Partisan gerrymandering might not be desirable but it’s what the framers of the Constitution allowed, former U.S. Solicitor General Paul Clement argued Tuesday.
Clement, who served in President George W. Bush’s administration and who some conservatives hoped to see considered for the Supreme Court’s recent vacancy, questioned the wisdom of those attacking partisan gerrymandering. Clement made such arguments at the Georgetown University Law Center and the Heritage Foundation Tuesday.
“I think the argument is less really that this is, that partisan gerrymandering is an affirmative good but more that it’s just implicit in the notion of textually delegating the authority to redistricting to a legislature,” Clement told the Heritage Foundation. “I think the Framers pretty clearly did textually delegate redistricting to state legislatures and so to say that, at least for about 180 years they’ve been partisan state legislatures, to say that sort of something that is inevitable in those legislatures discharging their function becomes unconstitutional if there’s just too much of it, I think that’s a hard thing to explain exactly where you cross the constitutional line.”
Clement made the argument as part of a preview of a case involving questions of political gerrymandering in Wisconsin, Gill v. Whitford, which is headed for oral arguments at the high court next month. Clement, who is from Wisconsin, filed briefs on behalf of the state’s lawmakers supporting the state’s redistricting map. He has argued several cases involving gerrymandering before the high court.
Clement said Tuesday at Georgetown Law that the Supreme Court’s resolution of the case will determine “whether the court is essentially going to come up with a standard to adjudicate partisan gerrymandering cases or whether they will continue to treat partisan gerrymandering cases like racial gerrymandering cases, as non-justiciable,” or unable to to be ruled on by the Supreme Court.
A plurality of the Supreme Court’s justices held in a split decision on Vieth v. Jubelirer that partisan gerrymandering cases were unable to be resolved because no administrable standard existed, but the challengers in the upcoming Wisconsin case intend to change the high court’s mind by creating their own standard. The newly created standard would rely on demonstrating that the maps were drawn with a partisan motivation, fostered a large and lasting partisan effect, and appeared unjustified by other factors used to draw such districts, as Georgetown University Law Center noted in its preview of the upcoming term.
The high court has historically viewed racial gerrymandering and political gerrymandering cases differently. As Georgetown Law noted in its preview, the Supreme Court has said that proof of a predominant partisan motive in drawing a district does not prove unlawful, whereas proof of a predominant racial motive is sufficient to show an unconstitutional gerrymander.
Whether five justices, and Justice Anthony Kennedy in particular, want to create a test that judges can apply to determine the lawfulness of political gerrymandering will be determined by how the Supreme Court resolves the dispute, Clement said.
While Clement argued that the case presented the court with a question it needed to resolve, others thought the high court’s decision to grant the case may have been motivated partly by a desire to give Kennedy a final say on the issue of gerrymandering.
“This is his last chance [to tackle gerrymandering],” said Irv Gornstein, Georgetown’s Supreme Court Institute executive director. “For those of you who think as I do that this is his last term, this is his last chance.”
The legal experts at Georgetown were divided in predicting how Kennedy might rule. Georgetown Law professor Martin S. Lederman said he thought Kennedy was “enamored” with letting nonpartisan “experts draw the maps instead of the politicians,” but Clement countered that Kennedy would favor a different approach.
Clement suggested that Kennedy might choose to say that the Supreme Court should not rule that political gerrymandering claims are able to be ruled on by the courts but that the court should not remove itself entirely from the district-drawing process, either. By keeping the courts as a Sword of Damocles dangling over lawmakers’ heads as they draw new districts, Clement said Kennedy may intend to provide a check on lawmakers’ power.
Kannon K. Shanmugam, who leads Williams & Connolly’s Supreme Court and Appellate Litigation practice, said he thought the Supreme Court’s decision would be marked by concern about “the inevitable politicization of the judiciary that’s going to result from recognizing these sorts of [gerrymandering] claims.”
“I do think that there will be concern that embroiling the courts in these quintessentially political disputes is going to be problematic,” Shanmugam saidy. “And while there’s no doubt that political gerrymandering is engaged in with a greater degree of mathematical precision these days, I think that those concerns about the impact on the judiciary are going to weigh pretty heavily in the court’s mind.”
