Seneca Doane - radical lawyer and middle-road liberal

First things first

I'm Greg Diamond, and this blog contains my political and legal commentary (as well as that of others, on occasion.) I have a separate blog for personal material, comments on arts, science, and culture, and whatever else occurs to me; I encourage you to visit. A third blog will contain humorous writing, if and when I get around to it. I think that this means my plans for the rest of my life are now set.

Will all the posts here be as long as the next few?

No. But some will; perhaps even most. Many blogs tend to present commentary that can be packaged in 100-word soundbites; most of my thoughts on issues lend themselves to somewhat longer essays. If you don't have time for something, skip it!

And yes, actually I do have to be so goddamned earnest.

A general introduction -- hell, maybe even a creed

For reasons explained here, I'm swimming against the tide of custom in the blogosphere and have set up this blog to display posts in "ascending order." That means that the newest entries are at the bottom. If you want to read them you can either scroll down there or use the calendar to your left or the list of recent posts to your right to reach them.

As discussed here, while I would prefer to say things that are novel and to get all of my facts right, I'm treating this blog as a recreation rather than a vocation. That means that -- contrary to what I would do if I were writing an academic article -- I'm not going to try to make sure that no one has made the same point as I have and will not spend much time ensuring that every single fact is entirely correct.

If I end up repeating what someone else has said, that's fine -- some things need to be said over and over, after all. If I am unaware of pre-existing debate about an issue that should have shaped my thinking, that's fine -- there's nothing like displaying that ignorance to prompt someone to cure it. While I do have a responsibility to avoid libel here (and I plan to honor it), if I get facts wrong, either from sloppiness or reliance on other sources without independently checking, that's -- well, perhaps not fine, exactly, but I'm going to treat is as forgivable. I hope to be corrected, and will make factual corrections as they are discovered or reported. (And please do report them. Ditto with errors of spelling and grammar.)

While I can edit a post after the fact to make a prediction more accurate or delete what turned out to be a stupid opinion -- for example, here I am, apparently days before the event, predicting that Hurricane Isabel will come ashore on North Carolina's Outer banks and travel through Virginia, West Virginia, and western Pennsylvania! -- I hope not to change comments once written. As regards the substance of my comments, I prefer to treat it as if it was published in print and let it stand as it was initially written. I wish that more political blogs would follow that same policy. Occasionally I'll add comments or clarfications to a post such as this one when they occur.

It seems sort of stilted and strange to make pledges like that in an informal blog with a present readership of right around zero, but I think it's worth bending the twig in the right direction, just in case it does someday turn into a tree.

Placeholder for more introductory material

Nothing here to see! Move along, now!

What I hate about political blogs

Let the bloodbath begin! Dan Savage, who as "Tom Tomorrow" draws the "This Modern World" cartoon (here are the archives of his work in Salon) and produces the TMW blog, is one inspiration for me to start blogging. Another inspiration is Mickey Kaus, though here “inspiration” means something more like “goad.” Kaus – son the great liberal California Supreme Court Justice Otto Kaus, who, in a recent Los Angeles Magazine article (no longer available on line) Kaus says referred to him as his “fascist son” – parleyed his personal friendships and unbridled willingness to go for the jugular into a gig as Slate’s in-house blogger.

Wait, I think I can give you a better sense of how Kaus writes than that. Try this:

Kaus says that his dad, a onetime California Supreme Court Justice, described him as his “fascist son.” What a cute, heartwarming family story! We’re supposed to figure out, I guess, that this was an affectionate gibe. But, where’s the evidence, Mickey? The best way to get people to believe something is to have them generate their own reasons why it must be true, right? So, to get readers to believe that this was just affectionate gibing, use a nice soft-sell! Is Mickey secretly taking delight in the notion that what -- for all we know -- was his father’s heartfelt warning to the world -- “Beware! Beware, world, of my demon-spawn son! He’s Satan's, not really miiiiiiiiine!” -- is actually being used to innoculate us against the idea that Mickey really is, in fact, a brownshirt?

Is it too much to ask Mickey for just a little clarification, a little pro forma denial for the record, just so after the putsch he won’t he able to gaze out at us from the TV screen from his stool at Emperor DeLay’s left knee and say “What’s wrong with you people? I told you what my dad said about me!” [Ed.: Look, you don’t actually believe that Mickey Kaus is a fascist, do you? Wouldn’t he look less, well, slovenly? I’m not claiming anything, just asking a few questions! But just to be safe, wouldn’t it be smart to send someone out to Justice Kaus’s grave with a stethoscope, just to see if they can pick up a sound his corpse spinning?]

Ahem: for the record, I don’t believe that Mickey Kaus is a fascist – but I do believe that he is an extremely effective polemicist with no compunction against heading straight over the top with his innuendo-packed commentary, as the above paragraph is supposed to lampoon, and that he picks his side before picking what facts to report, and with what shading. While I usually disagree with him, I enjoy reading his blog and I have to admire his craft -- even though, like hog butchery and pole dancing, character assassination is not a craft that I would personally want to master. But at least he’s funny about it. (More on Kaus in my non-introductory entries, which I promise are on their way!)

For now, all I want to note about Kaus is how he creates an effective “Potemkin Village” in his blog. It's a carnival atmosphere where he and those who he says can think straight beat up on the weak and foolish. Of course, his targets are made to seem weak and foolish because of the selective citation of information and the fact that no one is there in the blog to point out where Kaus is being unfair, let alone entirely full of crap. In that sort of environment -- the blogging equivalent of the "echo chamber" of right-wing AM talk radio -- the easiest course for the reader is to give in to him. After all, who wants to side with the weak and foolish, and -- looking around the blog -- I don't see anyone here defending them! By creating this fake community of like-minded individuals, he induces you to be on his side not so much because it is good as because it is strong. Of course, the strength is only apparent -- he is, to my knowledge, the only one writing on his blog (using the fake comments of an editor to innoculate against doubt and drive home his points, a technique I’ve ripped off above) -- and in his little Potemkin world, he can make himself seem to be the unassailable voice of reason. You wouldn’t know how full of crap he may be unless you look to other sources -- most of which aren’t featured daily on Slate.

