I Doubt They’ll Take the Bait, but Who Knows?

Supreme CourtYou know, for a short time there, I thought we’d have a real show on our hands, but I think I know how this one’ll turn out. As mentioned in the Post this morning (and, well, all over the place as early as last evening), the Supreme Court has a bit of a dilemma on their hands. And they thought they’d get away with the fiasco that was Bush v. Gore without having to deal with any fallout...

And they probably would have, were it not for the whole California recall train wreck. The Ninth Circuit has ordered that the recall election be postponed, because were it to be held in October as scheduled, several counties would have to use the old punch-card voting system — which, incidentally, is illegal in California, those machines having been officially decertified. Since the new systems won’t be in place until March, the court determined that the election couldn’t be held until then. Those behind the California coup, naturally, object to this decision, since it gives Gray Davis another six months to shore up support, and — more importantly — keeping a campaign going for that long will diminish their coffers. They’re threatening to appeal the decision to the Supreme Court. (The full Ninth Circuit — as opposed to the three-judge panel that made the original ruling — may rehear the case as well, but since the postponement order has only been stayed for one week, that would likely mean the recallers would lose their shot at going further.)

The Supreme Court, though... good plan for them, no? After all, the Supreme Court is in the Republicans’ back pocket, right? But here’s the problem — the “equal protection” argument that the court used to justify Bush v. Gore is the exact same argument the Ninth Circuit used in postponing the California election. So here’s the Supreme Court’s dilemma — they either side with the Democrats and confirm the California postponement, or they overturn their own argument, effectively admitting that the 2000 decision was a sham. Of course, in the original decision, the justices claimed that their determination was based solely on the circumstances surrounding the 2000 election, and wasn’t precedent-setting; but if they keep up that argument in this case, they’ll be admitting, in effect, that their argument doesn’t hold water. Q.E.D.

In thinking it through thoroughly, though, it’s likely they’ll just pass on hearing the case at all, letting the Ninth Circuit’s ruling stand. After all, they’ve got a full plate dealing with the whole McCain-Feingold thing (for which, surprise surprise, the big-money opponents are trotting out Republican lap-boy Kenneth Starr). It’ll work to help the Dems, which will no doubt make the justices cringe, but they’ll be able to argue to their Republican handlers that they didn’t actually rule that way. And on the other hand, they won’t have to actually acknowledge that they staged a judicial coup; they can keep their heads in the sand and pretend it never happened.


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