Posted 3:53 PM by Robert

Davis Descending XLVII: The Damage That Judges Do

The San Francisco Chronicle reports:

According to Secretary of State Kevin Shelley's office, 538,000 absentee votes had been cast as of Friday afternoon, although voting had dropped off sharply since Monday's ruling [by the 3-member Ninth Circuit panel canceling the October recall election.]

That 3-judge decision has now been effectively voided. And if a study published in the UC Davis law review in 2000 that found en banc panels of the Ninth Circuit to have voted 49 out of 65 times to reverse decisions of three-judge panels is correct and has predictive effect, the 3 judges face a probable swift reversal. However, that en banc reversal is not a sure thing, although some people are foolishly treating it as such, and the effects of the three-judge panel decision will linger until and unless it is formally reversed. If the Ninth Circuit en banc court does not reverse, the Supreme Court will definitely reverse - but that will take even more time.

What might the lingering pre-reversal effects be? Those three judges said they were canceling the October election out of their concern for tens of thousands of votes that might not be counted because of punch card voting machines. But it is likely that tens of thousands of absentee votes that would have already been cast have instead been withheld by voters disheartened by the 3 judge panel's ruling. We know that 538,000 absentee votes had already been cast, but the inflow of absentee ballots has dropped off sharply after the 3 judges committed their act of judicial vandalism.

Will those withheld votes ever be cast? Who knows? But we do know that these three judges have probably aborted tens of thousands of absentee votes that would have been cast by now. "The voting public will not be helped by prolonged uncertainty," says the Democratic Secretary of State Kevin Shelley, speaking with considerable understatement.

Posted 11:26 AM by Robert

Opportunism Knocks

The Katharine Q. Seelye article in the New York Times discussing the Clintons' new-found support for Wesley Clark's Presidential ambitions is a true flash-back to the Clintonian era, when the Times' coverage of the President willingly failed to ask the obvious questions and chose its words carefully to obscure Clintonian purpose.

Consider this pearl:

[When the lives of Mr. Clinton and General Clark] finally intersected while Mr. Clinton was president and General Clark commanded the allied troops in Europe, it was a complex and tortured time for both.

To General Clark's humiliation, President Clinton's Pentagon relieved him of his command. And President Clinton had signed off on the plan, according to several published accounts, apparently unaware that he was being deceived by Clark detractors.

Now the 58-year-old career Army officer wants to be president. And the 57-year-old former president seems eager to promote his candidacy.

"Apparently unaware that he was being deceived by Clark detractors?" Why is the "apparently" there? Who created this "appearance" for Ms. Seelye? Is this something one of the Clinton's told her? Did she attempt to contact the Clintons about this?

Just who were the unnamed "Clark detractors" who did all this "deceiving" of their President? And what were the supposed "deceptions?" For that matter, what were the grounds of the removal?

Ms. Seelye writes that General Clark was removed from his command by someone in the Pentagon - and that President Clinton only "signed off on the plan." That phrasing seems designed to suggest that President Clinton and the White House didn't get directly involved in the removal decision. But that's not the way high-ranking generals are normally removed - the White House and the Commander-In-Chief normally take a direct interest in such actions. And for a military person to "deceive" the President about another officer is a serious transgression.

Could it be that Mr. Clinton was not "deceived" at all, and that he was directly involved? Could it be that the military and others provided full and frank information and advice about General Clark to the President, who then removed General Clark because the President didn't like something the General had done, or had some other person to fill the position?

Could it be that all of that now has to be denied with another Clintonian whopper that libels the Pentagon officials and others involved (even though their names are not in this article, you can be sure the people who count in Washington and Europe know who they are)?

A digression:

The Clintons don't want a Democrat to win in 2004 unless it's Hillary - since that would terminate the likelihood of her 2008 run. And Wesley Clark is a nice placeholder for the Clintons, whether or not Hillary decides to run in 2004.

