Man Without Qualities

Friday, September 26, 2003

Davis Descending LIV: Shoeing Arnold Schwarzenegger

Kausfiles posts this Undropped Shoe Reminder: The L.A. Times has not yet published the results of its big investigation of Arnold Schwarzenegger's personal behavior... Is the Times saving it for the last minute, the better to really damage the actor's chances (think Bush and DUI)?

No. The Times is almost certainly not saving it for the last minute. I have serious reservations about many aspects of the Los Angeles Times, but I do not see this paper as originating a smear piece which it could have run earlier but saved for the last minute - and the last minute has now run out. Such a move would be inconsistent with the ecological niche the Times is seeking to occupy and would impose substantial costs on the paper and its reporters. For example, one of the Time's best investigative reporters (a liberal Democrat with breathtakingly high journalistic standards - more than I could have imagined) lives across the street from the Man Without Qualities, and it is likely that he would simply leave the paper if it did such a thing. His ability to obtain the kind of access he needs would be savaged if the Times acquired a strong reputation as a smear-and-run shop. Indeed, his equally-impressive partner did leave a few years ago over a lesser flap. The hacks and whores would remain - but the Times is trying to present itself as something more than a collection of hacks and whores. The Times does routinely run tendentious, partisan, ill considered articles - but that's not personal smear-and-run stuff.

However, if some other person were to raise stinky issues about Mr. Schwarzenegger at the last minute, I see no reason for the Times not to cover the smear as breaking news if the support for the smear otherwise met the Times' standards (think Bush and DUI). And, even if those standards were not met, the Times would soon submit to realities and run coverage of the smear in the form of legitimate reports of the fact that other media were covering the smear, and that the smear was affecting the campaign.

All that being said, I fully expect the Democrats and Mr. Mulhulland to produce whatever real or imagined dirt they have on Mr. Schwarzenegger at the last minute - as they recently did to get Barbara Boxer re-elected to the Senate.

And I expect the Times to report on that dirt in some form.

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Thursday, September 25, 2003

Opportunism Knocks VI

The Los Angeles Times' report on the just-concluded Democratic contender debate notes:

Asked in the debate's opening moments about favorable comments he made about Bush as recently as 2001, Clark did not disavow them.

So, let's see. General Clark can run campaign ads along the lines of:

Sure, that President George Bush had the courage and the vision and we will always be grateful to President George Bush for that tremendous leadership and statesmanship. BUT I'M SO MUCH BETTER THAT IT'S TIME FOR A CHANGE! ... GOD DAMN, I'M GOOD!

Will it play in Peoria?

Curiously, the New York Times coverage makes no mention of this.

Which is perhaps just as well, since while Gen Clark didn't expressly "disavow" his favorable comments about the President, he did say:

We elected a president we thought was a compassionate conservative. Instead we got neither conservatism or compassion. We got a man who recklessly cut taxes. We got a man who recklessly took us into war with Iraq. .... Now, this administration hasn't had a real economic strategy. ....Well, I think in this country we have to recognize we are in a health care crisis. .... George Bush said that he would protect Social Security, but all he's done is present tax cuts. His tax cuts total three times the amount of money needed to make the Social Security system solvent for the next 75 years. [also here]

It looks like having courage and vision and tremendous leadership and statesmanship just doesn't mean what it used to.

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Opportunism Knocks V

Newsweek reports that Gen. Shelton was in fact pretty open and frank in his criticisms of Wesley Clark:

To say Clark was unpopular among his fellow officers in the military is an understatement. As he rapidly rose through the ranks, he was widely regarded as a champion brown-noser and know-it-all, a sort of Eddie Haskell in Army green. In conversation with friends, Colin Powell would privately put down General Clark as "Lieutenant Colonel Clark" i.e., a perpetual eager-beaver wanna-be. Some officers questioned his judgment. Talking to a high-ranking Clinton administration official, Gen. Hugh Shelton, the former chairman of the Joint Chiefs of Staff who engineered Clark's firing, bluntly referred to Clark as a "nut."

But the Clinton/Clark camp tells us that we're supposed to believe that kind of thing had no effect whatsoever on President Clinton's decision to remove Gen. Clark from his NATO command.

The above passage does not depict Gen. Shelton as one who trims his sails in speaking to high officials, or who gets his way with sneaky, easily discovered lies about other soldiers such as Wesley Clark. It's preposterous to argue that the head of the Joint Chiefs of Staff is so deficient in elementary strategic thinking that he didn't realize that telling a huge lie to the President to get Wesley Clark fired would result in violent Presidential anger at Gen. Shelton once the lie was discovered. We are supposed to believe that Gen. Shelton hated Wesley Clark so much that Gen. Shelton was willing to risk his entire career and reputation to "get" Clark. Each necessary piece of the Clinton/Clark picture of Gen. Shelton is more absurd than the previous one. But the Clinton/Clark camp insists that Gen. Shelton is that kind of man: evasive, sneaky, lying, strategically impaired and consumed by hate of another soldier to the point of mindless self-destruction.

Wesley Clark also has a way of ascribing motives to his fellow soldiers that must truly become irksome over time. For example, Newsweek also reports:

None of Clark's former comrades in arms showed up last week for his hastily scheduled announcement in Little Rock. Why not? Most soldiers are Republicans, said Clark, who rambled on about how the military profession shouldn't belong to one party, but the absence of old soldiers in the crowd said more about ties of friendship (or the lack of them) than party affiliation.

Does any serious person think that every single one of Wesley Clark's former comrades in arms failed to show up at his announcement that he would run for the presidency because they are members of the Republican Party? Does that sound like the way the people in the military think and act? (Soldier 1: "Hey, how about you and I go out for some drinks and some action in town?" Soldier 2: "I dunno, what's you political affiliation?" Does that sound right?) How many officers are that politically active, anyway? Gen Shelton wouldn't even reveal his political party in the same conference in which he challenged Wesley Clark's integrity and character. What about the independents? What about the minority of officers who are Democrats? They do exist, and not in trivial numbers. And what can one say about a man who seems to admit that he can't form a single friendship across party lines sufficiently strong to cause the friend to show up at such a news conference. But most importantly: What can you say about a man none of whose fellow soldiers showed for his scheduled announcement in Little Rock?

