November 24, 2005

Arguing with Armando about Bush v. Gore and Samuel Alito.

I try to stay out of arguments about Bush v. Gore. One of my earliests posts on this blog agonizes over the impossibility of teaching it to law students:
Bush v. Gore is important, but I find it hard to believe that people are willing to invest the time to understand the federal and state statutes and the federal and state constitutional law provisions needed to grasp the legal issues in the case. Even if they do spend the time, I think their intake of information is affected at every step by their preexisting mindset about what the Supreme Court did (e.g., stole the election, saved us from an overreaching state court). But most likely, they won't spend the time, because they know very well what happened. Where did that knowledge come from?

I remember the night the decision came down, watching reporters on TV trying to read and understand the opinion in front of live cameras. That seemed at the time to be antithetical to a real process of understanding a piece of writing, but in retrospect I think nearly everyone reached their understanding at that point. Perhaps that is what human understanding is, and the rest is filling in the details.

It is hopeless and crucial and absurd to teach Bush v. Gore.
It's much worse to try to argue about Bush v. Gore in the blogosphere, especially when you have to talk with very partisan folks who know damn well what they think and write for thoroughly political purposes. So what am I supposed to do when the DailyKos, with its 700,000+ visitors a day starts talking about something I wrote about Bush v. Gore? Armando takes a passage from an article I wrote years ago, which I happened to have posted in the comments section of this post the other day. He refers to the passage as a "pile of manure" and doggedly states his opinions without engaging with the intellectual substance of what I'd said.

Naturally, he doesn't read the whole article that precedes the conclusion, which parses all the legal texts. I don't have a link for it. You'd have to go into LEXIS to read it. Look for: Althouse, The Authoritative Lawsaying Power of the State Supreme Court and the United States Supreme Court: Conflicts of Judicial Orthodoxy in the Bush-Gore Litigation, 61 Md. L. Rev. 508 (2002). I don't blame him for not reading the whole thing, only for writing as if there wasn't an entire detailed article supporting the conclusion he's satisfied to call "manure." He writes that I do "not even bother to defend [Bush v. Gore] on legal grounds." But I do! Read the article. I just can't do it in short form on the blog.

Essentially, Armando does what I said in that old post that everyone does. My article conclusion ends with the line: "[T]hose who would criticize ought to see how the judges who voted for the outcome the critics liked were all doing something that they would have found a way to criticize if they had felt so motivated." But who can imagine Armando undertaking that particular thought exercise? In fact, I don't expect anyone to do that, because it's an unbelievable pain to work through the materials even without trying to adopt an experimental alternative perspective. And Armando's thing is to be a hardcore partisan, so why would he ever bother to spend his time like that?

Well, am I supposed to respond to him? On this one, it's monumentally easy to see in advance that arguing about what happened in Bush v. Gore is a mug's game.

But Armando uses my text to make an argument about the Alito nomination. I will talk about that. Looking at the way I wrote about Bush v. Gore, he asks:
[D]oes not Althouse admit that she too, is a legal realist? And given that admission, is it not fair to expect that Althouse would approve of a query in detail regarding Alito's views on legal issues? Is it not fair to expect that Althouse would not condemn critiques of the results of Alito's opinions without trying to engage in hypertechnical "gotcha-isms"?
No, I'm not a "legal realist." Legal Realism, like its close companion Critical Legal Studies, goes too far in portraying judges as acting in service of their own political and policy preferences. I simply recognize that the answers in many cases are not predetermined by text and precedent and, therefore, the individual judge's background, beliefs, values, and tendencies will affect the decision. It really matters who decides. I would guess even originalists like Justice Scalia and Thomas would admit that.

So, of course, we all ought to be concerned about what the mind of Alito is really like. Of course, it's not enough to say he's well educated and demonstrably proficient at crafting opinions from legal materials. So what's my answer to Armando's questions about how Alito's opponents should proceed?

It turns out I've already answered. Look at this post from last week, responding to that 1985 job application in which Alito professed a set of conservative beliefs:
Up until now, the attacks on Alito have been based on nothing of substance. Critics cherry-picked his cases, found the ones where he ruled against sympathetic parties, and treated the outcomes in cases as if there is no legal reasoning involved in reaching outcomes. Or they simply assumed that Alito must be a big right-winger because he (unlike Miers) was not being attacked from the right and conservatives all looked rather happy about having him as the nominee.

With this letter, we enter a new phase of the nomination process, in which the opponents have something very substantial to talk about. And, indeed, they must fight, based on this. I see two aspects to the coming fight.

First, there is the question of what is the better set of values. A lot of people will read Alito's statement and agree with it, while others will oppose it. Some may only care about a few of those issues or may agree about some things and not others. Though most of the talk will be about abortion rights, we have a valuable opportunity to talk about what the full set of conservative legal positions is, to compare them with the liberal positions, and to debate about which is better. I welcome this public debate and hope it can be done well.

Second, there is the question of how personal beliefs affect a judge's performance on the bench. Some will defend Alito by saying a good judge is a humble, faithful servant of the law who sets his personal, political beliefs aside. Related to this is one of Bush's big issues: the liberal judges are activist judges who make the law mean what they would vote for if they were legislators. In this rhetoric, the conservative judges somehow escape the temptation the liberal judges succumb to. As long as you have a conservative judge, the rhetoric goes, you don't have to worry about what his political beliefs are: He will do the proper, judicial thing and not "legislate from the bench" like those bad liberal judges. Those of us who are not political ideologues tend to think that judges try to follow the law, but that the texts and precedents are ambiguous or fluid enough to require some judgment to get to a decision. Thus, the background beliefs and political tendencies of any judge will need to flow into the decision-making, no matter how modest and dutiful the human being making the decision is.
Alito opponents should take the rule of law seriously and respect the institution of the courts. These are resources we all rely on. Trashing them is counterproductive. Challenge Alito in a way that also expresses a sound theory of constitutional interpretation. Work on a way to convince ordinary people that approaches other than originalism deserve respect. Help people care and believe in the individual rights you want courts to protect. Playing from the Legal Realism side, from an assumption that law is a kind of politics, empowers your opponents to say -- as they've been saying ad nauseam -- that you only want judges who will legislate from the bench.