I’m not interested in creating a Potemkin Village; nor am I interested in creating a site for debate. (The Web has plenty of those, and they’re mostly miserable places. The demographics of the Web, and particularly of those who have the free time to spend time blogging and the willingness to endure violent and vicious debate, don’t match those of the public generally.) While the blogosphere is a great medium for polemical hacks (and flacks) to prosper, that doesn't mean that every blog has to be one. So, except when I give into the impulse -- and, to be fair, sometimes it's irresistable -- I'll try to spare the polemics. Your comments are welcome, whether you agree with anything said here or not. I may respond to some comments; usually, though, I suspect I won’t. If you’re being a jerk in commenting – which does not mean mere disagreement, but disagreeableness – your comments may be excised. If jerks want to spend hours writing things it will take me seconds to delete, I don’t feel too bad about it.

Because I find debate more interesting than polemics, I've created two personae for this blog. Because my own political beliefs vary from issue to issue (and sometimes from moment to moment) between radical left and almost middle of the road, I will let those personae debate (and challenge each other on) issues here where it seems appropriate. Sometimes I may personally agree with one, sometimes the other, sometimes my true views, if I have any, will be suspended between them. Where a persona doesn't represent my own views, it will generally represent a distillation of opinions from people in my life whose ideas I think are worth listening to, even when we disagree. And, occasionally, I may hand over the reins for a post in one of their names altogether.

So, don't assume that I am, or am not, playing devil's advocate in any particular post. Sometimes even I may not know.

A note on the little courtesies

I think I can use the immediately preceding post to clarify my attitude on what facts I will and will not generally check in advance: I did take the time to verify that Justice Otto Kaus was in fact dead before writing the above kausfiles parody. Actually, it wouldn't have been defamatory even if he were not dead (nothing defamatory about being dead, after all; lots of wonderful people are dead), but that's the sort of fact that I will endeavor to check as a courtesy. Whether Mickey Kaus did get his slot on Slate by virtue of his friendship with Michael Kinsley is the sort of thing I will not check. It's not that nasty a charge even if true (after all, I'm not saying Kaus isn't talented), and exactly how he got his forum is a bit shrouded and subjective anyway. For the record I believe I read in Slate either when the original "chatterbox" column (now written by the far preferable Tim Noah) was introduced, or when kausfiles moved to Slate, that the personal Kinsley-Kaus bond was a big factor in the decision. I don't feel the need to verify it, since it's likely that such a personal contact did contribute given the way that Things Are Done in the political world. If Kinsley did actually hold open auditions, I'm surprised. And pleased. And horrified at the result in this case.

Anyway, the cure to that sort of free speech on my part should be more speech, and I'm happy to publish corrections as they are offered.

Who are this guy?

While I have other blogging personae, such as my real self and my surreal self, on this blog I'll write under two names, to represent the competing poles of my political beliefs. Sometimes they will debate in print. I know it sounds masturbatory, but trust me, it works.

SENECA DOANE: Seneca is the main voice on this blog. He's an altogether admirable second-tier character -- "the radical lawyer" -- in the wonderful, still-read-but-still-underrated 1923 satirical novel Babbitt, by Sinclair Lewis (which in my opinion is the first true stylistic and thematic ancestor of my favorite novel, Joseph Heller's Catch-22), who is dedicated to social justice. He will represent the voice of the civil libertarian Left here -- and will generally, but not always, speak for my real beliefs. He'll also comment on law, which seems hard to separate from politics.

KASHA VARNISHKES: Kasha is not, in fact, a literary character at all -- he's a Russian Jewish peasant dish of buckwheat groats (kasha) and bowtie pasta. (Why bow-tie pasta? I have no idea, but that's what "varnishkes" are.) I've used this as a pen name from time to time for decades, mostly because I like its absurdity and Eastern European sound, and will now employ Kasha to speak for more moderate-to-even-conservative sentiments -- sometimes mine, more often those of those around me.

GREG DIAMOND: All of these fictional characters need at least one real-life character person to type in their thoughts and pay the bill for the account; that would be me. I explain myself here.

Yes, yes -- but why Seneca Doane?

I like the character. But I don't like him simply because he, like me, is a left-wing lawyer at a time of rising reaction. I like him because, even though he is a minor character, Sinclair Lewis renders his political posture nuanced and complex.

Seneca, a "radical lawyer" and unsuccessful mayoral candidate, is roundly villified by the bourgeois heroes of Zenith, Ohio for his activism on behalf of women, racial minorities, workers, the poor, etc., and generally for getting in the way of their "boosting" their city and their own business prospects. But he's hardly one-dimensional: he's deeply ambivalent about his city (and his country) without being dismissive of it -- a patriot despite his reservations. The passage in the book that made me fall for his character, and that I think rings as true today as in 1920, when it is set (and to which our present Warren Harding-like President would evidently like us to return), is as follows:

At that moment, Seneca Doane, the radical lawyer, and Dr. Kurt Yavitch, the histologist (whose report on the destruction of epithelial cells under radium had made the name of Zenith known in Munich, Prague, and Rome), were talking in Doane's library.

"Zenith's a city with gigantic power -- gigantic buildings, gigantic machines, gigantic transportation," meditated Doane.

"I hate your city. It has standardized all the beauty out of life. It is one big railroad station -- with all the people taking tickets to the best cemetaries," Dr. Yavitch said placidly.

Doane roused. "I'm hanged if it is! You make me sick, Kurt, with your perpetual whine about 'standardization.' Don't you suppose any other nation is 'standardized'? Is anything more standardized than England, with every house that can afford it having the same muffins at the same tea hour, and every retired general going to exactly the same evensong at the same gray stone church with a square tower, and every golfing prig in Harris tweeds saying 'Right you are!' to every other prosperous ass? Yet I love England. And for standardization -- just look at the sidewalk cafes in France and the love-making in Italy!