It is pretty darn obvious that none of Clark?’s former comrades in arms showed up last week for his hastily scheduled announcement in Little Rock because very few of those comrades in arms like Wesley Clark. That's quite a lot to show for over thirty years in the military.
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Showering By Gender

A friend e-mails this highly questionable analysis:

How To Shower Like A Woman

1. Take off clothing and place it in sectioned laundry hamper according to lights and darks.

2. Walk to bathroom wearing long dressing gown. If you see husband along the way, cover up any exposed areas.

3. Look at your womanly physique in the mirror - make mental note to do more sit-ups

4. Get in the shower. Use face cloth, arm cloth, leg cloth, long loofah, wide loofah, and pumice stone.

5. Wash your hair once with cucumber and sage shampoo with 43 added vitamins.

6. Wash your hair again to make sure it's clean.

7. Condition your hair with grapefruit mint conditioner enhanced with natural avocado oil. Leave on hair for 15 minutes.

8. Wash your face with crushed apricot facial scrub for 10 minutes until red.

9. Wash entire rest of body with ginger nut and jaffa cake body wash.

10. Rinse conditioner off hair.

11. Shave armpits and legs.

12. Turn off shower.

13. Squeegee off all wet surfaces in shower. Spray mold spots with Tilex

14. Get out of shower. Dry with towel the size of a small country. Wrap hair in super absorbent towel.

15. Check entire body for zits, tweeze hairs.

16. Return to bedroom wearing long dressing gown and towel on head.

17. If you see husband along the way, cover up any exposed areas.

How To Shower Like a Man

1. Take off clothes while sitting on the edge of the bed and leave them in a pile.

2. Walk naked to the bathroom. If you see wife along the way, shake wiener at her making the 'woo-woo' sound.

3. Look in the mirrior, look at your wiener and scratch your ass.

4. Get in the shower.

5. Wash your face

6. Wash your armpits.

7. Blow your nose in your hands and let the water rinse them off.

8. Make fart noises (real or artificial) and laugh at how loud they sound in the shower.

9. Spend majority of time washing privates and surrounding area.

10. Wash your butt, leaving those coarse butt hairs stuck on the soap.

11. Shampoo your hair.

12.. Make a Shampoo Mohawk.

13. Pee.

14. Rinse off and get out of shower.

15. Partially dry off. Fail to notice water on floor because curtain was hanging out of tub the whole time.

16. Admire wiener size in mirror again!

17. Leave shower curtain open, wet mat on floor, light and fan on.

18. Return to bedroom with towel around your waist. If you pass wife, pull off towel, shake wiener at her and make the 'woo-woo'sound again.

19. Throw wet towel on bed.
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Opportunism Knocks IV

Tom Maguire has more on the possible character and integrity issues that caused President Clinton to remove Wesley Clark from his NATO command. Maguire recounts a nasty incident appearing in TIME of alleged Clark duplicity in connection with the Southern Command.

The TIME magazine article is interesting but thoroughly suspect. As Maguire notes, it relies naively on Sandy Berger for "facts" relating to General Clark's removal. But Mr. Berger and TIME have a very problematic recent history. Delicately: Mr. Berger lied to TIME about important Clinton Administraion history when he said that Clinton Administration had secret plans to invade Afghanistan, and he shouldn't be trusted now. That TIME relies on Mr. Berger without pointing out the problems with his integrity and character taints the entire TIME effort.

The same characteristic Clinton/Berger spin drives the original New York Times implied slur against the Joint Chiefs, Defense Secretary Cohen and others:

In any case, General Clark was forced to retire early by Pentagon officials who, according to several accounts, tricked President Clinton.

Members of the Joint Chiefs of Staff told the White House that they had to find a spot for Joe Ralston, a popular Air Force general and right-hand man to William S. Cohen, the secretary of defense. General Ralston had been denied the promotion to chairman of the Joint Chiefs after admitting to adultery 10 years earlier while separated from his wife.

These members, according to several accounts, told President Clinton that General Clark's regular tour of duty as NATO supreme allied commander was up and that they wanted General Ralston to succeed him.

"Clinton signed on, apparently not realizing that he had been snookered," David Halberstam wrote in his book, "War in a Time of Peace: Bush, Clinton and the Generals" (Scribner, 2001).

"Clark was devastated by the news, a world-class slap in the face, a public rebuke of almost unparalleled proportions," Mr. Halberstam wrote. He added that Samuel Berger, Mr. Clinton's national security adviser, had told General Clark that the Pentagon had fooled the White House.

General Clark wrote that later, President Clinton had told him privately, "I had nothing to do with it."

But the Los Angeles Times reports that General Clark does not himself believe that he was removed to make way for Gen. Ralston:

A year later, in July 2000, Shelton, the Joint Chiefs chairman, called Clark, shocking him with the news that he would be pulled off the job three months ahead of schedule — and without the year's extension Clark was expecting. Officials insisted that the early departure was only to make way for a new commander, Air Force Gen. Joseph W. Ralston, who they said would otherwise have been forced to retire under Pentagon rules.

But "it didn't wash," Clark later wrote in his book. "Was this a way of easing me out, without admitting it?"

And it's not what General Shelton is saying. He's saying that Wesley Clark was removed on character and integrity grounds, and General Shelton (as head of the Joint Chiefs of Staff) is the person the Clinton/Clark camp is implicitly saying was a main "deceiver" of the President, although he is not named by the Times. Moreover, General Clark was expecting a one-year extension of his term. It's ridiculous to suggest that the President denied the requested one-year extension because he thought Wesley Clark's current term was then ending. The need for an extension was caused by the looming end of the term. Some "detractor" must have told the President why the President shouldn't grant General Clark his one year extension - and the President must have agreed with the "detractor." So even if the Clinton/Clark version is assumed, the question just becomes: Why did the President deny General Clark's expected one-year extension?

The Clinton/Clark camp story is inherently unlikely - almost absurd. Its asks us to believe that President Clinton didn't sign off on General Clark's early removal - a world-class slap in the face, a public rebuke of almost unparalleled proportions - at all. How likely is that? Defense Secretary Cohen would have been a necessary participant in the "conspiracy" - and nothing is adduced to suggest that the Secretary would lie to the President. Are we supposed to believe that Gen. Shelton would not have conveyed his misgivings to the President, but only lied about General Clark's term ending?

Further, the Times statement that President Clinton was apparently unaware that he was being deceived by Clark detractors is not fully consistent with the President simply thinking that General Clark's term was up. If The President was just told that Gen, Clark's term was up but not told any integrity and character issue, then there would have been no "detractors" involved, just liars.