Hillary will not run unless Mr. Bush shows some clear vulnerability. Such clear vulnerability has not yet appeared, but the matter is far from settled. The economy is improving, but jobs and public anxiety relief lag. It is unclear which way foreign policy will cut. Wesley Clark is dependent on the Clintons, and will probably make way for Hillary Clinton if she wants to run. He enters as her proxy and placeholder, and if she decides she wants it, his campaign machine can become her campaign machine. If she doesn't want it, he gets to run for President on the machine she builds for him. That's not a bad deal, is it?

But there is a downside for General Clark. If Hillary doesn't run, the best case for the Clintons is a nominee who is dependent on them, will not dismantle their existing apparatus within the Democratic National Committee and elsewhere (as Howard Dean probably would do thoroughly and the others would do to a lesser extent), will allow the Clintons to extend their influence in the Democratic Party even further than it already spreads and to update it - and then fail to be elected after making a reasonable show in the election. If the Clintons can't actually produce a puppet who can obtain the nomination, then the next best thing is a contender dependent on the Clintons who provides the Clintons with leverage to preserve their influence and apparatus when the deal is cut that removes that contender from the race. Much of that is not nice for the General. But he wouldn't have a prayer without the Clintons, and he may be intellectually dishonest enough to deny their incentive in ultimately defeating his election. If he does understand their motives, a military man is supposed to be able to accept sacrifice. And, who knows, he might accidentally win despite them.

Yes, Wesley Clark fills the bill across the board. It's a good deal for him and for the Clintons.

Except that one does have to explain why Mr. Clinton fired General Clark. But that's nothing a classic Clintonian whopper won't fix. And the New York Times and Katharine Q. Seelye seem happy to assume their old roles and carry the Clintonian water and lies - few questions asked.

UPDATE: John Ellis says Hillary Clinton wants to run as General Clark's vice president.

I think that is highly unlikely. If Senator Clinton runs, she will run for the top office.

But General Clark may well run as Hillary Clinton's vice president.

Posted 12:51 PM by Robert

The Giant Rat of Caracas

A rodent the size of a buffalo? Researchers say they have found fossils for a 1,545-pound giant that thrived millions of years ago in a swampy South American forest.

"Imagine a weird guinea pig, but huge, with a long tail for balancing on its hind legs and continuously growing teeth," said Marcelo R. Sanchez-Villagra of the University of Tubingen in Germany.

Actually, I'd rather not.

Posted 10:56 AM by Robert

Why Knowing And Intentional?

The first person has been arrested under a 1998 California state law making it a crime to knowingly and intentionally expose another person to the virus that causes AIDS.

That seems right.

But why has nobody been arrested under this law before? It was enacted five years ago.

And why does the law apply only to knowing and intentional exposures of another person to the AIDS virus? Shouldn't it also be a crime for a person to recklessly expose another to the AIDS virus?

Why should someone who frequents sex bars but never has himself or herself tested for the virus not be considered a criminal?

Posted 10:29 AM by Robert

Davis Descending XLVI: Chief Justice Tribe Dissents

The weakness in a legal position is often best determined by reading a defense by its most articulate and learned defenders. Laurence H. Tribe, a professor of constitutional law at Harvard Law School who is co-counsel for the parties challenging California's election procedures, obligingly provides the final measure of proof that the Ninth Circuit attempt to stop the October recall is doomed in the form of his defense of that attempt in today's OpinionJournal.

Curiously, Professor Tribe at one point seems to say that Bush v. Gore is inapposite - or at least wrong:

"[T]he federal court was simply honoring the principle--a principle much older and more deeply rooted than its purported application in Bush v. Gore --that everyone in any given state should have the same chance to cast a vote that gets counted when it's the state that's running the entire election."

