[EL] Most surprising remark in today's oral argument in the Arizona redistricting case

[Marty Lederman]

The argument is *not *that the Commission exercises the legislative
power--it is that the people of Arizona did.

On Mon, Mar 2, 2015 at 4:19 PM, Rosenthal, Lawrence <rosentha at chapman.edu>
wrote:

>  I am always struck by how poorly even accomplished advocates use
> historical evidence.  Perhaps because lawyers advocates used to
> cherry-picking evidence and not historians trained to be sensitive to
> context and holistic evaluation of the evidence, it seems to me that
> lawyers are unusually adept at talking themselves into what are truly
> terrible arguments based on isolated historical evidence.   Does anyone
> really think that it is fair to read the phrase “the Legislature thereof,”
> when it comes to Arizona, to refer to its redistricting commission?  It’s
> almost impossible to say with a straight face:  How can Arizona’s
> legislature somehow not be its “legislature” for purposes of this case?
> Apparently, we are supposed to believe that Arizona has two legislatures,
> one for redistricting and the other for everything else, although even this
> tortured view is hard to fit with the Elections Clause’s reference to a
> singular legislature “the Legislature thereof”).  I must confess that my
> reaction to this argument differs little from that of Justice Scalia.
>
>
>
> As a policy matter, I quite agree with the use of citizen redistricting
> commissions.  I also have a great deal of sympathy with the argument that
> Congress has authorized the Arizona scheme (an argument that Mr. Waxman
> confined to about three pages of his brief).  But the argument that the
> Arizona legislature is not the Arizona legislature when it comes to
> redistricting  strikes me a sure loser.  I wonder how Mr. Waxman persuaded
> himself otherwise.
>
>
>
> Larry Rosenthal
>
> Chapman University Fowler School of Law
>
>
>
> *From:* conlawprof-bounces at lists.ucla.edu [mailto:
> conlawprof-bounces at lists.ucla.edu] *On Behalf Of *Marty Lederman
> *Sent:* Monday, March 02, 2015 11:04 AM
> *To:* conlawprof at lists.ucla.edu; Election Law
> *Subject:* Most surprising remark in today's oral argument in the Arizona
> redistricting case
>
>
>
> SETH WAXMAN:  The meaning of the word "legislature" that we advocate ["the
> power that makes laws," which Waxman derived from Samuel Johnson's *Dictionary
> of English Language *(10th ed. 1792) and Noah Webster's *Compendious
> Dictionary of the English Language* (1806)] . . . was, in fact, the
> consensus definition of "legislature."
>
>
>
> JUSTICE SCALIA:  . . . . I don't think it was a consensus definition at
> all.  *You've plucked that out of ­­a couple of dictionaries*.
>
>
>
> [I was present in the Courtroom and can attest that the last sentence was
> uttered with derision.  I probably was not the only one who was somewhat
> alarmed to hear that, given the source.]
>
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