The Times' assertion that the Pentagon fooled the President is "supported" in the Times only through General Clark himself. David Halberstam wasn't there - he's not a "source." Even Sandy Berger's spin is a statement reportedly made by Mr. Berger to Wesley Clark - not to David Halberstam. In other words, there is no cite, source or support for the Times article other than through Wesley Clark - and that's nothing at all. Although the Times says that its report is supported "according to several accounts," those accounts seem to be Wesley Clark's.

To which TIME now adds the direct "support" of the known fabulist Sandy Berger.

It is likely that the flaws in General Clark's character and integrity noted by General Shelton relate to Kosovo - but only if Clark was dismissed because of something that was reported to some substantial degree in the media. That is plausible, but not necessary. For example, it is unusual for a story like the interaction of two Generals vying for the Southern Command to be reflected in media coverage at all. That incident didn't cause the removal, but there may be other, more serious, unpublicized incidents that have never been reflected in media coverage. We just don't know. And such other incidents - if they exist - might involve Kosovo or not.

General Clark must have seriously irked Defense Secretary Cohen (who is said by TIME to be unwilling to discuss General Clark) and top brass. But mere grandstanding - which is what TIME and others suggest was the reason for the irritation of the brass, if not the actual removal of General Clark - is not itself a character and integrity issue. If grandstanding was what General Shelton was talking about, he chose his words poorly. I think he has something else in mind.

Wesley Clark had lots of connections in the Pentagon and the White House. It is very likely that he clearly knows why he was canned, and knows that it was not because the President was "fooled."

And pretending that he doesn't know why he was dismissed does not reflect well on his character, integrity or judgment.

UPDATE: This DRUDGE disclosure of Wesley Clark lavishly praising President Bush and his whole team two years ago seems amazing. Gen. Clark is reported to have said:

"And I'm very glad we've got the great team in office, men like Colin Powell, Don Rumsfeld, Dick Cheney, Condoleezza Rice, Paul O'Neill - people I know very well - our president George W. Bush. We need them there."

There's more:

"President George Bush had the courage and the vision... and we will always be grateful to President George Bush for that tremendous leadership and statesmanship."

And there's still a lot more.

It all seems amazing, since Gen. Clark is now attacking exactly those people - but it also seems to be just more of the same old stuff where Wesley Clark is involved.
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Davis Descending LIII: Ninth Circuit Randomness?

Ninth Circuit decisions are sometimes criticized for being so inconsistent as to approach randomness.

But Jim Miller points out that sometimes the problem can be the possibility that there wasn't enough randomness at that court.


An astute, probabilistically inclined reader writes:

There are 27 members of the Court. You have assumed that each member will either overturn (Y) or uphold (N) the decision, i.e. there is no probabilistic decisionmaking here. To know the probabilities, we must guess how the remaining 13 unpicked members would have decided. The following table gives the probabilities for each possible value (I hope it's readable):

N...............Y................Prob(3Y)................Prob(11N!3Y)................Net.......................One out of















Thus, if the three judges chosen were the only ones who would have halted the election, the odds against them being in the first round are 2925 to 1.

Somewhat more likely is that there were 5 or 6 total who would have postponed: down to about one thousand to one. As the number who would have overturned the decision rises, the probabilities get less likely because it is so unlikely to find a unanimous panel on the other side. Hope this helps.

Sounds like somebody - perhaps somebody in the Justice Department - should be asking some pointed questions of the Ninth Circuit.

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Wednesday, September 24, 2003

Opportunism Knocks III

The circumstance occassioning the New York Times' recent upsupported slur that then-President Clinton relieved Wesley Clark of his command of NATO while "apparently unaware that [Clinton] was being deceived by Clark detractors" is heating up. General Clark's "detractors" included Joint Chiefs Chairman Henry Hugh Shelton, Defense Secretary Cohen, Gen. Eric K. Shinseki (Army chief of staff from 1999 to 2003), Gen. Dennis Reimer, and lots of other people. The big problem with assertions that one's critics are mere "deceivers" is that the critics tend to come forward to explain why they are not the deceivers. And then one really gets bogged down.

And so it is coming to pass for Wesley Clark, the Clintons and the New York Times, in the imposing form of retired General H. Hugh Shelton:

"What do you think of General Wesley Clark and would you support him as a presidential candidate," was the question put to him by moderator Dick Henning, assuming that all military men stood in support of each other. General Shelton took a drink of water and Henning said, "I noticed you took a drink on that one!"

"That question makes me wish it were vodka," said Shelton. "I've known Wes for a long time. I will tell you the reason he came out of Europe early had to do with integrity and character issues, things that are very near and dear to my heart. I'm not going to say whether I'm a Republican or a Democrat. I'll just say Wes won't get my vote."

Integrity and character issues? It doesn't seem as though General Shelton agrees with William Safire that Wesley Clark was the four-star general that Clinton fired for being a publicity hog during the Kosovo liberation. Very few people would include being a publicity hog among integrity and character issues.

So let's ask the question again: What, exactly, were the grounds for President Clinton's removal of Wesley Clark?

How about some interviews on the subject with Defense Secretary Cohen, Gen. Shinseki , Gen. Reimer and some of those people who worked for Gen. Clark? Isn't it time those questions got asked?

Link via DRUDGE.


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Tuesday, September 23, 2003

The Great Unraveling Unraveled

Paul Krugman's new book, The Great Unraveling, is reviewed in the New York Sun. A copy of the review is posted on Don Luskin's excellent site.

With permission of the copyright holder, it is worth noting, Professor DeLong.
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What Is Dick Morris Trying To Do?

Dick Morris says that the President's circa-50-% poll numbers are really bad news for him: When an incumbent president is below 50 percent of the vote, he is in desperate trouble.

But he's not saying what the source of the "desperation" really is. It is true that at some points in an campaign it is very bad news for an incumbent to draw less than 50%. But not at this point, and not for an incumbent president. Most political experts would say that at this point in a presidential cycle the President's current readings don't have much predictive force - although higher is always better.

