Charles Lane is a relatively sane liberal who writes editorials for the Washington Post. His latest is “Do we really want the Supreme Court to decide how partisan is too Partisan?” The Court has agreed to review an appellate ruling from Wisconsin that said the Wisconsin Legislature’s redistricting plan was so partisan it was a violation of the equal protection clause. Lane thinks the case should be reversed, and he’s right.
If the court unexpectedly upholds the lower court ruling it could spell trouble for the BBA movement. The Wisconsin Legislature would be paralyzed by a new redistricting effort, with little time for things like Article V resolutions.
Anthony Kennedy will be the fifth and deciding vote, and while it’s highly unlikely he’ll go against his four conservative colleagues, with him you never know. He may be retiring shortly. Let’s hope so, and let’s all say a prayer of thanks for the Justice Neal Gorsuch appointment. I don’t care how much you dislike Trump, if Clinton had won Scalia’s replacement would have been another whack job like Sotomayor. And there would have been hell to pay. We’d have the activist Warren court all over again, with what little that’s left of the Constitution in jeopardy.
If Kennedy wants to stick it in the eye of conservatives one last time, he would be making an enormous mistake. As proof, I cite the record of the Alaska Supreme Court in redistricting cases.
Republican Jay Hammond reapportioned the legislature after the 1980 census, and his plan was challenged before the 1982 election. The Supreme Court let the 1982 election take place with Hammond’s new districts, but when the election was over and Democrat Bill Sheffield was elected Governor, it revisited the case.
Justice Jay Rabinowitz had claimed to be on the fence in this case, but that was a lie. Once a Democrat was in the Governor’s mansion, he found one insignificant flaw in one House District in Southeast. Rather than order the small adjustment that was necessary, he gave the Democratic Governor a free hand to redraw the map of the entire state.
In the 1982 election, Republicans gained control of the legislature for the first time in Alaska’s short history, 11-9 in the Senate, and 21-19 in the House. Under Sheffield’s new lines, in 1984 the Democrats were back in the majority. Hammond had designed a State Senate district especially for me. Sheffield made it impossible for me to stay in the Senate, so I ran for the House.
After every census since, in 1990, 2000, and 2010, the Alaska Supreme Court has ruled that the redistricting plan was unconstitutional. Unless you’re a lawyer, don’t bother reading these opinions. If you are a lawyer, look at just one, Carpenter v. Hammond, 667 P2d 1204, 1983. See if it makes one whit of sense to you.
The Alaska Supreme Court is a disgrace, and Senator Pete Kelly of Fairbanks tried to fix it. The problem is the Alaska Judicial Council, which selects judges for the Governor to appoint, and is controlled by the Alaska Bar Association and the Supreme Court Chief Justice. Conservative Governors have wanted to appoint conservative judges, but the Judicial Council refuses to allow them to be considered.
Alaska has a 1950’s era Constitution, written by liberal Democrats. Kelly wanted to amend the Constitution, and reform the Judicial Council. Republicans had the supermajorities needed to propose the amendment, but some weak kneed “moderates” wouldn’t go along.
Trump would not have been elected if Scalia’s seat had not been vacant. Mitch McConnell, in one of his finer moments, kept it open, and deserves some credit for keeping Clinton out of the White House. A fair number of conservatives only voted for Trump because of the Supreme Court. They were right about that.
Because Trump made such an outstanding appointment with Gorsuch, Kennedy can retire knowing that his replacement will be cut from the same cloth. We can expect another Gorsuch – like nominee. There will be blood.
Because Roe v. Wade may be on the line, this will be the most contentious Supreme Court appointment fight in American history. The left will disgrace itself with its rabid, half crazed opposition.
It all couldn’t come at a better time for Donald J. Trump.