"Standardization is excellent, per se. When I buy an Ingersoll watch or a Ford, I get a better tool for less money, and I know precisely what I'm getting, and that leaves me more time and energy to be an individual in. And -- I remember once in London I saw a picture of an American suburb, in a toothpaste ad on the back of the Saturday Evening Post -- an elm-lined snowy street of these new houses, Georgian some of 'em, or with low raking roofs and -- The kind of street you'd find here in Zenith, say in Floral Heights. Open. Trees. Grass. And I was homesick! There's no other country in the world that has such pleasant houses. And I don't care if they are standardized. It's a corking standard!

"No, what I fight in Zenith is standardization of thought, and, of course, the traditions of competition. The real villains of the piece are the clean, kind, industrious Family Men who use every known brand of trickery and cruelty to insure the prosperity of their cubs. The worst thing about these fellows is that they're so good and, in their work at least, so intelligent. You can't hate them properly, and yet their standardized minds are the enemy.

"Then this boosting -- Sneakingly I have a notion that Zenith is a better place to live than Manchester or Glasgow or Lyons or Berlin or Turin ---"

"It is not, and I have lift in most of them," murmured Dr. Yavitch.

"Well, matter of taste. Personally, I prefer a city with a future so unknown that it excites my imagination. But what I particularly want ---"

"You," said Dr. Yavitch, "are a middle-road liberal, and you haven't the slightest idea what you want. I, being a revolutionist, know exactly what I want -- and what I want now is a drink."

What a lovely takedown Lewis places at the end of Seneca's stirring speech; a takedown of, from what I know of Lewis's own biography, the character with views closest to his own. Seneca Doane represents the furthest shores of possible thought to the burghers of Zenith; Dr. Yavitch does not even register. But there is something I love about the notion that "the radical lawyer" from society's perspective is "a middle-road liberal" from the perspective of the "revolutionist" -- both descriptions perhaps being correct -- and hence the title and subtitle of this blog. I don't know that I agree with all of Seneca's views, but I know a kindred spirit when I see one.

Is that the end of the introductory material?

Yes.

Thank God -- I thought I was going to pass out

Don't start up with me.

Recall-ibrating after Southwest Voter, Part I

That the Ninth Circuit would issue an opinion in Southwest Voter Registration Education Project v. Shelley delaying the California Recall election -- and despite having just ended a clerkship last month with one of the circuit's most (and best) liberal judges, I have no inside information on this case or I would not be writing about it here -- seemed like a foregone conclusion once the liberal panel was chosen. This is not because the panel of Harry Pregerson, Sidney Thomas, and Richard Paez was "results-oriented," but because -- unlike District Court Judge Stephen V. Wilson -- it would not flinch from enforcing the law, even at the price of inviting derision from a public whipped up by demogoguing pundits.

The legal considerations are clearly laid out in the panel's decision. One of the most important ones is the standard for granting a preliminary injunction. Under Johnson v. California State Board of Accountancy (page 14 of the slip opinion linked to above), a preliminary injunction can be granted either if there's a reasonable probability of winning the case that would follow on the merits and a possibility of irreparable injury, or a possibility of winning on the merits and a high probability of serious irreparable injury. You don't have to show a high probability of winning a case that and that you face a high probability of a serious injury; one factor must be large, the other may be much smaller. Here, as even the district judge noted, the probability of serious injury -- not having one's vote counted under the present system, is essentially a certainty. The hurdle to be cleared as far as being likely to win the case is not particularly high. To conclude that the plaintiffs could not meet that standard, under the circumstances, is not defensible -- or, as lawyer's say, an abuse of discretion on the part of the district judge. If whatever other analysis you read doesn't mention the preliminary injunction standard, and instead asks only whether there was a strong likelihood the plaintiffs would win their case, they've missed something basic given the high probability of harm.

That this is a Voting Rights Act case makes it a no-brainer. Not only are voters going to have a high number of votes disqualified, but it's going to happen mostly in areas of the state with disproportionate amounts of minority voters. Especially given that the punch card voting system has already been declared hopelessly defective by California's Secretary of State, there is no way that the court can ignore that and say that the defective system (which leads to more disqualified votes) can be used in disproportionately minority counties while the improved system can be used elsewhere. The state Constitutional's timing requirements for the recall election can't trump federal law.

Somehow I think that if Democrats cooked up a scheme requiring that -- for the election to be held in October rather than March -- a large swath of conservative suburban voters had to vote at precincts in the poorest, most dangerous inner-city neighborhoods with no absentee balloting allowed, Republicans would (rightly) argue that the promptness of the election could not trump taking away people's right to vote. And in that situation, the suburban voters would still have the right to vote, they would just be less likely to exercise it. Here, a disproportionate vulnerability to technological failure would take away the right to vote of people who were trying to exercise their franchise. Society may have trouble stopping the subtle ways in which minority voting is discouraged, but it shouldn't have trouble eliminating the obvious ones that are easily fixed. This is one such case.

Recall-ibrating after Southwest Voter, Part II

My prediction before today -- though I didn't have the blog up until now, so I can't prove it -- was the one of the first things out of Mickey Kaus's fingertips would be that a decision delaying the Recall vote until March would backfire, and give the Republicans a victory that they may well not have been able to achieve in October. The logic behind such a claim would be no more tortured than many of Kaus's arguments -- the Democratic nominee will probably be settled before then (who knows?), and so while Democrats will stay at home, Republicans will come out in droves to fight the ballot measure that would make it easier for the Legislature to raise taxes (makes sense!) -- but the payoff for him would be extraordinary if it actually happened: he'd be able to claim that the Democratic Party's attempt to manipulate the system (which this was not) had blown up in its face -- nothing cheers up a pundit like a chance to argue that the machinations of one's opponents perversely undoes them. So, I was surprised that he didn't make the argument in his Sept. 15 entry -- I suppose that means that the Republicans' goose really is cooked -- but I suspect that soon enough, whether this week or next February, he will.