34 comments:

Thingamabob said...

I, for one, appreciate you taking the time to respond to what some others might not-so-propitiously refer to as "a pile of manure" thrown in your direction. I can't claim to fully understand the intricacies of the law that you reference, nor do I know much about the legal questions involved in Bush v. Gore.

I would appreciate any clarification (perhaps in lay terms, however inexact they might be) about Scalia's comment. My understanding is the following:

Scalia's statement really has two parts: the first, where he claims that events were set in motion by former Vice-President Gore's legal action; and the second, where he claims that as a result the Supreme Court was forced to decide between allowing the Florida Supreme Court to rule, or to overrule them.

Let's set aside part one, as I think there is no way of identifying what was the original cause of the whole schmozzle, and even if Gore's action was the proximate cause, the value of that information is any event moot.

As I understand his second assertion, it is that the Supreme Court had an obligation to consider the legalities of what was happening in Florida, inasmuch as the results had implications in deciding the result of a federal election. I accept the argument, by the way, that not intervening would have represented an equally active role for the court.

Here's what I don't understand, or am confused about: I thought that the outcome of races in the States was a State matter, despite the overall outcome of the sum of all State results being a Federal matter. In other words, one could only challenge the results of Florida in Florida Court, and that the Supreme Court could not rule on any matters which didn't pertain directly to Federal issues such as the Equal Protection Clause, which was central to arguments heard by the Supremes, wasn't it?

If the Supreme Court felt compelled to intervene because they felt that the decision or impending decision of the Florida Court would affect this Federal issue, shouldn't the force of their intervention have applied to all States, and not merely Florda? In other words, what I want to know is, once the Supreme Court ruled were they not obligated to carry things much further than to simply approve the result in Florda?

It strikes me that ruling in this way, but then expressly limiting the effect of the ruling in Florida is dubious at best, and bad faith at worst. Have I got this wrong, or at least partially right? And if the latter, it suggests that Scalia is being incredibly disingenuous blaming ALL this on Mr. Gore and Florda. The fact that A decision was taken buy the Supreme Court should not be disturbing; it's the nature of that decision and the scope of it that seem strange to me.

If I've gotten anything terribly wrong, please don't hesitate to let me know.

Jacques Cuze said...

Naturally, he doesn't read the whole article that precedes the conclusion, which parses all the legal texts. I don't have a link for it. You'd have to go into LEXIS to read it.

I am curious as to why that is. Why don't you have a copy of the article in word, or wordperfect, or pdf, or html that you can post? As Bruce Hayden suggested yesterday, having a set of links to your articles and best posts would be a valuable addition to the Althouse blog.

Palladian said...

Well said, though it's an awfully elegant and thoughtful way to respond to an anonymous manure-slinger.

I think the Bush v. Gore issue has become very similar to subjects like abortion rights, issues so complicated in their philosophical, legal and technical details that, as you said, are glossed over in search of a conclusion favorable to a predetermined outcome.

I often wonder about what purpose people like "Armando" (or insert your favorite right-wing Armando type here) serve. They certainly don't exist to persuade people of differing viewpoints to accept their ideas. They don't exist to arm like-minded people with solid, reasonable facts with which they can better argue their position. They're not particularly entertaining or stylish in their tirades. I've decided that they must serve the same function as drill sergeants: to instill fear and numbness in their flagging troops by screaming and shouting at maximum volume. They make sure everyone is marching in line, and woe to the soldier who balks at the torrent of obscenity-laced orders. He will be shouted at and humiliated until, exhausted and blank-minded, he either submits or collapses.

Ann Althouse said...

Quxxo: I know I need to do that. It's on my to do list!

For now, let me cut and paste the key section from the article (without the footnotes:

The concurring opinion written by Chief Justice Rehnquist and joined by Justices Scalia and Thomas avoided much of the haziness that shrouded the per curiam opinion. These three Justices did not, however, disassociate themselves from the per curiam opinion, which they joined, though one might imagine their having a certain distaste for it both because of its haziness and because of its reliance on a nontextual exposition of individual rights. Without their votes, the per curiam opinion had only four votes, at most, and only two votes with respect to the remedy and much of the equal protection analysis. Thus, without the added votes of the Justices who joined the concurring opinion, the lack of support for the per curiam opinion would have increased the vulnerability of the Court as it determined the outcome of the election. Of course, there was an uproar after Bush II, but imagine if the Court's critics had been able to say that the Court gave the presidency to Bush citing two completely different reasons, both of which were rejected by a majority of the Justices!

Generally, the conservative side of the Court has been more enthusiastic about enforcing the structural parts of the Constitution, and the liberal Justices have been more enthusiastic about enforcing individual rights. It was probably necessary for the per curiam to speak in terms of rights to draw the votes of Justices Souter and Breyer, which were so valuable to the Court's appearance of legitimacy, because they rarely find structural constitutional arguments appealing. But the structural constitutional path taken in the concurring opinion led to particularly serious problems because of the United States Supreme Court's need to respect state court decisions of state law. The Florida Supreme Court had taken care to word its opinion to immunize it from the Article II attack. Following the helpful instructions the United States Supreme Court had provided in Bush I, the Florida Supreme Court had expressed itself in completely statutory terms; it acknowledged the legislature's full control over the appointment [of electors, but it attributed to the legislature all the ideas it needed in support of the relief it gave. If the state is the final expositor of state law, then that is what the legislature meant, and that interpretation, one might argue, ought to have thwarted the Article II attack.