But then what to make of one of his closing sentences: [This California case] is about the unwillingness of some to abide by the same rules in California today that they pressed in Florida three years ago. Everyone admits that Bush v. Gore set the rules in Florida. But Professor Tribe says that Bush v. Gore did not apply his ancient, fundamental principle (it only "purported" to have applied it). Professor Tribe can't be saying that the Ninth Circuit's actual application of his ancient and fundamental principle leads to the same rules in California today that the incorrect, merely "purported" application of that principle in Bush v. Gore led to in Florida three years ago. And if he views Bush v. Gore as substantially on point, why is there not a single quote - in or out of context - from that case in this column?

Does Bush v. Gore provide substantial support for the Ninth Circuit or not? After reading Professor Tribe's effort one is left with the distinct impression that he includes the Bush v. Gore majority of the Supreme Court among those at whom he directs his criticism for "the game they played in the 2000 election." That may be a workable approach for the airless Harvard Law School classrooms in which Professor Tribe hears his own voice for as long as he wishes, but it doesn't make for compelling advocacy or a persuasive media column - or a winning argument before the Supreme Court. Professor Tribe needs to remember that he has not been appointed to the Court, and his mere vote therefore doesn't count.

What is missing from Professor Tribe's wan effort is the actual identification of any Supreme Court case that actually does articulate and accept his sweeping "principle." For example, if his "principle" is as ancient and fundamental as Professor Tribe says it is, then the Supreme Court need not have courted controversy in the Baker v. Carr line of cases to find its "one-person-one-vote" principle. Instead, the Court could simply have applied Professor Tribe's much broader - and apparently absolute - principle: "the fundamental principle that nobody's vote should count less than anybody else's in a state-run election just because of where in the state the voter happens to live." Gee, if only they'd known.

The absoluteness of Professor Tribe's principle has poetic, if not legal, charms: everyone in any given state should have the same chance to cast a vote that gets counted when it's the state that's running the entire election. That is, everyone should have that same choice or the federal courts won't let you vote at all. Of course, there has never been an election in which everyone has the same chance to cast a vote that gets counted, and there never will be such an election - especially not in March 2004 in California, where several counties have already pointed out that they will not be able to handle both the Democratic primary and the recall on the same updated, automated, newer-than-tomorrow voting machines.

If Professor Tribe is right, then the Ninth Circuit should immediately order California to cancel the March 2004 Democratic primary to make room for the recall.

Are November elections in Professor Tribe's Massachusetts to be forbidden because there is a predictable chance of freezing rain in early November that will "predictably discriminate against" minorities of one's own choosing, thereby constituting an "unmistakably systematic" denial of equality? Does the 14th Amendment (or some more ancient principle? Or Bush v. Gore?) require elections be held on Sundays if some professor produces a study suggesting that urban minorities tend to have more trouble getting off work and to the polls during the week? Women systematically vote more than men (who form a sacred minority!) do - and we can't have that!

Yes, Professor Tribe does mention a supposed need to prevent a "massive disenfranchisement." But he provides no connection between his absolute and fundamental principle and the facts which activate it. That is, he provides no suggestion as to how a court is supposed to determine how many voters are enough. Professor Tribe's style even obscures that the Ninth Circuit is an appellate court - which is supposed to defer to the lower District Court in such findings of fact:

The evidence assembled ... shows that tens of thousands of votes will not be counted at all ... and that these denials will fall disproportionately on poor and minority counties.... [O]nly the federal courts can prevent the massive disenfranchisement..."

California has a population north of thirty million. Since when did tens of thousands become a massive portion of thirty million? Isn't what constitutes "massive" a question of fact for the District Court to decide? Appellate courts are not to draw their own fine conclusions from their own review of evidence assembled. And is "massive disenfranchisement" supposed to be the factual test in the first place? Professor Tribe finds no space in his rant to tell us.

He does find room for some other odd things, though. For example, the defenders of the recall and voting procedures must be a highly mobile lot, because Professor Tribe's says that they only recently moved to California: The same folks eagerly asked the Supreme Court to halt in midcount the still unfinished presidential election in the decisive state of Florida ...

