Antonin Scalia continues to tell people to “get over” the disgraceful decision in Bush v. Gore. As he must know, that won’t happen. Since he continues to do things like say that the equal protection rationale was “7-2,” it’s worth repeating exactly why the decision was so problematic.
The problem is not that the decision was “political” in the sense that “many constitutional provisions have multiple plausible interpretations when in comes to any interesting case, and justices are likely to choose the plausible interpretation that is consistent with their political values.” That’s something you have to accept as long as you have judicial review. Admittedly, one would like at least some measure of internal consistency, so Scalia — who previously thought that William Rehnquist construed the equal protection clause too broadly — suddenly embracing an innovative equal protection analysis that (if taken seriously) would have very broad implications merits considerable criticism. But since the unprecedented equal protection claim wasn’t actually inconsistent with the text of the Constitution, that’s not the biggest problem. If they were willing to apply that principle in a coherent manner, one could live with the result no matter how opportunistic the sudden embrace of William Douglas’s way of reading of the 14th Amendment was.
The bigger problem is that (and Scalia has been particularly vocal about this) that judges are supposed to actually apply principles to similar cases, not abandon and then abandon resolutions to favor particular litigants. Bush v. Gore, of course, did the latter, in a way that wasn’t so much “minimalist” as not constitutional law at all. And even worse than that, it failed to apply the alleged equal protection principle coherently with respect to the case itself. If the vote dilution that comes from arbitrary differences in vote count methods violates the federal Constitution, then not only to many states have to change their vote counting and recount statutes, the vote count that elected Bush also violated the Constitution. To the extent that the equal protection analysis meant anything at all, the remedy absolutely could not be “shutting down vote counts and accepting a vote count and recount that did not use anything resembling uniform standards and hence diluted the votes of some classes of individuals”–but that’s exactly what the Court did. And that’s what makes the Court’s actions political in the pejorative sense, and also entirely indefensible.
And that’s not the only problem with lawlessness. It’s also worth noting, for example, that the Florida court’s “recount scheme” lacked uniform standards in part because the Supreme Court of the United States told them not to use them. As Kim Scheppele has demonstrated in detail, creating these kinds of Catch-22s is not consistent with the rule of law. Long after Bush has left office, Bush v. Gore will continue to be a disgrace for Scalia and his four colleagues because they violated their obligations in the most fundamental way.
…in the Sean Bell case (Bell, who was unaramed, was killed and two of his also unarmed friends wounded after 50 shots were fired by officers in Jamaica, Queens.) And the acquittal was on all charges. Disturbing, to put it mildly.
…as ogged points out (I missed it), the linked post says that “three people” were killed. To reiterate, this is inaccurate: only Bell was killed, although two of his friends were wounded.
The control panel made a beep, and White waited a moment, expecting a voice to offer information or instructions. None came. He pressed the intercom button, but there was no response. He hit it again, and then began pacing around the elevator. After a time, he pressed the emergency button, setting off an alarm bell, mounted on the roof of the elevator car, but he could tell that its range was limited. Still, he rang it a few more times and eventually pulled the button out, so that the alarm was continuous. Some time passed, although he was not sure how much, because he had no watch or cell phone. He occupied himself with thoughts of remaining calm and decided that he’d better not do anything drastic, because, whatever the malfunction, he thought it unwise to jostle the car, and because he wanted to be (as he thought, chuckling to himself) a model trapped employee. He hoped, once someone came to get him, to appear calm and collected. He did not want to be scolded for endangering himself or harming company property. Nor did he want to be caught smoking, should the doors suddenly open, so he didn’t touch his cigarettes. He still had three, plus two Rolaids, which he worried might dehydrate him, so he left them alone. As the emergency bell rang and rang, he began to fear that it might somehow—electricity? friction? heat?—start a fire. Recently, there had been a small fire in the building, rendering the elevators unusable. The Business Week staff had walked down forty-three stories. He also began hearing unlikely oscillations in the ringing: aural hallucinations. Before long, he began to contemplate death.
