Tuesday, March 29, 2011

So who, exactly, will be on the three-judge panel deciding the redistricting case?

There's been a lot of talk recently about NAACP v. Barbour et al, the Mississippi legislative redistricting case, but not a lot of it has focused on the next step: the appointment of the three-judge panel that will decide the case.

The first judge, Dan Jordan, was chosen by lot when the case was filed. The two judges that round out the panel will be chosen by Fifth Circuit Court of Appeals Chief Judge Edith Jones. Jones, former counsel to the Texas Republican Party, will be under a high level of scrutiny as she makes the selection. Unlike other circuits, the Fifth does not have a written set of rules that determine the appointment of these panels in redistricting cases. All we know is that there should be one judge from the Fifth Circuit who is from Mississippi, and one more judge from the U.S. District Court for the Southern District of Mississippi. (Jordan is from the Southern District.)

The last time two judges were appointed to complete a three-judge panel to handle Mississippi legislative redistricting, the appointments went to the judges with the lightest caseloads. That makes the most sense, as these cases are extremely time-consuming, and the potential impact on other litigants within the Fifth Circuit and the Southern District is immense. If Jones is to follow precedent, she would appoint District Judge Carlton Reeves and Circuit Judge James Graves to complete the panel, both of whom are African-American. If she doesn't chose Reeves and Graves, there will no doubt be accusations that she is rigging the panel along political and/or racial lines.

My prediction? Some Mississippi Republicans are singing each other to sleep with a fictitious refrain that Barbour has already cut some sort of deal with Chief Judge Jones regarding the appointments. First off, that'd be earwigging. (Ask Dick Scruggs how that worked out for him.) Second off, even if you believe that Barbour and Chief Judge Jones would be unethical enough to engage in such behavior, you'd have to believe that Barbour had something of worth to offer her. What's that going to be? An appointment to the Supreme Court if Barbour becomes president? That's not just cynical, it's delusional.

So fantasy land aside, what's going to happen? Jones, while known as a staunchly conservative jurist, is not likely to blindly tow the GOP line and appoint judges who will draw whatever map the MSGOP hands them (if you even believe that such judges exist). If Jones is to throw the Mississippi Republican Party a bone, it will go down this way: she'll deviate from the practice of appointing the judges with the lightest caseloads and will instead go to the senior Mississippi member of each court and ask if they would like to handle the matter or defer to the next judge in line. In the end, I think she'll do what she should do, and that's stick with precedent and appoint those with the lightest caseloads. That would, without doubt, be in the best interest of judicial economy.

As it stands right now, though, the state defendants in NAACP v. Barbour et al (Barbour, Attorney General Jim Hood, and Secretary of State Delbert Hosemann) have yet to respond to the lawsuit or indicate that they object to the formation of a panel under 28 U.S.C. 2284, which governs the creation of three-judge panels. So it may be a bit before the panel is announced.

1 comment:

Bill Dees said...

Are Judges Reeves and Graves current or former members of the NAACP? If so, would that fact require recusal? Judge Jordan has already recused himself.