Posted 8:15 AM by Robert

Davis Descending XLIV: Ninth Circuit Follies

Reader, I have just one word for you on this topic: Kausfiles!

Mickey must have been up all night!

UPDATE: Two more words: Einer Elhauge, but you need paid registration this time. Bruce Ackerman says some of the same things for free.

But it's all ultimately absurd - and manifests the incompetence of the Ninth Circuit, which relied preposterously on its misreading of Bush v. Gore. That case doesn't even arguably apply - and one doesn't need the absurd performance of Harvard and Yale law school professors jumping through banal case-reading hoops to tell one that. Worse, it's not even the best precedent for the Ninth Circuit to have relied upon. Bush v. Gore is derived from principles developed in a line of equal protection cases (mostly lower-court cases) mostly pertaining to state and local elections. (Justice Kennedy, especially, wanted to root the decision there rather than directly in the unconstrued Article II of the Constitution, which Justice Scalia proposed.) The Ninth Circuit could have hidden its partisan incompetence much better if it had attempted to keep low and run by with the herd of prior, mostly lower court precedent.

These Ninth Circuit judges seem to have spent so much time muttering to themselves and to those who share their biases that Bush v. Gore represented an unrestricted mandate for federal courts to determine elections that they ended up believing ther own mutterings. But, as I have pointed out before, a majority of the Supreme Court certainly does not believe those mutterings. So this Ninth Circuit panel will lose - again.

And - for the practical cynics in the audience, such as the pseudo-expert jabbering about Ninth Circuit ironies to Paula Zahn last night - the Ninth Circuit will not win by "running out the clock" with this bad decision, either.