He was released 41 hours later. The story doesn’t have a particularly happy ending, though. Here’s the video:
Blech. I start pacing in the thirty seconds it takes to get from the ground to my floor…
Walter Shapiro asks “Whose fault is the Clinton-Obama stalemate?” The article then more or less argues that although Clinton’s campaign has been egregiously incompetent, Obama’s campaign has also had a significant share of “substantial misadventures.” But shouldn’t we consider the possibility that the race has reached a quasi-equilibrium with Obama in a relatively narrow but decisive lead because both of the candidates are really, really impressive? That the core supporters of both aren’t moving because they, I dunno, really like their preferred candidate? Doesn’t this seem considerably more likely?
This is especially true since the examples Shaprio offers are either trivial (anyone want to make a case that the race would be significantly different if Clinton kept the same slogan?) or projection (I certainly think it’s outrageous to push to try to seat delegates based on a straw poll with one major candidate on the ballot, but I’d love to see evidence that this has been a factor for a significant number of actual primary voters.) Even the one really consequential Clinton blunder that Shapiro identifies — allowing Obama to run the table in the February caucuses with nearly token opposition — was the outgrowth of a strategy that was reasonable (invest resources to end it on Super Tuesday) that just didn’t work out.
I know we’re trained to be cynical, but at some point you have to consider the possibility that the race has gone on because the Democrats have two broadly ideologically similar candidates with, in different ways, formidable political skills. All campaigns make mistakes, but that’s the key dynamic here; the race wouldn’t be close for so long if both candidates didn’t have a lot of strongly committed supporters.
So let’s go ahead and drop this into the “Colbert is Making Sense” file:
Friends and colleagues of an animal trainer killed by a performing bear called it a “freak accident” Wednesday and said the 700-pound grizzly should not be put to death. The animal, they said, did not intend to kill the bear expert.
“The same thing he was doing I have done a hundred times. We wrestle the bears in a loving way,” said Joel Almquist, an animal trainer who has worked extensively with Rocky, the 5-year-old grizzly who killed 39-year-old Stephan Miller on Tuesday with a single bite to the neck.
“This bear has never shown aggression,” Almquist said. “It was a flash bite, a real quick . . . bam. Unfortunately, we are built like tissue paper compared to them.”
Not to be unkind to the recently departed, but I’d have to assume that a genuine “bear expert” would probably not be — you know — wrestling a grizzly bear “in a loving way” (to say nothing of the other possible motives). But since the entire project of western civilization depends to some degree on mastering the beasts and recruiting them to do stupid shit for our amusement, the sacrifice of Stephan Miller will not go unacknowledged. Without the totally persuasive performance of Bart the Bear, for example, The Edge would not have been anywhere near worth the dollar I paid to see it.
The only thing getting me to actually buckle down and study for my last-ever round of exams is the anticipation of my post-exam long weekend in Puerto Rico.
And for that, dear LGMers, I need your help. Has any of you every been to Old San Juan and stayed at a hotel in the old city? If so, and if you would recommend the place, please let me know in comments (though if it was the Ritz Carlton, you can skip it. Law student, remember?).
“I am all in favor of pay equity for women, but this kind of legislation, as is typical of what’s being proposed by my friends on the other side of the aisle, opens us up to lawsuits for all kinds of problems,” the expected GOP presidential nominee told reporters. “This is government playing a much, much greater role in the business of a private enterprise system.”
In other words, McCain favors women’s rights…as long as they can’t actually sue to enforce them. People who, affected by the bitterness of the primary, are tempted to think that the parties are indistinguishable may want to consider the votes in both the Senate and on the Supreme Court.
Does it look to anyone else as if Eli is smoking a joint? One of the interesting things about Bloggingheads is that the discussants can’t actually see one another; it’s just a videotaped phone call. One participant could literally break out the bong and go to town while the other is discussing health policy. I don’t know if that’s ever happened…
Equal pay is a fantastic idea, so long as it’s secured through the intervention of winged ponies or the sowing of magic beans.
Future equal rights mavericism will include denunciations of the Bill of Rights as a gift to trial lawyers.
I’d be tempted to argue that this is the sort of thing that has the unfortunate potential to become a serious campaign issue this fall. Sensible American women, however, can count on George Stephanopolous to remind them that Barack Obama sometimes walked around without a tiny flag on his lapel.
But, rather than be content with calling out a math error, Markos has to up the ante audacious to demand we “count the count the Michigan “uncommitted” votes for Obama”. Ah, well, John Edwards was still in the race at the time and was surely in the same boat, having also pulled his name off the ballot in Michigan. At least Markos isn’t calling for Texans that caucused to have their votes counted twice, or that Puerto Rico votes won’t count… yet.