The Chief Justice began with a reminder of the obvious - this is an election for President of the United States - which aptly set the tone by implying: this is a matter that, if it is to be determined by a court, ought to be determined by the Supreme Court of the United States. The functions performed by state institutions flow from the United States Constitution and "implicate a uniquely important national interest." The Chief Justice acknowledged that "comity and respect for federalism ... compel ... deference" to state court decisions based on state law. Note the use of the idea of comity, deference, and respect, which suggest a flexible policy, not an absolute matter of authority, not the idea that if the state court says this is state law, it simply is state law. The Chief Justice attributes this "practice" to the "understanding that the decisions of state courts are definitive pronouncements of the will of the States as sovereigns."

But federalism has to do not just with deference to the judicial institutions of the state; there are other institutions as well. Sometimes, to defer to the state court is to deny deference to another component of state government; principles of federalism may, for example, demand that the state court be intruded upon out of deference to the state legislature. Indeed, that was the case in Michigan v. Long. There, the state court, by muddling its interpretation of state and federal law, had created a dysfunctional sort of insulation for itself: the United States Supreme Court seemed not able to review it, yet the state democratic processes could not clearly see that they could undo the results of the court's decision. Long thus found deference to the state court unwarranted.

The Chief Justice acknowledged that ordinarily issues of state separation of powers can be resolved through state law. With respect to the appointment of presidential electors, however, he noted that the Constitution gives a particular role to one particular component of the state, the state legislature. Thus, Article II federalized an aspect of state separation of powers law, making it a matter open to United States Supreme Court review. Here, the Florida Supreme Court had made an assertion about what the state legislature intended, yet it might have been quite wrong. Ordinarily, a state court's being wrong about the meaning of a statute has no remedy (other than amendment of the statute by the legislature, which would come too late to affect the case). The state court's wrong answer binds as tightly as a right answer: the court is "infallible ... because [it] is final." But Article II, by interposing a federal question, makes the state court no longer the final court. Article II does not, under the Chief Justice's theory, completely open up the state court opinion to review; but the United States Supreme Court can look at whether the state court is too far out of line. If the state court has made a "significant departure from the legislative scheme," its decision is not the work of the state legislature but the work of the state court, and the legislature has then been deprived of the role Article II explicitly assigned to it; the state court has usurped that role, in violation of Article II.

The Chief Justice accordingly analyzed the Florida Supreme Court interpretation of state law in this effort to determine whether the state court had gone so far afield as to violate Article II. The Chief Justice noted first that the Florida Supreme Court "acknowledged" that the state legislature intended to take advantage of the federal statutory safe harbor. Interestingly, he trusted the lawsaying competence of the state supreme court that far, but then did not go on to trust that the state court knew the state legislature's intent when it came up with some of its other ideas about what the legislature meant. The Chief Justice then used the state court's opinion that the legislature meant to moor in the safe harbor as a basis for rejecting the state court's interpretations that might frustrate that one goal. Other goals found by the state court in the state statutes - notably the importance of counting ballots that reveal a "clear indication of the intent of the voter" - did not qualify as bona fide interpretations of state law. The Chief Justice examined the state statutory provisions and concluded that the state court had gone too far and has "wholly changed" their meaning.

This "independent, if still deferential, analysis of state law," appropriate here where there is such a high national interest in the presidential election and a specific federal constitutional provision affecting state separation of powers, had precedent in United States Supreme Court case law, the Chief Justice noted. He discussed two cases from the Warren Court's civil rights oeuvre, NAACP v. Alabama ex rel. Patterson and Bouie v. City of Columbia, which found ways to stop state courts from using state law to thwart United States Supreme Court review. In Patterson, the Alabama state court had found the NAACP in contempt for failing to comply with a discovery order to produce the names of its members. The NAACP, which had asserted the federal constitutional right to freedom of association as its basis for refusing to comply with the order, sought review in the Alabama Supreme Court through a writ of certiorari. The Alabama Supreme Court relied on a procedural ground to bar its review: mandamus, not certiorari, was the proper writ to use to seek review of the judgment. When the NAACP then sought review in the United States Supreme Court, Alabama argued that the procedural ground provided independent support for the outcome in state court, thus barring United States Supreme Court review under the independent and adequate state ground doctrine. The United States Supreme Court, using its authoritative control over the scope of the independent and adequate state ground doctrine, shaped that doctrine with an eye toward preventing the state court from trumping up a state law ground to "thwart" Supreme Court review. Under the doctrine, the Court would thus not view as adequate a state law ground that was "without any fair or substantial support." With the doctrine thus interpreted, it became the proper work of the United States Supreme Court to analyze the quality of the state court's state law interpretation. Parsing the state supreme court's reasons for requiring a writ of mandamus, the Court analyzed many earlier state law cases. Even though it could perceive a "consistent pattern ... in retrospect," it declared that pattern too obscure to expect the petitioner to have perceived it and too insubstantial to deprive the Supreme Court of its power. The advantage of going first and the authority over state law would not be allowed to provide endless control over what the United States Supreme Court saw as its important role with respect to constitutional rights. The Court did not write a word about the role it perceived for itself in protecting the NAACP from the southern courts, but it is easy enough for readers to infer that the Court's refusal to take a position of supine deference to state courts was strengthened by its perception of the realities of the world beyond the immediate text of the opinions it reviewed.