For example, at this point in the election cycle, President Reagan suffered poll ratings in roughly the 40% zone, and went on to a big win. In the last election cycle, Gray Davis and Mary Landrieu both hovered below the magic 50% mark - but their final elections weren't really that close. Mr. Davis beat his opponent, Bill Simon, by about 48 percent to 42 percent, which was a smaller margin than some had expected and allowed some media to call the race "narrow." But six percentage points is not "narrow" - and Mr. Davis was certainly never "desperate."

Dick Morris knows all that.

Mr. Morris also opines: The key to Bush's free-fall? Only 46 percent approve of his handling of postwar Iraq.

This is absurd. Mr. Bush has mostly suffered because the effects of the recovering economy have not yet yielded enough jobs, and people are anxious. Media coverage of the economy has emphasized the negative. A typical example is this USA Today article, which stresses that wage rises are under 4% - the "worst" in a long while. One has to read to the end to see:

The good news: Pay freezes are thawing, because employers are somewhat more optimistic the economy will turn around. The Hewitt study found only 2% of firms are expected to have a freeze next year, down from 8% in 2003. Raises are closer to 4% or higher in a number of major cities such as Los Angeles, New York, San Francisco and Washington. Amounts can also vary within companies: In order to keep top performers, some companies are giving heftier raises, such as 5%, to stars, while giving nothing to the weakest. ...[O]verall compensation costs are climbing. Benefit costs rose 6.3% for the year ending June 2003.

If public perception of the economy turns around, Mr. Bush's poll ratings will rise. If those perceptions don't improve, he will be in big trouble. But the actual strong recovery of the economy is very recent. It is far to early to tell if the public will react well.

Mr. Morris's own assumptions work against his conclusions. Foreign policy considerations - which have also been reported in overly-gloomy fashion by a hostile media - will be a secondary consideration in the Presidential election - barring a major development like a new, big terrorist attack. Further, foreign policy perceptions are generally the most easilly affected by Presidential moves, such as the address to the United Nations. So if Mr. Bush's soft polls are caused by foreign developments as Mr. Morris insists, then those poll readings have even less meaning than such polls normally do at this point in the election cycle, and their normal predictive significance is not much.

Dick Morris knows all that.

So what the heck is he doing writing columns like this one?

I do agree with the other half of this column: Clark will not wear well.

UPDATE: I think that it is likely that Dick Morris is trying to get himself a job. For example, his focus on foreign policy considerations as the source of the President's poll problems includes the message that the President can "fix" his ratings by taking the "right" action in the foreign policy arena. That's something a President can do - unlike, say, reducing unemployment with a Presidential ukase. And it's something a president might hire Mr. Morris to help him do.

Actually, it's unlikely the President would formally hire Mr. Morris - who is really very astute generally nut has, shall we say, certain "personal issues." But the President might (in principle) use Mr. Morris' advice if someone else did the formal hiring and paying.

Dick Morris is largely about hidden agendas - that's often what people pay him for. It is not a criticism of him that he has one himself.
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Davis Descending LII: The ACLU Meltdown

The Ninth Crcuit en banc panel was every bit as unimpressed with the Tribe/ACLU performance as it seemed to be. Restoration of the October 7 deadline took even less time than expected.

"The district court did not abuse its discretion in concluding that plaintiffs will suffer no hardship that outweighs the stake of the state of California and its citizens in having this election go forward as planned and as required by the California constitution," the ruling said.

I wonder if Mr. Tribe now wishes he had spent more time preparing and arguing his case under the correct "abuse of discretion" standard and avoiding Bush v. Gore - instead of making his preposterous claim that the matter was one entirely of de novo review for the Ninth Circuit and that the parts of Bush v. Gore of which he, in his academic majesty, approved, really did require that the ACLU must prevail.

Because the 11-member en banc panel decision was unanimous and the panel included eight judges appointed by Democrats, it will be harder for the ACLU and the left generally to characterize this as another "election theft."

But some, such as Ninth Circuit Judge Stephen Reinhardt, will be able to use these developments to continue making their argument that this kind of decision shows that the Ninth Circuit is just not liberal enough.

The Ninth Circuit also declined to postpone the vote on the two initiative (Propositions 53 and 54, which may surprise some people). Some people have argued that the presence of the Propositions (especially Proposition 54) on the ballot helps Cruz Bustamante. But Mr. Tribe seemed awfully please when the court suggested that those propositions might be removed even if the recall went forward. It's hard to believe that there is that much of a gap between the ACLU and Mr. Bustamante.

There are a few indirect - possibly droll - phrasings in the en banc opinion. Early in the campaign (and in other court actions) recall opponents had argued that the recall should not proceed because of the cost and diversion of resources it entailed. In the new opinion, the en banc panel stands that argument on its head:

If the recall election scheduled for October 7, 2003, is enjoined, it is certain that the state of California and its citizens will suffer material hardship by virtue of the enormous resources already invested in reliance on the election’s proceeding on the announced date.

There is a possibly sly dig at the job the Tribe/ACLU team did is producing actual evidence to support its airy claims:

We must of course also look to the interests represented by the plaintiffs, who are legitimately concerned that use of the punch-card system will deny the right to vote to some voters who must use that system. At this time, it is merely a speculative possibility, however, that any such denial will influence the result of the election.

The nearly unbelievably self-indulgent Tribe/UCLA insistence in relying on Bush v. Gore is exposed without mercy:

In Bush v. Gore, the leading case on disputed elections, the court specifically noted:“The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections.”

If there were such a thing as criminal malpractice in a civil case, then the Tribe/ACLU reliance on Bush v. Gore would be its paradigm.

Now that the efforts of three liberal judges to save democracy from itself have been beaten off, California will have an election in which it is by no means clear anything will change at all.

UPDATE: The American Civil Liberties Union said it wouldn't appeal the ruling to the U.S. Supreme Court.

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Monday, September 22, 2003

Davis Descending LI: Impressions Of The Tribe Meltdown

I have spent much of the evening again listening to the audio recording of the Ninth Circuit en banc hearing.

It was painful. And as a matter of sheer advocacy, Mr. Tribe and his co-counsel were just dreadful.

