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Saturday, September 20, 2003



Gore and Davis trot out a dead horse Ever since he started working closely with Bill Clinton, Gray Davis has been trying to pretend that the recall initiative is somehow anti-democratic. On August 21, for example, the Sacramento Bee reported:

At Wednesday's town hall, the governor even invoked Clinton's name. He sought to portray his recall, funded by wealthy GOP Congressman Darrell Issa, as the latest in a string of right-wing Republican efforts to deny office to Democrats.

"This recall is larger than just California. It's something that's been going on nationally for some time," Davis said. "The Republicans couldn't beat President Clinton in 1996, so they tried to impeach him in '98. In 2000, it looked like Al Gore might actually win, but they stopped the vote count in Florida. Here in California, I won the election fair and square, and now nine months later Republicans who financed this recall through Darrell Issa are trying to seize control just before presidential elections."


He apparently hasn't given up on this argument.

According to an article today in the San Francisco Chronicle:

Former Democratic Vice President Al Gore stumped the state with Gov. Gray Davis on Friday, trying to link the 2000 presidential election fiasco in Florida and the California recall by reminding Democrats that "when the people vote in an election, it should be afforded the respect that's due."

Gore received an enthusiastic reception from a crowd of 150 labor and party activists at a San Francisco labor hall, where chants of "Recall Bush! Recall Bush!" echoed through the building. The 2000 Democratic presidential candidate urged Democratic voters to cast a "no" vote on recall against Davis.

In San Francisco and Los Angeles on Friday, Gore and Davis compared the recall to the impeachment of former President Bill Clinton and the Florida election debacle, in which the U.S. Supreme Court refused Gore's request to recount votes after the results were disputed in several counties.

"Al Gore should have been president of the United States," Davis said. "Nobody can speak with more clarity as to what the Republicans are doing and the attempt to overturn legitimate elections that they lost the first time around."


I guess Gore has bought into the laughable notion that somehow the recall is actually anti-democratic. Not only is this argument incoherent, it is actually a criticism of the labor and party activists that were shouting "Recall Bush." Apparently the irony of opposing the recall because all recalls are bad while also wishing they could recall the President was lost on these folks.

Davis is also trying to get some mileage out of the "recall is anti-democratic" argument:

"What happened in California really began when they tried to impeach Bill Clinton after they couldn't beat him in '96, when they tried to stop and did stop the vote count in Florida because this man, Al Gore, had already gotten more votes than George Bush," Davis said.

"Now they're coming out to California to try to overturn an election they lost fair and square," Davis said, referring to his re-election in November.


How can these two actually continue to make this argument with a straight face? Gore and Davis have to be either so intellectually dishonest or so dimwitted that they don't understand what democracy actually means. I think that there is a legitimate argument that on the continuum between republican and democratic government, the recall provision is too democratic because it makes it makes it too easy for the voters to continually change their minds and vote their representatives out of office. But to call any fair election (and Davis is not taking the position that the ACLU is taking in the Ninth Circuit case) anti-democratic is demonstrates an utter ignorance of basic political theory. A person who doesn't know what democracy is cannot be qualified to be either Governor of California or President of the United States.


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More than you probably want to know about Southwest Voter Registration Education Project v. Shelley That's the California recall case that is being reconsidered by an en banc panel of the Ninth Circuit. How Appealing explains why the panel is pretty conservative and likely to overrule the three judge panel's decision here, here and here.

I don't normally quote the New York Times favorably, but Adam Liptak wrote a pretty good article about the en banc panel rehearing. I particularly liked this quote from Vikram Amar, of UC Hastings Law School:

But there is more to this case than politics and judicial philosophies, Professor Amar said.

"A lot of this case turns not only on intellectual and ideological leanings but also on personal moderation," he said. "You have to be a certain kind of person to try to stop an election."


Well put.

And, of course, it wouldn't be California if people weren't saying and doing ridiculous things. This is actually from one of the Ninth Circuit judges who was on the three-judge panel that issued the opinion that is now being reconsidered by the en banc panel. Once again, How Appealing points to an article in the L.A. Times in which Judge Harry Pregerson (no relation) speaks out about the case.

