Why is the WI GOP playing dangerous discovery games in the lawsuit over the party's secretly, lopsidedly, gerrymandered redistricting plan for Wisconsin? Giles Goat Boy's terrific report on the Rec List today highlights an extraordinary procedural order by the 3 Judge Panel that will rule on the GOP redistricting plan before it is directly appealed to the U.S. Supreme Court. The court's order castigates exceptionally obstructionist tactics engaged in by the GOP and their lawyers in the redistricting law suit. But other than the very real possibility that GOP must have something to hide, neither GGB's diary nor its excellent comments ask why such extreme litigation tactics have emerged in this case.
Aside from mere obstructionism, a GOP specialty, there could be another and more sinister reason for the GOP's tactics that led to the unusual court order. The GOP may wish to taint a predictable loss on the merits with procedural problems on appeal, if, for example, the trial court bases important findings of fact, not on evidence, but on negative inferences drawn because the GOP and its lawyers won't produce or have lost or destroyed evidence. The GOP knows their plan can't withstand a fair trial, especially if the work of those who crafted it becomes available for inspection by those opposing the GOP map. Their strategy is tailored to manage the outcome of a loss and direct Supreme Court appeal.
The next step will be for the WI GOP to serve up Swiss cheese, that is, discovery responses that are much more complete but still full of holes. Trial is real soon. One must ask whether Republicans are as ruthless obstructionists in court as they are in Congress? It seems so, and they may figure that with a loser on the merits for a redistricting map, they may just as well go to the U.S. Supreme court with as tainted a trial decision as possible. Among other things, they will turn the colorful language of the trial court's discovery order against the decision with claims of prejudice. Check out the order via GGB's diary. It's a hoot.
I've been a lawyer in and around federal court houses and plugged into court news more or less continuously since 1978 and have never seen the like of the behavior of the WI GOP's lawyers in the case in GGB's diary. The remarkable court order discussed in the must read diary is extraordinary, at least, perhaps unprecedented. One must ponder whether the GOP's lawyers are provoking the judges, and if so, why? One answer is sheer obstructionist pigheadedness; another is a strategy to contaminate the record with procedural clutter to serve as an argument that the decision against them wasn't really on the merits and thus somehow unfair to the poor GOP. Some of those Supreme Court Justices are just looking for a place to hang their hat when the case inevitably reaches them.
Overall this story bespeaks much more about the GOP's faith in rule of lawyers than their faith in rule of law. Big surprise.