Man Without Qualities

Monday, September 22, 2003

Davis Descending XLIX: The Media's Ninth Circus

The Los Angeles Times provides a particularly nasty example of the media approach to the Ninth Circuit's "likely reversal" of its decision abolishing the October recall. Here, the reversal is said to be likely because (1) the Ninth Circuit's "track record" is for en banc panels to reverse (which is true), (2) the public opinion polls are now moving against the recall and (3) the people on the en banc panel are supposedly "less liberal" than their Carter-appointed predecessors (which is not true). Of course, elected representatives and executives are even better at (1) having "track records", (2) following polls and (3) expressing their own chosen level of "liberalness." So why do we want or need a judge to do these things? And, if this is what judges mostly do, why not kick a judge out of office if we don't like the results?

Entirely missing from this effort, of course, is any acknowledgement - or even consideration - that the decision of the three-judge panel is just wrong and cannot be fixed. In other words, what's missing is any belief that the en banc judges will reverse because they will act as if they take being judges seriously and just try to get law created by other people right to the extent they are able. And the Times is probably correct in this regard with respect to most of the judges appointed by Presidents Clinton and Carter.

Here's the core of the Times' appalling argument:

To the extent that public opinion plays a role, it will be different in this case than in 2000, when the U.S. Supreme Court stopped the Florida recount and sealed George W. Bush's victory in the presidential race.

In 2000, "Republicans were in the streets" attacking the idea of a statewide recount, said Gillman, who wrote a book about the Florida case, "The Votes that Counted: How the Court Decided the 2000 Presidential Election."

This time, by contrast, "there is no hue and cry among Democrats" to postpone the recall vote, Gillman said. "Even a smart legal interpretation can be threatened by the lack of a political constituency behind it," he said. ....

"Most judges do not stray far from public opinion," said Howard Gillman, a professor of political science and law at USC. Either the judges are sensitive themselves to public views or they were picked by politicians who do "not appoint these people to be iconoclastic." ....

Initially, most strategists thought that a delay would help Davis. In the last few days, however, with polls showing the recall race tightening, Davis and his aides have seemed more anxious to go ahead with the election on schedule.

The expectation that the new 11-judge panel will reverse last week's order and allow the election to proceed is based in part on the 9th Circuit's track record.

The appeals court reversed two-thirds of the cases it agreed to reconsider from 1994 to 2000, according to a study by Arthur Hellman, a University of Pittsburgh law professor.

But the belief also is based on what legal scholars, lawyers and fellow judges know of the panel members.

The Clinton appointees who dominate the current panel range in their legal records from moderately liberal to conservative. None of them has a reputation as a "judicial activist." In that manner, they reflect Clinton's overall record of appointing judges who, with some exceptions, are less activist and less liberal than those appointed by Jimmy Carter.

MORE: Dross from the Associated Press:

The judges chosen for the new panel are more conservative than the three who made the original ruling, and some legal scholars said it was likely the earlier ruling would be overturned.

MORE DROSS: From the San Francisco Chronicle:

But many of [the en banc panel] are conservative thinkers, and legal scholars predicted they will overturn the smaller panel.

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