The makeup of the new panel caused one of the original three judges to predict their decision would be overturned.

"You know who's on the panel, right? Do you think it's going to have much of a chance of surviving? I wouldn't bet on it," Judge Harry Pregerson said in an interview.


Then later in the same article:

"Judge Paez, Judge Thomas and I — we did the right thing," Pregerson said. "We're there to protect people's rights under the equal protection clause of the Constitution, no matter who's involved, and a lot of people don't like it. That's their problem, not mine."

Attorney William J. Dyer of Texas reviews the relevant ethical codes for judges in California and federal Court of Appeals judges and comes to this conclusion:

In short, this is a clear ethical violation — a stunning and simply indefensible one. It is not a close call. It would not be excused even if Judge Pregerson thought he was speaking anonymously or off the record.

It is just very badly wrong.

No matter how much I personally agree or disagree with the panel opinion in the Shelley case (and I do strongly disagree with both its merits and the style in which it was written), my respect for the office Judge Pregerson holds and the bench upon which he sits simply makes me heartsick to read this.

I write and publish this conclusion with keen awareness of, but notwithstanding, my own general ethical obligation as a lawyer (albeit neither a member of the California bar nor that of the Ninth Circuit) to avoid bringing the judiciary into disrepute. Judge Pregerson's performing (and I use that word advisedly, in two different senses) in an extra-judicial capacity. Nothing I or any other lawyer could say on the subject would be more than a gnat on a whale's back given what Judge Pregerson has just done.


Finally, if you are total appellate litigation nerd like I am, you might be interested to hear that the Ninth Circuit en banc panel is allowing C-SPAN to televise and broadcast the oral arguments live. How Appealing reports that the oral arguments will take place on Monday at 1:00 pm Pacific, which would be 3:00 pm Central.

UPDATE: Regarding Judge Pregerson's comments, Eugene Volokh concurs with Dyer that the comments are clearly in violation of the applicable ethical codes. Volokh writes:

Pregerson's particular statement does not seem to be particularly harmful on its own: It doesn't tell the public anything about Pregerson's likely future decisions about the case beyond what the original opinion itself said, and while it suggests that the makeup of the en banc court may affect the outcome of the case, that's hardly a secret. In fact, the statement's assertion of judicial independence might actually be helpful to the public discussion.

But whatever I think, and whatever Judge Pregerson thinks, about whether the statement is harmful, it is pretty clearly prohibited. Judges should follow the rules, and the rule here seems pretty dispositive.


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Thursday, September 18, 2003



For those of you who didn't hear Jason Lewis talking about this and stating the obvious arguments tonight: It appears MN's new pledge of allegiance requirement is causing some issues at Central High School. It seems that we have a student who wishes to exercise her right to "opt out" by remaining seated while the rest of the class stands, even though her teacher instructed her that she would not have to speak the pledge, or she could leave the classroom, but she was not going to disrespect the flag by remaining seated. I have no problem with not requiring the pledge in the first place. But I balk at the suggestion that these pukes can go to a public school and get at education at the expense of the taxpayers, and then think they have a right to disrespect the flag of the nation willing to provide them with a free education. If this isn't biting the hand that feeds you, I don't know what is. Seems to me if you want to take advantage of a taxpayer funded service, you should probably have to do so on the taxpayers' terms. The Pioneer Press article is here.

The best line of the article? "The MCLU plans to send a fact book to all Minnesota school superintendents in the next few weeks to try to clear up the questions." Thank God we have the MCLU to read the minds of the legislature and judiciary so we can all be sure of getting an unbiased, 100% accurate view of what the law requires.


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All of you equal protection fans might want to check out this story out of CA (where else) -- on a high school student who wants to start a "Caucasian Club" with the goal of celebrating diversity, in a school that already has a Black Club and an Asian Club. Needless to say, the NAACP already has its feathers ruffled over the outrageous racism inherent in such a proposal.

PS I got this from www.tonguetied.us, an amusing blog of over-the-edge PC-ness. Y'all should check it out.


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Wednesday, September 17, 2003



Rewire the Ninth Circuit That's what Harvard law prof Einar Elhauge suggests in today's Wall Street Journal (subscription needed).

