On October 25, The George Washington Law Review’s On the Docket was privileged to host a conversation between former Solicitor General of the United States Paul Clement and Dean Alan Morrison of The George Washington Law School.* The event centered on two redistricting cases that Mr. Clement is arguing before the Supreme Court in early December: Bethune-Hill v. Virginia State Board of Elections and McCrory v. Harris. Mr. Clement will be defending the state legislatures of both Virginia and North Carolina against charges that they impermissibly considered the race of residents when redrawing voting districts following the 2010 United States Census.
Dean Morrison, an accomplished Supreme Court litigator in his own right, began by introducing Mr. Clement, noting to light audience laughter that he would choose Mr. Clement as his lawyer if he ever found himself in trouble with the law. The discussion quickly turned away from pleasantries to the practicalities of arguing the cases. Mr. Clement noted that, because the cases will be argued back-to-back, he will face some unique challenges. “I may be up there for close to an hour straight,” he said, “and these cases are very factually intense. There is always the temptation to shut-down after you finish the first.”
The complexity of the case and the underlying task of redistricting would be a recurring theme throughout the event. Mr. Clement repeatedly highlighted the difficult position states are in navigating the countervailing legal and political pressures inherent in the process. Supreme Court precedent makes clear that race may not be the “predominate factor” considered by states when drawing a district absent narrow tailoring and a compelling government interest. But the Voting Rights Act of 1968 (as in effect during the redistricting at issue in the cases) required states with a history of racial voter discrimination to preserve the ability of minority populations to elect the candidate of their choice, virtually necessitating at least some consideration of race during the redistricting process in these states. Whatever you think of the law, Mr. Clement summarized, you must appreciate the delicate position in which these legislators find themselves.
The procedural posture of the cases also makes them particularly difficult, Mr. Clement explained. Under federal law, redistricting cases are heard before a three-judge panel at the district court level, then are appealable directly to the Supreme Court as a matter of right. Unlike in cases on the Court’s typical certiorari docket, the Supreme Court cannot limit review to specific questions of law in an appeal of right—the Court must take the case as it finds it, unwieldy complexity and all. Often the Supreme Court can avoid this problem by disposing of such cases on narrow procedural grounds. But that option is unlikely available here, Mr. Clement continued. The two cases ended in opposite conclusions in the lower courts, and a state court proceeding concerning the same issues is currently pending. There is thus considerable pressure on the Supreme Court to definitively decide the core question of law and clarify the uncertainty.
The related issue of partisan gerrymandering arose repeatedly. Many racial minority groups have traditionally been strongly aligned with specific political parties, and partisan gerrymandering often produces maps that are very similar to those produced by the kind of racial gerrymandering that the Supreme Court has held impermissible. Mr. Clement characterized the practice as a harsh reality in modern politics that has been around since nearly the founding of the United States. The Supreme Court considers it distasteful, he noted, and would love to have some core standards by which to determine when partisan gerrymandering goes too far, but no easy and judicially administrable rules currently exist. The ability of modern computer software that can crunch demographic data to automatically draw compact, partisan districts has exacerbated the problem. This capability places heavy pressure on legislators to draw districts favorable to their party, and it makes the job of reviewing courts much more difficult. If a court decides you thought about race too much when you drew regularly shaped districts, Mr. Clement said, you should presumably be able to draw the same districts for different reasons without violating the Constitution.
Mr. Clement concluded the discussion of the cases by identifying considerations that might inform the Supreme Court’s decisions. Foremost among these was the simple question of how many similar cases the Court will want to see in the future. A decision that affirms an active role for the courts in scrutinizing states’ redistricting efforts will undoubtedly lead to future challenges, Mr. Clement said. Moreover, any rule that the Court develops will need to take account of potential future political shifts. A minority population within a district that is sufficient to reelect an incumbent candidate of their choice today might not be sufficient to nominate the candidate of their choice in a contested primary that occurs someday down the road.
Before the event concluded, Dean Morrison asked Mr. Clement about his career since leaving the Solicitor General’s office. Mr. Clement recently left his boutique litigation firm, Bancroft PLLC, to join the international “big law” firm Kirkland & Ellis LLP. His comments centered mostly on the differences between boutique and large-scale practices. Each has its advantages, Mr. Clement explained. On the one hand, you don’t have to worry about a boutique firm’s overriding ideology differing from your own, he said. This is especially a concern in appellate work, where the result of a case may have wide-ranging implications—as evidenced by Mr. Clement’s notorious split from a former big-firm employer over his defense of the federal Defense of Marriage Act. It can also be difficult to get the cases you want in a big firm, he continued, where there are many other talented and well-known litigators to compete with. On the other hand, big firms have resources that boutique firms do not. There is never any concern about “making the phone ring” at a big firm, and you are freed from the sort of administrative overhead that can occupy much of your time at a boutique.
The event concluded with Dean Morrison thanking Mr. Clement for his time and noting that the two cases will be argued on December 5, 2016. The audience echoed the gratitude with loud applause, with many lining up afterward to meet Mr. Clement and ask follow-up questions.
*In the interest of fairness, On the Docket also extended an invitation to an attorney representing the voters challenging the redrawn maps; the attorney declined after some consideration, citing professional ethics concerns related to publicly discussing the case with opposing counsel prior to argument.