I wonder if that includes the editors of the Los Angeles Times?

I certainly felt a good deal better and more confident that the Ninth Circuit would not have its way after reading this column.

Posted 10:08 PM by Robert

Wesley, Bill and Hillary

John Fund comments on the extraordinary welcome that many Democrats have given Wesley Clark's announcement that he was joining the presidential race - none less enthusiastic than Bill and Hillary Clinton. He also notes that Fox News reports that Senator Clinton's office doesn't deny that a role for her a co-chairman of the Clark campaign "is in the works and might happen soon."

Why would the Clintons do such a thing? Mr. Fund suggests:

It is no secret that [the Clintons] are suspicious of Dr. Dean, the current front-runner, whom they fear would be trounced so badly against President Bush that he could hurt Hillary's prospects in 2008. Should Mr. Clark be elected president, the Clintons would have a strong ally in the Oval Office. If he does well but doesn't get the nomination, he may be viewed as a suitable running mate for Mrs. Clinton or some other Democratic nominee in the future. .... To the extent that [Mr. Clark] succeeds, the Clintons will see their already substantial influence in the Democratic Party grow.

That's all plausible. But there is another issue here for the Clintons: Right now, the Democratic National Committee is essentially a Clinton dominated entity, and so is the much of the rest of the national Democratic structure. There is the distinct possibility that Dr. Dean - if he is nominated - may sweep away the Clinton influence, as pollster Zogby describes:

Clinton supporters have other reasons to be leery of a Dean candidacy. In June, the Drudge Report noted that Mr. Dean had confided to associates that he intended to change the leadership of the Democratic National Committee if he became the party's nominee. A Dean adviser told Drudge that "it is important . . .To mark a new beginning, cut ties from the past." Mr. Dean feels that Mr. McAuliffe, who served as Mr. Clinton's finance chairman in the 1996 election, has not performed well under pressure and was the architect of last year's disastrous off-year election results in which the Democrats became the first party out of power to lose seats in a mid-term election in over 60 years. Mr. McAuliffe is so controversial among Democratic activists that recently he has not been signing the party's fund-raising mail. A no-name deputy now signs the direct mail appeals for funds. Mr. McAuliffe still has the confidence of Bill and Hillary Clinton, but his circle of admirers beyond that is limited. Joe Trippi, Mr. Dean's campaign manager, disputed the Drudge account saying "No one from the Dean campaign leaked anything to Drudge. This report is like a National Enquirer headline." Doesn't sound like an unequivocal denial to me. Mr. McAuliffe has gone out of his way not to criticize Mr. Dean since the Drudge item, but privately is aware of the fact that Mr. Dean is the only one of the Democratic candidates who is hostile to his remaining as chairman.

Of course, the original Drudge story has been attacked and deemed discredited by some. There are other reports that Dean and McAuliffe have made up. But Zogby is not pro-Republican, he has lots of connections and he's very smart - and even Salon noted:

Matt Drudge's internet news mill reported that Dean had threatened to replace DLC ally Terry McAuliffe as the party chairman if he wins the presidential nomination. Trippi vehemently denies the story. Yet it's clear that the Dean camp and the DLC are fighting an increasingly acrimonious civil war.

Yes, Dr. Dean might be a disaster in the general election, but so might General Clark. His weirdly embarrassing story that somebody the White House told him to say that Saddam Hussein was involved in September 11 - a story that changed continually until the "White House" became a "group in Canada" - is already having damaging effects. And he generally seems in way over his head, even if he receives lots of Clinton help.

But Wesley Clark won't dismantle the existing Clinton machine if he's nominated.

UPDATE: Former President Bill Clinton has just suggested that Hillary Clinton hasn't made up her mind yet about running for the White House. Oops, sorry Wes.