Here's a little sample:

The Ninth Circuit federal court's decision delaying the California recall elevates a straw-man argument against Bush v. Gore into constitutional principle, and then employs that bogus principle to deny the California electorate its constitutional right to oust its governor.

The straw man is the claim that the Supreme Court decision in Bush v. Gore made it an equal protection violation for different counties to use different ballot-counting methods. Back when it was electorally convenient to them, Democrats lampooned this equal protection theory because it would lead to the absurd conclusion that it was unconstitutional to use punch cards in some counties and not others, which would invalidate just about every election conducted in the last century.


And, the piece concludes with this fun little thought:

The Ninth Circuit appears not to have noticed the irony that, in so holding, it is keeping in office a governor who himself was elected under a system that used punch cards in some counties and not others, and thus must, under its theory, be holding office unconstitutionally. Does this mean Gray Davis cannot be removed from office by a recall election but can by judicial injunction? Or does the court really think that the best way to vindicate a purported right to vote using equal vote-counting technology is to require voters to keep in office a governor elected with unequal vote-counting technology?

UPDATE: Those of you without a subscription to the WSJ can access the full article here.


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The Separation Clause strikes back Below, I jokingly suggested that the California church that allowed Bill Clinton and Gray Davis to "preach" against the recall might be jeopardizing its tax-exempt status. It appears that I underestimated the intellectual honesty of at least some of those who believe that churches should be censored from speaking about political issues.

Americans United for the Separation of Church and State, not exactly a Republican organization, issued this press release today:

A Los Angeles church that hosted a political rally for Gov. Gray Davis during Sept. 14 services should be investigated by the Internal Revenue Service, says Americans United for Separation of Church and State.

Several newspapers reported Sept. 15 that former President Bill Clinton spoke from the pulpit of the First African Methodist Episcopal Church. Clinton exhorted the congregation to vote against the effort to recall Davis, telling attendees, “Don’t do this. Don’t do this. Don’t shred your Constitution. Don’t shred the fabric of government. Don’t tell people Californians are so impatient that they give somebody an employment contract and then tear it up in the middle because times are tough. This is the right thing to do, to beat this recall.”

Davis himself also addressed the congregants, remarking, “This recall threatens the very fabric of democracy. It is not good for you, it is not good for California. I ask that you defeat it.”

In addition, the church’s pastor, the Rev. Cecil Murray, told the congregation that Davis is “our vital warrior” and “we are his posse.” According to The Washington Post, Murray “urged his flock to renounce the recall.” The paper also noted that “in attendance were dozens of elected Democrats.”

Americans United Executive Director Barry W. Lynn said the church-run event clearly crossed the line into partisan politicking.

“I believe any fair-minded person would conclude that this event, coming just three weeks before the scheduled recall election, was designed to influence voters to retain Davis in office,” Lynn wrote today in a letter to Steven T. Miller, director of the IRS’s Exempt Organizations Division. “As such, it would seem to be a clear violation of the church’s tax-exempt status.”


I think the policy that threatens churches and other non-profit groups with loss of their tax exempt status if they engage in political speech is a clear violation of the constitutional rights of free speech (and in the case of churches, probably free exercise as well). However, it's nice to see Americans United at least being consistent enough to speak out even against politicians that they generally would support.


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Everything you need to know about whether the Ninth Circuit will grant rehearing en banc to reconsider whether California's recall election should be postponed Right here at How Appealing.


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(Almost) feeling sorry for John Edwards It's tough for me to muster up too much sympathy for the Senator, but you have to feel a little bad about the timing of Wesley Clark's announcement of his candidacy. The former Best Democratic Candidate On Paper (or BDCOP) tried to jump-start his floundering candidacy by making a formal announcement of his candidacy. But what presidential campaign story is getting all the buzz? Why, the entry of the new BDCOP.

Despite being southern and a former general, Clark has a long way to go before he becomes anything more than a great candidate on paper. For one thing, he needs to stop saying idiotic and demonstrable false things like "I thought this country was founded on a principle of progressive taxation." For a brief discussion of this blunder, check out this post by Eugene Volokh.