(By the way, how stupid is Peter Ueberroth? This was a foreseeable result, and another foreseeable result is that the Schwarzenegger campaign is going to explode under press scrutiny before Valentine's Day. That would have been the perfect time for a moderate Republican to step back into the race. Or maybe the question is how smart is Peter Ueberroth? By stepping out now for the good of the party, he's earned the love of the Schwarzenegger camp and solidified his position as the person on the ballot (hi, Darrell Issa!) who can step back in and avoid the GOP swirling down the drain with Tom McCormick.)

Anyway, back to Kaus. Here's a summary of his responses to this crisis:

(1) Why not just use paper ballots everywhere on October 7? [This proposal contains no cost estimate. Perhaps cost is no object when one wants to get the result one wants while the getting is good.]

(2) A gratuitous slam on the "condescending, museum-quality paleoliberal mindset" of Judge Harry Pregerson for asking whether the failures of a slapped-together poll-worker education program to combat the threat of disqualified ballots might fall disproportionately on minority candidates (or voters, or poll workers; as Kaus trumpets, Pregerson's extemporaneous reference is not clear.) Pregerson's offense -- so far as it is recognizable from Kaus's recap -- was to joke that officials working in minority neighborhoods work harder than those in majority ones, while making the serious point that poll workers may therefore benefit less from such training and be less able to apply it. Why is this frivolous? Would it be reasonable to wonder whether, say, emergency room staffs in inner-city hospitals work harder than those in wealthy suburbs? The same problems -- disproportionately less social resources directed towards poor areas, and a served population that is in greater need -- would apply to both emergency rooms and polling stations.

(3) Kaus says that while punch card ballots have problems, so do the new voting systems, and is aghast when Rick Hazen says that that's a problem that may be litigated in the future. Great, Kaus pretends to fulminate, now they'll cancel the March election too! What Kaus either does not or pretends not to understand is that (a) the "evidence" of problems with these new systems can't be considered by the court if it's not part of the trial (I don't know that it wasn't, but I doubt it), (b) a system with fewer problems may be constitutionally preferred over one with more problems even if neither is perfect, (c) to address that problem at all, the issue would have to be ripe, and there is no indication that such a case can be brought because no one has yet been harmed, and -- what must bother him most -- (d) the question is not just whether some ballots aren't counted due to problems, but whether those problems disproportionately affect minorities. (What if there are voting problems that disproportionately hurt whites? Well, they should be addressed, under the Constitution even if not under the Voting Rights Act, but for some odd reason those problems never seem to crop up.) Whites have a long history of trying to disenfranchise minorities -- that's why we have the Twenty-fourth Amendment and the Voting Rights Act, for starters -- and that's why the effect of voting systems on minorities has to be considered by law. Even if it really galls Mickey Kaus.

(4) Kaus's lambasting of consent decrees and the ACLU's "seeming acceptance" of the use of punch card ballots between now and March -- huh? -- needs some elaboration. But the basic question he asks is why could we go ahead with the 2002 election, using paper ballots, but not this one. One answer is that this is going to be one of the most confusing elections in national history, as Rick Hazen notes; another is that -- unlike the 2002 election, there is a ready alternative here. Appellees' interests are just not hurt that badly by this delay. While I won't argue the question here of whether they can legally apply recall procedures to someone they don't like, versus someone who has misbehaved, if they really feel that Davis has misbehaved they can push for his impeachment and removal from office, maybe even before March. Of course, that would leave Bustamante as Governor, which seems to be the real problem. (If Davis actually were corrupt, instead of just disliked, this would have been the proper procedure.)

(5) Kaus urges the Supreme Court not to step in because they don't want to seem partisan -- when, in fact, they shouldn't step in because the panel's decision is obviously correct -- but would like to see the Ninth Circuit take the case en banc. Perhaps certain expedited procedures apply that could get the decision heard and reversed en banc almost immediately (as would be necessary to make the October 7 date) -- I don't have Circuit Rule 35 memorized, and know of no other circuit rule would do the trick -- but I don't remember seeing it. This seems like sort of a desperate argument.

(6) Kaus minimizes how many more ballots are lost through punch cards than other means -- a measly 1.34%. That's about 1 in 75. Let's put the shoe on the other foot: would Kaus be willing to see 1 in every 75 of the ballots in the most conservative counties in the state randomly selected for destruction in the next election? 1 in 75 of 44% of California is a lot of votes.

(7) Finally, Kaus holds out hope that the vote will be postponed, but not all the way until March -- doing his damndest to make sure that the flood of primary voters won't intrude on his election. But, alas for him, even if there would be a state interest in a speedy recall election in the absence of an upcoming state election, the fact that the recall provision lumps the recall in with the next state election if it is within 180 days of certification suggests that this state need is not overriding. The political need is overriding, perhaps, but that's not what the courts call a "cognizable interest."

Kaus also introduces the reader to the arguments of both pro-delay amicus voting law expert Rick Hazen and -- well, I'm not sure what to call her after reading her article -- Debra Saunders. Here's what Saunders has to say:

(8) Saunders says that "the ACLU has set out to destroy an election in order to save voting rights." She does not explain why delaying the election until the equal protection requirements set out by the Supreme Court in Bush v. Gore "destroys" it. She does say that Gray Davis believes that by March the recall effort may have run out of steam. That may (or may not) be so, but even if the plaintiffs wanted to delay the election for partisan reasons, the fact that the election would violate the law gives them that right.

(9) Saunders characterizes the ACLU's belief with these scare quotes: "minorities experience a higher level of voting irregularities than non-minorities when using punch-card systems, the recall election would 'discriminate against minority voters.'" I don't know that the argument has been made that minorities are less adept at using punch card ballots than whites; in any event, this is a different argument that the one on which the case hinged, which is that everyone is worse off when they use punch-card ballots and minorities are disproprortionately consigned to using them. If that's true, can we take "discriminate against minority voters" out of scare quotes now?

(10) Saunders says that the "9th Circuit Court is known for its blatant disregard for legal niceties when it comes to decisions that grate against the court's rarefied politics." For the most part, this isn't an argument so can't be refuted. But I wonder what Saunders thinks "rarefied" means. (Hint: "esoteric.")

