What Judge Kazen really said on Wednesday

I owe Southern District of Texas Chief Judge George Kazen an apology!

In my post on Wednesday about the hearing he conducted that morning, I said:

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. 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.

But I've now read the official 77-page transcript of the hearing, and all I can say is:   Mea culpa maxima, Judge Kazen!  I made the cardinal mistake of believing the popular press accounts of what you'd said!

For instance, Houston Chronicle reporter R.G. Ratcliffe, whom I mistakenly praised on Wednesday for the "best reporting of the day," had said this in the second sentence of his article:

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.

Pretty strong stuff!  The only problem is, Judge Kazen never said the key words "wrong" or "waste."  And what he did say, he expressly said speaking as a "private citizen," not as a judge.

In a BeldarBlog-scoops-the-world original, here's what Judge Kazen actually said:

[BY THE COURT:]  For example, I mean, the argument [by the Dems] that even thinking about redistricting [before the 2010 Census] is a voting rights violation strikes me as almost bizarre.  I mean, I — I would say that it's bad policy.  I mean, I think as — again, as a citizen, it's sort of like the California recall.  I mean, you have an election one year and then do it all over again the next year and waste a lot of time and money.  I mean, the reason people don't redistrict every other year is because it's a horrendously controversial task.  It's a cumbersome task.  It's an expensive proposition.  It generates litigation and so forth.  I think it's a bad idea, but — the idea that it's somehow — the mere thought of passing a bill is a voting rights violation, it seems to me, is — is odd.{1}

At the most, these few lines, taken out of context, possibly suggest that the Republican leaders of the state are engaging in "bad policy" that is a "bad idea"  in Judge Kazen's view "as a citizen," rather than as a judge.  But that's a far cry from a federal judge saying in his capacity as a federal judge that the Republican leaders' attempt to achieve a legislative redistricting for the first time since 1991 is "wrong" — which was the word Ratliffe's article used, as if it had been a combination indictment, conviction, and sentence from the bench.

What about the "waste of money" comment?  Again, that's a much stronger formulation than the actual words Judge Kazen used:

[BY THE COURT:]  But, Counsel, let me tell you something, and then we are probably just digressing.  And I — again, I'm speaking partly as a private citizen.  I mean, my — if I were a state senator, I might be doing the same thing.  I mean, I think it's not, by any stretch, the highest priority in the State of Texas.  I think if you asked a thousand people what's the biggest problem in the State of Texas, congressionally redistricting would be way down at the bottom.  I thought the State was virtually broke and, yet, they're spending all this money to do all this.

But the fact of the business is the — you know, in a legislative body, you know, you win some and you lose some.  I mean, it's not that the senators are not — I know they represent people. But if they're in the minority — let's leave the voting rights out of it.  If they're in the minority, they're going to lose some votes.  I mean, the democratic party in Washington loses all the time now.  And — and to say, well we — you know, we — but we can do all these things without any kind of sanctions because we're representing our people and, gee, if we show up, we're going to lose the vote, I mean, that's what the country — that's how the country works.

MR HICKS:  But that's not how —

THE COURT:  The majority — the majority wins, which is why it's important for people to go to the polls and wake up and decide who they want to be in — in power or not.  Because the majority generally wins in a — in a legislative body.{2}

If you read the entire transcript, it is absolutely clear that Judge Kazen was musing, thinking out loud, speculating — rather than trying to announce his formal assessment on any issue except for one, that being whether the Dems' lawsuit is so entirely frivolous that it doesn't even merit convening a three-judge court for the purpose of deciding whether to toss it out.   

And the lines I've quoted here are just about the only even semi-encouraging words that Judge Kazen had for the Dems in 77 pages of transcript.  Even they are surrounded by critical observations — in the first excerpt, Judge Kazen's skepticism of the Dems' claim that it's an automatic violation of the Voting Rights Act for the Republicans to try to pass any sort of redistricting bill at all before the 2010 Census, and in the second excerpt, Judge Kazen's skepticism that merely losing a majority-rule vote in the Legislature in and of itself qualifies as the abridgement of a protected minority voting right, even if the losing legislator or his constituents are members of a protected minority class.

I speculated from the press reports that Judge Kazen was looking for a way to throw some cold water on both sides to move them toward settlement.  It's much harder to draw that inference from the actual transcript.  Other than a throw-away compliment that the judge made regarding the quality of the Dems' briefing — the kind of solace you give to a lawyer when you're shooting him down in flames on the merits — there was essentially nothing in this hearing from which the Dems should have taken any comfort.

Ratcliffe wasn't alone in hearing what he wanted to hear, however.  Gary Susswein and Laylan Copelin, writing for the Austin American-Statesman, didn't use the sexed up words like "wrong" or "waste," but were equally guilty of taking isolated musings of the judge, speaking as a private citizen, and reporting them as if they were official judicial pronouncements:

Kazen was skeptical about the Democrats' legal argument, but he repeatedly said he sympathized with their political argument. He said it's bad public policy to redraw congressional boundaries this year, and he said it's not a priority for the state of Texas.

It's not part of a federal judge's job description to take sides as between two political parties, nor to substitute his own judgment for that of elected legislators on matters of state public policy.  But that's what the liberal press wants federal judges to do in this case, and like Sen. Van de Putte, their perception of events can obviously sometimes be skewed by that desire.

I should have known better, frankly, than to think that Judge Kazen would "wander off the farm."  At the most he can be gently faulted for musing aloud as a private citizen while he was on the bench, in the presence of reporters from the popular press, and "on the record."  For anyone who understands the process, his doing so was trivial, definitely a case of "no-harm, no-foul" with respect to the merits of anyone's claims or defenses in the lawsuit. 

I doubt that any of the lawyers present were as deluded as the reporters apparently were.  But I frankly, naively, expected better from experienced political reporters from a couple of the state's largest and most respected newspapers.  I dunno why, but I did.

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{1}"Transcript of Hearing Before the Honorable George P. Kazen, United States District Judge," dated August 27, 2003, reported by Leticia E. Verdin, Certified Shorthand Reporter, and filed on August 29, 2003, under Docket Entry No. 23 in Gonzalo Barrientos et al. v. The State of Texas et al., No. L-03-CV-113 in the United States District Court of the Southern District of Texas, Laredo Division, at page 12, lines 7-20.  The full transcript, in a .pdf file that's 2.6MB in size, can be downloaded via Pacer for about $7 if you have a Pacer account set up.

{2}Transcript at page 26, line 15, to page 27, line 19; emphasis added by BeldarBlog.