Also, he needs to come up with some actual policy knowledge. I remember seeing him on Cross-fire this summer when he was asked something about the budget, and he went on for about two minutes talking about how you can balance the budget by making sure the money coming in is more than the money you are spending. He literally seemed to think that he was saying something substantive.

Third, he's going to need some support from some actual military people. Even though he has those stars on his shoulders, he is already drawing criticism from people claiming that his "military credentials" are more a reflection of the brown on his nose than the mud on his boots. Take, for example, this letter to Jonah Goldberg on The Corner:

The man is an empty suit or I should say uniform complete with four stars. My father and husband were both military officers and I have seen the likes of Wesley Clark many, many times.

He is a political officer. That means that his main objective in his career is to be promoted and he will say and do anything to achieve that objective up to and including ruining other officers careers. He was promoted up the line by others of the same ilk. These guys always look good on paper---that means, they went to the right schools (usually the Academies or one of the private military schools), they went to the right wars (known as being in the right place at the right time) and had the right sponsors. Even had the right medals. But they are lousy leaders of men and real leaders can spot them a mile away.

It is somehow fitting that Bill and Hillary Clinton would sponsor him. I'm sure they see him as one of their people and he is. Vain, shallow, looks good in a uniform and easily manipulated.

You will no doubt receive plenty of e-mail from people who have had the occasion to run into or afoul of General Clark. You should also look into his record as Commander during the war in Kosovo. He almost started WWIII but thankfully a British commander wouldn't follow his orders. He didn't do it out of mendacity just good old garden variety stupidity and vanity.

Wesley Clark is not a class act.


Mitch Berg also has a good discussion of Clark's "leadership experience" here.


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Monday, September 15, 2003



Ninth Circuit screams: "Reverse us again!" The U.S. Court of Appeals for the Ninth Circuit ruled today that the California Secretary of State cannot hold any election on October 7th because some counties would still be using those dreaded punch-card machines. That means that the recall election and the vote on the two ballot propositions would have to take place on March 2, the date of the Democratic presidential primary, instead.

As an interesting side note from How Appealing, Justice O'Connor, the justice in charge of handling emergency appeals from the Ninth Circuit, is currently in Bahrain. Good timing.

There are already a couple of interesting posts on this topic at The Corner.

Steve Hayward writes:

We should never be surprised at the Ninth Circuit's depredations. It has been a rogue court for more than 20 years. We shall have to await a close reading of the decision by our legal friends, but one question that comes to mind is whether the holding of this court is that punch card ballots are ipso facto unconsitutional, based on the Supreme Court's holding in Bush v. Gore in 2000.

There were some of our legal scholars (like Mike McConnell) who worried in December 2000 that the Supreme Court's use of the equal protection argument as it applied to the counting of punch card ballots in Bush v. Gore would come back to bite conservatives. Setting aside the constitutional wisdom of the California recall, this appears to be the specter that McConnell worried about. It will be interesting to see how the Supreme Court handles the appeal, i.e., whether it modifies Bush v. Gore and repudiates the Ninth Circuit once again, or whether it punts entirely, not wishing to be drawn into another political mess. If the Supreme Court overrules the Ninth Circuit, it will add fuel to the fire of the left that there is a giant GOP conspiracy to steal elections (even though this is nonsense).


And this, from Roger Clegg, pretty much tells the whole story:

A quick look at the Ninth Circuit’s decision in the California recall case is enough to make one worry about its objectivity and care. Its full summary of Proposition 54 is that it “would prevent the State from collecting or retaining racial and ethnic data about health care, hate crimes, racial profiling, public education, and public safety.” And there are two part II’s in the opinion.

Power Line and Mitch Berg both comment on the ruling.

And then there is this from ScrappleFace:

The 9th U.S. Circuit Court of Appeals issued an order today reversing the results of all elections which used the troublesome punch-card ballots. The ruling overturns voter decisions going back to 1964, when the faulty ballots were first employed in two counties in Georgia.

Bill Clinton, who is now neither a former president nor a former governor, said the ruling is consistent with the court's decision earlier today to delay California's recall election for similar reasons.

