CHADS

My pick-me-up reading for today is here, courtesy of Rick Hasen.

Is urging federal judges to extend Bush v. Gore's equal protection arguments to apply to punch card ballots in the California recall election tantamount to counseling "judicial activism"? My gut response is: you folks federalized this issue, now live with it -- if you want to be consistent, that is (unless the curious "Presidential elections are special, especially this Presidential election" reasoning is going to carry the day). My response is a little cranky, I'll admit, but before Bush v. Gore, such a claim would have seemed like request for judicial activism, or, at least, you would have expected conservative judges to argue that it would be activism. Now I'm not sure that such a statement can pass the "smirk test."