(11) The ACLU was challenged as to why it didn't challenge the November 2002 election using punch cards -- which, Saunders sneers, "Davis says he won 'fair and square -- with 47 percent of the vote." (Is there a scandal about winning with a plurality that I don't know about? Does the President know about this?) She continues, "The ACLU brief explains that it couldn't sue to stall last November's election because a court victory 'would give rise to a full-fledged constitutional crisis.' Well, the same logic applies for a recall."

Of course, it doesn't. At all. Cancelling a general election would create several crises -- who continues as Governor? who goes off to Congress? -- in a way that delaying a recall election for five months simply does not. Beyond that, the ACLU successfully negotiated one of those "consent decrees" that Kaus hates to give California time to phase in a new system -- which is perfectly legitimate. Whether she knows it or not, Saunders's argument depends on the idea of "laches," that because the ACLU sat on its right to challenge punch cards, it can not jump up and challenge them now. But, even assuming that the ACLU is the only party that can bring voting law challenges -- and it's not -- it clearly did not sit on its rights, and is entitled to seek equitable relief.

Watch for Kaus and his ilk to try to build public antipathy against the Southwest Voter panel for undermining democracy -- getting voters to hate liberals gives him at least a partial victory. I do thank him for the introduction to Saunders, his rod and staff in this debate. Sometimes the conservatives really know what they're talking about, and it's good to know this is not one of those times.

How did Southwest Voter come out so quickly?

I've been building this blog rather than reading many pundits today, but I imagine that some of them might cast aspersions on the Southwest Voter panel's decision by noting that the case was only heard on Thursday September 11 and was published early in the day on Monday September 15, and wondering aloud how the panel could have considered the issues thoroughly enough to have produced its hefty 66-page opinion. Here's the perspective of a recent Ninth Circuit law clerk, though again one without inside information about this case.

(1) Everybody probably worked last weekend. Each judge, with at least one clerk assigned to the case, would have put in a full weekend this past week. Producing a 66-page opinion in four work days isn't easy, but especially with a panel that is in full agreement on the result and the reasoning, it isn't that impossible. In this case, it may also be that several chambers shared the work, so that each was in effect producing only 20 pages worth. That's not that difficult. This may also be why this was designated a "per curiam" opinion -- one attributed to no single judge, but to the whole panel.

(2) Part of it was probably already done. Based on the briefs submitted by the parties -- which I have not read, but with the ACLU on one side and the California Attorney General's office on the other, along with at least one amicus brief from an voting law expert (Rick Hazen) and I presume another from an intervening party (Ted Costa) I would guess that they were excellent -- the judges and their clerks would have a strong complement of the relevant arguments in hand ahead of time, with enough time to check out the critical facts and do whatever independent research was necessary. (Did one of the briefs mention that the black and white voting beans of antiquity were fava beans, or did some clerk mine that nugget? Actually, this is an extremely smart trio of judges; they may have known it offhand.)

From the briefs and the district court record, the panel would have had enough to write the section of the opinion dealing with the factual background, and the standards of review, before the hearing began, especially if (as I suspect) neither was seriously contested. (As an appellate court, no witnesses appear before the panel; they would already have time to consider the testimony of expert witnesses and the district judge's treatment of that testimony.)

While judges will generally remain open to being convinced by argument before them -- although some cases appear so clear-cut at the outset that the panel doesn't even schedule argument, and hears the case on the briefs alone, a practice I generally dislike -- they would also have already considered and thought through the implications of the arguments before them, as part of preparing their questions. All of the arguments presented in the hearing, after all, are already supposed to have been presented in the briefs. Generally, whichever judge has the main responsibility for the case (the presumptive author, if he or she ends up in the majority) will have already circulated a "bench memo" which outlines the various issues presented and the results of research on the relevant law. In some cases -- such as, I suspect, this one -- the bench memo may be so well developed that it needs little or no tweaking, in light of whatever transpires at the hearing, to serve as the final opinion. It would not surprise me if, in light of the consideration presented below, the opinion could have come out Friday -- which would have been unseemly, of course -- unless some important information or argument came out at the hearing.

(3) This was an easy case with a congenial panel: As I note above, this case was pretty much a no-brainer for any panel willing to face the political consequences of an anti-majoritarian result. The briefs probably spelled out pretty much what a decision would have to say -- again, I haven't read them, but judging from the conservative commentary on the decision, the arguments against a preliminary injunction seem to have been extremely weak. And this was a panel of demonstrably fearless judges who would not be nitpicking at one another's conclusions. They could do a good job in the short time they took -- and they did.

But, a note to those who had other cases before the panel the same week: don't be surprised if the dispositions in your cases not only take longer than four days, but longer than usual. This sort of sprint takes time away from the other 30 or so cases the panel would have heard during the same week; that's where the books get balanced.

Avraham Berg on Israel's Choice

In Salon's recent roundup of various articles on the Jerusalem Post's and Ehud Olmert's trial balloon about killing Yassir Arafat, the one that surprised me most was from Former Speaker of the Knesset Avraham Berg. Whether as something to guide critics of current Israeli policies, or as an argument from a man of stature with which proponents of those policies have to grapple, it's worth reading.

Southwest Voter recusals mean chance of it being upheld may be 1 in 720

Fun with the binomial distribution: To anyone interested in playing the odds, the most significant line in the Ninth Circuit's order setting a new hearing on Southwest Voter for Monday may be the footnote: Judges Reinhardt, Wardlaw, and Berzon were recused from voting, and will therefore be recused from sitting on the en banc panel. That's two liberals and a moderate who leans that way. For those who believe that those at or to the left of center will vote to uphold the decision, and that those at or the right of center will vote to reverse it, that means that the odds of the decision being upheld are about 1 in 720.