In Bouie, the state court had made a strained interpretation of a state criminal trespass statute: it read a state statute that banned "entry upon the lands of another ... after notice from the owner or tenant prohibiting such entry ..." to cover a situation where persons invited to enter had failed to leave when requested. This contorted interpretation was used to convict black civil rights proponents who had engaged in a sit-in at a whites-only lunch counter. The United States Supreme Court, desirous of overturning the result but nevertheless respectful in general of the rights of private property owners against trespass, found a way to achieve its end: the interpretation of the state statute was so strained it deprived the petitioners of the fair warning required by constitutional due process. The Court relied on "the standards of state decisional consistency" used to review the state court decision on the state law ground in NAACP v. Alabama. Accordingly, the United States Supreme Court, looking deeply into state law precedent, denounced the state court's state law interpretation as "so clearly at variance with the statutory language" and lacking "the slightest support in prior South Carolina decisions." Again, the case arose in a context of state courts that had earned the suspicion of the United States Supreme Court, and the Court found a way to use federal law to prevent the state court from using its authority over state law interpretation to immunize itself from review.

The Chief Justice saw the Bush case as "precisely parallel." The state court's strained, result-oriented interpretation of the state statutory law was so "impermissibly distorted ... beyond what a fair reading required" that it violated Article II. Like the United States Supreme Court in Bouie, the Chief Justice did not purport to substitute his interpretation of state law for the state court's interpretation of state law; rather, he found that the high degree of distortion in the interpretation made for a violation of federal law. Those who say there was no "deference" to the state court in the concurring opinion fail to acknowledge this point. The deference is there, but it is not endless; it is not "blind deference." It ends where the state court's interpretation is too distorted. Thus, the Chief Justice analyzed the various relevant provisions of the state statutory scheme in an effort to discern not the actual meaning, but only to establish that the state court's interpretation is far enough off the mark to overcome the usual acceptance of the state court resolution of the case, to rebut the presumption that the state has acted in good faith in its role as final expositor of state law. When a question of state law is plugged into a federal law issue, the United States Supreme Court has the power to reject a sham interpretation. It has the responsibility, one might say, as it makes this connection between state and federal law, to ensure that the "plug" is not defective.

It is important to acknowledge that this is what the opinion says, but that naturally does not entirely shield the Chief Justice from criticism. Did the Chief Justice himself act a bit like the Alabama court discovering the wrong writ problem or the South Carolina court discovering a strange meaning for the trespass statute? Did he strain Article II to reach his preferred outcome? As the Chief Justice pointed to the state court's distortion of state law and used that to detect a federal question in the tangle of state law out of which the state court may have manufactured an illicit power, he exposed his own work to the criticism that he distorted the law to manufacture an illicit power.

Quite aside from how one might resolve the questions about whether any of the judges used sham interpretation to seize illicit power, it is apparent that in conflicts of judicial authority, one can easily see the advantage to going first and the advantage to going last. The state court in going first can use the interpretation of state law to shield itself from the review of the United States Supreme Court, and that advantage in going first frequently works. The United States Supreme Court in going last, however, gets to have the final say in shaping the doctrine that determines the effectiveness of state law insulation from Supreme Court review, and it can use that position of going last to produce an opinion that, however strained, cannot be reversed.

Justices Souter and Breyer, who dissented from the position taken in the concurring opinion, did not disagree with the proposition that it is possible for the state court to distort the law so far that it should be viewed as having "displaced" the decisions of the state legislature. The question was whether the state court's work deserved to be considered actual statutory interpretation or some new, judicial creation. They dissented because, to them, the state court's opinion was not so unreasonable as to lose its quality of being statutory interpretation. The opinion lay "within the bounds of reasonable interpretation." There was thus no "displacement" of the legislature's choice and, consequently, no Article II violation. Justice Souter acknowledged that other interpretations were possible and even better, but the point was only whether the Florida Supreme Court had gone too far. Similarly, Justice Breyer parsed the Chief Justice's analysis of the Florida court's purported statutory interpretation and asked: "Where is the 'impermissible' distortion?"

Justices Souter and Breyer disagreed with the concurring opinion over the degree of distortion in the state court's interpretation. They did not say whether it was unreasonable for the Chief Justice to find that the state court's interpretation was distorted to the point of unreason, but they did not need to do so in order to reach their decision: they only needed to decide that the state court decision did not go too far afield in its interpretation of state law.

Maria said...

I read Armando's posts regularly, and I don't agree with the accusations against him posted here. Vitriolic language is the order of the day on Kos, to be sure; I suspect that most of the posters there are pretty young. But try reading some of Armando's stuff before dismissing him simply for his angry use of the word 'manure'.

There is something very disingenuous about Ms. Althouse's painfully careful, measured reasoning here. Scalia's recent comments regarding Bush v. Gore were at least as divisive and worthless as those made by Armando; they solidly blamed his political opponents for a catastrophe for which, at the very least, both sides were responsible. In view of the many well-known election irregularities that exclusively benefited Republicans in both the 2000 and 2004 elections, it was an extremely injudicious and yes, partisan thing for Scalia to say in public.

Why does Ms. Althouse feel that Scalia should be entitled to the kind of inflammatory, senseless accusations forbidden to Armando?

Ann Althouse said...

Maria: Please specify what you consider to be an "accusation" here that isn't true. That Armando is a hardcore political partisan who isn't interested in seriously going through the legal arguments in the case? That Armando presented my article conclusion as if it didn't have an article preceding it? That Armando adopts the view that judges are essentially political actors and should be assessed as such? What exactly did I say that was inaccurate?

Jacques Cuze said...

Thanks for the response.... While I understand the need that Lexis-Nexis fills, and their business model, in this age of Google, Lexis-Nexis should be the first old media company whose business model changes or fails.

It is now distinctly anti-Enlightenment and anti-democracy.

They should make it free and ad-supported.

angryblackconservative said...

Ffirst of all, regardless of whether or not you believe Bush v. Gore was an activist decision, I think it is highly inappropriate and juvenile for a sitting Supreme Court justice to blame a party for "forcing" them to get involved in a case.

