From the WSJ Opinion Archives
The Ninth Circus
Our first reaction to yesterday's ruling in Southwest
Voter Registration Education Project v. Shelley (link in PDF form),
in which the Ninth U.S. Circuit Court of Appeals ordered the cancellation of
next month's California election, was a sort of grudging admiration for the
cleverness with which the three ultraliberal judges on the panel (one Carter
and two Clinton appointees) seemed to be poking the eye of the Supreme Court.
The judges extensively cited Bush v. Gore in ruling that California may not hold an election so long as six counties use punch-card ballots, which according to both the antirecall plaintiffs and the state of California have a higher error rate than other forms of voting (though USA Today notes that "many election officials" dispute the anti-punch-card premise). If the ruling stands, voting on the recall of Gov. Gray Davis, as well as on two ballot initiatives, will take place March 2, the day of the Democratic presidential primary.
The ruling was baldly partisan, with the judges even mocking the liberation of Iraq:
We would be remiss if we did not observe that this is a critical time in our nation's history when we are attempting to persuade the people of other nations of the value of free and open elections. Thus, we are especially mindful of the need to demonstrate our commitment to elections held fairly, free of chaos, with each citizen assured that his or her vote will be counted, and with each vote entitled to equal weight.
By relying so heavily on Bush v. Gore as precedent, the Ninth Circuit judges seem to be daring the Supreme Court to overturn their decision. "If I were the U.S. Supreme Court," writes Mickey Kaus, "I would be very reluctant to reverse the Ninth Circuit and thus cement a reputation as an unprincipled partisan court that upholds obscure Equal Protection arguments when they throw an election to Republicans (as in Bush v. Gore) but strikes them down when they would throw the election to the Democrats. This suggests that the pro-recall forces' best hope is a rehearing by the entire Ninth Circuit sitting en banc, not an appeal to SCOTUS."
Indeed, as the Associated Press reports, the Ninth Circuit this morning asked the parties if they want the court to reconsider the case en banc. (The Ninth Circuit usually uses a "limited en banc" procedure in which 11 judges, rather than the entire court, rehears a case.) If the en banc panel overturns yesterday's ruling, that should be the end of it. But what if it affirms that the election must be canceled?
It's quite possible that the Supreme Court would take the case and reverse the Ninth Circuit, for the three clever judges may have outsmarted themselves. Legal scholar Robert Alt points out in National Review Online that Bush v. Gore does not apply. He quotes from the Supreme Court's decision:
The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards. When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied.
Southwest Project and Bush are distinguishable on practical as well as legal grounds. In 2000 the Supreme Court resolved a national crisis with a modest remedy, ordering the existing vote count to stand. Yesterday the Ninth Circuit ordered a drastic remedy--the cancellation of an election--to resolve a merely hypothetical problem. It is as if someone went to court in October 2000 and demanded that the election be put off until April 2001 just in case something went wrong with the ballots.
The Ninth Circuit's ruling is too much even for the Los Angeles Times, which opposes the recall. "The U.S. Supreme Court should . . . overturn the federal appeals court's ruling," the paper editorializes. "This endless political one-upmanship really amounts to political murder-suicide."
The New York Times, however, disagrees: "If the recall proceeds as planned, 40,000 Californians may not have their legal votes counted," it editorializes. "This sort of mass disenfranchisement is unacceptable." But in the bizarro world of the Times, disfranchising the entire electorate is a victory for democracy.
The
Political Implications
It's possible that the Ninth Circuit's efforts on behalf of California Democrats
will backfire. In a survey of 500 "likely voters" in California, Rasmussen
Reports finds that 58%--including 85% of Republicans and 62% of independents--disagree
with the Ninth Circuit ruling. If the election does go on in three weeks as
planned, irritation over the ruling may provide an additional impetus to get
anti-Davis voters to the polls.
What if the ruling does stand, and the recall doesn't take place until March? It seems clear that this would enhance Davis's chances of defeating the recall, if only because his chances are so close to zero now. The Democratic presidential primary would draw Dems to the polls, giving a boost to both Davis and replacement candidate Cruz Bustamante. At the same time, it's possible that anti-Davis Californians will be even more eager to vote after their anger has festered for an additional five months.
