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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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.