Law and politics worldwide, etc. (That description should stick for a while)
Several people managed to express politely (unlike me) their sense that the 9th Circuit decision in Southwest Voter was Bush v. Gore coming home to roost, and their Schadenfreude over the conservative attempts to express outrage over the 9th Circuit without simultaneously attacking the ruling in Bush v. Gore. See here and here.
Schwarzenegger Unveils Political Reform Plan, from Findlaw:He called for a ban on campaign fund-raising during the months the state budget is under discussion, and a requirement that candidates report all contributions daily, not just those over $1,000 now required.
This is either an attempt to appeal to moderate and populist voters, a mere attempt to tarnish his non-millionaire rivals with the taint of corruption, or a long-term, stealth attempt to discredit the kind of reforms that McCain-Feingold enacted. I can't tell which.
Warning: slanted political fulminating ahead!
The 9th Circuit opinion in Southwest Voter has been described as "history repeating itself as farce" by Edward Lazarus, here. So far I haven't heard anyone use the terms "bad flashback," so that's how I'll describe the opinion. I think that the opinion isn't all that bad, as I've said below. Nonetheless, I've found myself revisiting old debates on what Bush v. Gore did and did not do, and, frankly, the discussions remind me of how unfortunate and scarring that opinion actually is.
Conservative attackers of the 9th Circuit have heaped all sorts of invective on the court while failing to realize that the court is only extending the equal protection arguments that the per curiam decision pushed in Bush v. Gore (or, at least, could reasonably have believed that it was doing so, if a bit ironically). They also heaped all sorts of invective on the Supreme Court's Lawrence opinion, arguing that once you establish that states can't punish sodomy, you've opened up the door to the destruction of marriage and even the legitimation of cross-species unions. As I note below, the Supreme Court made a similar move in Lawrence as it did in Bush v. Gore: this principle is not intended to extend to other areas. But conservative defenders of Bush v. Gore piously invoke those lines from Bush v. Gore a mere months after they quoted Scalia's dissent in Lawrence, "don't believe it." It seems to me that if you're going to criticize Lawrence for being too expansive, then you've got to criticize Bush v. Gore as well.
All of this reminds me of the extreme hypocrisy of the responses to Bush v. Gore; Soutwest Voter is like a funhouse mirror that throws those responses back at us again in new and grotesque ways.
The lesson, I think, is that conservatives try to claim the moral high ground with respect to constitutional principle, but when it comes to defending a decision whose results they like (Bush v. Gore), or attacking a decision the results of which they don't like (Southwest Voter), principle goes out the window. The main thrust of conservative commentary is nothing more exalted than decrying judicial tyranny when courts hand down decisions that they don't like.
Boo-frickin'-hoo.
[Cue Boston accent]: Stick to pawla-tics, Davey!
If the Red Sox are like communism to the Yankee's capitalism, then: in a smaller market, with 20%+ fewer seats in the stadium each year, they still managed to beat them in the regular season repeatedly, even though long-term structural adjustments in the fan base are necessary if they want to keep up with the amassed capital of the world's largest sports franchise (or should I say "sports conglomerate," cf. the franchise deal with Manchester United).
Hey, maybe not such a bad analogy after all. Circa 1980, at least.
Saw Matchstick Men. Fun story, but the idea that OCD is all in your head is a silly one.
Two points stand out for me in the negative reactions to the 9th Circuit panel decision in Southwest Voter earlier this week.
(1) People who like Bush v. Gore's result seem unable to correctly characterize the equal protection arguments in the case. Some (like Neal Lang, in the comments here), would prefer to rely on the Article II argument from Bush v. Gore, namely, that the state judiciary had illegitimately usurped power from the state legislature in its interpretation of Florida election law. Unless I'm misremembering the differences between the per curiam opinion and the concurrence, the Article II claims did not fly with a majority on the court. That's why Rehnquist wrote separately to explain that argument, which only he, Scalia, and Thomas bought. You might think they made a good argument -- even though that requires some rather severe intrusions of the federal courts on matters generally within state judicial competence and authority -- but it was not the argument that won the day in Bush v. Gore. I don't know how widespread this mischaracterization of the actual holding in Bush v. Gore is, but it's worth reiterating nonetheless that the equal protection arguments were at the core of the case, at least in the minds of the majority, apparently.
(2) Some, like Robert Alt, would like to rely on the per curiam argument in Bush v. Gore that theirs was a one-shot-only case, quoting these lines from the per curiam opinion: The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards.
See also the post at Powerline here. There is nothing wrong with quoting these lines, of course, and arguing that they alone limit the equal protection principle. At the very least, however, people who take those lines seriously should be asked whether or not they take the Supreme Court's attempt at self-limitation in the recent sodomy case (Lawrence v. Texas) seriously as well. There the majority wrote as follows:The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.
To which Justice Scalia, in his dissent, replied:At the end of its opinion--after having laid waste the foundations of our rational-basis jurisprudence--the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 17. Do not believe it.
(emphasis added)
The "do not believe it" line from Scalia's dissent was quite widely reported, and it was my impression, at least, that conservative commentators in particular thought that Scalia was right: that the broad principles announced in the majority opinion would not be constrained by the stipulative attempts to limit the result to the case at hand.
