The Democratic Attorney General of North Carolina is unwilling to defend the state’s We Will Stop African-Americans From Voting And We Can’t Even Be Bothered To Pretend Otherwise Act, which was recently nuked from orbit by the Fourth Circuit. But the state will not be sparing the state’s taxpayers any expense:
Paul Clement is one of the best lawyers in the nation. A former Solicitor General of the United States, Clement has spent much of the Obama administration transforming himself into a kind of Solicitor General of the Republican Party. Clement has argued cases seeking to repeal the Affordable Care Act, preserve anti-gay marriage discrimination, defend harsh policies targeting immigrants, and preserve other voter suppression laws. His presence on a case is often a clear sign that the nation’s conservative establishment views it as a very high priority.
He reportedly charges as much as $1,350 an hour for his services, although he’s been known to offer his government clients a bargain basement discount price of only $520 per hour!
But even the best salesman can only do so much when given leads from Mitch and Murray’s nostalgia files, and since he needs at least one Democratic vote to get his stay Clement will have only lots of money to show for his valiant defense of vote suppression. I do enjoy the fact that his stay application reads like he thinks Scalia is still on the Court:
The brief opens by accusing the Fourth Circuit of violating two Supreme Court decisions that are, to say the least, controversial. The appeals court allegedly treats “all voter-ID laws as inherently suspect notwithstanding Crawford v. Marion County Election Board,” and it allegedly converts “the purposeful discrimination inquiry into a mechanism for continuing to subject States to de facto preclearance notwithstanding Shelby County v. Holder.”
As a matter of legal doctrine, this argument is a non-sequitur. Crawford rejected a challenge to a state voter ID law which claimed that the law violated the fundamental right to vote. Shelby County effectively neutered Section 5 of the Voting Rights Act. The North Carolina law, by contrast, violates the Constitution’s protections against race discrimination and Section 2 of the Voting Rights Act.
Just as importantly, Crawford and Shelby County are not the sort of cases a lawyer should cite if they are trying to win over liberal justices. Crawford upheld a voter suppression law that was ostensibly enacted to fight in-person voting fraud, despite the fact that the Court’s lead opinion was only able to cite one example of such fraud occurring in the last 140 years! Shelby County gutted a key provision of the Voting Rights Act on the theory that America simply isn’t racist enough to justify such a law.
For liberals, these cases are anti-canon — the kind of decisions that illustrate how judges must never, ever behave. It’s easy to read Clement’s claim that the Fourth Circuit’s decision “not only will threaten voter-ID laws throughout the country despite this Court’s decision in Crawford, but also will gut this Court’s decision in Shelby County,” and imagine Justice Sonia Sotomayor turning to her head to the sky and crying out “Hallelujah!”
Clement’s argument should indeed cause much merriment inside the liberal chambers. “If you prevent this vote suppression law from going into effect, you will threaten other vote suppression laws, and also undermine one of the worst decisions in the history of the Supreme Court.” “Uh…good?” Not that any argument would be successful, of course, but hopefully this will serve as a reminder to Breyer that this isn’t the time for one of his sure-not-to-be-reciprocated courtesy lessons.