BeldarBlog

Why did Al Gore agree with Jack Kennedy on the Electoral College?

The single best book I've ever read about politics is probably Master of the Senate, Robert A. Caro's third volume in an anticipated four-part biography of Lyndon B. Johnson, which I recommend without hesitation to anyone regardless of personal politics.  However, I'm enjoying another recent biography that I'm about mid-way through — Robert Dallek's An Unfinished Life:   John F. Kennedy, 1917-1963.

One can't help but cross-reference anecdotes from this sort of biography against more current events, and this passage from Dallek's book retriggered a question that has lingered in my mind since the Presidential Election of 2000:

Jack certainly hoped that Profiles [in Courage, his Pulitzer Prize-winning book from 1956,] would identify him with uncompromising political responses to national dangers.  He yearned for a challenge that would give him an opportunity to act like a political hero.  The best he could find was a congressional proposal to reform the electoral system.  Jack took up the cudgels against what he described as "one of the most far-reaching — and I believe mistaken — schemes ever proposed to alter the American constitutional system.  No one knows with any certainty what will happen if our electoral system is totally revamped as proposed."  Jack emphasized how well the existing electoral system had worked to ensure the influence of the popular vote, the two-party system, and "the large-State-small-State checks-and-balances system."  The proposed amendment, which he feared could destabilize American politics at a time of grave foreign challenges, was nothing voters had demanded or even knew about.  Although Jack gave a lengthy, authoritative Senate speech that contributed to the defeat of the amendment, his opposition hardly registered on the press or the public; reform of the electoral college was an invisible controversy.

JFK, of course, ended up winning the Presidency in 1960 by a rat's whisker in the national popular vote — 113,000 votes more than Nixon out of the 68 million ballots cast — but by a far more comfortable 303-219 margin in the Electoral College.

I've often wondered, however, why Al Gore and his supporters did not mount a more sustained attack on the Electoral College after the 2000 election, when Gore won the popular vote but lost in the electoral vote.  I give Gore considerable credit for resisting this temptation.  Indeed, I recall both that he expressed support for the Electoral College system as he was finally conceding defeat, and that he behaved impeccably in performing his own role under the Twelfth Amendment as President of the Senate in opening all the certificates from the various states to permit the counting of the electoral votes that made Dubya the new President.

Still, given the intense personal venom of the Angry Left at Dubya and everything connected with his election in 2000, I'm frankly surprised that MoveOn.org or some other sloganeering and rabble-rousing organization hasn't targeted the Electoral College.  In this era of sound-bite politics, even moreso than when JFK was in the Senate, the reasons to support the Electoral College system of electing our Presidents are awfully complicated.  By contrast, there is exactly one extremely simple (if simplistic) reason to abolish it — that is, it's anti-democratic (small d), at least in a macroscopic sense. 

I certainly don't mean to rule out the possibility that Gore's support, like JFK's, was genuinely principled.  But I'm curious:   does anyone see any practical and pragmatic reasons why Gore and other liberals (with the exception of the Staten Island Democratic Association) haven't attacked the Electoral College system with great relish and vigor?

You'd rather Dubya watch Rather?

"It's incredible to think that the President of the United States gets his information in Reader's Digest format from people who work for him," according to a recent post from Linkmeister, who links to a transcript of Brit Hume's interview with Dubya on Monday night for Fox News and to a resulting editorial in Thursday's New York Times:

Mr. Bush and his aides also seem to go to great lengths to underline the degree to which the president closes himself off from the news media. In an interview with Fox News this week, the president said he learned most of what he needs to know from morning briefings by his national security adviser, Condoleezza Rice, and his chief of staff, Andrew Card.

As for newspapers, Mr. Bush said, "I glance at the headlines" but "rarely read the stories." The people who brief him on current events encounter many of the newsmakers personally, he said, and in any case "probably read the news themselves."

Some of this may be a pose that is designed to tweak the media by making the news appear to be below the president's notice. During the Iraqi invasion, when the rest of the nation was glued to TV, Mr. Bush's spokesman claimed that his boss had barely glanced at the pictures of what was going on.

But it is worrisome when one of the most incurious men ever to occupy the White House takes pains to insist that he gets his information on what the world is saying only in predigested bits from his appointees.

