The Great Texas Redistricting Non-Scandal of 1984

Last week, Hugh Hewitt issued a call to the blogosphere to assist in the review of the hundreds of pages of documents relating to Supreme Court-nominee John Roberts that were recently released by the Reagan Library. We decided to join the “Adopt-A-Box” project and hurl ourselves headlong into the discussion and analysis of the released documents as they relate to the nomination.

We chose to analyze a 31 page document relating to Roberts’ involvement in the Reagan Justice Department’s 1984 review of the Texas Legislature’s redistricting plans circa 1982-83. Beginning with high hopes, your intrepid MyDogs crack legal staff, endeavored to analyze the documents to uncover some deep insights about the nominee. Instead we found the following:

Roberts’ role was minimal and we glean almost nothing about his thinking on issues such as federalism or civil rights. Based upon the documents, it appears that the sum total of Mr. Roberts’ involvement in this matter constitutes his editing of a letter drafted on behalf of White House Counsel Fred Fielding to Texas State rep. Patricia Hill by William Bradford Reynolds, Assistant Attorney General in the Civil Rights Division.

Insights about Roberts are generally limited to conclusions we might draw about his personality and judicial temperament.

Thus, there are precious few tools in this case for analyzing Roberts. So neither those looking to skewer him nor his supporters will find much to hang their hats upon. What follows is a brief summary of the case and our thoughts about what the documents reveal about Roberts’ skills and temperament.

1. Case Facts & John Roberts’ Role
Section 5 of the Voting Rights Act mandates that the State of Texas obtain pre-clearance by the DOJ for any changes in its laws affecting voting, including redistricting.

On January 25, 1982 the DOJ posed objections to the redistricting plans for the Texas state House and Senate districts that were submitted to the Civil Rights Division of the DOJ in 1981. In both instances it was feared that certain districts were drawn in a way that would “have the effect of denying or abridging the right to vote on account of race, color or membership in a language minority group.”

DOJ’s objection would stand until such time as either 1) they withdrew it or 2) a judgment from the DC court is obtained as outlined above: “the effect of this objection is to render the redistricting of the Texas Senate as authorized by the Legislative Redistricting Board’s Plan Number 1 legally unenforceable.”

Ditto for LRB Plan 3 for the Texas state house on the same grounds.

From here, things get a bit complex so we are forced to summarize a fair amount of information as succinctly as possible. If you are interested in more than the barest of facts, click on the link above and read the specific documents.

Subsequent to the Section 5 objection, the US accepted the invitation of the Federal Court then hearing Terrazas v. Clements (Civil Action #3-81-1946-R) to participate as amicus curiae. In the course of that, the DOJ reviewed evidence from both parties pertaining to this same fight over redistricting. Based on that new information, the Department withdrew its objections to the plan.

As a result of the Terrazas action, both the House and Senate plans were ultimately revised and the court approved both concluding like the DOJ that the state had satisfied its “burden of proof.”

The Non-Scandal

Enter Republican State Representative Patricia Hill from Dallas. Hill alleged that the Department’s decision to pre-clear the revised redistricting plans was inconsistent with their prior objections. In her request she stated that these two plans “have had the further result of making the Justice Department the subject of great criticism by knowledgeable legal and political observers in Texas.”

The Department’s reply states, in part, that, “Reapportionment decisions generally do create considerable controversy, but the only role of the Department of Justice is to assure that the plans do not discriminate on the basis of race, color, or language minority status. The Section 5 responsibility is a particularly difficult one since the decision must be made on the basis of information supplied to the Department by the State and other interested parties. As this instance demonstrates, the quality and quantity of the information provided can affect the pre-clearance process.”

As we stated earlier, it is painfully obvious that there is precious little of a controversial nature here, and we stand by that assessment; everybody did their job the way they were supposed to and all parties arrived at the same conclusions: with modifications, both plans were acceptable. DOJ’s involvement in the actual process was minimal and consisted of nothing more than oversight.

2. Insights About Roberts’ Skills & Judicial Temperament
While Roberts’ role in this matter appears to be negligible, we can at least impute some thoughts about his character and style.

A side-by-side comparison of Roberts’ final version and Bradford Reynolds’ draft shows Roberts to be very aware of sensitivities in defusing potentially acrimonious political showdowns while at the same time deftly repudiating Hill’s argument. Reynolds’ draft, on the other hand, flatly states the legal modalities and essentially tells Hill that her argument lacks substance.

Additionally, it is rather ironic to note the political climate in which Roberts was operating relative to this matter. Democrats occupied both the Governor’s mansion (Mark White) and dominated both houses of the Texas legislature during the ‘82-84 period. So you have a Republican State Representative appealing to a Republican DOJ re: a Democratic state government’s re-districting proposal on the basis of unfairness to blacks and Hispanics.

The Republican DOJ originally rejected the proposal on the basis of said unfairness. And once the situation was clarified / rectified, the Republican DOJ repudiates the charges of the Republican plaintiff.

So it seems that a) those nasty Republicans actually did care about balanced ethnic representation (in a state whose districts had been gerrymandered to the benefit of Democrats for decades), and b) a DOJ which seemed principled in its application of the Voting Rights Act because it alternately called the Democrats to account on the "burden of proof" aspect and later rebuffed Republicans that maintained that the plans were still flawed.

Again, this particular Box-of-Docs is anything but controversial. Yet, as far as it goes it does offer a look at Judge Roberts that serves as yet another data point for evaluation of his qualifications and fitness for serving on the Supreme Court.