Debra J. Saunders

The Ninth Circuit should set up an 11-judge (en banc) panel to reconsider Monday's three-judge ruling to postpone the Oct. 7 recall election.

If the Ninth Circuit U.S. Court of Appeals lets this political decision stand, the circuit might as well announce that even judges can engage in political payback, as respect for the law itself has become a quaint notion best indulged at home.

John Eastman, law professor at Chapman College in Orange County, Calif., warned, "Every single election will no longer be decided in the ballot box, but in the courtroom, if this decision stands."

I've talked to Democratic and Republican election experts who are convinced that the trio's decision to postpone the election was pure payback for the U.S. Supreme Court decision on the Florida 2000 election.

While most partisans agree the Supreme Court's Florida decision was political -- they disagree on which part of the rulings were political. Many forget that the Big Bench ruled, by a 7-to-2 vote, that Florida's disparate vote counting strategies "lacked minimal procedural safeguards." To me it's political that two justices voted that the count was corrupted, but wouldn't join the 5-to-4 majority to stop it.

Dems complain about GOP tactics in return. They say the recall is an attempt to overturn the November 2002 election -- and they're right. It's true, the right to recall is in the state Constitution, and yes, Democrats were among those who signed the petitions to qualify the recall for the ballot. But when you wage a campaign that may allow a small number of voters to throw out an official elected by a large number of voters, you anger people. And angry people start hurling charges, true and untrue.

(Note to people who believe that the recall is a White House plot: The Bushies opposed the recall. Most state GOP biggies opposed it. So if you want to blame them, blame them for not having the power to stop it.)

But back to the war. "The Democrats started it with Bork," explained Bob Stern of the Center for Governmental Studies in Los Angeles, as he discussed the vicious personal campaign directed against Reagan Supreme Court judicial nominee Robert Bork in 1987. "But the Republicans carried it to a new level with what they did to Clinton's (appointed) judges."

Dems point to Clinton's impeachment and the current attempt by Texas Republicans to redraw congressional districts in their favor. Repubs point to the creative replacement of Sen. Robert Torricelli on the New Jersey ballot 36 days before the election. There's no shortage of argument ammo on either side.

Debra J. Saunders

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