Tom DeLay as Brer Rabbit: "Don' make me talk 'bout dat redistrictin', judge!"

Charles Kuffner urges that the lawyers representing various plaintiffs in the Texas redistricting litigation be allowed to take depositions of US Congressmen Tom DeLay and Joe Barton.  The Congressmen are seeking to have their deposition subpoenas quashed, according to the Houston Chronicle.

The familiar standard for deciding whether to sustain or quash this sort of subpoena, as for most civil discovery, is whether it is reasonably calculated to lead to the discovery of admissible evidence.  Generally the proponent of the subpoena has to make some sort of more-than-speculative offering as to how he thinks that's likely to happen. 

If we accept, even reluctantly, the premise that the act of legislative sausage-making must be put under the microscope to satisfy the ever-hungry maw of the Voting Rights Act of 1965, then it seems to me that plaintiffs under that act, in general, ought to be given considerable lattitude in trying to make their case.  Showing that the recent Texas redistricting was motivated by racism is going to be difficult at best — and I believe it will prove to be impossible, since redistricting was motivated by hyperpartisan politics, not racism, and accomplished not even using by race as a proxy for voting probabilities, but by looking at voting patterns directly.  But if it can be done, it would almost certainly have to be done circumstantially.

However, in a legal, causal sense, these particular witnesses are once removed from the action.  Observers of politics can rightly note that both Republican and Democratic members of Congress have long influenced state legislatures and legislators on a variety of subjects (think highway construction for one).  But even if you could get Rep. DeLay to say under oath and on the record something that tended to prove circumstantially that he was motivated by racism in pressing for Texas redistricting — and face it, what is far more likely is an argumentative series of "have you stopped beating your wife" questions that probably will conflate correlation with causation — then you'd have to make the further connection to show how that racism was shared by state legislators who voted for redistricting.  You'd have a pretty good chance of showing from those witnesses (the Texas legislators) that they were motivated at least in part by fear of reprisals from Rep. DeLay, whose effectiveness as a party whip and leader is, like all such politicans, due to his long memory and ability to carry and act on grudges.  But showing, even circumstantially, that their votes in the Texas Legislature were motivated by Rep. DeLay's racism?  Well, good luck.

This strikes me as on the very outer fringes of what's "reasonably calculated" to lead to the discovery of admissible evidence, but like all such decisions, it'll be left to the "sound discretion of the trial court" — in this case a three-judge panel of federal judges who all read the papers, who may have been born at night but not last night, and who have not recently fallen off pumpkin trucks on the way into town.  My hunch is they won't find Rep. DeLay's or Rep. Barton's likely testimony terribly surprising or terribly probative.  But they might well agree to "hear" it — that is, to allow the depositions to be taken and written excerpts included as part of the record.  In fact, were I a judge on that panel, I'd probably allow the depositions, with pretty strict time limitations and severe up-front warnings about argumentative questions. 

And were I a lawyer defending the redistricting plan in these lawsuits, I'd treat this as an opportunity, not a liability.  The Republicans have generally been consistent in explaining the reason for redistricting — deliberately creating a map that's likely to produce a Texas Congressional delegation likely to support our favorite-son President instead of one likely to oppose him.  DeLay and Barton surely can provide that testimony.  To quote their intended beneficiary, "Bring 'em on!"  Or to quote the old (and probably now politically incorrect) story, "Don' throw me in dat briar patch, Brer Fox! Anythin' but dat!"