In any case, wouldn't the national Democrats rather have this matter settled quickly? If the recall election is March 2, that means once primary season is really under way the presidential contenders will be competing for attention with the likes of Arnold Schwarzenegger. And if the Democrats are trying to argue that President Bush has governed the nation badly, do they really want to be choosing their nominee just as the national spotlight is on how atrociously a fellow Democrat has been governing California?
Dwarf
No. 10
Wesley Clark, the retired general and erstwhile CNN commentator, is running
for president, the Washington Post reports. He'll make the announcement tomorrow
at a press conference in Little Rock, Ark. This seems like bad news for, above
all, John Kerry. The haughty, French-looking Massachusetts Democrat, who by
the way served in Vietnam, has made his military service his campaign's centerpiece--indeed,
its only rationale. Kerry can't be happy that he'll have to compete with another
empty uniform.
The Post notes that Clark has the backing of lots of former Clinton and Gore people. It wouldn't surprise us if Clark becomes the consensus campaign of the Democratic establishment, sweeping aside not only Kerry but Joe Lieberman, Dick Gephardt and what's-his-name from North Carolina as well. But can he beat Howard Dean, or will 2004 be the year of the Angry Left?
This
Just In
"N.C. Democrat Edwards Launches White House Bid"--headline, Reuters,
Sept. 16, 2003
Who
Says the Dems Have No Ideas?
"Bush Should Fire Someone Over Iraq, Democrats Say"--headline, Reuters,
Sept. 16
Poor
Amanpour
Christiane Amanpour, CNN's Amazonian foreign correspondent, is complaining of
"self-censorship" in her network's war coverage. Back in April, of
course, former CNN executive Eason
Jordan acknowledged that CNN had indeed engaged in self-censorship, suppressing
the truth about Saddam Hussein's regime for fear of losing "access."
But that's not what Amanpour is talking about. She thinks the network was insufficiently pro-Saddam. Asked by TV hostess Tina Brown if, in Brown's words, "we in the media, as much as in the administration, drank the Kool-Aid when it came to the war," Amanpour replied as follows:
"I think the press was muzzled, and I think the press self-muzzled. I'm sorry to say, but certainly television and, perhaps, to a certain extent, my station was intimidated by the administration and its foot soldiers at Fox News. And it did, in fact, put a climate of fear and self-censorship, in my view, in terms of the kind of broadcast work we did."
In response, Fox News spokeswoman Irena Briganti tells USA Today: "Given the choice, it's better to be viewed as a foot soldier for Bush than a spokeswoman for al-Qaeda."
Meanwhile, the New York Times' John Burns, who did some of the best reporting from Baghdad, blasts the media for complicity with Saddam's regime. Editor & Publisher excerpts Burns's new book, "Embedded: The Media at War in Iraq, an Oral History":
There were correspondents who thought it appropriate to seek the approbation of the people who governed their lives. This was the ministry of information, and particularly the director of the ministry. By taking him out for long candlelit dinners, plying him with sweet cakes, plying him with mobile phones at $600 each for members of his family, and giving bribes of thousands of dollars. Senior members of the information ministry took hundreds of thousands of dollars of bribes from these television correspondents who then behaved as if they were in Belgium. They never mentioned the function of minders. Never mentioned terror.
In one case, a correspondent actually went to the Internet Center at the Al-Rashid Hotel and printed out copies of his and other people's stories--mine included--specifically in order to be able to show the difference between himself and the others. He wanted to show what a good boy he was compared to this enemy of the state. He was with a major American newspaper.
C'mon, John--which paper?
Running
Out of Gas
Yesterday's New York Times had an article on Colin Powell's visit to Halabja,
Iraq, which contained this curious observation:
Mr. Powell's visit underscored an unwelcome fact, it was that the evidence of Iraq's stockpile of chemical, biological and nuclear weapons--the main rationale cited for war earlier this year--have not been found, much to the chagrin of American forces here.
The article's headline: "Powell, in Iraq, Visits Memorial to Kurds Gassed in '88." But there's no evidence of chemical weapons?
