Will Brett Kavanaugh run to the left on judicial gerrymandering?

Should federal courts get to arbitrarily say that Democrats deserve more congressional and legislative districts to compensate for their lack of broad appeal to many non-urban voters? Well, the courts decide everything else in the country, and indeed the lower federal courts are already tipping one electoral map after another to the Democrats, so why should the Supreme Court stop it? But at least four justices seemed ready to get the federal courts out of the business of judicial gerrymandering altogether at oral arguments on Tuesday in a pair of cases from North Carolina and Maryland. However, there is the peculiar case of the newbie, Brett Kavanaugh.

Everyone agrees that hyper-partisan gerrymandering that splices up natural boundaries and jurisdictions for political gain is odious. But the one thing worse than that is arbitrary judicial gerrymandering by unelected judges. As bad as it is, the practice of legislative gerrymandering, drawing congressional district boundaries to benefit those in power, is as old as it is unfair. After all, this practice was named after one of its earliest practitioners, Elbridge Gerry, one of the top Founders and the fifth vice president of the United States.

The reality is that voters still have the ability to fight gerrymandering through ballot initiatives or in statewide elections, such as governorships and senatorial races that are not dependent on district maps to determine the outcome. Then, of course, there are always the state courts that are well equipped to deal with these claims, and most state judges, unlike federal judges, stand for election or retention.

I have no problem devolving all redistricting cases to state courts. The problem is that, until now, it’s been a one-way street. The state supreme court in Pennsylvania gave Democrats three more districts, and the federal courts denied appeals from the GOP. That would be fine if not for the fact that the state courts in North Carolina upheld the Republican maps but then the federal courts completely tipped the balance to the Democrats. You gotta love the “heads Democrats win, tails Democrats win” dynamic in the legal profession.

Democrats have nobody to blame but themselves for underperformance in representation 

While both parties have engaged in gerrymandering forever, there is an underlying agenda in getting the courts involved that is not bipartisan or nonpartisan. The Democrats’ entire coalition is built upon bloc voting of minorities and unmarried white liberals in urban areas.

The Democrat choice of electoral coalitions has kept them very competitive in presidential elections and winner-take-all Senate elections, where they can run up massive margins in urban areas. But it ensures that Republicans win more races that depend on geographically segmented districts, which naturally puts them at an advantage in congressional elections and an even stronger one in state legislative elections, which are even more confined than congressional districts. In most states, if Republicans merely drew a fair map respecting natural boundaries, if it’s a 50-50 split statewide, they could easily get 60 percent of the districts, and that is not because of foul play.

Even in 2012, when Obama defeated Mitt Romney pretty decisively, Romney still carried 226 congressional districts to Obama’s 209. This is because Obama won just 690 of the 3,144 counties or county equivalents, even as he won the popular vote by four percentage points. That was during a losing year for Republicans. Now consider the fact that even as Hillary Clinton won the popular vote by at least one point in 2016 (while losing the Electoral College), she carried just 487 counties — just 15 percent of the nation’s counties.

What about state legislatures? In 2012, Obama carried Florida, but Romney won the state house districts 65-55 (from Daily Kos election maps). Obama carried Ohio by three points, yet Romney carried the state house districts 60-39. As Obama won Pennsylvania statewide, thanks to a massive turnout in Philadelphia, Romney carried the state house districts 114-89. Even in Michigan, where Obama blew out Romney by almost 10 points, Romney still won a slight majority of state house districts.

The point is, Democrats have a lot of advantages gained from tailoring their strategy toward bloc voting of black and other ethnic groups. And in years where they have a broader appeal, such as in 2018, they can win in other places as well. But they pay the price in competitive years or good GOP years in congressional and legislative districts in most states, even when the districts are drawn with no political malice.

