Lawyers permit Ten Truant Texas Dems™ to run amok with (premature) Supreme Court appeal

The three-judge panel in Barrientos v. Texas issued a four-page order yesterday that granted no relief to the Ten Truant Texas Dems™.  It's short, it's sweet, and it's here for you to read in full-text (in a mere 149kb .pdf file).{note1}  It's not completely free of legalese, though, and I'll provide a translation and some commentary before I'm done with this post.

According to an article in today's Fort Worth Star-Telegram, the Dems are already vowing to appeal to the US Supreme Court.  Oh, I would dearly love to make a high-stakes bet with any and all takers on the likelihood of that succeeding!  I'll spot you 20 to 1 odds, in fact, and still count myself mean to be taking your money.  But as I'll also explain in this post, there are serious doubts that the panel's ruling yesterday is appealable yet.

Can the Dems appeal?

The Civil Rights Act of 1965 does offer the highly unusual opportunity for the losing side to take an automatic direct appeal "as of right" to the US Supreme Court — which is an appeal that the Supreme Court has to review "on the merits," even if it doesn't have to write a full opinion.  This extraordinary procedural right — allowing the losing side to bypass the Courts of Appeals entirely, and to force the US Supreme Court to look at the merits — is yet another reason why I find the Dems' race-baiting PR tactics so distasteful in this whole affair:   Minority voting rights are more effectively protected than virtually any other rights secured by the Constitution or laws of the United States!

But in these appeals, as in all others, you do have to let the "court below" — in this case, the special three-judge panel that ruled yesterday — finish what it's doing before you can ask the US Supreme Court to intervene.  And I have very serious doubts that the ruling on Friday was a "final decision" by the panel that even can be appealed.  Instead, it appears to be an "interlocutory order" — a mid-case ruling that isn't appealable.  Yesterday's ruling explains that the panel

promptly issued this brief opinion because of our understanding that another special session of the Texas legislature is imminent.  We reserve the opportunity to issue a more detailed opinion hereafter, if appropriate.

Translation:   "You've gotten a ruling and a quick explanation, but if you plan on making a fuss with the Supreme Court, we're going to write a small book to explain and justify what we've done.  You really don't want us to do that, do you?"

And also still pending before the three-judge court is the Dems' motion to amend their complaint to include issues relating to the threatened "arrest" of the senators and the imposition of fines and other penalties.  As to the former, the panel noted that issue "likely will become moot.  Indeed, the [senators'] fear of being coerced to appear at a legislative session is shifting to a fear of being prevented from appearing."  As to the latter, the panel noted that future developments might also moot that question, and that in any event "neither the facts nor the law on the issue of threatened monetary sanctions are sufficiently developed at this point to permit an informed decision."  Meaning, "come back when this stuff is more than a hypothetical threat." 

But the panel did not enter a final judgment of dismissal of all claims, which would be the normal means both to terminate fully the case before them and to make the panel's decision appealable.  So I think the Supreme Court will likely refuse to "note probable jurisdiction" — that is, will take a look at the Dems' attempt to appeal and say, "Eh — not yet."

Should the Dems appeal?

The fact that you can take an appeal to the US Supreme Court doesn't automatically mean that you should take it. 

Let's start with Common Sense on Appeals 101:   You don't appeal a decision unless you have a reasonable basis for believing that the lower court got something wrong.  You have to be able to say, "The three-judge panel went wrong when they decided _____," and then fill in that blank with something that won't make the Supreme Court explode with laughter.  With all due respect to the lawyers for the Ten Truant Texas Dems™ — and in my opinion, the respect they're due is dropping with just about every day that passes — they can't meet that test here. 

Here's the absolute nub of the panel's opinion:

[W]hat will directly affect the voters in this state is a redistricting bill, not the mere consideration of such a bill or the process by which it comes to the floor of the Texas Senate.

Until you can state a complete, logical sentence to refute that one, you don't have any business taking an appeal to the US Supreme Court.  Period, end of paragraph, end of story — saddle up and ride out of town on the dusty streets of Laredo, podners.

I've written before (for instance, here and here) about the two distinct duties that a trial lawyer owes his clients — the duty to be his clients' vigorous advocate in public (think Russell Crowe in Gladiator), and the duty to be his clients' wise counselor in private (think Yoda in The Empire Strikes Back or any other Star Wars movie except Clones, when he does his own gladiator routine).  Right now, Yoda should be shaking a long green finger and saying to Leticia and the gang, "Told you, I did!  Smite you head and shoulders with the 'Loser Stick,' that did I promise the judges would do!" 