Professor Eugene Volokh has a post up debunking Slate's Jacob Weisberg's "Bushism of the Day" from the same interview, in which (mis)quotes the President as saying:

"I glance at the headlines just to kind of get a flavor for what's moving. I rarely read the stories, and get briefed by people who are probably read the news themselves."—Washington, D.C., Sept. 21, 2003

Of all the criticisms I've ever seen of Dubya, this is probably the absolute stupidest.

For some considerable period of history, the President of the United States — whether it's been George W. Bush or Bill Clinton or Franklin Roosevelt or Abraham Lincoln — has had the best information-gathering and -digesting resources available to him that our nation can provide.  Obviously those resources are far from perfect.  As the Times somewhat grudgingly concedes, they include actual news-makers in addition to news-gatherers. 

Card and Rice are just the conduits — not the selectors or pre-digesters of information themselves, for there are surely dozens of those just behind them, and literally tens of thousands of news- and information-gatherers behind those.  The President's "appointees" for that process, as the Times smugly refers to them, would include all of the CIA, the NSA, the DoD, the State Department and, for that matter, every other cabinet department.

The Times may think the national interest would be better served if Dubya kept a clippings notebook, or maybe some index cards that he could add to as he spent six hours a day working through newspapers and magazines.  "Oh, dang-nabbit! ... LAURA!  Could you please come alphabetize these cards for me?  Tony Blair's coming this afternoon, and Barney knocked over the dang box again!"

Or perhaps they'd rather see him hunched over a keyboard working his way through his daily blogroll.  Maybe they'd manage to set him up with an aggregator.  Let's see — should POTUS be reading CalPundit or Atrios to get his daily injection of spin from the left?  Can he also read Drudge?  InstaPundit? ... Mr. President, are you reading BeldarBlog?  [I'm standing and saluting my monitor as I type this!]

Actually, I can imagine Jimmy Carter scanning through a blogroll in the Oval Office.  And that characteristic  was one key explanation for why Jimmy Carter — a brilliant and caring and curious man — became the worst President of my lifetime, possibly the worst of all time.

So how would you rather the President of the United States spend his time?  Reading what the New York Times is speculating about, which is in turn based on what someone has leaked about what the CIA has just learned about the leadership of Iran?  Or reading what the Director of Central Intelligence has just written about what the CIA has just learned about the leadership of Iran? 

And maybe the President should've tuned in to the BBC to get Andrew Gilligan's take on how the Third Infantry Division was doing in its advance toward Baghdad, rather than relying on filtered information from Gen. Tommy Franks via Rumsfield.  Yeah, that's the ticket!

Let's just dump that Rice chick anyway.  PhD, schmee-H-dee.  Who should meet Dubya for his breakfast briefing every day?  Well, isn't it obvious?

Maureen Dowd.

Affirmative action as the "checker-shadow illusion" of racism

I really like the guys who write Burnt Orange Report because they're smart and articulate and passionate.  They're also reflexively liberal, but that's easy to understand and forgive since they're college students at my alma mater, UT-Austin a/k/a Sodom on the Colorado.

I've been pondering Byron L's post expressing his outrage at the bake sale run by a campus conseravtive group at SMU that charged white males $1 per cookie, while females only $0.75, hispanics $0.50, and blacks $0.25.  Bryon's conclusion, in a word:   "Racists."

To which my response is, "Yes, exactly.  That's the whole point.  Doncha get it?"

And what this in turn brought to mind is Edward H. Alderson's wonderful "Checker-Shadow" optical illusion — I'm posting a thumbnail here, but please click the thumbnail to see it full-size to get the full benefit of it.

Block A and Block B are identical.  But how you perceive them depends entirely on context, and unless you work very hard at freeing your mind from the handcuffs of context, you will see them as being different from one another.

Racism and "affirmative action" — as that latter phrase is now used{note1} — are Block A and Block B.  You can be fooled by context into thinking they're not, and once thoroughly fooled, you certainly can honestly believe and righteously argue that they're different. 

But.  They're.  Not.

And when you start making important, life-altering decisions based on the premise that Block A and Block B are different, or that racism and affirmative action are different, you're likely to go astray.  It may be entirely innocent and for the best of motivations.  But the choices you make that are based on that premise are likely to be morally flawed.