Here's how it works (and I reiterate that these \assessment of the judges on the circuit are solely my own, and may neither reflect nor necessarily even match those of the Judge for whom I clerked): Of the 22 judges who may be picked to sit on the en banc panel with the just left of moderate Chief Judge Schroeder, I'd consider only 8 as left of center (most of whom being less liberal than the judges on the panel), which I'll designate as "liberal," and five of them would need to be picked to have a shot at upholding the decision. The odds of a "liberal" judge being chosed for any one of those ten slots are .364. The odds that all eight "liberals" woud be chosen with two conservatives are about 1 in 8000. Add that to the odds that seven, six, and five liberals will be chosen, and you have a cumulate probability of about .001388, or about 1 in 720. Of course, it's easy to predict reversal here; but if it doesn't happen, it's the assumptions that are wrong, not the math. (Assuming I remember the binomial theorem correctly!)

The hope for Southwest Voter is that, despite much of the carping about the decision over the last few days (links to which will be added soon), it may win on its merits. I'm apparently one of the minority who doesn't believe that the decision, about which I'll write more by this weekend, was a partisan power play or a way to play gotcha with the Supreme Court. Rather it was a proper response to a situation in which California's voting system -- in which an extra 1 of every 75 ballots in 44% of the state is expected to be discarded due the technology that the state has stipulated as inadequate but has not yet finished replacing -- will not yet be adequate to the task of holding a fair election until March.

The case balances the right of the people (commandeered here by those who mounted and supported the petition drive) to a quick election, versus the right of voters to an equal probability that their vote should be counted under the consent decree that was to require the new voting technology after the 2002 round of elections, and the requirements under federal law under the Voting Rights Act (since a disproportionate number of those who will have their ballots disqualified will be minorities, based on the voting population of the counties in question.)

The state provision for recalls allows for an up to 180 day delay prior to setting an election, if a new statewide election is upcoming. In normal circumstances, the election would have to go ahead. Only when the state is in the awkward position of having a voting system that it has agreed in a court settlement should already be discarded can a situation like this arise. California's just not ready to put on a fair statewide election yet; yes, they weren't in 2002 either, but the courts didn't make them change the system then because it was not reasonable to force the state to make the transition that quickly. (Equitable remedies like this are often phased in over time.) But there's no compelling interest that should force voters to have their votes taken away now, when a serviceable alternative is just around the corner.)

I don't know how many of the critics of Southwest Voter have actually read it, but I don't think the decision was taken to favor the Democratic Party. With a measure that would make raising taxes easier on the March ballot, and the prospect of the Democratic nomination being settled by the end of February anyway, I'm not sure that the theory that a March vote is better for Davis makes sense, although it's pretty clearly worse for Schwarzenegger to allow people more time to get to know him as a candidate. Rather, the panel seemed only to be supporting these principles. While they do cite Bush v. Gore a lot, the principles on which the opinion is based doesn't depend on that decision -- it just makes any upcoming reversal by the en banc court all the more ironic, in a "heads I win, tails you lose" sort of way.

Note also that, unlike the Presidential election, the new Governor will take office immediately upon certification of the results. The idea of forestalling a court challenge until then is nutty: once "the people have spoken," little niceties like whether the election was fair will be trampled in the media stampede.

The Ninth Circuit often gets a bum rap. Even while now having a slight conservative majority, it is still the most liberal circuit due to all those years of Republican Presidents and Congress keeping Clinton from making many of his appointments, and it stands out for being different rather than being wrong. The circuit is getting another bum rap here.

A very bad draw

Thanks a lot, President Clinton: Well, much has happened since last I wrote. First of all, evidently there is a procedure for the Ninth Circuit to vote en banc immediately and to hold a snap hearing. Second, while I had not been able to find a listing of the en banc panel before composing my last entry, one did come shortly thereafter by e-mail, and let's just say that the 1 in 720 longshot did not materialize. Third, what I'm wondering is whether the finished opinion has already been circulated to the panel, to give the one to three judges who might want to uphold the merit panel's ruling a chance to hone their dissent.

This is such an extremely conservative panel that it can be used to illustrate a failing of the Clinton presidency. Before getting to that: it galls me to see it described as populated by judges "more moderate" than the three judge (merits) panel. Of the eight conservative judges on the panel, only one, Judge Graber, might fairly be described as a moderate; the term might apply more easily to Chief Judge Schroeder and Judges Tashima and McKeown than to any of the other seven. The majority of the panel is not moderate at all, but as conservative as the merits panel was liberal.

While it has been noted that seven of the Judges were appointed by President Clinton, this panel could be Exhibit A to show how remarkably little Clinton did to shift the ideological center of the court. Judges Graber, Silverman, Gould, and Rawlinson are all conservative, and those were the choices -- unlike the conservative Judge Tallman who Clinton was forced to appoint as the price for putting Judge William Fletcher on the bench -- that Clinton didn't have to make. Comparing Clinton's appointees to those of President Carter -- an especially fine set of judges -- points out both how little Clinton did to move the federal courts to the left and, by contrast, how much the virtually lockstep appointments of Reagan and both Bushes have done to move the court to the right. Across all of the federal appellate courts, I don't think you could find five judges from the two Bush terms that were as liberal as the five Clinton appointees on this panel alone are conservative. (Standard disclaimer: solely my opinions.)

Perhaps Clinton can claim that he couldn't get through his judicial nominations because of the conservative Congress, but I would suggest that he also did not try nearly as hard as he might have. For examples of trying hard enough, look to the present administration.

Two basic issues in Southwest Voter

A journal of a thousand pages begins with a single post: It will take me days, I'm afraid, to catch up with the barrage of criticism that has come down against the Southwest Voter merits panel's decision, from liberal (in the pejorative sense) as well as illiberal sources. Simply going through Mickey Kaus's column -- which, sure enough, as predicted did predict that if Davis loses and Schwarzenegger wins it will be because of the Ninth Circuit's decision using up all of the oxygen this past week -- will take a day. But for now I'll just make some general observations before moving onto some other small matters -- our war with France, the Democratic nomination -- that might also be of interest.