The courts as king over redistricting will supply affirmative action for Democrats  

This brings us to the oral arguments at the Supreme Court on Tuesday in Rucho v. Common Cause. On its face, the discussion was politically neutral because they were considering North Carolina’s maps, a GOP gerrymander, alongside a case on Maryland’s map, a Democrat gerrymander. However, the Left is trying to get the courts to mandate some sort of proportional representation – that a 50-50 state should allocate the districts in a way that would likely result in a 50-50 split in districts. That is completely unfair because Democrats are trying to have it both ways with their political messaging, and it would be completely illegal for the courts to mandate something like that.

In comes Bret Kavanaugh, and rather than reject the notion vociferously as the other GOP-appointees did, he flirted with the idea as a legitimate goal. Fully understanding the important caveats that it’s often hard to read too much into comments by justices during oral arguments because they often play devil’s advocates with the lawyers, I think James Lucas raises a valid concern in his NRO column that Kavanaugh might be adopting this proportional allocation mandate.

As Lucas observed, Kavanaugh floated an idea that the 14th Amendment’s Equal Protection clause might mandate proportional allocation. That idea is bonkers, and any true originalist knows that the 14th Amendment did nothing but guarantee freed slaves life, liberty, and property. Even the right to vote wasn’t guaranteed until the 15th Amendment. The concept of proportional allocation based on political analysis of priority elections is so foreign to our history and tradition that it is truly hard to see any originalist positing such an idea with a straight face, even if they are trying to vet both sides of an oral argument.

Also, throughout the argument, Kavanaugh really seemed to countenance the premise that gerrymandering beyond a point is unconstitutional and harms democracy to a point that he felt it legitimized judicial engagement — and that proportional representation would be a “judicially manageable” solution. Kavanaugh told the lawyers arguing for judicial standards, "I took some of your argument in the briefs and the amicus briefs to be that extreme partisan gerrymandering is a real problem for our democracy," "and I'm not going to dispute that." He seemed to indicate that even though there is no clear remedy on the table, the courts should at least “in essence, recognize the emergency situation from your perspective.”

It boggles the mind that someone like Kavanaugh could take this idea seriously – that the courts could wave a magic wand and mandate partisan breakdown of districts. It is as politically pernicious as it is legally wrong. It’s amazing that he never considers courts overstepping their powers as a threat to democracy. Overall, Kavanaugh seemed more skeptical than the four leftist justices as to whether the courts could properly set a standard, but he seemed pretty clear that if such a solution was sufficient and workable, in his mind, the courts would indeed have such power to legislate.

Kavanaugh has already bucked conservatives on a global warming case and an abortion-funding case and has shown a proclivity in his writings to respect bad liberal precedent of the Supreme Court. In addition, as Art Arthur, a former immigration judge and fellow at the Center for Immigration Studies, observed, Kavanaugh used the term “non-citizen” 19 times instead of illegal alien in his concurrence in Preap. Judges are usually very precise with these sort of terms, and technically, his use of this word actually made a few of his statements factually incorrect (see Arthur’s column for more). Some might be concerned that he is going out of his way to indulge the Left and even overcorrect in order to rehabilitate his image with the left-wing legal profession.

Time will tell what happens with Kavanaugh, but we must remember that if we are going to allow the courts to decide the most political issues imaginable, frankly, there is no reason to hold elections in the first place, much less argue about the districts. Sure, political redistricting is often bad, but judicial gerrymandering is the worst, and it will certainly hurt conservatives nine times out of ten. It will also hurt all Americans by crowning the courts king of the foundation of our political system.

At the end of oral arguments, Paul Clement, the lawyer representing North Carolina, made the following astute observation:

But the framing generation understood partisan gerrymandering firsthand. James Madison was the intended target of a partisan gerrymander by Patrick Henry. He complained about it bitterly. So did George Washington. Neither of them contemplated suit. Hamilton actually suggested to John Jay that the Federalists ought to partisanly gerrymander the electoral college for the 1800 Presidential election. John Jay said it wasn't such a good idea. … All three authors of the Federalist Papers knew about this and didn't think there was a judicial solution.

When will we finally return to the system of government our Founders adopted, where the courts are the weakest of the three branches, not the de facto kings of all Americans?

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