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{note1}IIRC, as originally used, "affirmative action" began as a label for the equitable relief ordered by courts as a means of remedying incidents of proven past discrimination that could be pegged to individual plaintiffs, individual defendants, and individual scenarios.  Herman Sweatt, for instance, was refused admittance to Texas Law School in 1946 solely because he was black.  The US Supreme Court ruling that required Texas Law School to admit him was "affirmative action," but he was the personal, individual target of proven past racism on the part of Texas Law School. 

I am just old enough that one of my law school professors in 1977-1978, the late Jerre Williams (later a judge on the Fifth Circuit), was one of the Texas Law School professors who'd been ordered to split his time between Townes Hall on the UT campus and a downtown Austin location in order to teach Herman Sweatt and a few other blacks at the newly established "law school for Negroes" in the late 1940s.  Professor Williams' opinion was that because of the student-faculty ratio, students at the new school quite arguably got a better than equal education to that they'd have received at Texas Law School, but of course, there was no comparison between the prestige that would attach to their degrees regardless of who taught them and what they'd learned.  Indeed, that was the basis for the US Supreme Court's decision that there was no way that "separate" could be "equal" as a practical matter:

In terms of number of the faculty, variety of courses and opportunity for specialization, size of the student body, scope of the library, availability of law review and similar activities, the University of Texas Law School is superior. What is more important, the University of Texas Law School possesses to a far greater degree those qualities which are incapable of objective measurement but which make for greatness in a law school. Such qualities, to name but a few, include reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, traditions and prestige. It is difficult to believe that one who had a free choice between these law schools would consider the question close.

And this decision was of course the last small step before the great leap, the conclusion that there was no way "separate" could be "equal" as a conceptual matter either — hence Brown v. Board of Education and the modern-day civil rights movement.

Fast-forward fifty-three years — a full half-century, and nearly three generations.  In this past year's Grutter v. Bollinger affirmative action case from Michigan Law School, by contrast, the "affirmative action" being upheld benefited individuals who are conclusively presumed by virtue of their race to need and deserve extra help from an institution with no history of racist discrimination against them or anyone else of their race.  The black graduate of Harvard College whose parents are PhD's with earnings in the top one percent of Americans is given automatic and very possibly conclusive preference that is denied to, for example, the daughter of Vietnamese refuges whose University of Houston night-school diploma was earned while working three part-time jobs.  I have no objection to genuinely remedial "affirmative action" as ordered in Sweatt v. Painter, but cannot justify "affirmative action" as practiced at Michigan Law School and approved in Grutter as being anything but racism.

Is the Ninth Circuit merely misunderstood?

The Curmudgeonly Clerk has excellent links —  but also excellent original discussion — pertaining to the question of whether the Ninth Circuit is really as errant and out of touch as its critics claim, and in particular whether statistics can contribute meaningfully in trying to answer that question.  As I mention in a comment there, I trust my subjective opinion over statistics on that subject, and I think the Ninth largely deserves its bum rap. 

But as I've posted here as well, I commend the Ninth Circuit for at least beginning to address the problem on both substantive and reputational levels in the Shelley en banc proceedings.

Liberal "self-doubt"

There is no shortage of commentary out there on The New Republic senior editor Jonathan Chait's screed, Mad About You:   The Case for Bush Hatred, which has this concluding paragraph:

To be a liberal today is to feel as though you've been transported into some alternative universe in which a transparently mediocre man is revered as a moral and strategic giant. You ask yourself why Bush is considered a great, or even a likeable, man. You wonder what it is you have been missing. Being a liberal, you probably subject yourself to frequent periods of self-doubt. But then you conclude that you're actually not missing anything at all. You decide Bush is a dullard lacking any moral constraints in his pursuit of partisan gain, loyal to no principle save the comfort of the very rich, unburdened by any thoughtful consideration of the national interest, and a man who, on those occasions when he actually does make a correct decision, does so almost by accident. 

I love that line:   "Being a liberal, you probably subject yourself to frequent periods of self-doubt." 

Translation:   "I shall stop for a moment to consider whether anyone with whom I disagree could possibly have an ounce of intelligence or integrity.  I shall ponder whether I could be wrong in any small particular.  Could it be that I have erred, that my magnificient intellectual prowess could have gone astray, that my sarcasm and hyperbole could be off target?" 

And the ready answer — oh painful soulsearching, oh razor-blades of self-doubt! — "Nawwwww, didn't think so.  Glad that's settled."

