The Blog

A Day in Court

A panel of the 9th Circuit meets today to decide the fate of recall. Could the most liberal court in the land side against the ACLU?

8:15 AM, Sep 22, 2003 • By BILL WHALEN
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FORGET THE SPEECHES, rallies, town hall meetings, and whatever other mischief the recall candidates have planned for today. There's only one place to be and that's in San Francisco, at the corner of 7th and Mission Streets, where the 9th Circuit Court of Appeals will hear arguments over whether to postpone the October 7 election. If you're near a television this afternoon, C-SPAN and the cable new networks will broadcast the proceedings live, beginning at 1:00 p.m. (West Coast time).

Predicting the 9th Circuit's next move rivaled the Emmys as California's favorite guessing game this past weekend. Basically, it comes down to two schools of thought: (1) The 9th Circuit is just arrogant enough to uphold last week's decision by a three-judge panel to put off recall until March 2; or (2) The court sees the damage of postponing the vote for five months, and will return the special election to its originally scheduled date of two weeks from tomorrow.

The good news: California shouldn't be kept in suspense for too long. Today's hearing is scheduled to last only an hour--30 minutes for each side--unless the court drags out the discussion. Presumably, the justices will render an opinion as soon as Wednesday, the same day as the big debate in Sacramento. What happens after that is cause for further speculation. The safe assumption is the losing party will take its appeal to the U.S. Supreme Court. It's not so clear what happens then: if recall is back on, the high court might take a pass; or, it might see the need to jump into the fray and render an opinion so as to keep other courts from disrupting future elections.

Since you can't always tell the players without a scorecard, here's the lineup for this afternoon's proceedings:

Representing the ACLU and arguing the pro-delay case: Laurence Tribe (a familiar face, he represented Al Gore in Bush v. Gore). The court will be asked to consider if it's fair to require six California counties to use punch-card ballots in an October 7 special election, instead of waiting until the March 2 primary, by which time all counties will have modernized their voting systems.

Representing the California secretary of state and arguing against the delay: attorneys from the California attorney general office; plus, Charles Diamond, an attorney representing recall architect Ted Costa. The court will hear the argument that punch-card ballots are out-dated, but not punitive. And the judges will be asked to weigh the consequences of a five-month delay: redoing the absentee vote and forcing counties to accommodate two ballots at once.

Hearing the case: the following 11 members of the 9th Circuit (listed by seniority and their patron president):

Mary M. Schroeder*--Carter (September 1979)

Alex Kozinski--Reagan (November 1985)

Diarmuid F. O'Scannlain--Reagan (September 1986)

Andrew J. Kleinfeld--Bush (September 1991)

A. Wallace Tashima--Clinton (January 1996)

Barry G. Silverman--Clinton (February 1998)

Susan P. Graber--Clinton (April 1998)

M. Margaret McKeown--Clinton (April 1998)

Ronald M. Gould--Clinton (January 2000)

Richard C. Tallman--Clinton (June 2000)

Johnnie B. Rawlinson--Clinton (July 2000)

*--chief circuit judge since March 2001

THERE ARE SEVERAL THINGS worth noting about today's proceedings. First, the composition has the 11-judge panel has the left whining. Three notoriously liberal members of the 9th Circuit--Judges Stephen Reinhardt, Kim Wardlaw and Marsha Berzon--recused themselves. With the exception of the chief circuit judge, the other 10 members were chosen randomly. As luck would have it, none of the three justices from last week's decision made the cut. Think those judges are happy about the hand fate's dealt them? "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, one of the three judges behind the recall delay, told reporters.

A second key point: If the panel does vote to overturn the delay, don't buy into the ACLU's complaint that this is another example of Republican abuse of power. Just do the math. Let's suppose the 9th Circuit votes 6-5 to return recall to October 7. Even if all three Republican-appointed judges side with the reversing majority, that means at least three judges appointed by a Democratic president said no to the ACLU's argument. That makes for a bipartisan bloc of judges, and should put to rest any talk about GOP conspiracies.

However, the 9th Circuit's decision could have a partisan overtone in one respect: Assuming he votes against the delay, Judge Alex Kozinski could be the senior member of that reversing majority. Why is this important? Whoever writes that opinion becomes national news. For a conservative 9th Circuit judge, it's a chance to become a darling of the right--a Left Coast Scalia, if you will--and maybe start appearing on short lists for Supreme Court vacancies.

Here's one final scenario to consider, and it's the ACLU's worst nightmare: recall goes back to its original date, but the 9th Circuit delays a vote on Propositions 53 and 54, which are also on the recall ballot. It's possible. How does this punish the ACLU? The left is counting on a minority-fueled backlash against Prop 54 (which would end the state's practice of collecting most racial data) to overcome the pro-recall vote. But shelving Prop. 54 until next March may depress minority turnout and hurt the effort to save Gray Davis. It's also a major headache for Cruz Bustamante, who's spending nearly $4 million on anti-Prop. 54 TV ads--starring, you guessed it, Cruz Bustamante--to promote his recall candidacy.

Recall advocates would love to see the ACLU hoisted on its own petard by the most liberal court in the land. Call it poetry in motion--and poetic justice.

Bill Whalen is a research fellow at the Hoover Institution, where he follows California and national politics.