Posted 6:52 PM by Robert

Davis Descending XLV: Eleven Or Twenty-Six?

The federal Ninth Circuit court of appeals will probably review the decision of the three-judge Ninth Circuit panel postponing the October recall election. Most media stories have suggested that the reviewing panel will probably be a "limited en banc" panel consisting of eleven judges out of the total twenty-six "active" Ninth Circuit judges now serving. Those eleven are supposed to be the chief judge (who the court rules provide is to serve on every en banc panel) and ten judges chosen by lot.

But an eleven member limited en banc panel is not mandated by Ninth Circuit rules, and the use of such a panel in this case will be a further serious embarrassment for the Ninth Circuit.

The Ninth Circuit Rule governing the make up of en banc panels (Circuit Rule 35-3) provides that such a panel will normally have eleven members. But that same Circuit Rule 35-3 also provides: In appropriate cases, the Court may order a rehearing by the full court following a hearing or rehearing en banc.

A random set of ten judges will not necessarily be a representative sampling of the full twenty-five. The Ninth Circuit three-judge panel whose decision is to be reviewed already represents the ACLU's "hitting the jackpot" (Mickey Kaus' term) in the random process that selected that panel.

How many more serious decisions are there in this democracy than one forbidding an election to change the chief executive of the nation's largest state? If review of this loopy three-judge opinion is not one of those "appropriate cases [for which] the Court may order a rehearing by the full court" then what is? Are we supposed to believe that the Ninth Circuit judges have something better to do with their time?

There is no reason for the Ninth Circuit to allow the possibility that some bizarre eleven judge panel might be chosen by lot. Indeed, the matter to be reviewed is so serious, and the three-judge panel's opinion is so egregiously wrong, there is no excuse for the entire 26 judges not to be involved.

Posted 9:44 AM by Robert

The Latest On Marshmallow Farming In Delaware

From Fritz.

And by private communication Fritz informs me that Delmarva monkey fishing is the best!

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.

Posted 2:24 PM by Robert

Edward Teller IV

National Public Radio approaches a new low with this Commentary: Lena and Eddie by Andrei Codrescu, an ignorant, libelous and appalling near-equation of Leni Riefenstahl, Adolf Hitler's mistress of propaganda movies, and Edward Teller, the Hungarian genius and polymath.

Mr. Codrescu's screed lacks basic morality, imagination and all understanding of his topic. It's bland presentation by NPR as just another incidental All Things Considered "thought piece" is a true fluorescence of the banality of evil.

He begins and ends by morally equating Riefenstahl and Dr. Teller as "evil geniuses" of the 20th Century - slandering Dr. Teller in the process. There is a grudging acknowledgement of their ethnic differences and the fact that Dr. Teller opposed dictatorship while Riefenstahl advanced it. But those distinctions are raised merely to minimize their significance. They are mere "intentional" differences. Indeed, Mr. Codrescu seems to regard Riefenstahl as the lesser of the two "evils," since her work has been neutralized (he "hopes"), where the H-Bomb can still do damage.

We are told by Mr. Codrescu, for example, that we would all be dead if Dr. Teller had not "failed" - as if Dr. Teller had attempted to destroy the world with H-Bombs. Mr. Codrescu could not be more wrong: freedom and civilization probably continue to exist exactly because Dr. Teller did succeed exactly as he intended. In retrospect it was inevitable that the Soviets would develop the H-Bomb. Dr. Teller's determination to secure this weapon for the United States is likely the main reason it has never been used.

Dr. Teller's unique, penetrating intelligence is all but dismissed as mere "brilliant mathematical brains that showed up quite frequently among Central European Jews born near the dawn of the last century." Sure. A dime a dozen. But Mr. Codrescu does make one think - at least to the point of asking where he signs up to be able to get away with that kind of sweeping, racist dismissal of this singular intellect. Dr. Teller is also described as not having created anything "truly original." It is hard to imagine Mr. Codrescu's research for this embarrassment extending beyond a quick read the New York Times obituaries, although even the slighting treatment that appeared in the Times noted that Dr. Teller was A creator of quantum physics.