Those
Mass Graves Were So Much Tidier
"Baghdad's Packed Morgue Marks a City's Descent Into Lawlessness"--headline,
Los Angeles Times, Sept. 16
Weasel
Watch
The government of France has ordered Corsair, a private airline, to withdraw
from a contract to fly British troops to Basra, Iraq, London's Daily Telegraph
reports. "[French] Transport ministry officials were reported yesterday
as saying the move had nothing to do with safety but was a result of the intervention
of the foreign ministry," the paper reports.
The
World's Smallest Violin
EUR,
an "urban entertainment" publication, reports on an interview with
rapper R. Kelly, currently under indictment for child pornography charges. "People
can say whatever they want about you without knowing the facts," Kelly tells
Blender magazine. "They can criticize you without even knowing you, and hate
you when they don't even know you. All of a sudden, you're, like, the bin Laden
of America. Osama bin Laden is the only one who knows exactly what I'm going
through."
Dick
Gephardt, Voucher Champion?
Last Tuesday, as we noted
yesterday, the House approved an amendment that would establish a voucher
program allowing hundreds of Washington, D.C., children to attend private schools.
The measure has yet to pass the Senate, but if D.C. kids get the vouchers, they'll
have Dick Gephardt and Dennis Kucinich to thank. Both were in Baltimore last
Tuesday for the Democratic debate, and both missed the vote. Had they both voted
against the amendment, it would have gone down to defeat, 210-209.
Homer Nods
We erred in yesterday's
item about Tom Harkin's annual Iowa steak fry. Seven, not eight, Democratic
presidential candidates attended. Blogger Kevin
Schmidt, who was there, e-mails to tell us Joe Lieberman was not.
Not
Too Brite--CXIII
"German police discovered a giant swastika trampled into a cornfield near
Berlin but have not been able to figure out how the banned Nazi emblem got there,"
Reuters reports from Berlin.
Oddly Enough!
It
Would've Been Wiser to Invest It
"Cash Buried Near Nashville"--headline, FoxNews.com, Sept. 15
Maybe
They Should Try Praying Instead
"Lord Turns Deaf Ear to Nebraska Fans' Boos"--headline, Associated
Press, Sept. 14
But
I've Never Done This Before . . .
"Virgin Studies Merger Proposal"--headline, Financial Times, Sept. 16
A
Feminist Triumph
"The cash-strapped WUSA called it quits Monday just five days before the
Women's World Cup, bringing an abrupt end to a soccer league built on the success
of the 1999 tournament," the Associated Press reports from Atlanta.
Hooray for these pioneering women who had the courage to stop playing metric football! Now if only the men would follow suit.
(Elizabeth Crowley helps compile Best of the Web Today. Thanks to Pat Mizell, S.E. Brenner, Dave Johns, Jeffrey Shapiro, Darren Gold, Andrew Fox, Barak Moore, Laurence Louden, Monty Krieger, Edward Himmelfarb, Aaron Krakowski, Benjamin Murray, Robert McCarthy, Natalie Cohen, Jim Orheim, Michael Bice, Leonard Murphy, Joel Engel, Stuart Novick, Edward Hildebrand, Tom Linehan, Dave Anderson, Erik Moy, Mark Schulze, Tony Booth, Brian Crouch, Norman Spector, David Merrill, Matthew Noonan, Joe Deltoro, Barry Kaplovitz, Rosslyn Smith, Jacqueline Didier, Gordon Crovitz, Janice Lyons, William Schultz, David Schlosser, Peter Cummings, Aaron Ammerman, Glen Smith, Storrs Warinner, Robert LeChevalier, Sasha Eysymontt, Raghu Desikan, Tucker Goodrich, Kyle Stedman, Amir Agam, Jerome Marcus, Edward Morrissey, Bernard Cohen, Andrew Wharton, Jennifer Rhodes, Elliot Ganz, Danny Carlton, Craig Wagner, John Williamson and Tracy Schultz. If you have a tip, write us at opinionjournal@wsj.com, and please include the URL.)
Today on OpinionJournal:
- Review & Outlook: Is France playing Colin Powell for a fool again?
- Brendan Miniter: The Senate approves Jon Corzine and Ted Kennedy's giveaway to the rich.
- Mark Yost: Electronic bugles playing "Taps" at vets' funerals? Bury this idea!
