Debating recall takes a strong Constitution

Courts often are unpredictable. Commentators usually are not.

In fact, given the myriad uncertainties generated by California’s first gubernatorial recall campaign, there was something almost comforting in the commenting class’ response to Monday’s decision by a three-judge panel of the U.S. 9th Circuit Court of Appeals postponing the Oct. 7 recall election.

Drawing -- among other sources -- on their reading of the U.S. Supreme Court’s ruling in Bush vs. Gore, the judges ruled that counties still using “punch card voting systems” that “are significantly more prone to errors” should have time to replace those machines before the balloting proceeds. The counties involved, which include L.A., are home to about 44% of the state’s voters. The ACLU, which argued successfully on behalf of a coalition of civil rights groups, presented testimony that the antiquated machines might disenfranchise as many as 40,000 voters.

One of the reliable traditions of American commentary is that any judge who decides against your position in a controversial case is an unprincipled, partisan judicial activist grinding his or her particular ideological ax. A jurist who decides for you, on the other hand, is a courageous defender of our constitutional foundations, a clear-eyed upholder of the rule of law and a praise-worthy opponent of passion and prejudice.

And so it went Monday and into Tuesday. Nothing like a good court ruling to set the chattering classes’ jaws jerking.

First on the scene, of course, were those incomparable intellectual mud-wrestlers, the radio talk show hosts. These days, they march to a tune best appreciated through the right ear and have given their ratings-driven hearts to the recall since it was but a Republican rumor. Within hours of Monday’s ruling, their denunciations of the 9th Circuit filled the AM airwaves.

Former San Diego Mayor Roger Hedgecock mused darkly over the fact that two of the judges involved were appointed by President Clinton, who appeared alongside Gov. Gray Davis in Los Angeles on Sunday. “Clinton comes to town,” he told his listeners, “and a day later, two of his appointees on the appellate court decide to nix the election.... This is the stuff of a banana republic.”

Melanie Morgan, who hosts a program in San Francisco, alleged the court’s ruling was “definitely part of a left-wing conspiracy. The court has stolen Californians’ right to vote. It’s partisan, bald-faced theft. We were so close to having this done. I’m exhausted.” Poor Melanie. How could the court have done this to her?

Tuesday, on The Times’ op-ed page, former L.A. Mayor Richard Riordan -- now an advisor to Arnold Schwarzenegger’s campaign -- wrote that “three justices of the U.S. 9th Circuit Court of Appeals put the rule of law aside Monday in favor of their own political ideology when they ruled on the recall.”

Two columns over, USC constitutional law professor Erwin Chemerinsky -- who was co-counsel to the suit’s plaintiffs -- wrote that the ruling was “an act of courage,” based “on decades of [U.S.] Supreme Court decisions that ensure the right of every adult American to have an equal chance to vote and to have his or her vote counted.”

You didn’t have to be a participant in the recall fracas to have an opinion that neatly followed our usual political fault lines: the Wall Street Journal editorially denounced the decision, calling the 9th Circuit “the most reversed appeals court in the nation -- and a laughingstock of the appellate bar.” (One hates to be inconveniently factual when vigorous opinions are at stake, but the 9th Circuit is reversed at the median rate for all federal appeals courts.)

The New York Times, by contrast, approved the ruling on its editorial page, arguing the court “did the right thing” because “mass disenfranchisement is unacceptable.”

Then there was Slate’s influential blogger Mickey Kaus, who reacted in the best we-smart-guys-online-say-a plague-on-both-your-old-fashioned-houses style. Kaus decried what he called the “condescending, museum-quality paleoliberal mind-set” of one of the panel’s members. However, he also cautioned that, “If I were the U.S. Supreme Court, I would be very reluctant to reverse the 9th Circuit and thus cement a reputation as an unprincipled partisan court that upholds obscure Equal Protection arguments when they throw an election to Republicans (as in Bush v. Gore), but strike them down when they throw an election to Democrats.”

There is something instructive, as well as reassuring, in all this predictable rhetoric. We Americans are, as we have ever been, a people of various customs and beliefs. Constitutionalism is what we have to bind us together instead of an established church. In this sense, our arguments over what the Constitution directs or guarantees are more like theological disputes than they are political controversies. In this sense, the Constitution stands in for Scripture and judicial precedent for patristic interpretation.

Deeply felt and deeply personal, quasi-religious assumptions are at work here. Hence the unexamined quality of so many responses to decisions of Monday’s sort. Hence our edification at rulings that reinforce our beliefs and our impatience with contradiction.

Call it faith-based irritation.

There is nothing novel in this, even when it comes to California and its recall, which first entered the state’s politics in 1900 as part of the overhaul of Los Angeles’ city charter promoted by the Progressive reformer John Randolph Haynes. In 1909, the provision was used to oust a corrupt mayor, A.C. Harper, which emboldened the Progressives to seek a similar state statute as a check on the pervasive influence of the Southern Pacific Railroad.

Both the Republican gubernatorial candidate in the statewide election of 1910, Hiram Johnson, and his Democratic opponent, Theodore Bell, vowed to amend the state Constitution to include the referendum, the initiative and the recall.

Although the issue at one point was judicial recall -- not gubernatorial recall -- the sentiments that animated that debate were strikingly like those expressed by today’s commentators. In the historic legislative session that followed Johnson’s victory, the Progressives themselves split over whether making judges subject to the recall would fatally compromise their independence.

Johnson argued that “under an elective system the recall should be applied to all officers. It will make no judge weaker, nor a strong judge less strong. It will be a warning and a menace to the corrupt only.” But state Sen. Charles Wheller, also a progressive Republican, denounced the concept as a threat to “judges with courage to decide against the majority” and as a “strike at the very foundation of the government in which I live.”

Judicial recall’s enactment, he warned, would overturn “the last of the republic of our fathers.... We will pass from a constitutional democracy built by them to a pure democracy and all its dangers.”

Sound familiar?