If you think that Scalia is right there -- that courts are not to be trusted to limit their own principles -- then why would you think that mere stipulation would work in Bush v. Gore?
MORE: Smythe's World has a good set of links to criticisms of the 9th Circuit decision as well as some generally on-target comments, here.
DC shuts down in preparation for Isabel.
I was in northeastern Connecticut when hurricane Gloria plowed its way through New England. (Check out the links here and here on Gloria.) For several hours we huddled in the house while pine trees swayed, bent, popped and snapped. Before the storm we lived in a wooded area; after the storm we had a clear view of our backyard neighbors' house about 200 yards away. Luckily none landed on the house, although a big apple tree fell into our pool, and a pair of pine trees smashed a four-sided trailer we had parked in the back yard. For years afterwards the sight of bending trees sent me into a near panic.
Nature does not really care about us all that much.
MORE: I wish I was there with Anita, Bailey and Anita's parents. It may not be all that dangerous in DC tomorrow, but the city and suburbs do not strike me as very well-prepared for tropical storm winds. Over the summer, downed trees and high winds knocked out power to thousands of customers on three separate occasions.
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.
I'll admit it: last night my brain was fried so I went to see Once Upon a Time in Mexico, mostly because I like Johnny Depp and Antonio Banderas (Selma Hayek's not bad, either).
Suffice it to say that my brain was not less fried after watching the movie, which is sickening in its casual approach to violence. Should have thought about that before going in, of course.
But two important points are worth mentioning about the movie. First, the parallels between the movie's portrayal of democratization and the current administration's simplistic expectations regarding a postwar Iraq are striking. In the movie, there is a complicated, drug lord backed attempted coup against a popular and sympathetic ruler. The coup is put down by a combination of the superhuman efforts of Antonio Banderas's band of merry gunslingers and spontaneous, popular defense of the regime using the captured weaponry of the coup plotters. As far as the plot goes, the popular regime-defenders clearly would have failed without the help of the gunslingers, so on the one hand the message seems to be an affirmation of the hopelessness of "the people" in the face of elite machinations. On the other hand -- and this is where the parallel to Iraq comes in -- the conclusion of the movie depicts the ordinary folks who defended the regime as people who then lay down their arms and go back to their villages, where they are rewarded with a shower of bank notes (stolen by the gunslingers from the coup plotters). All of the hard work of building civil society and engaging in sustained efforts at monitoring the new elites is simply omitted. The people are not evidently scarred by their experiences being subject to the intermittent, arbitrary rule of the drug lords; they exist in an uncomplicated realm of private behavior punctuated by a momentous, spontaneous defense of the regime. Yes, it's "only" a movie. But to the extent that the Bush administration thought that democracy would somehow sprout, spontaneously, from the ruins of a country savaged by years of totalitarian rule, they employ the same, simplistic approach to the preconditions for democratic rule.
Second, Johnny Depp plays a sadistic CIA operative whose self-proclaimed role is that of "restoring balance to the world," (1) by repeatedly shooting chefs who are too good at preparing his favorite dish and (2) by sabotaging a bull fight (which results in the graphic goring of the matador). The movie portrays these killings as a humorous event, which is pretty sickening in and of itself. Nonetheless, in the anti-moral, anti-hero Hollywood script that is so familiar, Depp's attempts to "restore the balance" in this base fashion has a parallel in his ambiguous role in preventing the coup and in punishing the coup plotters. Depp's character is thus redeemed in the end. In addition, the gunslinger character played by Banderas is also portrayed as "restoring the balance" in a variety of ways, including in a revenge killing, and he even utters lines to that effect toward the end of the movie. The lesson seems to be that brutal violence is at the root of human order and is required in an ongoing fashion. The moral of anti-moral. In this context, Adorno might speak about the repetition of the given, and he'd be right.
Finally, I'd be remiss if I didn't note that Johnny Depp's character uses the phrase "can you hear me now?" in an obvious ironic reference to Verizon's ad campaign. So far I haven't heard of Verizon raising a stink about "brand erosion," and I wonder if Verizon might have even paid to have the phrase put in there as product placement. The lesson: movie stars can make fun of brand identity (and might even be paid to do so by the corporations themselves), but unions can't.
My friend Parley sends along a link to this interview with NYT reporter John Burns, who covered Baghdad during the war and who criticizes his colleagues for "sucking up" to Iraqi leaders and ignoring human rights abuses in Iraq. It's worth a read. Two of his claims should be highlighted: (1) members of the Iraqi regime did intimidate journalists (including Burns) -- and those officials probably also correctly noted the professional pressures that require journalists to gain "access" as their ticket to the story and used those pressures to their advantage, and (2) particularly resourceful journalists claim that they were able to evade reprisals and focus on the story as they saw it. It seems to me that an independent media would take both lessons to heart, and not just in covering future Baghdads.
