The Washington Post: Mike Davis Talks Redistricting and the Upcoming Supreme Court Confirmation Hearings

The Washington Post

In this edition: The climate left grapples with the Ukraine crisis, a conservative operative explains how the Supreme Court can wipe out Democratic-friendly maps next year, and a candidate who wants to run elections in Colorado goes to jail.

The latest legal battle to undo part of the 2020 election.


When the Article III Project launched in 2019, Republicans controlled the White House and the Senate, and were trying to confirm as many judges as possible before an election intervened. Mike Davis, who’d been chief nominations counsel for the Senate Judiciary Committee, promised to “take off the gloves” and battle the left, which had infuriated Republicans during the Supreme Court confirmation of Justice Brett M. Kavanaugh.

The project was a success, but Democrats got back the Senate 14 months ago — and before that, they’d won a number of crucial state court races that would end up saving seats for their party in post-census congressional redistricting. Davis has kept his gloves off, with an ad campaign portraying Democrats as hypocrites over their embrace of Ketanji Brown Jackson’s Supreme Court nomination, and with condemnations of state courts which, he says, have acted unconstitutionally by throwing out Republican-drawn congressional maps. In the short term, he wants to make the Supreme Court fight as painful for Democrats as possible; in the near term, he sees a way to demolish the Democrats’ redistricting efforts by bringing them back to court next year.

Davis talked about the group and its strategies on Wednesday, and this is a lightly edited transcript.

The Trailer: Take me back to January 2021. Democrats have a 50-seat Senate majority and can confirm judges if they stick together. What was your strategy, and what seemed achievable for the Article III Project?

Mike Davis: I actually seriously contemplated endorsing Merrick Garland for attorney general. I didn’t, and I’m glad I didn’t, but I came into this with realistic expectations. We had a Democratic president, and we had a Democratic Senate. It would have been a whole different world had Republicans won one or both of those Georgia U.S. Senate seats, and the Senate Judiciary Committee would have been a graveyard for radical nominees.

They didn’t, so Republicans need to pick their battles. They should fight ferociously like they did with Rachael Rollins, the radical nominee out of Boston. They can still oppose judicial nominees based upon their judicial philosophy, but it shouldn’t be scorched earth, as the Democrats tried to do in the Trump years. What the Democrats did was stupid, particularly with Kavanaugh.

TT: What are the actual stakes of the Ketanji Brown Jackson nomination, given that if she’s confirmed it’s one liberal replacing another liberal?

MD: I actually think Biden made a mistake by not picking California Supreme Court Justice Leondra Kruger. Judge Jackson, if you look at her opinions, has more of an emotive style. Justice Kruger has more of an analytical style, more in the mold of Justice [Elena] Kagan. A Justice Kruger could have picked off two conservative justices from time to time and eked out liberal victories. A Justice Jackson’s rarely going to be able to do that. She’s our best pick, because she’ll be emotive and ineffective, like Justice [Sonia] Sotomayor.

TT: You’ve started running digital ads that point out how Senate Majority Leader Charles E. Schumer (D-N.Y.) and other Democrats voted against 95 percent of non-White judicial nominees put forward by Donald Trump. What’s the strategy there?

MD: The Democrats are talking about picking the first Black woman for the Supreme Court, so I’m going to point out the hypocrisy — they actually filibustered the woman should have been the first Black woman on the Supreme Court, Janice Rogers Brown. Joe Biden, Chuck Schumer and Dick Durbin filibustered the nomination of Judge Janice Rogers Brown to the D.C. Circuit, the second-highest court in the land. And then Senator Biden publicly said that if President George W. Bush elevated her to the Supreme Court, the Democrats would filibuster her nomination. 

Democrats pretend like they care about diversity, but they have a 30-year pattern and practice, going back to Justice Clarence Thomas, of opposing women and minorities when they’re nominated by Republicans. These Democrats pretend like they care about diversity, and they don’t. They care about power. I want this to be, instead of a political win for Democrats, a political wash for Democrats. Pointing out their hypocrisy is going to help chip away at that.

TT: Republicans have criticized Jackson for representing Gitmo defendants. Why is that a strike against her?

MD: Democrats right now are trying to disbar 100 Republican attorneys who helped with the 2020 election challenge, so Democrats apparently think it’s fair game to go after attorneys for their clients. It’s really stupid for Democrats to go down this path: If it’s fair game to go after Republican attorneys for representing 2020 challengers, it’s fair game to question Judge Jackson for going out of her way to provide free legal services to Gitmo terrorists while she was in private practice. 

At a minimum, I think that they need to ask her why she made that decision. Out of all the people in this country who need free legal services, including Black families in Washington, D.C., in her own backyard, why does she think it was so important to provide her limited time and resources here?

TT: Were you surprised by the Supreme Court not hearing complaints from North Carolina and Pennsylvania legislators about the maps forced on them by state courts?

MD: If you look at the chief justice’s opinion on the 2015 Arizona redistricting case, a dissent on a 5-4 decision, he very clearly would be on the side of the state legislatures. The Constitution says that state legislatures draw U.S. House seats. Not commissions, not courts. The three conservatives, [Justice Samuel A.] Alito and Thomas and [Justice Neil M.] Gorsuch, very clearly stated where they are. Kavanaugh wrote a concurrence, saying that he wants to get it on the docket next year. There’s your five votes, and I think [Justice Amy Coney] Barrett would go along with that, so it would be 6-3.

TT: Would the Article III Project take a role, next year, in getting this in front of the Supreme Court?

MD: It wouldn’t be us. It would come from the state legislatures. But, look: If I were the Ohio Supreme Court, and I just saw these votes lined up with where [Chief Justice John G.] Roberts was, I would say, oh well, there are at least five votes to reverse this at the U.S. Supreme Court, so maybe we shouldn’t do this. That Republican justice in Ohio needs to understand that if she sides with [Democratic elections lawyer] Marc Elias and [former attorney general] Eric Holder, the Democratic operatives in this case, she’s going to get reversed by the Supreme Court.

TT: Why did Republicans end up in this position, filing so late that Kavanaugh, at least, said there was no time to adjudicate it?

MD: Marc Elias and Eric Holder are very good attorneys, and Republicans are stupid. They just let Democratic justices on these supreme courts in Pennsylvania and North Carolina steal these damn seats.

But this is going to backfire on them. They’ve been playing this game with redistricting for decades, right? That’s going to come to a screeching halt, because they were piggish and they went too far. It’s pretty clear from Kavanaugh’s opinion that he sees through their games. 

So, good job, guys. You won these two battles and you’ve lost the war on redistricting. Because now your commissions, your state Supreme Courts, your Democratic justices, are no longer going to redraw U.S. House seats. You get these seats for two years — if that, if they can win in this Republican wave. It’s a self-own. Democrats only care about power, and they’re shameless about it, but their whole redistricting game with courts and commissions is over.

Read the full article HERE.