California Recall on the Docket: The Two Sides' Legal Arguments ; Monday's Televised Hearing Will Explore Bush V. Gore and the Potential for Setting a Precedent

By Warren Richey writer of The Christian Science Monitor | The Christian Science Monitor, September 22, 2003 | Go to article overview

California Recall on the Docket: The Two Sides' Legal Arguments ; Monday's Televised Hearing Will Explore Bush V. Gore and the Potential for Setting a Precedent


Warren Richey writer of The Christian Science Monitor, The Christian Science Monitor


California's recall election is now in the hands of 11 federal appeals court judges set to hear the legal dispute in a rare, nationally televised oral argument session Monday.

The San Francisco-based appeals court could quickly end the showdown and permit the recall election to proceed as originally planned on Oct. 7.

Or if the judges agree with an earlier three-judge panel postponing the special election, their decision would set the stage for possible intervention - and even more high drama - at the US Supreme Court.

Opponents of the original timing of the Oct. 7 vote say outdated punch-card technology threatens to disenfranchise up to 40,000 voters. Supporters of the recall counter that 375,000 absentee ballots have already been cast.

The California case arises at a time of concern among Americans about the political neutrality of life- appointed federal judges. It is a skepticism fed in part by a judicial confirmation process often held hostage to political considerations in the US Senate. And it is a skepticism arising from the actions of judges themselves, most notably the US Supreme Court's intervention in Florida in a way that seemed to guarantee victory to George W. Bush three years ago.

Any involvement by the nation's highest court in the California recall case would almost certainly force the justices once again to confront - and perhaps explain in greater detail - the controversial decision in Bush v. Gore, legal analysts say. It is a chapter in Supreme Court history the justices apparently want to put behind them.

Since delivering the decision in December 2000, no member of the Supreme Court has cited Bush v. Gore to support a legal position in any other case, says Vikram Amar, a law professor at the University of California's Hastings College of Law in San Francisco. "I don't think it would be a happy day that they have to go back and relive [Bush v. Gore]," he says.

Some legal analysts say it now looks as if the justices may not have to. The 11-member panel of the Ninth US Circuit Court of Appeals selected to hear the recall case consists of three judges appointed by Republican presidents and eight named by Democrats, but five of the Democratic appointees are described as moderates who may vote to allow the recall election to go forward as scheduled. …

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