In 2018, Chief Justice John Roberts admonished Donald Trump for publicly criticizing an “Obama judge” who blocked his stringent new asylum policy. “We do not have Obama judges or Trump judges,” Roberts said in a statement, “Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
Roberts may need to remind Judge Edith Brown Clement that the federal judiciary does not have Democratic or Republican judges. On Friday, Clement, a George W. Bush appointee who serves on the 5th U.S. Circuit Court of Appeals, issued an acidic dissent in a racial gerrymandering case that lay bare her partisan grievances. Clement first suggested that the district court judge—a black Obama appointee—had intentionally redrawn the district to help a black, Democratic candidate win his election. She then implied that the (black, Democratic) plaintiffs only triumphed because they happened to draw a 5th Circuit panel with two Democratic appointees. Her polemic demonstrates that it isn’t just Trump who is politicizing the judiciary; judges like Clement are perfectly capable of doing so on their own.
Thomas v. Bryant is a complex case involving Mississippi’s Senate District 22, which lies at the core of the Mississippi Delta. A historically black region, the district is nonetheless drawn to give black voters only a slim majority: Under a map adopted by the legislature in 2012, it has a black voting-age population of 50.8 percent. Black citizens’ candidates of choice consistently lose to white, Republican politicians. In response, three voters, including a former state senator named Joseph Thomas, sued Mississippi under the Voting Rights Act. They argued that the state had gerrymandered the district to “dilute African-American voting strength and deprive African-American voters of an equal opportunity to elect candidates of their choice.”
In February 2019, U.S. District Judge Carlton Reeves ruled in favor of the plaintiffs. His meticulous opinion carefully analyzed the history of the “official discrimination” in the region as well as its contemporary racial polarization. He noted that “Mississippi’s Senate is much whiter than Mississippi” and that this “representation gap” deprives black voters’ “political effectiveness in proportion to” their population. Senate District 22, in particular, appears designed to provide black voters “less opportunity than other members of the electorate to elect the State Senator of their choice.” To remedy this infringement of the Voting Rights Act, Reeves adopted a new map that made the district much more compact and “reasonably shaped” while boosting “minority voting strength.”
Mississippi appealed, and on Friday, the 5th Circuit’s three-judge “motions panel” rejected the state’s request to block Reeve’s order. Writing for the majority, Judge Gregg Costa, an Obama appointee, explained that the state had not “shown a high likelihood” that Reeves’ findings would eventually be overturned. Judge James L. Dennis, a Clinton appointee, joined his decision. Clement dissented, reframing the case as a raw political power-grab. Joseph Thomas, she wrote “is a black Democrat” who “is trying hard to get his seat back” by running for state senate in 2019. And Reeves, “perhaps, inadvertently” (but perhaps not), helped him to do so by “eliminat[ing] the Republican base in District 22” and moving “two Republican challengers” into a “neighboring district.” Reeves’ order, Clement concluded, is “narrowly tailored to win Thomas the election.”
There are several problems with this analysis. First, as the majority points out, it “irresponsibly insinuates” that Reeves is corrupt, even taking “the unusual step of repeatedly naming” him to imply that he is a partisan actor. (Typically, an appellate judge would simply refer to “the district court” rather than naming and shaming the individual judge.) Second, the theory makes little sense because Reeves did not know that his plan would move two Republican challengers out of the district when he adopted it. Nor did he, or anyone, know the full slate of candidates who will run in the upcoming state senate race, because the candidate qualifying deadline had not yet closed. Clement essentially accused Reeves of predicting the future.
Uncowed by the majority’s rejoinder, Clement doubled down on her political critique. The full 5th Circuit skews heavily to the right, thanks in part to Trump’s infusion of very conservative judges. But Mississippi cannot ask the full court to rehear its motion and reverse the panel under 5th Circuit rules. So Clement bemoaned that the state “had the poor luck of drawing a majority-minority panel,” and urged it to appeal to the Supreme Court. She also “encourage[d]” Mississippi to “move for an expedited” appeal at the 5th Circuit on the merits so that a different panel could quickly “undo” this “mistake.”
What, exactly, does Clement mean when she slams her “majority-minority panel”? The phrase “majority-minority” typically refers to districts with a minority-white population. A generous interpretation of her pun might be that she suspects a majority of the 5th Circuit disagrees with Costa and Dennis. A more critical reading is that Costa and Dennis are Democratic appointees, while most 5th Circuit judges were appointed by Republicans. Both possible explanations of Clement’s quip lead to the same implication: The black, Democratic plaintiffs only won this round because they drew two liberal judges (who were appointed by Democrats), while most 5th Circuit judges (who were appointed by Republicans) would’ve ruled against them.
Or, put cynically: These black voters only won their gerrymandering lawsuit because an Obama judge and a Clinton judge wound up on their panel. Who needs Trump’s commentary when judges like Clement are willing to lay bare the partisanship that roils their own courts?