Friend Chait, I thank you for the hearty, if unintended, laugh your column has given me.

Lawyers who are unclear on the concept of "helping" their clients: Clarett v. NFL

In Friday's New York Times, you will find this article:

Alan C. Milstein has had his share of emotionally charged legal cases. There was the lawsuit he filed against the University of Pennsylvania on behalf of the family of a young woman who died after undergoing a gene therapy experiment. And there was the suit against the manufacturer of an anthrax vaccine after an American soldier who had received injections died.

These were tragic tales involving power and its use. In reciting them, Milstein makes what seems to be an unusual connection, comparing them to his current high-profile client: the suspended Ohio State running back Maurice Clarett.

Milstein's argument is that the NFL is breaking the law — illegally conspiring in an unreasonable restraint of trade — by refusing to draft football players who aren't yet old enough to buy a draft beer:

Milstein is suing pro football over its eligibility bylaws, which prohibit a player from entering the N.F.L. draft until he has been out of high school at least three years. Clarett, a sophomore who was suspended for the season by Ohio State for rules violations, is suing to become eligible for the league's draft next April.

If you are an utterly craven, utterly shallow, utterly shortsighted bastard who's wrapped up in your own reputation and income to the complete exclusion of your nominal clients' welfare, then you might manage to persuade yourself that you'd be "helping" the boy who is your own client, and other boys like him, by going to court to establish that physically advanced and talented 18 year old boys are eligible to become instant boy-millionaires.  You could perhaps continue to "help" your client by, say, introducing him to several bookies and a crack-cocaine dealer while you're at it.

But if, as a lawyer, you have any kind of a clue about what is in such a client's genuine best interest, you will instead tell him, "Son, you have just blown what is probably the best opportunity you could ever have hoped for to pursue a sports career because you thought none of the normal rules of life apply to you because you're already so special.  Even if I could win your case for you against the NFL, what you need is not a multi-million dollar sports contract.  You need to focus on continuing to attend school for the next year and perhaps getting a good part-time job in which you can prove to yourself and your team and the world that you can be a responsible grown-up.  At the end of which time, if you've stayed in shape, your team will probably take you back for a second chance that you might, by then, have earned."

Ask Spenser Haywood whether you need to be careful what you wish for.

Beldar is smug: Eleven-judge Ninth Circuit panel affirms district court in Shelley as standard of review proves outcome-determinative

The eleven-judge mini-en banc panel of the Ninth Circuit has issued a unanimous, thirteen-page per curiam opinion affirming the judgment of the district court — thereby overturning the result of the prior three-judge Ninth Circuit panel which had reversed the district court.  The California recall election will proceed as planned on October 7th.

How'd I do on my predictions?  Pardon me for feeling a bit smug.

In my original analysis of the three-judge panel's opinion, I discussed the standard of review that appellate courts are supposed to apply to appeals from decisions granting or denying preliminary injunctions.  I focused on one part of the standard that had been cited, but then ignored, by the three-judge panel opinion — the requirement that the appellate court not overturn a factual finding of the district court unless it could be shown to have been "clearly erroneous."  But I noted that by failing to make more explicit fact findings, the district court had hurt its chances of being sustained on appeal. 

The eleven-judge panel, however, simply shifted the standard of review up one notch to focus on a similar but closely related maxim — that a district court's decision to grant or deny a preliminary injunction will only be reversed if it can be shown to be an "abuse of discretion."  That's a level of analysis that includes both the district court's factual findings and its legal conclusions in one sweeping formulation.  By keeping the focus there, the eleven-judge panel simply swept over — with zero discussion — any disputes regarding the underlying facts of the case (including the district court's failure to more explicitly resolve those disputes).  This use of a very broad focus — this refusal to subdivide the district court's decision into its logical factual and legal subparts, which there is certainly supporting precedent for doing, and which is in fact the more common practice — was, shall we say, less than meticulous, almost to the point of being a deliberate blurring.  It's a bolder, blunter assertion of the appellate court's limited standard of review than I originally proposed.  But that's basically how the eleven-judge panel was able to replace the three-judge panel opinion's sixty-six pages with something about a fifth as long.

