sad.  How can these people be so filled with spite and bile and corrosive venom?  I know that there are smart, articulate, and similarly delusional madmen at both far extremes of the political spectrum.  But the continuous smug condescension, the nonstop sarcasm, the casual bigotry that I read on Atrios' website literally sickens me.  If Atrios ever feels an instant of happiness or humor or love that's unconnected with insulting those who are even slightly to the political right of him, you couldn't tell it from reading his blog.  I can't imagine having a conversation with this fellow that wouldn't end with him literally spitting in my face. 

And yet he apparently has a huge following and commands the respect and admiration of a good chunk of the blogosphere.  About that, I'm just sad, not angry.

Well.  That's not at all what I meant to write about.

Mips! The stupidist thing I've blogged recently ...

Posting a comment to a post on CalPundit about Dubya's most recent speech, I managed to come up with this lovely sentence earlier this evening:

But you guys insist on painting Dubya as if he was Neville Churchill returning from Berlin with a promise of "Peace in Our Time," when the fact of the matter is that from 9/12 through the "end of major combat operations" speech on the deck of the Lincoln through last night, Dubya has consistently said this is a marathon, not a sprint.

Well.  I'm sure Neville Churchill had a good chat about that with Winston Chamberlain when he returned from Munich, too.