If you want a sampling of the criticisms of the opinion, go here, here, and here. Most interesting: Steven Hayward calls the 9th Circuit a "rogue court," and then, unironically, goes on to note that there were some folks who worried that the Supreme Court's arguments in Bush v. Gore might give courts the green light to make these kinds of rulings. Hayward doesn't spell it out here, so I'll do it for him: the Supreme Court in Bush v. Gore did what you would think only liberal "rogue courts" should be doing. Very interesting. So, presumably, one should think that Bush v. Gore is wrongly decided. And Roger Clegg argues that the 9th circuit's opinion isn't "objective" because, apparently, it mischaracterized what Proposition 54 is supposed to accomplish (although I don't quite see the mischaracterization). But that's hardly interesting. The bigger question: did the 9th Circuit mischaracterize Bush v. Gore? Hayward seems to say no. I say no. I'm sure that it won't take long for someone to say "yes" with a straight face. [And, see the next paragraph: when pressed, Hayward might say, "yes".] The conclusion: where you stand depends on which mouse pad you've got: "Bush-Cheney team leader" or "re-elect Gore in 2004."
MORE: The last sentence is too glib and generally silly. Strike it. Attentive readers will no doubt note that I appear to argue above that Hayward has a "re-elect Gore in 2004" mousepad. I doubt it, but his comments on the opinions could be read as a criticism of Bush v. Gore -- or, at least, a criticism of a "liberal" court that uses strong equal protection arguments. So since he presumably thinks that the result was nonetheless correct, and since he presumably is closer to the "team leader" side, the question should be: what principled distinctions are possible here?
Read the 9th Circuit decision delaying the CA recall vote here (PDF file) (link from Rick Hasen at Election Law, who has promised to comment on the ruling).
Here are three things I like about this opinion, and one observation:
1) It takes Bush v. Gore seriously as an extension of the landmark Warren Court era voting rights cases. If you accept the claim made by the court here that research shows that punch card ballots are more error prone than the other methods that California is using -- a fact that California officials themselves signed on to when the agreed to decertify the machines and remove them from use -- then it really is hard to argue that voters who use those machines will have their votes weighted equally compared to those who do not use those machines. The Supreme Court would have a good retort, perhaps: what the Court called the "standardless" recount procedures used in Florida are a lot worse with respect to fairness than the use of different voting machines in the present CA case. But this obviously raises the question of how much error is acceptable in voting tabulation. If Californians already think that the error rates resulting from punch card machines are unacceptable, then it seems reasonable to argue that the courts should see those rates as unacceptable as well, or at least that the question doesn't clearly admit of a decision at this stage of the game.
2) It takes the international situation seriously. On page 64, the penultimate paragraph of the opinion reads as follows:In addition to the public interest factors we have discussed, we would be remiss if we did not observe that this is a critical time in our nation’s history when we are attempting to persuade the people of other nations of the value of free and open elections. Thus, we are especially mindful of the need to demonstrate our commitment to elections held fairly, free of chaos, with each citizen assured that his or her vote will be counted, and with each vote entitled to equal weight. A short postponement of the election will accomplish those aims and reinforce our national
commitment to democracy.
This may seem like mere flowery rhetoric, and it's not necessarily clear that courts are required to care about these things. But I am glad that they do. With respect to segregation, many federal courts were clearly influenced by the cold war era arguments that American apartheid made a mockery of our attempts to persuade foreign countries that a capitalist democracy could protect the rights of racial minorities. Here, similarly, while the present administration has advanced the argument that free and fair elections are a primary U.S. export product, even at the point of a gun, it seems that we should at least get our own house in order. The 2000 election cases saw no such geopolitical urgency and it sure would have been nice if courts had seen one. The concept of "public interest" here is indeed subject to disagreements, and someone like Robert Bork might see this as a classic case of judicial interference in the political process based on elite values of consistency to principle. Nonetheless, I at least can be proud of a judicial system that tells us to live up to our own ideals.
3) The political forces evoked by the opinion are quite strong. You've got the exporting of democracy argument. You've got an argument that the hurried recall election will disenfranchise those serving the national guard, who didn't have enough time to apply for absentee ballots before deployment and who didn't even suspect that they might have the opportunity to vote in the recall election. You have the invocation of Bush v. Gore, a case that conservatives are supposed to defend and, in responding negatively to this opinion, the reach of which they would either have to narrow (a suspicious and judicially activist move, arguably) or the principles of which they would seem to have to reject (especially the idea that votes should be counted equally).
4) That's not to say that there aren't things here that could be attacked, of course, aside from the result. Read this Washington Times article, for example, which has now renamed the 9th Circuit the "Controversial 9th Circuit." I have to admit, though, that I don't quite understand the conservative criticisms of the opinion intimated in the article. Yes, there will be some administrative inconvenience. That's also the case with respect to a lot of decisions that conservatives like, and it's at least arguable that there will be less inconvenience if the vote is postponed until March, when polling places will be better prepared. Yes, there will be additional uncertainty. But isn't it better to reduce the uncertainty now, before the votes are stacked in piles and people are complaining about unfair procedures? Unless, of course, conservatives simply think that they can win this one and shout down those who complain.
The ever insightful and entertaining Curmudgeonly Clerk has moved, here:
http://www.curmudgeonlyclerk.com/weblog/