It is painful to hear Laurence Tribe argue that the California Secretary of State declared all further punchcard voting an immediate violation of the federal Constitution when he agreed on behalf of the state to use other technology beginning in March of next year. It's painful because it's an absurd argument. The state never agreed that punchcards were "defective" - constitutionally or otherwise. An academic study (the "Brady study") which was critical of punchcards, is brandished by the ACLU, but is clear make-weight. The study's findings were not adopted by the State - quite the contrary. The Brady study also does not take into account error reduction through careful recounts or any comparision with the error rates of other technologies. The ACLU seems to be hoping that the Ninth Circuit will itself find some facts here (clearly improper for an appelate court) - or perhaps send the whole thing back to the District Court and all but instruct that court to find the missing facts in favor of the ACLU. The Ninth Circuit is clearly having none of it. Judge Kozinski is impressive in his attempts to convey that, yes, he really does grasp each and every ACLU argument, and, yes, he has given those arguments all the sympathy and hearing that they can support. No other judge even suggests more. Judge Klienfeld and other judges make their own excellent points - but those points never support Mr. Tribe.

It is also painful to hear Mr. Tribe and his co-counsel repeatedly evade the court's basic, repeated, prosaic and central (and excellent) question: Isn't this court restricted to determining whether this denial by the district court of a preliminary injunction was an abuse of the district court's discretion? The question of the applicability of the "abuse of discretion" standard again arises in connection with the applicability of a res judicata issue which, if construed against the ACLU, could itself end some of its key claims.

Mr. Tribe is apparently so eager to argue the big constitutional issues that he just can't be bothered to really address this prosaic procedural question. This leaves the state's lawyer to answer the question - and shape the court's considerations - more or less by himself. No judge is willing to endorse Mr. Tribe's Bush v. Gore argument or throw him any rope whatsoever (one judge even asks the ACLU a question based on the assumption that the court will deny his equal protection claims - not a good sign, especially given the tone of the judge's voice). People who claim the court's bearing was ambiguous are being silly - the court sent very clear signals that the only arguments that may have any real life arise under the Voting Rights Act - and the court signals that there's not much there, either. Mr. Tribe only seems to want to talk about the BIG CONSTITUTIONAL ISSUES, but he also seems to grasp early on that the court is not amused - and so he more or less does nothing meanigful on any front for the whole hearing. He pretty much blathers and seems defeated- which he has always been, intellectually and legally. But now he seems to sense that the Ninth Circuit's reserve of Bush v. Gore bitterness and sheer partisan opportunism on which he was counting is just not enough.

The "abuse of discretion" issue is key to the extent the court appears prepared to do anything at all. The court's comments make fairly clear that there is some feeling that the District Court may have got a technical point in the Voting Rights Act law wrong (although the only real support for that is some Saint Louis District Court decision which was reversed on appeal on other grounds - which is not much support, but worth raising the issue). That kind of error might require return of the Voting Rights Act matter to the district court for a "correct" application of that law (but to a probable second rejection of the ACLU's claims). Or the District Court may have simply evaluated the probability of success on the merits without specifically making such an erroneous Voting Rights Act. That means that the standard of review may be very important in the court's determination of whether to send the Voting Rights Act claims back to the District Court. But, by evading the court's questions on this issue, Mr. Tribe and his team have lost the chance to influence the dialogue. It also becomes clear that the ACLU team neglected to provide the District Court with a copy of a case essential to their Voting Rights Act arguments. Ouch!

Mr. Tribe is loudly announced by his opponent to have abandoned the absolute principle put forward by Mr. Tribe in the District Court and his Wall Street Journal screed that any error rate or disparity among counties is unconstitutional. He does not dispute this, and his argument to the en banc panel expressly admits that practical variations and tolerances must be allowed. But he provides no suggestion as to how they should be allowed, instead relying on his mischaracterization of the Secretary of State's actions discussed above.

The court points out that the famous Supreme Court's case Reynolds v. Sims directly contradicts Mr. Tribe's absolutist arguments. The Brady study is again brandished by the ACLU team as if it were constitutionally determinative. At another point, Mr. Tribe suggests that there are actually some parts of Bush v. Gore that he accepts! Does Mr. Tribe think it is generous of a lawyer in federal court to suggest that he only accepts some parts of a Supreme Court case that he is at that moment arguing constitutes controlling precedent - or is he just having a nervous breakdown? It's hard not to cringe for the sheer incompetence of the performance. I say a little prayer of thanks that this Harvard Law professor has never represented my interests in court - and I wonder if the ACLU representatives are so dim that they don't understand how their interests have been butchered by this man.

The court (Judge Kozinski) correctly bears down on the question: Isn't there a point were the invalidity rate gets so great that it amounts to an equal protection violation? The response he receives (from Mr. Rosenbaum, not Mr. Tribe's team) is garbled and painful to hear.

But the answer - which the court never does get - is pretty obvious. Of course, there is such constitutional level. And, just as obviously, it is not going to be expressible as a uniform percentage (which Judge Kozinski keeps suggesting must be the case). Does an election held during a Civil War have to be as exact as a percentage of ballots counted as one held in ordinary time? Of course not.

So the question comes down to that abuse of discretion issue again.
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More Republican Dirty Tricks!

On September 20, the New York Post reported:

Sen. Hillary Rodham Clinton yesterday abruptly yanked all the run-for-president e-mails off her official Web site in a bid to stop speculation that she's leaving the door open to a 2004 White House bid.

Which makes sense, because Slate's Tim Noah says that all of the names Hillary Clinton had deleted were of Republicans!

How else are we to construe this Noah passage:

After considerable investigative effort, Chatterbox was able to identify five Democrats who think Hillary Clinton should enter the nomination race.

Since scads of letters urging Senator Clinton to run were deleted from her website, Mr. Noah must be telling us that those letters were all from Republicans!

And who knew that Hillary Clinton had so many close Republican supporters!? How else to reconcile Mr. Noah's research with this recent statement by her husband regarding her possible run for the Presidency in 2004:

"That's really a decision for her to make," he said. Then he added, as if an afterthought: "She's being urged by supporters in spite of her commitment to serve out her six-year Senate term."

Well, Mr. Noah has an answer for Bill Clinton:

[T]he Draft Hillary '04 forces probably won't secure their candidate's Democratic nomination. Why not? Because they're all Republicans!

Yep. Mr. Noah really has his ear to the ground. Smart as a whip, that one.
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Davis Descending L: The Volokh Derailment

Is it hard to imagine what the reaction of the judge hearing the Kobe Bryant case would be if one of Mr. Bryant's lawyer's, annoyed that he had not been granted access to Mr. Bryant's accuser's medical records, were to step outside the courtroom and say to the media something like:

"You know who's the judge in this case, right? Do you think my client's rights are going to have much of a chance of surviving? I wouldn't bet on it. Some other judges would do the right thing, but not this one. Those judges are there to protect people's rights under the equal protection clause of the Constitution, no matter who's involved, and a lot of people don't like it. That's their problem, not mine."

