Sotomayor Made the Pro-Gerrymander Lawyers Gibber

by ksmoore777

Slate’s Mark Stern provided enjoyable commentary about Justice Sonia Sotomayor’s contribution to last Tuesday’s oral arguments in Gill v. Whitford, the case examining the constitutional limits to political redistricting.  While her fellow Justice, Ruth Bader Ginsburg, went after preening idiot Gorsuch, Sotomayor honed in on Wisconsin’s lawyers.

Stern describes as the “highlight of the hour” Sotomayor’s simple, practical and direct question:  “Could you tell me what the value is to democracy from political gerrymandering?  How does that help our system of government?”

Helluva good question.  How does gerrymandering help?

Stern reports that Erin E. Murphy, the attorney representing Wisconsin’s (very gerrymandered) State Senate, could only offer “word salad” in response.

I don’t think that … districting for partisan advantage has no positive values.  I would point you to, for instance, Justice Breyer’s dissenting opinion in [2004’s Vieth v. Jubelirer] which has an extensive discussion of how it can actually do good things for our system to have districts drawn in a way that makes it easier for voters to understand who … the legislature is. It produces values in terms of accountability that are valuable so that the people understand who isn’t and who is in power. 

One can just imagine Sotomayor smiling.  “I really don’t understand what that means,” she said.

(Murphy’s response was particularly unintelligible since, as Stern points out, Breyer’s Vieth dissent says pretty much the opposite of what Murphy claimed:  When “the minority’s hold on power is purely the result of partisan manipulation, a serious, and remediable, abuse, namely … unjustified entrenchment.”)

Sotomayor pushed Murphy a little harder:  “It’s OK to stack the decks so that for 10 years—or an indefinite period of time—one party, even though it gets a minority of votes, can get … the majority of seats?” Murphy’s lame, misleading response:

With all due respect, you know, I would certainly dispute the premise that the decks are stacked here. At the end of the day, what matters is how people vote in elections and that’s what’s going to determine the outcomes, as it has in Wisconsin where the Republicans have won majorities because they’ve actually won the majority of the vote in most of the elections over the past four years.

Stern points out that in 2014, Wisconsin Republicans received 52 percent of the vote and won 63 out of 99 seats in the State Assembly. In 2016, they won the same percentage of the statewide vote and captured 64 seats. And in 2012, Republicans won just 48.6 percent of the statewide vote—and captured 60 out of 99 seats.  If that ain’t a political stacked deck, I don’t know what is.

Noting that Sotomayor is often the object of racist criticism that mischaracterizes her legal analysis as too simplistic, Stern concludes:

As Gill demonstrates, Sotomayor might not always ask the most elaborate questions, just the most important ones.


Reprinted with permission from Daily Kos