Second of all, you are at your best Ms. Althouse, when you write unprovoked and insightful entries. Although you keep maintaing that you hardly read Dailykos and Atrios, you have been increasingly using material posted on those websites as basis for your entries. Its quite ironic that you blast dailykos and atrios for their content, and how it unfortunately leads to higher traffic, yet have begun to frequently cherry pick comments ala "in defense of internment" Michelle Maliin off of them to see the comments on your entries increase.


Step up your game, Ms. Althouse; your entries are increasingly boring and hypocritical.

On another note,
I know how you much despire Senator Kerry, and wrote an entry last week on his use of the verb "Swiftboat," which i thought was accurate, but obviously you did not, did you manage to notice this article about him http://www.upi.com/NewsTrack/view.php?StoryID=20051123-015059-6280r, or are you going to manage to notice more articles in the future about things you perceive as his shortcomings.

Ann Althouse said...

Angry Black Conservative: When a very high-traffic weblog attacks me, I feel a need to respond. So I don't get your criticism.

Jacques Cuze said...

Well all of originalism makes no sense in a post-Heisenburg, post-Dali, and post H.S. Thompson world....

That's okay, it just puts originalists on a par with journalists.

Oddly, the only news media that really gets that is Fox and Air America, except that Fox lies with their "fair and balanced", and Air America does not with their "not fair and not balanced"

It's why the "can't talk about future cases" nonsense of the vetting process for supremes is craptacular too.

The right thing to do is to increase transparency, (as even some CEO's now claim to understand) is to acknowledge your biases, take the best action you can and let the stakeholder decides.

Justice nominees should be vetted with real questions about their thinking and their processes and their attitudes. And they should openly answer.

Jebus, Microsoft, Google, Silicon Valley and presumably professors and admissions committees all say that the answer itself is not as important as seeing the process by which you think.

Icepick said...

Maria wrote: In view of the many well-known election irregularities that exclusively benefited Republicans in both the 2000 and 2004 elections....

This is incorrect. What happened in St. Louis, where a dead man successfully sued to keep the polls open so he could vote, was done as a Democratic Party stunt and can hardly be assumed to have beneditted Republicans.

Not to mention Dan Rather (a Democratic Party sympathizer if not paid operative) called the Florida election results as a DECISIVE Gore victory before the polls had closed!

Both of these examples are from 2000. But since one counter-example is enough to disporve your point, I'm going to go do the Thanksgiving thing.

garik said...

First, it's ad nauseam, not nauseum.

Second, the underlying problem with Bush v. Gore is the Constitution itself, which badly needs amending. The Constitution explictly provides for the possibility that the election cannot be decided in the Electoral College, but since the 1876 debacle we are all terrified of of ever going there again and rightfully so. The safe harbor legislation passed in immediate response to Tilden-Hayes is an imperfect patch, as there is nothing to guarantee that the December 12 deadline will be met.

It is crystal-clear that what really animated the Bush v. Gore majority was the outright terror that the deadline would be missed and the election would thereafter....take its constitutional course. Seems like a silly thing to be afraid of, doesn't it.

If the prescribed constitutional route is so terrifying, it would be much cleaner from a jurisprudential point of view to amend rather than engage in unseemly intellectual contortions (e.g. the Florida Supreme Court had "committed itself" to the December 12 deadline and couldn't be allowed to change its mind, or there are limits to the extent to which a state court may say what constitutes state law) to reach a result.

Third, statistical studies tend to show that judicial priors are indeed the dominant factors in how judges apply shifting and fluid legal doctrines. Quel shock. When you say you are not a Legal Realist because Legal Realism "goes too far" in assuming that judges just vote their priors, that is merely a dispute over nomeclature. In fact, you are at least a moderate realist because you do recognize the importance of those priors. (In my version of the nomeclature debate, I would assign the "goes to far" label to CLS, but not to Realism, whereas you conflate the two, which seems to me a tad unfair; Karl Llwellyn was not Duncan Kennedy.)

The tragedy of Bush v. Gore is that the cliffhanger in Florida obscured the real anomaly and unfairness of the election, which was that for the first time in more than a century, we elcted a popular-vote loser. The last time that happened, in 1888, the legal landscape was unrecognizably different; the Senate was elected by the legislatures, you wouldn't have been allowed to vote, etc. I wouldn't have thought that the electorate of 2000 would have been comfortable with that, but it all got lost in the partisan fog of the who won Florida nightmare (although the blazing anger of the Gore partisans was largely fueled by this circumstance; it just wouldn't have been the same had Bush won the popular vote).

The Electoral College, and indeed the entire Constitutional mechnism for electing a president, has long since outlived its usefulness, part of which, let us not forget, consisted of implementation of the three-fifths compromise; in a non-weighted popular national election there would be no way to count a (non-voting) slave a three-fifths of a person.

In the world of political values we live in today, there is no justification for a system in which a Wyoming voter has three times the weight of a California voter (i.e. Cal has more than 60 times the population of Wyoming but only 18 times the electoral votes). In fact, no system can really be justified except the person who gets the most votes wins.

That's all that matters. But nobody wants to talk about it.

Juan Vasquez said...

This may sound too simple but if you wrote it why can't you post it?

garik said...

"The Chief Justice began with a reminder of the obvious - this is an election for President of the United States - which aptly set the tone by implying: this is a matter that, if it is to be determined by a court, ought to be determined by the Supreme Court of the United States."

My point exactly. If only that had been true. But of course it's not. It was just a Florida election to elect Florida electors to the Electoral College. Then they could have voted for anyone they liked, including my mother (now that's a scary thought). Every one of the 50 states could prescribe a different method and set of rules for choosing its electors and that would be just fine. How ridiculous and sad.

Jacques Cuze said...

Garik, well said, and interesting too. (It is of course nomenclature and not nomeclature.)

