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.
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.
The schemes have one thing in common -- they're hatched in the belief that it is permissible to trample on the rights of people in the other party. Many recall advocates not only believe that they have a right to throw Davis out of office, but also that the minority of California conservatives should dictate exactly what the California state budget looks like. No negative consequences. No tax hikes. No program cuts where they don't want them.
Oddly, these Republicans got the recall on the ballot with the help of other voters who think they can keep electing very liberal Democrats to most state government offices, and never have to pay for the big-spending programs they approve. Many voters really believe that state pols can increase spending by 37 percent in four years, and they won't have to cut any programs when the boom-time revenues dry up. Rich people can just pay higher taxes to keep it all going, you see.
Then, when you don't like the budget situation, you can recall the old governor and elect a new guy to take care of the mounting debt without cutting the programs you think are important.
Well, at least these dreamers aren't writing opinions for the Ninth Circuit -- yet. Still, in the Monday ruling, the three judges showed a lack of pragmatism and principle. These robes apparently believe they can postpone the election without creating big, ugly problems. Not likely. Stern, a goo-goo (good-government type), said if the recall election is postponed until March, there could be two ballots -- one for the recall, one for the regular primary. Lines at the polls will be longer. And, said Stern, "new (voting) machines tend to break down ..."
Great -- and each problem can spawn more election lawsuits.
There will be court rulings instead of vote counting -- a little law, but lots of legal technicalities.
And with every election, voters from one party or the other will have a new reason to believe that the outcome wasn't because their side didn't have the votes, but because the fix was in.