Last Call For It's About Suppression, Con't

With their possible options down to Hail Mary status as North Carolina's Supreme Court has ruled their gerrymandering plans unconstitutional again and again, NC Republicans are throwing a long bomb to the US Supreme Court in order to create a vile precedent that would leave the final word on redistricting up to state legislatures, not state supreme courts, and remake redistricting across the country.

In a late Friday afternoon filing as war raged in Ukraine and as President Joe Biden announced Judge Ketanji Brown Jackson as his nominee to replace Justice Stephen Breyer on the U.S. Supreme Court, North Carolina Republicans dropped their own bombshell: a legal filing in the Supreme Court that if successful would not only restore the state legislature’s ability to engage in partisan gerrymandering and perhaps tip control of Congress, but would radically alter the power of state courts to rein in state legislatures that violate voting rights in federal elections. There are strong arguments Republicans should lose this case, but don’t count them out before a polarized and politicized Supreme Court.

A few years ago, in a case called Rucho v. Common Cause, the U.S. Supreme Court shut the federal courthouse door to partisan gerrymandering claims—claims that political parties drawing maps for electing members of Congress or state legislative bodies manipulated those maps purely for partisan gain. The Rucho court majority opinion by Chief Justice Roberts explained that there were other paths for reining in this conduct, including Congress passing legislation (as the Freedom to Vote Act would have done), the creation of independent commissions, and state courts. Indeed, the court noted: “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply” in policing nefarious redistricting practices.

And that’s exactly what happened in North Carolina. The state Supreme Court recently held that the North Carolina Republican-controlled legislature’s gerrymandering of Congressional and other districts was a partisan gerrymander grossly favoring Republicans violating the state constitution’s provisions guaranteeing free elections. This ruling was going to lead to a much fairer map in a state that is mostly evenly divided between Democrats and Republicans.

Now the Republican-dominated general assembly has struck back raising what’s come to be known as the “independent state legislature” theory. This move was something I feared would happen weeks ago as Republicans were running out of options. They’ve argued in a new filing before the Supreme Court that the North Carolina Supreme Court does not have the power even in reliance on the state Constitution and despite Rucho to rein in partisan gerrymandering of congressional districts when done by a state legislature.

 

The GOP argument is that since Article I, section 4gives the state legislatures the power to set elections, Republicans argue they are the final arbiter, and without judicial oversight at all. It's hogwash, but if there's five votes on SCOTUS, then that's how it is.

We'll see if the dreaded shadow docket strikes again.

A Supreme Addition

President Joe Biden is expected to nominate DC Circuit Court Judge Ketanji Brown Jackson to the US Supreme Court today, in what is expected to be a difficult Senate fight, thanks to Joe Manchin.

President Joe Biden is expected to announce Friday that he will nominate Judge Ketanji Brown Jackson, of the U.S. Court of Appeals for the District of Columbia Circuit, to succeed Justice Stephen Breyer on the Supreme Court, according to a source familiar with the matter.

If confirmed, Jackson would become the first Black woman to serve on the court. At 51, she would also be the second-youngest justice on the current court (Justice Amy Coney Barrett turned 50 in January) and the first justice since Thurgood Marshall with significant experience as a defense lawyer.

As the successor to Breyer, who was appointed by President Bill Clinton in 1994, Jackson would not change the court’s current 6-to-3 conservative supermajority.

Jackson was nominated to District Court just eight months ago and was confirmed by a 53-44 vote with the support of three Senate Republicans. Only David Souter, appointed by George W. Bush, came to the Supreme Court with less time on the federal appeals court — under five months in his case.

But Jackson also served eight years as a federal trial judge in Washington. At her confirmation hearing for that position, she received an endorsement from former House Speaker Paul Ryan, R-Wis., who is related by marriage. (Her husband’s twin brother is the married to the sister of Ryan’s wife.)

“Our politics may differ, but my praise for Ketanji’s intellect, for her character, for her integrity, is unequivocal. She is an amazing person,” Ryan said.

Born in Washington, Jackson grew up in Miami, where her mother was a school administrator and her father was a lawyer for the Miami-Dade school board. “When people ask me why I decided to go into the legal profession,” she said in a 2017 speech, “I often tell the story of how, when I was in preschool, I would sit at the dining room table doing my homework with my father. He had all his law books stacked up, and I had all my coloring books stacked up.”

One of her uncles was a Miami police chief. Another was a police detective. A third was sentenced to life in prison for possessing a large amount of cocaine. President Barack Obama commuted his sentence in 2016.

Jackson was a national oratory champion and student body president in high school and then graduated from Harvard University and Harvard Law School. She was a Supreme Court law clerk for Breyer, who once described her as “great, brilliant, decent, with a mix of common sense and thoughtfulness.”

She met her husband, Patrick, at Harvard where he was a pre-med student. He’s now a surgeon at a Washington hospital. They have two daughters.

Jackson spent seven years in private practice and was also an assistant public defender in Washington, representing defendants who could not afford to hire a lawyer. One notable case involved a terrorism detainee at the U.S. detention center in Guantanamo Bay, who she said should not be held without charges or trial.

Asked during her appeals court confirmation about her work on that case, she said that her brother was serving in the Army in Iraq at the time and that the briefs she submitted “did not necessarily represent my personal views with regard to the war on terror.”

Jackson served on the U.S. Sentencing Commission, which sets guidelines for federal judges to follow in imposing punishment in criminal cases. She helped reduce the recommended penalties for nonviolent drug offenders.

As a judge, Jackson has no record of rulings, writings or speeches on the hot-button issues of abortion, gun rights or freedom of religion. She was on the three-judge appeals court panel that rejected former President Donald Trump’s effort to block the National Archives from giving the House Jan. 6 committee hundreds of documents from his time in the White House.

 

Jackson, as a former public defender, member of the US Sentencing Commission, and federal trial judge has boatloads of legal experience. The real issue however is whether or not Jackson has 50 votes, and considering Sen. Joe Manchin straight up told Biden to nominate someone else, she may very well not.  Certainly no Republican will vote for her.  Don't count on Murkowski, Collins, or Romney, either.

This is going to be a brutal fight, and once again it will 100% come down to how much Manchin will extract from Biden...or Sinema.