The 5th US Circuit Court of Appeals has named the three-judge panel to hear arguments in the Texas 11 Democrats' lawsuit which contends that dropping the 2/3 rule is a violation of the Voting Rights Act. The panel includes George Kazen, the judge who sent it to the panel despite his doubts about it, Patrick Higginbotham, who was one of the judges responsible for the current boundaries, and Lee Rosenthal. Kazen was appointed by President Carter, Higginbotham by Ford, and Rosenthal by Bush 41.
(Note: The above paragraph contains corrections - I misread the Chron article and named one judge incorrectly. Thanks to Beldar for pointing this out to me.)
I can't see the Democrats winning on this lawsuit, and I can't say that's a bad thing. I find Kazen's logic that the courts should wait until after a map has been adopted to be compelling. I feel for them, but that's the way it should be. I will say this - when the court rules for the state, will those who criticized Judge Higginbotham for his part in the 2001 redistricting case suddenly decide that he's a pretty sharp guy after all?
(On 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.)
Assuming the Democrats' don't get an unexpectedly favorable ruling from the court, the next question will be when is the third session to start and will they attend? There was apparently a brief ruffling of feathers among the Texas 11 in Albuquerque as Sen. John Whitmire had wanted to make an undercover trip home and got chewed out for it, but everyone seems to be friends again. Running out the clock would remain the only viable option to be sure of killing redistricting for the 2004 election, but cost and strain on the senators might make them decide to take their chances in court later.
Dave McNeely thinks the racial angle in the federal lawsuit may backfire on the Dems by casting anglo West Texans, who oppose redistricting on grounds of losing Congressional clout, as their enemy. He doesn't cite any specifics or offer any quotes, but the psychology is sound.
On the other hand, the Republicans' tactics have backfired on themselves a few times as well. The latest example of their mentality is this report:
As a potential hurricane headed toward South Texas two weeks ago, so did the Senate sergeant at arms — to see whether AWOL Democrats would return to check on their homes and thus leave themselves open to being served with an order to return to the Capitol.
A spokesman for Lt. Gov. David Dewhurst confirmed Thursday that three two-person teams made the unsuccessful attempt. Tropical Storm Erika did not become a hurricane, and the senators didn't show up, so Sgt. at Arms Carleton Turner and the others left after an overnight stay."If they failed to try to round up the senators, they would not be doing their job properly," Dewhurst spokesman Dave Beckwith said of the Aug. 15 trip south by Turner, four assistant sergeants-at-arms and a Senate doorkeeper.
[...]
Sen. Judith Zaffirini, D-Laredo, called the effort "cruel and opportunistic" and said it also showed a lack of concern for Turner and the others sent to South Texas.
"There is a storm — a hurricane — coming, and you send people into it?" she asked.
Asked whether the trip was Dewhurst's idea, Beckwith said, "It was the Senate's idea that they take all available reasonable measures to enforce a quorum."
He said he saw nothing wrong with the timing.
Chief Judge King appointed the panel, but isn't on it. She was a Carter appointee, by the way, not a Reagan appointee; I was one of her law clerks in 1980-1981, and remember watching a Reagan campaign rally from out of our chambers windows. Judge Higginbotham was appointed by Ford to the district court bench, but then promoted by Reagan to the Fifth Circuit. The third judge on the panel, whom you didn't mention, is US District Judge Lee H. Rosenthal of Houston, with whom I practiced law from 1981-1987. She's a GHW Bush nominee.
I mention the nominating presidents despite my strong belief that it has absolutely nothing to do with how these judges are likely to rule, or how they and their colleagues have ruled in past cases like the Balderas v. Texas case from 2001 that created the present district map. If you actually read the opinion from that case, you can see that the panel expressly acknowledged that it was making minimal changes to a heavily gerrymandered map passed by a Democratic Texas Legislature in 1991, and that the panel recognized that what it was doing was going to have a pro-Democrat effect. It did so not because it was pro-Democrat, but because it recognized that like all such panels of federal judges, it was terribly unqualified to do redistricting -- something committed by the US Constitution to the state legislatures -- and it wanted to make the minimum possible changes. (The Balderas panel, by the way, had two district judges appointed by Clinton, not three Republicans, as Sen. Van de Putte has repeatedly said at her news conferences. Eh. Whatever.)
I've blogged quite a bit about redistricting, but admittedly from the conservative and Republican side of the spectrum, for any who are interested, but I shan't take up more of your bandwidth arguing such things here. :)
Posted by: Beldar on August 30, 2003 12:01 AM