First, the basic issue in this case -- as the panel, if not its critics, recognized -- is whether one can deny a preliminary injunction in circumstances where the plaintiffs will unquestionably be hurt and have a possibility of prevailing. As the en banc panel reverses the decision, it will be interesting to see how they finesse the preliminary injunction standard. My guess is that they'll ignore it, saying that there was no way the plaintiffs could win, even though that is pretty clearly untrue.

Second, the philosophical issue underlying criticism is what the role of the courts should be as compared to the "political" branches of government. Most critics seem to think that the constitutional provision that a recall election must take place in less than 180 days -- and in this case less than 80 -- must be sacrosanct. If that's one's premise, then I suppose the conclusion must follow. But why should that consideration, of the many that might conflict here, be the sacrosanct one? I think there's a strong argument that it should not be.

This is, after all, an extremely unusual case. We know that California's voting system is broken. It was only allowed to proceed as is for the 2002 election because of a legal settlement that recognized that the state could not change its voting system in time, but stipulated that the system had to be changed before the next round of state elections in 2004. There weren't supposed to be any 2003 elections; this potential problem was unexpected. So, the California voting system is like a car with faulty brakes that won't be fixed until March, and even though the state Constitution says that it has to be driven in October, we know it will do damage if taken on the road. (In particular, it will violate the federal Voting Rights Act, even apart from the 14th amendment.) In that situation, is it the role of the courts to say "sorry, no matter what the Constitution says, you can't drive the car until March when the brakes are due to be fixed"? Or must the court say, "well, even if it's dangerous, the rules are the rules so we guess we have to let you drive it"? In circumstances where the harm to the state's is to extend the recall from a maximum of 180 days to about 225 says, I think that the court's proper role must be to say to wait until the brakes are fixed. The courts are there to protect rights, and to adjudicate the inevitable disputes that arise when legal interests conflict in unforeseen ways.

As for those who say, like Kaus, don't we have to respect the rights of the people who hustled along the recall effort so that it could avoid the March ballot, the answer is that we don't. They knew, or should have known (and I'm guessing the former), that the states was under a consent order to fix the brakes on the voting system before taking it onto the road again, and they deliberately timed the effort so that the recall vote wouldn't have to wait until the brakes are fixed. Even if the small fraction of eligible voters who signed the recall petitions wanted a snap election, that consideration does not trump the interests protecting state citizens according to federal law. This is not a matter of taking the car with faulty brakes out on the road in order to get someone who has cut off an arm to the emergency room; this is a matter of taking the car out because there's a sale you want to get to and the bus would be too much of a hassle. In legal terms, it's not a compelling interest.

More (if I can abide it) on the recall soon, where I take on Dahlia Lithwick, Vik Amar, Bruce Ackerman, and whatever yo-yos it was that Kaus is citing.

The Advent of Clark

I've been asked what I think about Gen. Wesley Clark's candidacy. Here are some first impressions.

(1) I like him. I think he'd be a good President. But I would not say anything less about Dean, Kerry, Edwards, Gephardt, Braun, and Kucinich, at minimum. Right now, I'd vote for any of the 10 over Bush. (In the fantasy world where Al Sharpton can get the nomination, he must have done enough good things to have earned my vote.)

(2) If you're running on electability, you had damn well better be electable. My concerns about Clark are the obvious ones: he's never held elective office, and he's never campaigned. Neither concern really regards his projected competence as President: even without having been an elected official, I don't doubt his capacity to do the job. (He'll have help, and he's smarter than any GOP President since -- um, Lincoln?) But I worry whether this will seem like a weakness in the general election. His not having campaigned is more of a concern for me; as his bobbles the first few days after announcing have shown, this is not amateur hour. Maybe he is a natural, but it is a long distance from the CNN analyst chair to the hustings. If he's as good of a campaigner as Dean is, that's great; he'll probably win. If he's not, he will lose -- and should, because he won't win the election. What we most can't afford is another good guy who can't shine on TV, like Gore.

(3) I don't think he's the savior of the party -- yet. Unless you are a Republican blessed with a gigantic war chest, good looks, a compliant press, and Satanic political advisors, you really have to be good at campaigning to get elected. So far, the strongest voices that I hear saying that Dean will be a disaster if nominated are from Republicans begging to be thrown into the briar patch. My sense is that this is a reverse Bre'r Rabbit -- they don't want to see Dean nominated, because they know that he -- almost alone among the Democratic contenders except maybe for Sharpton -- really knows how to run a high-energy campaign. That's why they're painting him as much further left that he is. The question is whether, if Clark is about as good a campaigner, if he would be a bigger threat than Dean. And I think the answer is yes: if he is as good a campaigner. But Dean is awfully good, and I don't think he'll lose the Left when he zigs towards the center.

(4) I don't think he's Eisenhower. The Democrats want Clark to be the Ike that they managed to land. But I don't think there's any comparison. Clark, from what I understand, did a brilliant job in post-breakup Yugoslavia, both in nailing down the Dayton Accords and in saving Kosovo (as much as he was allowed to do so.) But people in 2003 don't remember Bosnia and Kosovo the way people in 1952 remembered World War II, and for good reason. Eisenhower was beloved and respected; in my lifetime, only Colin Powell -- for reasons I've never entirely gotten, other than his symbolic value, and I generally like the guy -- has come close to Eisenhower's cachet. Clark seems to me to be of about as much public note as Gen. John Shalikashvili, who, even if he could run for President, would hardly win. If the public is captured by his story and take him to its bosom, great. Nominate him. But it hardly seems a foregone conclusion that he is a new Ike, or even a new Powell.

(5) Why so late a start? I don't get it. I do not get it. His wife was reluctant -- OK. But if you're going to jump, you have to jump before now. Even with the Clintons behind him -- a couple that has done a better job of gauging its own interests than that of the broader party -- I'm not sure that unless other Dems start dropping out he will be able to win. He needs to hire many good people, like yesterday.

(6) I don't have to make up my mind yet. The bottom line is that because I'm not working for a campaign, and am happy with at least five of the six candidates most likely to get the nomination (all but Lieberman; I don't count Graham in the top six), I don't have to make up my mind yet. Let's see how he performs, and let's see how Dean performs under the pressure of a Clark candidacy. We're going to know a lot more about these guys by New Year's Day -- there will have been time for scandals to emerge, gaffes to be made, etc. -- and by that time I expect to know who among the non-Lieberman nine I think has the best chance of being elected. And that's how I expect to vote.