Metaphorically, if an appeal is the examination of the district court's decision under close magnification, then the "standard of review" is the lab manual that tells you how to adjust your microscope.  I criticized the three-judge panel opinion for cranking up the magnification so high that it was "finding facts" from the evidentiary record that the district court had never explicitly discussed.  The eleven-judge opinion, however, not only twirled the focus knob back up, it whirled over into a different set of lenses altogether — a very low-magnification scrutiny.  Instead of examining the whirls and curls and intricacies of the district court's fingerprints under a 300x lens, the eleven-judge panel took a glance under a 3x lens and said, "Yep, that's a fingerprint alrightee!"  And stopped. 

In short, I predicted that the standard of review would be important, and indeed, the selection of this level of review became, very simply, outcome-determinative. 

In my other predictions, made last night after the argument:

• I predicted that Chief Judge Schroeder would be in the majority; she was. 

• I predicted a large majority to affirm the district court, "perhaps even a unanimous one"; it was. 

• I predicted that she'd assign Judge Kozinski to write the opinion.  This we can't tell, since it was unsigned.  However, I am 99.99 percent certain that what was released this morning — the timing of the release already having been announced by a court spokesman last night — was drafted before the oral argument, most likely by whichever judge led the private charge within the court to get the three-judge panel opinion reheard.  Especially given the way he dominated the oral argument yesterday, I think it's a reasonable assumption that Judge Kozinski indeed was that mystery judge.

• I predicted that the three-judge panel's reliance on Bush v. Gore could be disavowed "in two paragraphs and a one-sentence quote:   'The question before the [Bush v. Gore Supreme] Court [was] not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections.'"  I nailed it on the one-sentence quote, but the eleven-judge panel took only one paragraph to use it (page 8, 2d paragraph).

• I predicted that there would be very different language from that used by the three-judge panel on the "balancing of interests," and indeed there was ringing language (pp. 9-11) about the special reasons for not enjoining elections and the public interest in proceeding as scheduled by state election authorities, even on the two ballot propositions in addition to the gubernatorial recall.

I'll now venture a further, much easier and safer prediction:   the en banc Ninth Circuit having acted to clean up the ugly mess made by the three-judge panel, the Supreme Court will absolutely refuse to have anything to do with this case.

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UPDATE (Tue Sep 23 @ 6:30pm):   Rick Hasen's Election Law blog quotes in full an ACLU press release announcing that it won't seek Supreme Court review, which can't quite resist throwing in a gratuitous shot at Dubya at the end:

We will, however, press forward vigorously with our national campaign for election reform and will fight to ensure the fairness and accuracy of all voting procedures in every future election, including the 2004 Presidential contest.

(Cue the clip from Candidate Ahh-nold.)  Presumably the ACLU's jointly-represented coplaintiffs will follow suit (not to suggest that they're anything less than the completely independent, completely distinct entities they were presented as being for purposes of avoiding the defendants' claim preclusion issue, which the eleven judge mini-en banc panel ignored anyway). 

Hasen had filed an amicus brief supporting the ACLU's position, and his polite grumbling (here and here, whenever Blogspot gets its archives back online) — based on how the eleven-judge panel extended the "abuse of discretion standard" to insulate from review not only factual findings but legal conclusions "if the district court judge came close enough to getting the law right" — is frankly very well taken. 

What he's talking about is exactly what I meant when I referred to the eleven-judge panel's failure to subdivide its analysis between the factual and legal subparts of the district court's decision; normally fact findings are immune unless "clearly erroneous," but legal conclusions are reviewed "de novo," with no deference at all to the district judge's views on the law.  The distinction is based on the unarguable proposition that while the appellate court didn't get a chance to see the witnesses and sniff out the liars, it nonetheless is in as good a position as the trial judge to decide what the applicable law should be.  If you do that sort of divided analysis, the "abuse of discretion" standard becomes almost meaningless as a separate standard of review; or to the extent it has independent meaning, it's only with respect to the "balancing of interests" part of the inquiry.  What this opinion does arguably extends or reinvigorates the "abuse of discretion" standard into one that, as Hasen points out, gives the district judge the benefit of the doubt on legal as well as factual issues — "close enough for government work," as Judge Kozinski repeatedly joked during the oral argument. 

I doubt, however, that this opinion will end up being cited for that proposition; rather, I frankly think that the eleven-judge panel used this deliberate blurring of standards as a way to compensate for the district court's failure to make fact findings in this specific case, and had no intention of writing any "new law" on the standard of review for preliminary injunctions.  If so, the case may become a "nonprecedential precedent" — meaning that the next time a litigant says, "Well, you should affirm because the district court got the law pretty close to right," the Ninth Circuit will say, "Hey, boy!  This isn't horseshoes or hand grenades!"  In any event, to call the opinion's discussion of this issue "terse" would be a considerable understatement.