Mr. Codrescu closes with a passage hovering near the boundary of the sacrilegious and the insane, as he smugly asserts his confidence that Leni Riefenstahl and Edward Teller are neighbors in hell. Not likely. Leni Riefenstahl can count it as her last stoke of luck that she was awarded a single in that particular dormitory.

One is tempted to remind Mr. Codrescu of the old Italian proverb: Dei morti parla bene. But I have heard that the proverb doesn't apply to criticisms by a fool or by one whose heart, moral sense and judgment have already entered the same state as the person criticized. So Mr. Codrescu may be exempt.

Posted 11:10 AM by Robert

Davis Descending XLIII: The Los Angeles Times Sees Judicial Terrorists

For those who have a desire to evaluate just how awful the Ninth Circuit decision putatively postponing the October recall really is, and how short-lived it will be, this Los Angeles Times editorial is worth reading:

The California recall election gained another helping of cinematic absurdity Monday, as a three-judge federal court panel delayed the Oct. 7 vote. By worrying disproportionately about the possibility of punch-card ballot problems, the court came up with a decision that, if it holds, ensures that California's politics and economy will remain in an intolerable limbo for six more months.

Less drastic remedies — for example, ordering added precautions and poll workers — could have mitigated the potential ballot-counting problems that plagued Florida's punch-card machines in the 2000 presidential election. This editorial page agrees with the earlier ruling by U.S. District Judge Stephen V. Wilson, who said Aug. 20 in Los Angeles that the short recall campaign was required under the California Constitution, and that "delaying the election for half a year undoubtedly works against the public interest implicit in a recall election."

We have strongly opposed, and continue to oppose, this recall. ...

The U.S. Supreme Court should ... overturn the federal appeals court's ruling. Let the state take proper and fair voting precautions and get on with it. This endless political one-upmanship really amounts to political murder-suicide. In the end, no one wins, except for the ideologues keeping score in their increasingly isolated corners.

The editorial is worth reading not so much because it is well reasoned or well written. It is worth reading to get an understanding that the Ninth Circuit has become an embarrassment not just to the law, not just to the federal courts - but politically, too, even to those people such as the editorial writers at the Times who are just as liberal as the Ninth Circuit judges but nevertheless regard this decision as amounting to political murder-suicide.

The Times' image is of deranged judicial terrorists, stoked to the point of mindlessness on bad religion, walking into a pizza parlor with explosives concealed beneath their judicial robes.

UPDATE: It looks like an 11-judge "in banc" panel of the Ninth Circuit will probably review the decision of the 3 judge Ninth Circuit panel.

Posted 10:36 PM by Robert

Edward Teller III

Virginia Postrel follows up with Edward Teller and provides some valuable, perfectly balanced appreciation of Dr. Teller's contributions - and great quotes and cites.

Bravo!

MORE

Posted 5:03 PM by Robert

Rebuilding Iraq

Steve Antler has some terrific and very ambitious posts taking stabs at estimating many of the the true costs of rebuilding Iraq - including the effects of all that spending on interest rates. You won't get this kind of high quality from the New York Times.

Well, well worth your effort.

Posted 11:59 AM by Robert

Davis Descending XLII: The Ninth Circuit Does Its Very Predictable And Improper Thing

To nobody's real surprise, the Ninth Circuit has issued a stay of the October recall. Here's the 66 pages of make-weight arguments that comprise the opinion.

The real questions:

Will a single Justice of the Supreme Court promptly stay the Ninth Circuit's order?
Will the Supreme Court issue a summary reversal?
Will the Ninth Circuit as a whole (in banc) stay or reverse the order?

It's all just vulgar Ninth Circuit hi-jinks. There's no real question that the stay is improper.