Ann Althouse said...

Juan: I need to get the full text of all my articles up on a separate website I can link to. There are some sticky copyright and licensing issues having to do with the journals and LEXIS.

PatCA said...

"Work on a way to convince ordinary people that approaches other than originalism deserve respect. Help people care and believe in the individual rights you want courts to protect."

But this is what every activist works so hard to avoid because (a) the electorate is a bunch of bigoted, stupid red staters who can't be trusted with the issues of the day, or (b) they simply are high on the drug of victory. Look at the social engineering of the last 30 years--can you blame them for taking the judicial route?

Re the opinionmakers' view of the American people, I just read an article about TV's Lost and the "unlikely" (as they termed it) Korean romantic couple. They just can't understand why (racist)America loves these wonderful characters and are absorbed by their love story!

Jacques Cuze said...

Budapest Open Access Initiative

The Budapest Open Access Initiative arises from a small but lively meeting convened in Budapest by the Open Society Institute (OSI) on December 1-2, 2001. The purpose of the meeting was to accelerate progress in the international effort to make research articles in all academic fields freely available on the internet. The participants represented many points of view, many academic disciplines, and many nations, and had experience with many of the ongoing initiatives that make up the open access movement. In Budapest they explored how the separate initiatives could work together to achieve broader, deeper, and faster success. They explored the most effective and affordable strategies for serving the interests of research, researchers, and the institutions and societies that support research. Finally, they explored how OSI and other foundations could use their resources most productively to aid the transition to open access and to make open-access publishing economically self-sustaining. The result is the Budapest Open Access Initiative. It is at once a statement of principle, a statement of strategy, and a statement of commitment.

The initiative has been signed by the Budapest participants and a growing number of individuals and organizations from around the world who represent researchers, universities, laboratories, libraries, foundations, journals, publishers, learned societies, and kindred open-access initiatives. We invite the signatures, support, and participation of the entire world scientific and scholarly community.


Professor Daniel J. Bernstein
Please put your papers online!

Please put your papers online!
Retrieving a paper from the web is much faster than retrieving it from the library. Please make sure that all your work is available on the web, for free, in final form, at a stable URL. Please include URLs when you cite papers.

Online databases maintained by print publishers (AMS's MathSciNet, AP's IDEAL, Springer's LINK, JSTOR, etc.) aren't free. Sure, you and I can use them, but that's because our universities paid for access. What about smaller schools that can't afford access? What about readers outside academia?

...

Legal matters
Readers have to be free to download your papers and print them out. You will probably also want mirrors, i.e., copies of your papers available from other sites around the world.

Please don't sign any contracts that prevent you from authorizing these activities! In several cases I've said something like

This paper is entirely my own work.
I have put it into the public domain.
Luxury Press is therefore free to publish it.

instead of signing a copyright transfer agreement. If you ever encounter a publisher that doesn't accept this, let me know, and I'll be happy to blacklist that publisher here. I'm now blacklisting IEEE.

Perhaps you transferred a copyright to a publisher years ago. You can ask the publisher to put the paper into the public domain, but what if the publisher doesn't agree? You can't put your paper online without violating the copyright. Fortunately, copyright law in some countries lets you terminate the transfer, no matter what you signed:

* United States: If the transfer took place in 1978 or later, you may terminate the transfer on any date x in [d,d + 5 years], where d is min{transfer date + 40 years,publication date + 35 years}. You must file a notice with the publisher and the Copyright Office, using a form provided by the Copyright Office, during [x - 10 years,x - 2 years]. There are similar provisions for transfers before 1978.
* Other countries: I don't know.

If you have questions or comments about copyright, try the mathcopyright mailing list.



Don't publish with IEEE!
Before you read this page, you should understand (1) authors putting papers online to benefit readers, (2) commercial publishers using copyright to limit #1, and (3) authors dedicating papers to the public domain as one way to stop #2. I have a separate page discussing these issues.

It turns out that, in response to #3, IEEE is overriding its scientific referees and flat-out refusing to accept public-domain papers.

Maria said...

Maria: Please specify what you consider to be an "accusation" here that isn't true. That Armando is a hardcore political partisan who isn't interested in seriously going through the legal arguments in the case?

Yes, this is untrue. You claim that Armando is a 'hardcore political partisan'. Exactly what you mean by that is anybody's guess, and you give no reason for saying it. Unlike many Kos posters, Armando's political/ideological convictions don't prevent him from engaging in substantive discourse. He has shown himself capable of admiring informed, thoughtful conservatives, and capable of changing his mind.

As for his interest in 'seriously going through the legal arguments', you complain that he hasn't read your underlying article, and in the same breath say it's not available to read except on LEXIS.

In any case I, a casual Kos reader, have read enough of Armando's posts to see quite clearly that he is not afraid of the minutiae.

The questions Armando raises in his original post are valid ones; you have not addressed them directly; to be specific, you don't discuss the fact that the Supreme Court could have declined to hear Bush v. Gore in the first place, which is at the heart of Armando's post.

That Armando presented my article conclusion as if it didn't have an article preceding it?

This is a straw man. Armando addressed specific comments made by you, quoted you directly, and engaged with specific ideas whose significance can't be altered by anything that went before, so far as I can tell from reading your extracts. You put the main point well enough yourself:

As the Chief Justice pointed to the state court's distortion of state law and used that to detect a federal question in the tangle of state law out of which the state court may have manufactured an illicit power, he exposed his own work to the criticism that he distorted the law to manufacture an illicit power.

It doesn't take much to see that this is Armando's view. He wrote:

Concepts like precedent, consistency, rules of construction, political question doctrine, etc., place limits on the ability of judges to render any result they deem the correct one. And in a case like Bush v. Gore, adhering to those rules is more important by a factor of 10 than in any other case. It is precisely because of what was being decided that the SCOTUS' actions in Bush v. Gore were egregious in a manner almost unequalled in the history of the Court. They should never have taken the case period.