According to one of his law students who blogs, Professor Tribe apparently shares my strong hunch that the opinion was written before the oral argument, based on the timing of its release.  Call me a pragmatist, or call me a cynic, but even with only the few hours of hindsight we have since the decision was announced, this seems clear to me:

• A majority of the active judges of the Ninth Circuit found the three-judge panel opinion extremely embarrassing.

• Someone — my bet is Judge Kozinski — led an immediate private charge inside the full Ninth Circuit to get the decision reheard en banc before the parties had even put finger to keyboard to draft their motions for rehearing.

• For all practical purposes, the reversal of the panel was assured as of the moment the rehearing en banc was announced.

• Speed was of the essence.  It is almost inconceivable that the en banc court could have acted any more rapidly than it actually did on this case.

• The decision to allow TV coverage of the oral argument was the most obvious example yet of a federal court engaging in spin control — in a word, "showbiz"!  Chief Judge Schroeder, on her own initiative or with urging, recognized that the Ninth Circuit needs some good PR.  Cleaning up the original three-judge panel's mess after a highly publicized, nationally televised (but completely meaningless) oral argument — and doing so unanimously, expeditiously, and with a panel on which a majority of the judges had been appointed by Democratic Presidents — was an excellent way to counter some of the deservedly bad press the Ninth Circuit has gotten from its high reversal rate and its rulings in cases like the recent ones involving the Pledge of Allegiance and the "three strikes" law.

I do not make these remarks in a critical way.  It is altogether appropriate for Chief Judge Schroeder and her colleagues to be concerned about the reputation and dignity of the Ninth Circuit, and just as it is their duty to uphold that reputation and dignity, it is their duty to act in appropriate, if indirect, ways to restore what's been tarnished.  In fact, if I'm right, then this course of action is exactly the way for the Ninth Circuit to "talk" to the people about what it is doing — in contrast to less subtle and more unethical methods of trying to affect public opinion.

Under the big top in SVREP v. Shelley

I wasn't able to watch the live argument in today's rehearing by a mini-en banc eleven-judge panel of the Ninth Circuit in Southwest Voter Registration Education Project v. Shelley, but I just finished watching it via taped streaming video available from C-Span's website.  An email from reader A.J. Pate alerted me to watch for the most priceless moment, at the very end of the hour (somewhere around 1:06:40 on the RealPlayer counter). 

Earlier in the argument, ACLU attorney Mark Rosenbaum had obviously been frustrated when various judges' questions repeatedly diverted him from his persistent efforts to address the plaintiffs' allegations that punchcard voting machines violate the Voting Rights Act of 1965 — an alternative basis for injunctive relief that had been rejected by the district court and then largely ignored by the per curiam three-judge panel opinion.  He returned to the podium to use the little bit of time that had been left to him for his final rebuttal by his co-counsel Larry Tribe, but was told that he had only thirty seconds to speak "if he has something that he really needs to say."  Rosenbaum drew his first hearty laugh from the judges deliberately when he began by quipping, "I have three points, and I'll try to make them all at once."  But in his understandable rush after that, in trying to summarize evidence from the plaintiffs' expert on voting machine disparities, Rosenbaum had a classic Freudian slip of the tongue:

MR. ROSENBAUM:   What Dr. Brady did was, he took California precincts, and he took zero percent minority precincts and he took 100 percent minority precincts, and he asked, "Was there any difference here?"  And what he found, in terms of causation, what he found was that there was a three times disparity.  Then he looked — and this is at figure three — then he looked at those districts that had changed, changed from punch-card to other machines.  And he found — and this is at pages 165 and 167 of the record — that the disparity virtually disappeared.  That it completely examined [sic].  That is, Your Honor, the strongest case that has ever been in this circus — circuit — with this — [Interrupted by laughter]

CHIEF JUDGE SCHROEDER:   Perhaps you should just quit while you're ahead.

