Depending on what happens with the red-hot Congressional/legislative redistricting case before a three-judge federal court in Wisconsin, Michigan Democrats may decide to pounce sooner rather than later.
Former Michigan Democratic Party Chairman Mark Brewer is undoubtedly looking for something to do now that his client Jill Stein’s effort to force a recount of Michigan’s presidential vote has been deep-sixed.
No place better to look than a federal court in Detroit and a favorable Democratic judge like Mark Goldsmith or Gershwin Drain. That would be where Brewer could file a law suit as early as next year in the wake of a Wisconsin verdict in the case of Whitford v Gill. Brewer would allege that Michigan’s 2011 reapportionment of Congressional and state legislative districts was just as much a partisan gerrymander as Wisconsin’s and that it must be shredded and replaced immediately, mid-decade.
Brewer would want to take advantage of the fact that the chief judge of the 6th Circuit Court of Appeals, which would flesh out a three-judge panel on the Michigan case with two other federal jurists, is a Democratic appointee. In fact, after the 2020 census, Democrats may have every incentive to jump the gun as they did back in 1991 and file a federal redistricting lawsuit early in 2021 while that same federal appellate chief judge is still in place.
Bob LaBrant, Michigan’s premier historian when it comes to judicial politics, notes that, in a statewide redistricting case, it’s the Chief Judge of the federal circuit who appoints two of the three judges to serve on the panel. Currently, that would be Guy V. Cole, Jr., of Ohio. Cole was appointed to the 6th Circuit by then-President Bill Clinton in 1995. He assumed his position as Chief Judge on August, 2014.
A chief judge can serve in that capacity for seven years or until the chief judge reaches the age of 70, whichever comes first. Cole was born on May 23, 1951, so he will be chief judge until May 23, 2021, assuming he remains in good health.
Cole’s colleague on the appellate bench, Jeffrey Sutton, also of Ohio, was appointed by then-President George W. Bush in 2003 and will have the most seniority of the active judges and be only 61 in 2021.
If Brewer files a Whitford v. Gill-type case sometime between next year and 2019, alleging a partisan gerrymander in Michigan, the judge in Michigan’s Eastern District who is assigned the case (in a blind draw) must notify Cole, sitting in Cincinnati. It will then be Cole who will name the two other judges, one of whom must be a circuit judge, to serve on the three-judge panel.
Remember, judges — both elected and appointed — are politicians, and no politicians are more partisan than “independent” members of the judiciary. Why? Because judges are the only politicians who can be partisan and yet plausibly claim that they aren’t.