ACKERMAN ON 9TH CIRCUIT RECALL DECISION

Bruce Ackerman writes against the 9th Circuit in the NYT, here. (via Volokh). At lunch yesterday, my department chair made some similar arguments about the burdens on the candidates -- with respect to TV advertising in particular. And he's also named Bruce. I don't want to associate him with an anti-9th circuit argument, however, because I'm not sure how he stands toward the recent decision.

There is one point in Ackerman's argument that is very odd, however. In the context of an argument about the meaning of Bush v. Gore, he writes:

Whatever its other merits or demerits, the court's intervention protected the right of each state to make its voice heard in selecting the president.

This is a very generous interpretation of Bush v. Gore, it seems to me. One of the important criticisms of the opinion is that it cut off a process that was already foreseen, namely, that dual sets of election slates would be dealt with by Congress. I don't see any reason why the Supreme Court action can be described as "protecting the right of each state to make its voice heard" any more so than allowing congressional determination of the validity of competing electoral slates -- or a remedy that would have included a demand to promulgate clear rules for interpreting ballots. Neither of these alternatives is demonstrably worse at protecting the state voice, it seems to me, and either might actually have been better. Ackerman's argument is sort of like describing the umpire's disputed call in the 1996 playoff series between the Yankees and the Orioles -- the call that awarded a home run (and the game) to the Yankees even though a fan (Jeffrey Maher) reached out and pulled in the ball -- as "safeguarding the right of players to hit home runs." OK, so it's not quite that bad, but you get my point.

MORE: more to the point: heard by whom? Hearing is a relative term. The reason that my playoffs example above works is that the umpire's ruling is probably best seen as safeguarding (through action) the ability of umpires to make controversial home run calls. Similarly, Bush v. Gore is probably best read as an opinion safeguarding the ability of the Supreme Court to decide disputes concerning federal presidential election recounts, or something like that.