I would welcome a clearer explanation of why you think the specific passages you quote in any way alter Armando's criticisms.

That Armando adopts the view that judges are essentially political actors and should be assessed as such?

He did not say this.

Ann Althouse said...

Maria: I've already answered that.

AlaskaJack said...

Ann: I've never understood the attraction of legal realilsm or critical legal studies. Their adherents remind me of a group of sophists standing around listening to Euclid and then telling him that his proofs nothing more than an expression of his politics. Though these folks never learn much about geometry, their reaction does save them from a lot of hard thinking.
I don't mean to suggest that law is exactly like geometry. But a good judicial decision does require that there be a rational justification for the premises relied on and that sound logical arguments are developed from these premises.
I also wonder why legal realists and the crits don't come out of the closet and openly endorse the corollary that follows from their theories: that judicial candidates in a democrcy should actively campaign on what social policies they support and disclose exactly how they will rule on the issues that will come before them.

Mark said...

First, Happy Thanksgiving to all!

Now, perhaps I am dense or missing something, but I don't see where Ann addressed Maria's point with which I absolutely agree. Armando has a clear political position but his points are well argued and logical. That's why Ann's characterization of him as political partisan who is not interested in seriously going through legal arguments is false.
It's curious that Ann doesn't respond to Armando and Maria's arguments (unless I am missing her response).
Also, I agree with a lot of what angryblackconservative said. If you claim to be a "moderate", it would help if you criticize some of the righ-wing hysterical blogs, such as Malkin's.

UrbanPandit said...

Prof. Althouse: I was kind of hoping to read a response to this

"If the Supreme Court felt compelled to intervene because they felt that the decision or impending decision of the Florida Court would affect this Federal issue, shouldn't the force of their intervention have applied to all States, and not merely Florda? In other words, what I want to know is, once the Supreme Court ruled were they not obligated to carry things much further than to simply approve the result in Florda?

It strikes me that ruling in this way, but then expressly limiting the effect of the ruling in Florida is dubious at best, and bad faith at worst. Have I got this wrong, or at least partially right? And if the latter, it suggests that Scalia is being incredibly disingenuous blaming
ALL this on Mr. Gore and Florda. The fact that A decision was taken buy the Supreme Court should not be disturbing; it's the nature of that decision and the scope of it that seem strange to me.

If I've gotten anything terribly wrong, please don't hesitate to let me know." as posted by the first commenter on this issue "thingamabob. Will be interested to read you respose

Mark said...

Also, isn't it too much to ask that Ann clearly and unambiguously says that Scalia was plain wrong when he said that "the Gore people" dragged this into courts. It was proven that this statement is false.

Goatwhacker said...

As soon as it became clear the election was in doubt, both the GOP and the Democrats sent legions of lawyers to Florida. Although to me it looks like the first lawsuit was filed on the Bush side, arguing about who pushed who first is silly. If the positions were switched, each side would most likely have acted as the other did. Not only do Scalia's comments seem incorrect, I wonder why he bothered to bring it up in the first place. Defining who filed the first lawsuit has little value.

In the interest of full disclosure, I voted for Bush and am glad he became president. There were elements of how he got there though that bothered me, primarily what appeared to me as a non-lawyer to be the federal government usurping a state's rights to choose their own candidate by their own means.

I do agree with Ann's point that one's viewpoint on this is heavily influenced by their underlying biases. There are good arguments on both sides. The decision on which of these arguments should take precedence seems to depend largely on which dog you have in the fight.

At this point, the whole debate is a moot point. Complaints from the left about Bush/Gore are as futile as complaints from the right about Bill Clinton. It's probably not healthy for the left to focus on this perceived "wrong" as it was not healthy for the right to focus on many percieved slights in the Clinton era.

Alderman said...

As I remember it, Florida electors were going to go to the electoral college and vote for GW Bush come hell or high water. The Legislature was going to make sure of it. The Governor (J Bush) was going to make sure of it. The company that culled black voters (now, what was its name?),The Brooks Brothers Mafia, the Fla Supremes, even the US Supremes, were all bit players. Florida's electoral votes were going to be cast for GW Bush. I didn't like it. I don't like it. But: that's how it works. As I understand it.

peter said...

Here's a simple thought experiment that might go a long way toward explaining what is wrong with the decision in Bush v. Gore:

Imagine that the situation was reversed, and Al Gore was leading in Florida by 537 votes. Now try to tell me with a straight face that Scalia, Rehnquist, Thomas, O'Connor and Kennedy would have voted as they did.

37383938393839383938383 said...

Peter, if that is the case, then why don't they stick together in every single opinion? I mean, aren't they just a bunch of mindless fascists?

Greg D said...

Alito opponents should take the rule of law seriously and respect the institution of the courts.

They can't do that, and continue what they're doing.

Once you start having emanations from penumbras leading to the complete abolition of laws that have been around since the beginning of the country, you've given up on the concept of "rule of law."

Challenge Alito in a way that also expresses a sound theory of constitutional interpretation.

Having a "sound theory" would require them to have principles. Let's define a principle here:

A principle is a rule that can lead to results you don't like, and that you still follow and accept even when the results you don't like occur. (IOW, "I should always get my way" is not a principle. "The majority should always get their way" is a principle (not necessarily a good one).)

The only rule the liberals have followed is "we should get whatever we want" (if individual liberty mattered, the "liberals" would not have all voted for the Federal Government and against Raich).

Work on a way to convince ordinary people that approaches other than originalism deserve respect.

But it is the only approach worthy of respect, because it's it's the only one based on valuing the rule of law, and democracy. The others are based on the whims of unelected and unaccountable would-be dictators.