"To be fair, if you're going to say punch cards can't produce a valid result, then you have to nullify all results involving punch cards," said Mr. Clinton. "So, I'll just go back to what I was doing before I became a politician...you know... farming tobacco. Wait, that wasn't me. That was that Gore fella."

Of course, George Bush will remain President, since the 2000 election was decided by the Supreme Court and the lower court cannot overrule its verdict.


UPDATE: Arnold Steinberg already has a full piece up on National Review Online predicting that the decision will be overturned by Wednesday.


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Bubba and Gray find religion Check this out on Power Line. Bill Clinton and Gray Davis are pictured in clear violation of the Separation of Church and State clause of the First Amendment.

Unbelievable. I wonder how long it will take for the IRS to threaten this church with a revocation of their tax-exempt status. Or does that only happens to the "Religious Right"?


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A Fritz Fed on Fritz on campaign finance Okay, there is finally a lull in the 2L storm, so my short hiatus is over, for now. It seems like this blog would be an utter failure if I didn't at least comment on the op-ed by Walter Mondale in yesterday's Star Tribune.

The Honorable Fritz begins by laying out (some of) the players:

Last week, the Supreme Court heard arguments on the constitutionality of the law, which is being challenged by an array of groups from the National Rifle Association to Republican and Democratic Party committees.

A shocking bit of honesty, there, admitting that the Democratic Party opposes the BCRA. But why did he only mention the NRA? I suppose he doesn't consider it relevant that the campaign finance bill is also being opposed by such right-wing extremist groups as the ACLU and the AFL-CIO.

Maybe Mondale isn't trying to deliberately mislead people into thinking the opposition to the BCRA is just another scheme of the vast right-wing conspiracy. But the fact that the only non-partisan interest group he mentions is one that liberals constantly attempt to demonize as an extremist group of gun-nuts shows that he's not above playing rhetorical games with the facts.

His analysis of the constitutional issues leaves a little to be desired as well:

Critics of the law say McCain-Feingold violates the constitutional right to free speech. The law, however, does not ban speech. It simply prohibits the use of corrupting soft money to pay for that speech.

"Corrupting soft money"? What does that mean? Well, Mondale says that soft money is "unlimited, unregulated contributions by corporations, labor unions and the very wealthy." What about the corrupting part? Well, of course, that just means that the groups attempting to influence the political process are being successful.

Isn't this precisely what the First Amendment is supposed to protect? All these unfavored groups ("corporations, labor unions and the very wealthy") are working through the electoral process, after all. They are not giving bribes. They are simply using their own money to fund a political message, and they shouldn't be restricted from doing that simply because Walter Mondale doesn't like them.

In fact, the rhetoric Mondale uses illustrates precisely why these measures are so important. It is a fundamental principle in free speech jurisprudence that if a restriction on speech is not content-neutral, it is inherently suspect. But Mondale's framing of this issue seems specifically designed to invoke negative attitudes of at least corporations and the very wealthy, if not labor unions, as a reason to uphold the BCRA. Restricting corporations from speaking as corporations is definitely not content-neutral. As Scalia pointed out in the oral arguments, if some proposed action would harm corporations, the engine of our economy, those corporations ought to be able to speak, as corporations, to get the word out.

Additionally, as The Big Trunk points out over at the Power Line, Mondale wrongly suggests that if speech is not actually being banned, then there is no First Amendment violation.

The Big Trunk also tells this fascinating story:
In the January 1956 issue of the Minnesota Law Review, a precocious third-year law student published a brilliant critique of campaign finance regulations. "The right of persons effectively to present their views on community issues is fundamental to free speech," he wrote. In addition, he noted, "For many years scholars have urged that limits be removed and that primary emphasis be placed on public disclosure of the facts of campaign financing." He endorsed the conclusion of those scholars.

Walter Mondale is the author of the anonymous 1956 law review note criticizing campaign finance regulations. I have a copy of the January 1956 Minnesota Law Review issue with the note autographed by Mondale as its author. Mondale contributed the autographed issue to a law school fundraising event in 1978 when he was serving as Vice President.


If you are interested in reading a deeper critique of Mondale's position, this piece by Erik Jaffe is worth checking out.


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