First was when Representative Ron Wilson was testifying at trial, and he explained why he voted in favor of the plan. “It was never a question of if the redistricting bill would pass.” Instead, he said, the question was, “Do you stand on the railroad track and try to stop the train? Or do you try to get some of your people on the train and not get run over?” As Wilson explained, he supported the plan because it was likely to elect three black Democrats to Congress from Texas, instead of merely two.
Wilson’s position enraged many of his Democratic colleagues. And Lee Godfrey, one of the most accomplished trial lawyers in the country, cross-examined him. Godfrey sarcastically noted that Wilson comprised “100 percent of the African American legislators” who had voted in support of the new map. Wilson defiantly explained why he believed that that was the case. “I am the only one who had the ‘things’ big enough to do it,” and he gestured accordingly.
It was a remarkable moment—to see a witness in a federal trial court directly referencing his own genitalia. Even more remarkably, Godfrey took the bait. “I presume the ‘things’ you refer to are not visible?”
Wilson retorted, “You want to see them?”
Godfrey seemed ready to demand production. But the presiding judge wisely directed, “Move on. Move on.”
A second notable moment concerned our expert witness. We had retained a statistician from Oklahoma to analyze the likely effects of the map the Texas Legislature had adopted. The statistician was a nice, affable man, and he wrote a good report. As we were preparing him for trial, I had brought in my old boss, Mike Carvin, to assist with trial preparation. Mike proceeded with a mock cross-examination. Our expert, much to our dismay, on a vigorous cross-exam, seemed perfectly willing to agree to just about anything. Even though his report was carefully reasoned, the statistician’s temperament was such that he just didn’t like to tell a questioner no. Over and over again, Mike and I and other lawyers on the trial team would pose difficult questions to our expert, and over and over again, he seemed to want to please the questioner more than he wanted to answer the question accurately.
We quickly realized that putting our witness on the stand could end very badly. We therefore made a decision to put him on a plane and fly him back to Oklahoma. The next day, we were expected to call our expert witness. The plaintiffs had already concluded their case, and we had begun to present ours. The lead opposing lawyer, Paul Smith, was a veteran Supreme Court advocate, and I could tell he was salivating to cross-examine our expert. However, when the time came to call him, our lead trial lawyer stood and said, “Your honor, the State rests.”
Virtually every Democratic lawyer leapt to his feet, crying out his objection. The bemused presiding judge, Patrick Higginbotham, a longtime veteran of the Fifth Circuit Court of Appeals, looked down, his spectacles perched on the tip of his nose. With a smile, he asked, “You object to the State resting?” Exhaling heavily, the Democratic lawyers took their seats, realizing they could not force us to call to the stand a witness we did not wish to call. Their hopes of making their case through cross-examining our witness were extinguished at that moment.
The three-judge federal district court ultimately upheld the map, and the plaintiffs appealed directly to the U.S. Supreme Court. Unlike ordinary appeals to the Court that go through the process of certiorari, or discretionary review, redistricting cases go on automatic direct appeal to the Court. And the Court, following some procedural delays, set the case for oral argument.
The multiple plaintiffs filed four separate fifty-page briefs at the Supreme Court, raising together eleven different questions presented. In our response brief, a single consolidated brief that ran 123 pages in length (more than double a typical Supreme Court brief), we took all eleven questions presented and reformulated them into five overarching questions. This was an unusual approach, but one that I had begun adopting years earlier as a college debater.
While at Princeton, I spent all four years of college debating on the intercollegiate circuit. The style of debate was parliamentary debate, which is modeled after British Parliament. Each debate was extemporaneous. You found out the topic ten minutes before the round, and a debate round extended for forty minutes.
Judges were ordinary college students, but those who were experienced debaters were taught to record the arguments in a debate on what is called a “flow.” Typically, the debate judge would take a legal-size yellow pad, turn it lengthwise, and divide the pad into six columns. The first speaker in a parliamentary debate, dubbed the prime minister, would lay out the case and present a series of arguments for the position he or she was advancing. Typically, the arguments numbered three, four, or five. In an ordinary debate, the next speaker would then respond to each of those arguments, and the debate judge would draw an arrow from argument one to response one, and likewise for each of the other arguments. The next speaker would then respond to those counter-arguments, and so the arrows would continue across the columns so that the judge could flow how the debate proceeded.
By about my sophomore year, I decided to oppose cases differently. Instead of responding to the arguments presented by the prime minister, when I was in opposition I viewed my task as presenting an affirmative argument as to why the other team was wrong. As a result, flows from our debates looked very different from a typical flow. The judge would have three, four, or five arguments from the first speaker, and then I would present three or four or five totally different arguments as to why their case was wrong. Not sure where to put them, most judges would simply put them on the lower