No. It is not hard to imagine. That lawyer would be severely sanctioned, perhaps after the trial but likely right away - and quite properly so. He would be transparently attempting to influence the outcome of the legal proceeding in which he, his client and the judge are involved by an appeal to public opinion - and to undermine the decisions that the court makes that go against Mr. Bryant's interests. Such a strategy would reflect a common view that courts can be influenced by manipulating public opinion, a view as expressed today by Los Angeles Times in connection with the pending Ninth Circuit en banc proceeding:

When they decide how ... general statements apply to specific cases, judges ... are influenced by public opinion. "Most judges do not stray far from public opinion," said Howard Gillman, a professor of political science and law at USC.

But suppose some commenter attempted to minimize such an offense by arguing that such a statement does not seem to be particularly harmful on its own: It doesn't tell the public anything about the judge's likely future decisions about the case beyond what the judge himself said, and while it suggests that the judge's personality may affect the outcome of the case, that's hardly a secret. In fact, the statement's assertion of judicial independence might actually be helpful to the public discussion.

Such a commenter would be met with the rather obvious retort that his argument is obviously wrong, shows no depth of understanding of court processes and no serious understanding of how actual inflamed proceedings have operated in the past. One only has to review the O.J. Simpson trial, the Rodney King matter, and any number of other badly managed court proceedings to understand why courts desperately need to control the statements made by participants in their proceedings while those proceedings are pending.

This is all rather obvious stuff.

Yet, Judge Harry Pregerson -- one of the judges on the original California recall decision panel -- is quoted by the Los Angeles Times: "You know who's on the panel, right? Do you think it's going to have much of a chance of surviving? I wouldn't bet on it. . . . Judge Paez, Judge Thomas and I ?— we did the right thing," Pregerson said. "We're there to protect people's rights under the equal protection clause of the Constitution, no matter who's involved, and a lot of people don't like it. That's their problem, not mine."

And the significance of Judge Pregerson's mischief is minimized by Eugene Volokh with this specious and shallow argument:

Judge Harry Pregerson ... seems to have violated the Code of Conduct for United States Judges by his comments about the case. .... I'm not sure how important this provision (in its current breadth) is to the sound administration of justice. Moreover, Pregerson's particular statement does not seem to be particularly harmful on its own: It doesn't tell the public anything about Pregerson's likely future decisions about the case beyond what the original opinion itself said, and while it suggests that the makeup of the en banc court may affect the outcome of the case, that's hardly a secret. In fact, the statement's assertion of judicial independence might actually be helpful to the public discussion.

Why does Professor Volokh not "get" that this is a case involving inflamed political and even racial issues in which the legitimacy and public acceptance of the relevant court decisions are essential. Indeed, it is not all that hard to imagine a set of facts emerging in the last days of this campaign that could result in serious civil unrest - but statewide, not just in the virtual holocaust of Los Angeles, as resulted in 1992 as from another ill-managed legal proceeding. Why is it so hard for Professor Volokh to "get" that Judge Pregerson's comment is a deliberate attempt by that federal judge to influence the outcome of the en banc panel through manipulation of public opinion, and to undermine the legitimacy of any en banc decision overturning his own incompetent, partisan screed?

What Judge Harry Pregerson did is a very serious transgression of judicial ethics - and Professor Volokh's minimization of that transgression is a serious lapse of judgement.
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Opportunism Knocks II

Katharine Q. Seelye, writing in the New York Times, reports that then-President Clinton relieved Wesley Clark of his command of NATO to "General Clark's humiliation" and while "apparently unaware that [Clinton] was being deceived by Clark detractors."

That's it. No sources cited. No quotes. Just the bare assertion from Ms. Seelye.

But the Los Angeles Times runs a rather extensive report on the entire affair that doesn't mention any "deception" by "Clark detractors." And it seems that then-General Clark's "detractors" included Joint Chiefs Chairman Henry Hugh Shelton, Defense Secretary Cohen, Gen. Eric K. Shinseki (Army chief of staff from 1999 to 2003), Shinseki's predecessor, Gen. Dennis Reimer, and lots and lots of the people who worked for him - who apparently refered to him, without affection, as "The Supreme Being."

Here's what the Left Coast Times reports:

In ... 1999, there were bitter disagreements between Clark and his Pentagon bosses about what was probably the most important military judgment of his career — how to drive Yugoslav leader Slobodan Milosevic and his troops out of Kosovo.

NATO leaders broadly agreed that the effort should rely on a high-altitude bombing campaign, rather than a ground war that would risk major casualties — and a public backlash. Clark pushed for weeks to use ground troops, in the face of resistance from President Clinton, Defense chief William S. Cohen and members of the Joint Chiefs of Staff.

Clark's desire to bring in low-flying Apache attack helicopters alarmed top Army officials, who argued that the Apaches would be vulnerable because they would lack the essential cover that long-range artillery could provide. "This wasn't according to Army doctrine," one retired Army colonel said.

In the end, Milosevic caved and withdrew his troops from Kosovo, after a longer-than-expected 78 days of bombing — but without the use of Apaches or NATO ground troops. Victory was achieved without any U.S. combat deaths.

"Once we were on the ground, it [would have been] a much more difficult situation," former security advisor Berger said in an interview last week. "And, by the way, the strategy worked."

But if Clark's ground troops weren't proved to be necessary, many analysts believed the threat that NATO might escalate was key in persuading Milosevic to give up.

Clark's critics in the Pentagon have long accused him of trying to get ahead by cultivating important civilian leaders.

On one 1998 trip to Washington, Clark met with White House officials to discuss the possible air campaign in Kosovo, without first stopping at the Pentagon — drawing a warning that he needed to share his itinerary with Joint Chiefs Chairman Henry Hugh Shelton and Cohen.

Berger acknowledged the tensions, but he insisted they were only natural when so much was at stake. "Inherent to the battlefield is a situation where the commander seeks to be somewhat more aggressive, in some respects Tell me a relationship between a field commander and the people back in headquarters that has not been somewhat laden with friction," Berger said. The Pentagon, he added, "over-imagined" how much secret contact there was between Clark and the White House.