Help people care and believe in the individual rights you want courts to protect.

If they were willing to do that, IOW if they were willing to value democracy, they wouldn't be pushing to give supreme power to people who are not accountable to the voters.

Besides, it's not "individual rights" that liberals value, it's merely the avoidance of individual responsibility that liberals value. Thus their embrace of abortion as the one true sacrament.

Playing from the Legal Realism side, from an assumption that law is a kind of politics, empowers your opponents to say -- as they've been saying ad nauseam -- that you only want judges who will legislate from the bench.

Of course the opponents say that. It's the truth, after all.

thedeanpeople said...

There's a reason that Armando, and many others (even the likes of Judge Posner), don't see the need to get into the "legal arguments" of the BvG edict. It's the same reason Ann feels compelled to preface her remarks with qualifiers about "complexity," and "everybody's partisan" and the various other things she posts. The purpose of which is to convince herself of something, nothing else.

This is because there ARE NO legal arguments involved. What the feeble, felonious five set down to "end this thing" doesn't stand on any logical basis, let alone any legal or constitutional one.

There is nothing they could say about one party that shouldn't also apply to the other, so when Scalia revealed in his acceptance of the case that the bushkid had some claim to the legitimacy of "his election," he revealed his disqualifying bias.

Similarly, there is nothing they could say or imply about the FSC that shouldn't also apply to themselves. Some "legal scholars" have simplified the basis for their "decision" saying it was based on a distrust of the FSC. Trouble is, they don't have the option to harbor such a distrust. If it's there, it demands recusal.

Further, as the NYTimes reported (albeit in
> paragraph 49
of an article safely spiked until Feb):

"The majority had a conclusion in search of a rationale."

This is a description of the opposite of justice.

As for the "get over it," crowd, I would imagine that's what they say to all crime victims. But that's simply not gonna happen.

Unless and until we deal with the reality of the Stolen Elections (I and II) they'll continue to eat through our society like an acid.

It's my opinion that this is THE ONLY way to recover our national self-respect; to redeem our national soul; to get the American People "off the hook" for this crime spree that they did not participate in nor authorize.

There is no "worse" catastrophe. Not 9-11, not lying into war, not torture, not even genocide. This was willful violaton of THE ONLY moral principle on which this once-great nation, and democracy itself, ever rests: that gov't power can only be derived from the consent of the governed.

Without that, you can slap any label on it you want: fascism, authoritarianism, totalitarianism, monarchism, theocracy, oligarchy, whatever. They're all "true enough" in that they're all less than what our children deserve to inherit.

Or we just let allow our "leaders" to continue to sweep these things under the Palace carpeting.

But there's no statute of limitations on High Treason. We The People simply need to make Impeachment over the BvG edict the (second) priority after we take Our Congress back in 2007, or 2009, or 2011, or ...

NO MATTER HOW LONG IT TAKES

---
www.january6th.org

Goatwhacker said...

"The majority had a conclusion in search of a rationale."

It's difficult to understand your claim that "there ARE NO legal arguments involved" when the NYT article you cite mentions several of them. I would guess that reporters and even blog commenters could fall prey to having a "conclusion in search of a rationale".

thedeanpeople said...

I would guess that reporters and even blog commenters could fall prey...

Indeed they could.

But then they wouldn't be guilty of treasonous election theft if they did.

===
www.january6th.org

thedeanpeople said...

"Deadlines" and "Legislatures"

As I have "argued" this case over the years, two concepts seem to cause people the most trouble. They were both greatly abused by the right-wing propaganda machine to at best confuse, at worst defraud, the public.

The biggest confusion was caused by "deadlines" in both Florida and Federal law and what actually constitutes a legal deadline.

The answer is quite simple. There is no such thing.

Jurisprudence simply does not treat any date as fixed. The purpose of law is to resolve competing interests, not apply/enforce arbitrary "rules" and therefore any judicial arbiter can waive any "deadline" in favor of a more compelling interest.

The most common seemingly hard deadline is a statute of limitations. But these apparent deadline are "tolled" all the time for a variety of good reasons.

The same is true for any dates in FL election law, the much discussed "safe harbor" date, and for that matter even the requirement for congress to act on January 6th. There are many good reasons to put such deadlines into law, but if a better reason demands that the date pass, then that is what the law requires.

The other troublesome concept is what is meant by "legislature." This canard does not come up as commonly (particularly as of late) but still accounts of a good deal of confusion. Also, it is more specific to this set of circumstances.

Some people seem to believe that when Florida or Federal law refers to the legislature it means the current one, the one sitting now, or more accurately the one sitting sitting then. The one that the election thieves claimed had the power to dictate to whom the voters had given their consent.

This is simply wrong. When discussing election law in Florida (or anywhere) the actions of "the legislature" means ALL election law passed over the years. Therefore, no Federal law gives any specific power to any current legislative body.

Similarly, no Florida law gives any specific power to any current legislative body that avoids, or supercedes, proper judicial review by its own state courts. So any discussion of what that legislature may or may not have done is legally irrelevant.

Now, its political relevance is another matter. And as Frank Luntz said on Hardball at the time, action by the FL leg. would have been a PR disaster. This only left defecating on the (formerly) supreme court as their only option to "shut it down."

===
www.january6th.org

Mark said...

CriticalObserver:

What a non sequitur. That Scalia-Thomas-Rehnquist-O'Connor-Kennedy would have voted differently if Bush/Gore roles were reversed has nothing to do with whether they always vote together or whether they are "mindless fascists". I think you are too smart not to realize it. It is undisputable that these 5 judges have consistently taken a narrow view of the Equal Protection Clause, and there's virtually zero chance that they would have expanded it if the roles were reversed. The vote would have been 9-0 against Gore if the roles were reversed.