SOUTHWEST VOTER

The three-judge panel decision in Southwest Voter was overturned today after en banc review. Here's the opinion (PDF file). See Larry Solum's thoughts here and here, and Rick Hasen's here.

If nothing else, this controversy showed that Bush v. Gore is lying around like a set mouse trap, ready to be sprung by courts that are inclined to do so. In my view, this is only fitting in a cosmic sort of way. I am waiting for the pro-Bush (and pro-Bush) commentators to admit that the decision was a mistake -- a judicially "activist" decision of a high order -- and that the federal courts now are likely to be involved in election disputes in a way nearly unimaginable in 1999 except in Robert Bork's dreary nightmares. I'm not so sure that I think that courts shouldn't get involved in elections, but I'm pretty sure that people who liked Bush v. Gore should at least admit that they're in danger of hypocrisy if they only like the involvement when their candidates win big.

After watching the oral arguments yesterday, I am grateful to the three-judge panel for giving the 9th Circuit an excuse to bring cameras into the courtroom. And once the cameras were allowed in, lo! and behold, instead of finding judges defiantly dressed in "re-elect Gore-Lieberman" or "Dean in 2004" campaign outfits, we found serious and intelligent men and women trying hard to probe the outer limits of very difficult legal questions. Most of them had already made up their minds, to be sure, and as Rick Hasen notes, a close reading of the opinion shows that the unanimous opinion masks internal divisions that may (perhaps) track ideological preference. Still, perhaps it is a lot easier to paint judges in a poor light when they're hidden from public view.

One additional result of the oral arguments, however, is that attentive viewers might learn to be even more skeptical about the supposedly neutral effort to "distinguish" cases from one another, as in, the attempt to argue that Bush v. Gore is really only about the unique situation of a state-wide court-ordered hand recount of ballots in a disputed presidential election with deadlines looming. An hour into the oral argument, in questioning Charles Diamond (Costa's lawyer, who was doing an admirable job, in my opinion) Judge Kozinski said:

I know it can be distinguished. It was also in St. Louis, and the guy's name was Roberts rather than Costa. I know it can be distinguished.

See the oral argument from c-span, here (realplayer). It might be a meaningless aside from Judge Kozinski, to be sure, but I think that his statement here is evidence for the proposition that judges can feel justified in seeing a lot of discretion in how broad a view of principles they are required to find based on precedent -- and it's not just liberal judges who see that discretion, either.