Clark's approach to the war revealed his broader philosophy about the use of the military. He split from the post-Vietnam era view that force should be used in overwhelming measure, and only if all else had failed, a doctrine associated with Secretary of State Colin L. Powell and former Defense Secretary Caspar W. Weinberger.

Clark's view was that military force could be used in different degrees of intensity, in different situations, as one of the tools of foreign policy. "This distinguishes him from most of the post-Vietnam generals," said Ivo Daalder, who served as European specialist on the Clinton administration's National Security Council. "He sees force as one of the tools in the toolbox."

Daalder noted that as a key staffer on the Joint Chiefs, Clark was important in urging its chairman, John M. Shalikashvili, and others to agree in 1995 — before the Kosovo intervention — to the NATO bombing of Bosnia that helped drive the parties to the bargaining table.

Clark also believed in aggressively using the military on the ground, sometimes in an improvised fashion.

As NATO boss, he sometimes clashed with the U.S. Army generals who were leading the NATO "stabilization force" in Bosnia because he wanted them to be more aggressive in using military pressure to force Bosnians to change. He wanted to use the troops to accelerate resettlement of populations, to get local leaders to agree to creation of a multiethnic police force, and to pressure ethnic leaders.

On this, there was "pushback" from the field commanders, including Gen. Eric K. Shinseki, who went on to serve as Army chief of staff from 1999 to August. Shinseki feared going too far in using military force for "nation-building," said another general who worked with Clark during the Kosovo war. The relationship between Clark and Shinseki in Bosnia "was extremely strained."

Clark, said the general, "would take more risk — he'd rely more on instinct than staff recommendations."

After the Kosovo war, Clark's tactics raised questions in a confusing moment when the Russian army sent a column to the provincial capital of Pristina to occupy an airport. Clark ordered British Lt. Gen. Sir Michael Jackson to block the runway so the Russians couldn't bring in reinforcements. The British general refused, telling Clark: "I'm not starting World War III for you," Clark said in his 2001 book, "Waging Modern War."

In his book, Clark said he feared NATO's future influence would have been undermined if the Russians had been able to become a postwar force on the ground in Kosovo. He told Jackson that he had NATO support for his action.

But Kenneth H. Bacon, who was assistant secretary of Defense for public affairs, said this was a "controversial moment." Amid confusion about Russian intentions, "the feeling in Washington was that we needed to resolve this at the capital level, Washington to Moscow," rather than on the ground.

"We spent the entire Cold War resisting overly aggressive actions; we had a long history of talking these things out," said Bacon, who is now president of Refugees International.

Still, Clark came out of the war with wide acclamation, including praise for his efforts at holding together a fractious coalition of 19 NATO countries.

A year later, in July 2000, Shelton, the Joint Chiefs chairman, called Clark, shocking him with the news that he would be pulled off the job three months ahead of schedule — and without the year's extension Clark was expecting. Officials insisted that the early departure was only to make way for a new commander, Air Force Gen. Joseph W. Ralston, who they said would otherwise have been forced to retire under Pentagon rules.

But "it didn't wash," Clark later wrote in his book. "Was this a way of easing me out, without admitting it?"

Whatever the truth, at the close of his military career, Clark struggled with the residue of conflicts and strains he had experienced with senior officers and civilian leaders.

He had clashed with Shelton and Defense Secretary Cohen; he had a strained relationship with Shinseki, the Army chief of staff from 1999 to 2003; and he was cool to Shinseki's predecessor, Gen. Dennis Reimer, according to senior Army officers who know Clark and the others.

The New York Times is suggesting that all of those people deceived the President about General Clark, and thereby induced the President to remove him as leader of NATO. Without some real support, that's just libel - and absolutely dreadful reporting.
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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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Sunday, September 21, 2003

Wesley, Bill and Hillary II

William Safire has some things to say that sound about right.

And those things lead to some other things that a New York Times columnist might not want to say at all.

UPDATE: Congressional Quarterly Columnist Craig Crawford has some things to say that sound about right.

FURTHER UPDATE: Maguire has interesting things to say about the Clark-Dean-Times triad.
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Davis Descending XLVIII: A Ninth Circuit Reversal Is Not Certain

The Note has commented with tongue likely firmly in cheek: Every sharpie in politics and the press knows that ... the 9th Circuit is going to announce today that they are taking the recall case en banc and that sometime next week they will overturn the three-judge panel and then the SCOTUS will refuse to hear it and the October 7 date will be restored.

The Note omits the scare quotes from around the "knows," but they are there in spirit. This is another egregious example of something that every sharpie in politics and the press "knows" being badly wrong.

The first indication that the reversal by the en banc court is not certain is the reason now commonly proffered for why the reversal is virtually certain - or highly likely. We are repeatedly told that the "most important" factor establishing a reversal is the identities of the judges on the en banc panel. In other words, the media are passing the message: If the en banc panel reverses, the conservatives will have "stolen" another election decision, and if the en banc court affirms then it can't have been for partisan reasons. Or as one of the three judges commented publicly in entirely improper fashion that the media has reproduced with enthusiasm: "You know who's on the panel, right? Do you think it's going to have much of a chance of surviving? I wouldn't bet on it," Judge Harry Pregerson said in an interview. Specifically, we are told reversal is assured (or all but assured) because the en banc panel is "conservative" or at least "relatively conservative" compared to the composition of the typical en banc panel one sees from the Ninth Circuit. And "relatively conservative" is supposed to be enough because the Ninth Circuit is now really quite moderate, not like in the bad old days when it was dominated by Carter appointees: [T]he consensus among legal experts yesterday was that most of the judges on the larger panel of the court, the United States Court of Appeals for the Ninth Circuit, are either aligned with the circuit's more conservative wing or are moderate in the sense of avoiding drastic actions like calling off elections.