(7) I'm glad he's in the race, though. I think it makes it harder for the other candidates to go negative, at least for a while, and that pleases me.

French Kiss-off

Thomas Friedman surprised me in his column from the middle of last week -- it doesn't happen often, but it does happen -- when he said that we had to come to the realization that France was now our enemy. I think this says a lot more about Tom Friedman than it does about France.

My feeling has long been that France is the country that is the most similar to the U.S. in terms of the combination of its geopolitical stature and political culture, and that it acts largely as we would act if we were 20% the size of some country in Europe. I consider the French neither better nor worse than us, in terms of the effect they currently want to have on the world. They're driven by a wide range of goals including gaining business for their corporations, promoting national stature, promoting human rights, figuring out their relationship with the less developed (and especially the Islamic) world, and so on -- much like us. They are less powerful, but still-powerful. While Britain has become our junior partner, France is more or less Germany's equal partner, and is jealous of our incursions into what is laughably called "new Europe," which is as much in the geopolitical sway of France and Germany as Latin American is in ours. It would be valid to say that France is our competitor in many respects, but enemy?

Friedman's essential thesis is that France wants us to fail in Iraq. But, you know, France can root for whatever side it wants, or for a bloody conflict wearing down both sides, as we did in the Iran-Iraq war. My guess is that France would like us to be humbled enough to have to ask for help (rather than, as Bush is doing, demanding help as our just due), and to be willing to share the spoils of victory with other countries, such as -- well, France. That's just looking out for their self-interest; that does not an enemy make.

What matters is not what France wants, but what France does, and this is where Friedman gets loopy. By his reckoning, if France does not actively support us at this point, even after we have (to say the least) dissed the UN, they are our objective enemy. This argument depends on the premise that we were absolutely right to invade Iraq as and when we did. And that is simply an untenable premise.

France's position, recall, was that we had to wait until we actually had a casus belli -- justification for war -- which could only be provided by the weapons inspectors. And we didn't have one, and didn't want to wait for one, and this would have been less of a problem except that, as it turned out, we didn't have one because there wasn't one. We had humanitarian reasons to invade (which were by no stretch of the imagination what actually prompted the invasion, something Friedman just can't seem to understand), but no casus belli. This was a war of choice.

A war of choice is not always a bad thing. Tanzania was right to invade Uganda to drive off Idi Amin; Vietnam was right to invade Cambodia to drive off Pol Pot. (We opposed that one, by the way. Were we objective supporters of Pol Pot?) But in this case, our motivations were very suspect, and even if this is not something that plays well in domestic political debate, it is absolute folly to pretend that the rest of the world doesn't see the more self-interested part of our motivation. I don't think that this was simply "war for oil" or "war for Israel" or "war for revenge against Islam," any more than it was simply "war to create a democracy in Iraq" or "war against human rights abuses" or "war against terrorism" or "war to prevent Iraq from getting weapons of mass destruction. I think we had a complicated and slippery set of motives, some good and some bad. The point is that the bad ones were ones that the world had legitimate reason to fear, and the good ones pretty palpably relied upon rosy scenarios and wishful thinking. And France, even with its own mixed motives, was not wrong to point it out, and to try to influence us to act differently.

Ultimately, Friedman's argument depends on the notion that we have "saved" the Iraqi people. But while we have removed a brutal dictator -- one who, like Amin, Noriega, Duvalier, and bin Laden, was our former ally, let's not forget -- we have not "saved" the Iraqi people. The cards have not yet been played out, and the Iraqi people know it. They can see that less than two years after our cleansing of Afghanistan, the Taliban are coming back. The moment it became clear that we were not going to face major conflict in Baghdad, my comment -- wish I'd had the blog then -- was "rope-a-dope." Saddam's forces melted into the woodwork so that they could fight a guerilla war -- probably the smartest tactic they could have used. And they're not gone. Unless we ensure that the Ba'athists stay out of power in Iraq -- and that it doesn't fall into radical Shi'ite hands -- they we haven't given anyone salvation, but only respite.

Our having created that dilemma doesn't mean that we shouldn't withdraw, although I'm not inclined to at the moment -- we've betrayed enough freedom-fighters in Iraq over the past eighth-century. But it doesn't mean we should stay, either. The damage done by the war is a sunk cost, and the question is whether we can see a victory -- whatever that would mean -- on the horizon. My guess is that winning such a victory means, among other things, that we have to be and appear pure in our motivations -- which means that we aren't going to be the ones controlling Iraqi oil, for one thing, and that the American corporations being shoveled money by the Bush Administration may not get their paydays -- if that can still be arranged.

So how does France -- assuming for the moment its good motivations, and setting aside its obvious self-interest in getting a piece of the Iraqi action -- address both the threat that the Iraqi Ba'athists / radical Shi'ites / al-Qaeda fighters pose, on the one hand, and the threat that the unilateralist, disingenuous, myopic, sanctimonious U.S. leadership poses on the other? I think that they help out, but not enough to make it easy for us. In their eyes, we have to learn that when we stick our hands into a hornet's nest, we're going to get stung; if we don't learn that lesson, the fear is that we're going to go stumbling into more and more trouble all over the world -- and frankly that is neither good for us nor for them. The pity -- and the reason that we need our own regime change -- is that most previous Presidents, including Bush pere, have understood this principle very well. It's just the current yahoos that so palpably need a lesson.

So while I don't think that France has entirely (perhaps not even primarily) good motivations, I don't think it's our enemy. Sometimes only you're best friends will tell you when you're screwing up. France may not be our best friend at the moment either, but hoping that we face the consequences our our actions is not the same as acting to harm us. if Friedman can't see the distinction, it's because he cannot imagine that our motives are not actually, and obviously, entirely pure. Once you give up that assumption, the world makes a lot more sense.