No one but Obama is to blame for his having no votes in Michigan. His campaign came up with the gambit to take his name off the ballot in MI to score cheap points in IA, and his campaign took the lead in convincing Edwards and Richardson to follow along and remove their names from the MI ballot to try and force Clinton to follow suit (my sources are from top people in the Edwards campaign). it didn’t work, Clinton took the hit of the political stunt and kept her name on the ballot in Michigan.
Here’s the thing; however you construct the “popular vote” it certainly has no binding legal force. To the extent it matters at all, it’s a moral argument; the superdelegates, the theory goes, should vote for the candidate who receives the most votes, as the distribution of pledged delegates has anti-democratic elements. Scott has critiqued this argument (pointing out that the structure of the competition affects strategy, and thus that if the candidates had known that the artificial construction called the “popular vote” would be important, they would have campaigned differently) but, frankly, the superdelegates can use whatever measure they want to decide between the candidates. For the reasons Scott suggests, and because there are several different popular vote counts, I think that assessing the race on popular vote is pretty stupid, but whatever.
The point, though is that in making what is essentially a moral rather than a procedural argument, you can’t invoke a procedural decision in order to exclude some substantial number of votes. Note that this isn’t such a problem with the pledged delegate total; the pledged delegate number is procedurally meaningful, and as such the various procedural rules and decisions associated with its tabulation matter. But Jerome here is, essentially, making the moral argument that Clinton should get the nod because she’s more popular, which requires pretending that no one in Detroit, for crying out loud, would prefer Obama to Clinton.
For my own part I continue to think that both the Florida and Michigan contests were shams, and should be treated as such. I don’t really want to revisit that argument, but it’s tangential to this point in any case; when making a moral argument, it’s absurd to resort to procedural shuffling in order to make your case. Another way of putting this is that I can see why people who work for Hillary Clinton would make this case, but just because they’re going to make the case doesn’t mean we have to believe it (note that I’m not claiming Jerome is on the Clinton payroll; I think he’s a bad analyst, but that’s not the same as being bought and paid for).
Rodger at the Duck has some thoughts about the Pennsylvania primary:
Pennsylvania [in 1980] didn’t stop the inevitability of front-runner Reagan capturing the Republican nomination. Like Reagan, Obama has sometimes won the delegate count even when he lost the popular vote: Nevada and Texas may be joined by PA.
Pennsylvania was an unfortunate speedbump for the frontrunner, but it did not seriously slow the campaign. Will 2008 be like 1980?
I suspect so, but I also suspect the comparisons end there. We shouldn’t forget that Ted Kennedy wound up defeating Carter that same day, as well as in several subsequent primaries before trying to have Carter’s delegates released at the party’s convention in New York. Making matters worse, of course, was that in the general election Reagan had the luxury of facing a candidate who actually was (as Rodger puts it) an “unpopular president brought down by economic insecurity and foreign policy disaster” — instead of a candidate whom the corporate media are bound to portray fallaciously as an intra-party alternative to the least popular president in modern American history. It’s beside the point that McCain won’t actually be offering much of an alternative on significant issues like the Iraq war or the Bush economy; the dominant narrative in the general election will center on what kind of “fresh start” voters will be seeking.
Meantime, I’ve decided the campaign will be a rousing success so long as it doesn’t resemble my favorite campaign in North American political history, the 1838 run for the presidency of Texas. In late June of that year, James Collinsworth — one of the republic’s founders who had served (simultaneously) as Secretary of State, as Supreme Court Justice, as Attorney General and as Senator — ended a week-long bender by jumping into Galveston Bay. Two days earlier, his friend Peter William Grayson — also a candidate for the republic’s highest office — had killed himself in Tennessee after a woman humiliated him by deflecting his marriage proposal. Running a campaign that was suddenly unopposed, Mirabeau Lamar predictably coasted to victory. Though Lamar would go on to die of natural causes two decades later, his brother Lucius — a judge in Georgia’s superior court, had killed himself on Independence Day 1834 after realizing he’d condemned an innocent man to die.
Anything short of that, and I’ll be pleasantly surprised.