No better fate is in store for this lawsuit in Washington than what it's already met in Laredo.  If, in the privacy of their conference room, any lawyer is giving different advice to the Dems, then I respectfully submit that said lawyer is being motivated by something other than following the law, and he's failing in his own duty to his client and to abide by the oath he took upon admission to the bar. 

If I were Emperor of the World, I'd make each of the Ten Truant Texas Dems™ write the following sentence on the blackboard 1000 times:

While the reach of the [Civil Rights] Act [of 1965] is broad, it is nevertheless still "an extraordinary departure from the traditional course of relations between the States and the Federal Government" ....

So said the panel yesterday, quoting from the US Supreme Court's decision in Presley v. Etowah County Commission, 502 U.S. 491, 500-01 (1992).{note2}  As I've repeatedly blogged, it's not normal for federal courts to second-guess state legislatures on redistricting — much less to micromanage the way they go about it!

C'mon guys.  Look at those special license plates on your own cars, the ones that say "Texas Legislator."  Does that give you a clue as to where you should be fighting these fights? 

Yes, you may lose when a vote is taken.  That's called democracy.  Make your best argument, take your lumps gracefully, and then start polishing up your speeches for the next general election, so you can take your arguments to the public by trying to persuade them to put the Democratic Party back in control of the Texas Legislature.  That's how the process is supposed to work, folks.

Leticia — listen to your inner Yoda, not to those lawyers from Washington that Martin Frost and his buddies have hired to represent you.  Hie thee back to Austin, madam.  Your duty is there.

---------------------------------

{note1}The .pdf file that was earlier linked from Kronberg's Quorum Report is actually a page printed out from the computerized docket sheet for the case that contains a "minute entry" summarizing the court's ruling — which, while useful for some limited purposes, is not the ruling itself.

{note2}If you came to BeldarBlog looking for informed speculation and gossip, I'll try to deliver.  Yesterday's opinion was unanimous, with all three judges joining in it by name.  From quirks in the citation form, however, I am virtually certain that it wasn't written by US District Judge Lee H. Rosenthal.  In fact, I'm going to go out on a limb and speculate that it was written by US Circuit Judge Patrick E. Higginbotham — and by him personally, rather than being drafted in the first instance by one of his law clerks.  What tea leaves am I reading to divine these portents?  Very tiny tea leaves.  The "v." (abbreviation for "versus") in the middle of the case citations wasn't underscored, and the underscoring of the case citations is discontinuous (rather than underscoring the blank spaces within the case name).  Also, the citation form used throughout the opinion, while quite acceptable, was still not quite up to snuff under the hyperstrict and elitist rules prescribed and followed by law reviews.  Judge Rosenthal clerked for then-Fifth Circuit Chief Judge John R. Brown, and I know from that, and from my own history working with her as a colleague in the 1980s, that her citation form, and that which she'd permit from any of her law clerks, would be immaculate.  The discontinuous underscoring, by contrast, is something you commonly see among lawyers educated in the East or the Southeast, and it's a little bit anachronistic — but it's exactly what I'd expect Judge Higginbotham to use, given that his law degree was from the University of Alabama in 1961.  How's that for arcane?

UPDATE (Sun Sep 14 @ 12:30am):   Earlier yesterday, the Austin American-Statesman had quoted one of the Dems' lawyers, Renea Hicks, as saying "he would discuss appealing directly to the U.S. Supreme Court with his clients" — which made me wonder if the Star-Telegram had jumped the gun in its report.  But the San Antonio Express-News is also reporting that the Dems plan an appeal to the US Supreme Court now.  Neither the Star-Telegram nor the Express-News cite their source regarding the plan to appeal — so it's possible either that their information is newer, or perhaps that they talked to a different lawyer for the Dems.  My bet is on the latter, and that who they talked to was Washington-based Gerald Hebert, who still — and now more than ever — owes DOJ lawyer Joseph D. Rich an apology.

By the way, I noticed that I've previously neglected to source my point that the Ten Truant Texas Dems™ are being represented by lawyers hired not by themselves, but by Democratic Congressmen who're covering their own butts in this fight.  This came from early in part three of the five-part streaming video of an hour-long interview that the Houston Chronicle conducted with Sen. John Whitmire on September 3, linkable at least for a while longer from the repeating sidebar on Chronicle stories: 

Our lawyers had seriously misled us when they reported on Wednesday after court, "Hey, couldn't have gone better.  Y'all hang tough."  Now these, these lawyers are working for the Congressional delegation, but we didn't know any better until we read the Chronicle and other sources the next day.