Judicial Payback

Judicial Payback
By E. J. Dionne Jr.
Friday, September 19, 2003; Page A25

Revenge for an act of judicial activism is a dish best served by a court that coldly -- you might even say conservatively -- follows precedent. Republicans are enraged by the decision of a three-judge panel on the U.S. Court of Appeals for the 9th Circuit that postpones California's recall election. But how can they dislike this decision? The judges defended their reasoning by citing the infamous Bush v. Gore ruling -- which Republicans praised to the heavens -- not once, not twice, but 13 times.

Which makes it a wonder to hear conservatives sputtering about "liberal judicial activism" and the sanctity of "the people's will." Activism and discernment of the people's will were not issues that troubled them when five justices on the U.S. Supreme Court abruptly shut down Florida's recount in December 2000.

The judges in the California case are not stopping anything. They simply postponed the recall for a few months. Why? Because some voters will vote on flawed punch-card systems -- remember them? -- and run a greater risk of losing their votes than citizens using better equipment. As the court wrote, "punch-card balloting machines can produce an unfortunate number of ballots which are not punched in a clean complete way by the voter." The Constitution, the court insisted, requires "some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied."

Isn't that just liberal judicial activism? Only if Justices Antonin Scalia, Clarence Thomas and the rest of the Bush Five are liberal judicial activists. The two quotations you just read come straight from Bush v. Gore. The 9th Circuit's supposedly activist three were just quoting their judicial betters.

Ah, but aren't those 9th Circuit liberals preventing a speedy resolution of the recall? Perhaps, but there are more important issues than speed: "The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees." Yes, that is also a quotation from Bush v. Gore.

There is one difference between the 9th Circuit judges and the Supreme Court majority in the Bush case. The 9th Circuit judges are being far less activist.

Recall that the Supreme Court majority first stopped recounts already in progress while it considered the Bush case. The recounts, Scalia wrote, might do "irreparable harm" by "casting a cloud on what he" -- that would be George W. Bush -- "claims to be the legitimacy of his election." Then, when the Bush Five declared that Florida's recounting methods violated equal protection guarantees, they didn't give Florida a chance to fix the problem. They just ended the counting and made Bush president.

This did not sit well even with some of Bush's staunchly conservative supporters. Michael W. McConnell -- then a law professor, who was later made a circuit court judge by Bush -- said the decision to halt the recount was "one for the state to make." Writing in the Wall Street Journal Dec. 14, 2000, McConnell criticized the Supreme's Court's twofer -- "approving a manual recount under proper standards, but forbidding the state to conduct a recount because of time constraints." Doing so, he wrote, meant that Bush would take office "under conditions of continued uncertainty."

Prophetically, McConnell declared: "Many of the vice president's supporters will continue to believe -- probably to their graves -- that their man would have won if only they had been given more time."

The 9th Circuit Three, on the other hand, did not stop the recall -- let alone rule California Gov. Gray Davis the winner and leave it at that. They put the election off a few months until the state could make sure that all voters have a chance to cast ballots on roughly comparable equipment.

Critics of the 9th Circuit panel are trying to argue that the Supreme Court in Bush v. Gore was applying its equal protection argument only to recounts, not to the method through which votes were cast. But this argument is simply an admission that the Supreme Court majority didn't really care about equal protection of voters. It was looking for a narrow, one-time fix that would make George Bush president. If the Supreme Court ever rejects the use of its precedents by the 9th Circuit, it will make this abundantly clear.

You can bet the Bush Five are praying that this case never hits their doorstep. But even if the three 9th Circuit judges are overturned, they have already made their point.