Judge Kazen drops back 3 steps, stops to fuss, then punts Truant Texas Dems™ to 3-judge panel

I credit R.G. Ratliffe of the Houston Chronicle for the best reporting of the day on today's federal court proceedings in Laredo:

A federal judge told lawyers for runaway Democratic senators today that he believes their lawsuit seeking voting rights and free speech protections is all but totally frivolous, but he agreed to leave the final decision to a three-judge panel.

U.S. District Judge George P. Kazen said he believes Gov. Rick Perry and Lt. Gov. David Dewhurst's push for mid-decade congressional redistricting is wrong and a waste of taxpayer money. However, Kazen also criticized the Democratic senators for fleeing to Albuquerque, N.M., to break the Senate's quorum.

Judge Kazen's comments on the lack of merits of the legal claims made by the Truant Texas Dems™ aren't going to be binding on the three-judge panel.  Those comments should, however, have served as a reality check for the Dems — but they apparently didn't:      Senator Van de Putte was quoted from Albuquerque as saying:  “The judge says our case has merit, that's good for us!" 

Maybe she really does think Charlie Stenholm is one of her children, I dunno.

The Austin American-Statesman suggests that Sen. West took a breath from his misplaced rant against John Ashcroft long enough to voice a slightly more realistic assessment:     "Even if he said it was a 'shred of merit,' " said Sen. Royce West, D-Dallas, "it got us to the next phase."

From the combined press reports of his comments, it looks as if Judge Kazen wandered a bit off the farm in his public policy critiques.  [ed: I discovered later when I read the actual transcript that these press reports were wrong; see the quotes in my apology to Judge Kazen for this remark.] But I'm not too torqued about that since that stuff was all dicta — not precedent, not binding on anyone, and not actually any of his business as a federal judge. 

Other than that, however, I'd have done the same thing were I in his shoes.  In short, the judge made a decision that (1) made everyone sorta happy, (2) advanced the ball because it guarantees expedited resolution of this dispute at both a trial and appellate level, (3) gave him a chance to fuss at both sides (to try to encourage a compromise), and (4) CAN'T be reversed — very important from the standpoint of any trial court judge!

Houston's Charles Kuffner of Off the Kuff has a good set of quotes and links from other press coverage on today's hearing (it's also reprinted on Political State Report).   Byron L at Austin's Burnt Orange Report is also gearing up to follow this fight.

Houston Chronicle improves press coverage on background facts

I was very gratified to see that later in his article, Ratliffe of the Houston Chronicle finally got his basic background facts right about the "rule change" argument (although most of the other Texas newspapers and the AP continue to bungle this, as do most bloggers):

The 11 Democratic senators took off for Albuquerque on July 28 as the first special session ended and they learned Perry planned to call a second session immediately. Dewhurst already had announced plans to change Senate procedures so the Democrats could not block congressional redistricting in the second session.

The change in procedure amounted to dropping what has become known as the "two-thirds rule." So long as the procedure was in place, the 11 Democrats could block redistricting without having to break the Senate's quorum.

Under standard Senate procedure, a supermajority of the Senate's 31 members must give permission for a bill to be debated. The vote is required to take legislation out of its regular order on the calendar.

But Dewhurst announced that congressional redistricting would be the only thing on the calendar so a simple majority could pass it.

Would that the Texas press and the national wire services could have been this clear during the last month!

But still ...

I still have to quibble a bit.  Senate Rule 5.13 is still in place — it's not being "dropped."  It's just that by its terms it only ever comes into play when there's a proposal to take up a bill that's not at the top of the calendar, and that's not going to happen with redistricting in the third special session, nor would it have in the second (if the Senate had ever gotten a quorum). 

Am I being entirely too anal about this?  I really don't think so.  The public has an extremely strong sense of fair-play that ties directly into their perception as to whether "rules" are being "abandoned" or "changed" or "dropped."  Such public legitimacy as Dubya was able to scrape together out of Florida in 2000, for instance, was directly based on roughly half the country's perception that the Gore forces were "changing the rules" on the recount until they found some combination of chad-conditions and counties that would produce a different result. 

Frankly, Lt. Gov. Dewhurst and the Republican media consultants have done a crappy job of educating the press and the public on this — they've let the Dems mis-define the issue as being a "rules change" until just this week, when they finally began to snap to the importance of the verbal formulation when forced to do so by this lawsuit.