MR. ROSENBAUM:   Guess who's the biggest clown?  [continued laughter as he sits down]

From my personal experience — both from the year I spent clerking for a circuit judge and from the two dozen or so state and federal appeals I've been involved with since then — I believe that the importance of appellate oral arguments is highly overrated.  Written briefs win cases on appeal; a blunder or a concession at oral argument can possibly lose one, but otherwise oral presentations are unlikely to have significant impact.  Even the most articulate appellate advocates — and many would rank Tribe among them, although I thought he was pretty flat today — do a far better job of expressing complex thoughts in a compelling fashion in their writing than they can in the give and take of rapid-fire questions. 

The judges' questions and comments can sometimes give clues toward their leanings, but if there's any real persuasion being done on the day of oral argument, it's more likely to occur in the private conference among the judges afterwards — when one pithy sentence delivered by an esteemed judge who may have said nothing during the public argument may nevertheless have a decisive impact on any undecided colleagues.

I saw no case-losing blunders or concessions in today's arguments.  Judge Alex Kozinski was clearly the star of the hour; Chief Judge Mary Schroeder was surprisingly subdued.  Many have predicted that Judge Kozinski will lead the block of judges who vote to affirm the district court and allow the election to proceed on October 7th as scheduled.  He played the traditional game of asking a few "have you stopped beating your wife" questions to the lawyers representing the State and Intervenor Costa, but he really skewered Tribe and Rosenbaum.  In particular, Judge Kozinski and several other judges made a large to-do about the proper standard they should use to review the district court's ruling — grilling both sides as to whether, and to what extent, they are obliged to defer to the district judge.  (As I pointed out in my original post criticizing the merits of the Ninth Circuit panel's decision, it erred in giving no deference to the district court's factfinding and weighing of competing interests, but the district court also shot itself in the foot by failing to hold an evidentiary hearing or to make explicit findings of fact that would have to be upheld unless "clearly erroneous.")

For what it's worth, here are my predictions:

• Chief Judge Schroeder will be in the majority but will throw a large chunk of raw meat to conservative critics of her court by designating Judge Kozinski to write for a large majority on the eleven-judge panel — perhaps even a unanimous one — who vote to affirm the judgment of the district court. 

• Judge Kozinski will go out of his way to disavow the panel opinion's reliance on Bush v. Gore, which could be done in two paragraphs and a one-sentence quote:   "The question before the [Bush v. Gore Supreme] Court [was] not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections." 

• He'll then hold that at some theoretical level of error, variations in accuracy of different voting systems can give rise to an equal protection violation; but that wherever that level is, it's far higher than what the plaintiffs in this case submitted proof to establish, especially since their evidence failed to consider the possibility of the error rate differential between different systems dropping after a possible recount for close elections. 

• He'll also include ringing language in the "balancing of interests" that must be done in injunction cases to repudiate the panel's meme of "we're federal judges, and the California Constitution can 'merely highlight' what's in the public interest of Californians."

And the election will proceed on October 7th as scheduled.

Photographic smears

A picture may indeed be worth a thousand words.  Or it might be visually stunning, attention-grabbing — and completely meaningless.

These two photos were taken in Waco on August 30, 2003, as Pres. Bush was meeting with girls from the Midway All-Stars softball team before boarding Air Force One to return to Washington. 

I saw the first of these two photos reproduced on left-leaning sites all over the blogosphere, usually with some insulting comment about Dubya.  The second, which was taken moments later, I just came across today for the first time. 

The contrast simply proves that when you are famous, then people take lots of pictures of you, and eventually someone will take a picture of you that makes you look cruel or wicked or stupid.  People who oppose you, and some who even hate you, want to smear your reputation, so they'll publish it far and wide.

Ted Barlow has a post up at Crooked Timber which claims that Matt Drudge and Robert Novak are attempting to smear new Democratic Presidential candidate Wesley Clark "on factually untrue grounds," and that as part of that effort, they're misusing a "shocking photo" in which then-General Clark and Bosnia Serb commander Gen. Ratko Mladic have traded uniform caps.  Specifically with respect to the photo (as opposed to the wisdom or judgment shown by the visit during which that photo was taken), I left this comment:

Whether Gen. Clark is more of an Eisenhower or a McClellan is still very much an open question, and one worthy of serious and thoughtful public debate. There are plenty of reasons not to take Gen. Clark terribly seriously as a presidential candidate, and even plenty of reasons to question Gen. Clark’s performance in the Balkins. But this photo isn’t one of them.