Is that right? Is the Ninth Circuit "moderate?" Of course not. Forget about the Pledge of Allegiance case. We are supposed to believe that a Circuit Court that repeatedly - and in defiance of Supreme Court policy and express Constitutional language - tries to establish the Constitutional equivalence of illegal immigrant detention and criminal arrests is "moderate." This is a court whose first attempt to create a right to medical marijuana use was struck down by the Supreme Court, which the Ninth Circuit is still defying with tortured reasoning provided by the judge said to be its "leading conservative," whose presence on the current en banc panel is supposed to mean so much. But this court is nevertheless "moderate?" A court that allows the use of a patient's psychiatrist's testimony in civil commitment cases but not in criminal cases is supposed to be considered sound and "moderate?" One could go on for pages listing wacky Ninth Circuit results - many of them so strange that they defy "liberal/conservative" classification - but instead invite terms such as "eccentric," "willful," "self-indulgent" and even "defiant" and "incompetent" (such as this decision abolishing the October recall election). This circuit court is much farther off course than any other circuit court in the nation, no matter how many academics try to come up with phony measures of judicial "liberalness" or "reversibility" and/or "reliability" that purport to show that the Ninth Circuit does not have special problems. The Ninth Circuit has very special problems - and most people who have spent significant time around the Supreme Court can tell you that the Ninth Circuit is regarded by the Supreme Court as a big, general problem. As the liberal California Lawyer magazine puts it: Although the [Ninth] circuit's reversal rate is often exaggerated, its reputation for liberal decisions-and [Judge Stephen] Reinhardt's influence among his judicial colleagues-is well deserved.

So any argument that the Ninth Circuit will probably do one thing or another because it has become "moderate" or "relatively moderate" is already extremely weak - and the person making such an argument should be regarded as likely disingenuous or having a strong, personal agenda. For example, no intelligent observer should take seriously and at face value a comment like:

"But now [the Ninth Circuit's] really quite balanced. Any notion that there is a conservative wing or a liberal wing or a consensus or an embattled minority on one side, I think is total hokum."

In truth, no sensible person could doubt that a court including Stephen Reinhardt (paleoliberal: "I was a liberal from a very young age," he says. "I think I was born that way.") and Alex Kozinski (libertarian/conservative) has serious left and right wings. Yet this obviously wrong comment was made by Alex Kozinski himself, and not just once. He repeated the sentiment in a public forum at which he and Judge Reinhardt spoke at length.


It's not hard to find the probable reasons. Judge Kozinski serves on the same court as his many far liberal colleagues, including his personal friend Stephen Reinhardt. Judge Kozinski is therefore well advised not to alienate those other twenty-five people by publicly casting them and their opinions in rigid political terms. In addition, Judge Kozinski has well-known Supreme Court aspirations. So he doesn't want to make personal or political enemies - or to call his Supreme "judicial termperment" into question. He wants to be "Supremeable."

So let's not see any more quotes from Judge Kozinski to support some preposterous claim that the Ninth Circuit is "moderate" and now full of "excellent judges." It's not either.

The Ninth Circuit's ersatz quality of "moderateness" was supposedly conferred on it by Bill Clinton's gentle rain of appointments to the court. But those people are not "moderates." They are for the most part highly partisan, result-oriented far liberals who are simply more skilled than the Carter appointments in concealing their partisanship in judicial doublespeak. Democrats and much of the media characterized Richard Paez as one of those Clinton "moderates" during his confirmation fight. That was baloney then - and Judge Paez has established a result-oriented voting record for himself since his confirmation, culminating in voting for this embarrassing opinion now annulled and which the rest of this "moderate" en banc panel is supposedly going to reverse. But the rest of the Clinton crowd on the Ninth Circuit is no more "moderate" than Judge Paez is, the media is no more accurate in describing them or him as "moderate," and eight of the eleven members of the en banc panel were appointed by Clinton or Carter.

So, what should one expect of the en banc Ninth Circuit?

It is possible that the Ninth Circuit will completely reverse the three-judge panel and let the recall go forward (most en banc reviews seem to go that way). But if this happens it will not be because the en banc panel is "conservative." Rather, the three-judge panel decision is simply indefensible. Just for openers, it willfully misconstrues Bush v. Gore - whose applicability as support for abolishing the October date is not even worth serious discussion - although it has been given far more of that than it deserves. Worse, such reliance on Bush v. Gore is not just wrong, but appears to be motivated by the desire of this Ninth Circuit three-judge panel to "stick" Bush v. Gore back to the Supreme Court and the supporters of its opinion - which all but guarantees reversal. The three-judge panel was not only incompetent, it was emotionally and legally incontinent: the judges just could not restrain themselves from what they see as the sheer irony of using Bush v. Gore in these circumstances. These three Ninth Circuit judges share that incontinence with Laurence Tribe, who could not even restrain himself in his Wall Street Journal Op-Ed from contemptuously referring to the Ninth Circuit "simply honoring the principle--a principle much older and more deeply rooted than its purported application in Bush v. Gore."

But to reverse the three-judge panel, the en banc court must not only find that the panel's opinion is wrong (that much is easy), the en banc court must find that the law runs in favor of the October recall date. In other words, the en banc court must not come up with its own reasons for condemning the October date.

And it is here where things may get really messy. I have noted before that Bush v. Gore is not the best precedent supporting the rejection of the October date. The en banc court could eschew reliance on that case, and purport to base a new opinion on other precedent and as many narrow facts as possible - that would help to deter the Supreme Court from intervening. Then a remedy returning the whole thing to the district court for messy fact finding could be crafted. And at the end of the process, the Ninth Circuit could continue to deny millions of Californians the right to vote to recall their governor in the name of protecting "democracy."

That's all part of what it means to be skilled in concealing one's partisanship in judicial doublespeak.

UPDATE: The Wall Street Journal has this Ninth Circuit hit parade:

Its greatest hits include a ban on the Pledge of Allegiance, and a ruling by a three-judge panel that prisoners had a right to procreate, ordering a penitentiary to let an inmate ship his sperm to his wife. (The en banc court later reversed.) In 2000, a panel ruled that homophobia was grounds for political asylum by granting asylum to a Mexican cross-dresser. In 1999 the court upheld medical marijuana clubs in a decision later reversed by the Supreme Court.

Then there's California's Three Strikes law, upheld by the U.S. Supreme Court. Judge Harry Pregerson -- one of the three judges on last week's recall panel -- has refused to go along, saying he has to follow his "conscience." .... Last term the Supreme Court reversed 75% of the Ninth Circuit cases it took, a record that has held steady for about a decade. Three rulings were unanimous -- including one in which the Ninth Circuit had declared that the Oakland Housing Authority had no right to evict tenants whose relatives had committed crimes on housing authority property.

But this is a "moderate" circuit. Much more "moderate" since President Clinton fixed it. So much more "moderate." So comfortably - yawn - "moderate." So "Mmmm-mmm-moderate."

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