Expert: Why McCrory’s (very expensive) lawyer faces an uphill battle at the Supreme Court

Ian Millhiser

Ian Millhiser

U.S. Supreme Court chronicler Ian Millhiser has another fascinating post at Think Progress on the “emergency” appeal that Gov. Pat McCrory filed 17 days after the Fourth Circuit Court of Appeals struck down North Carolina’s discriminatory “monster” voter suppression law. As Millhiser notes in “North Carolina Hires One Of America’s Most Expensive Attorneys To Defend Voter Suppression: Defending the indefensible is hard,” the state has an uphill fight — even with a lawyer who charges his clients as much as $1,350 per hour:

“The king’s ransom [lawyer Paul] Clement is likely to collect from North Carolina’s taxpayers for his work on North Carolina v. North Carolina State Conference of the NAACP bought a legal document that probably offers the best defense that could be offered in favor of a law which, as the appeals court explains, was intentionally designed to make it harder for black people to vote. Nevertheless, Clement’s brief, styled as an “EMERGENCY APPLICATION TO RECALL AND STAY MANDATE OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT PENDING DISPOSITION OF A PETITION FOR WRIT OF CERTIORARI,” reads like a document weirdly out of time. It is the sort of brief a Supreme Court advocate would file if Justice Antonin Scalia were still alive to provide the fifth vote to reinstate a voter suppression law. And it offers many arguments that are likely to antagonize the justices Clement needs to win over if he is to prevail.”

Millhiser goes on to explain in some detail why the arguments put forth in the brief come up short and are very unlikely to sway the five justices that would be necessary to reinstate the voter suppression law. It’s a quick read that’s definitely worth a few minutes of your time. Here’s the conclusion:

“In case there’s any doubt, none of these critiques of Clement’s brief should be taken as a slight against his skill as an attorney. To the contrary, given the fact that North Carolina is required to comply with both the Constitution and the Voting Rights Act, as well as the Fourth Circuit’s determination that the state engaged in intentional race discrimination, the fact that Clement is able to offer any defense at all of this law is a testament to why his clients are willing to pay top dollar for his exceptionally advocacy.

But, at the end of the day, the justices are supposed to base their decisions on the law. Not on who is able to hire the fanciest lawyer.”

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