Recall Law Battle Resembles Bush v. Gore

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This is a partial transcript of Special Report with Brit Hume, September 16, that has been edited for clarity.

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BRIT HUME, HOST: Legal experts have now had a day to read and study the Ninth Circuit Court of Appeals' decision ordering the California recall be put off. So, how much chance is there that this decision will stand? For answers, we turn to our favorite law professor, Jonathan Turley of George Washington University.

Hi, Jonathan.


HUME: Good to see you. Let me start with a passage from Bush v. Gore (search) on which this court has hung its hat or at least, part of it raiment anyway. This is from the Gore decision…December 12, 2000. "Our decision is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."

Fast-forward to the…yesterday's decision by the Ninth Circuit. "Plaintiff's claim presents almost precisely the same issues as the Court considered in Bush."

So, what does it mean that the Supreme Court did not wish Bush v. Gore to be much of a precedent? And what does it mean, if anything, that the Ninth Circuit cited it?

TURLEY: Well, you know, this falls in that curious category, because occasionally courts will say you're not to cite this for precedent value. And in the case of Bush v. Gore, the Court did everything but refuse to put it in writing in order to keep people from citing it. Even Ruth Bader Ginsberg (search)...

HUME: Why did the Court do that?

TURLEY: Because they really did view this as being motivated by the specific insular facts and they did not feel comfortable creating a new area of equal protection law to govern the elections; because previously, this was always viewed as a matter of state law.

HUME: Now, equal protection of the law seems to me to be an area, which would give appellate courts entry into almost anything that ever happened, because it's usually the government involved in some way. And there is some law involved and if somebody disadvantaged, you can claim your equal protection rights are being violated. The Court seemed reluctant in the Bush v. Gore case, particularly reluctant in the area of elections and equal protections, why?

TURLEY: Well, because for most of the history of this Republic, it has been a state question how you elect your leaders, including the machines, or how you count them. So Bush v. Gore was a great departure. The problem…you're absolutely right in equal protection is not where you begin, but where you stop. I mean once you start going down that road, you are on this slippery slope where anything can be interpreted as an equal protection problem.

And suddenly, judges are doing what they did in the Ninth Circuit, they're micro managing elections. They're debating is this machine better than that machine? Is it fair to have punch cards over here and not punch cards there? That's the type of decision that judges loathe; not just because it is more policy oriented, but because it's not correct...

HUME: Policy-oriented as opposed to law-oriented?

TURLEY: Right. The problem…that is the problem with the decision in the Ninth Circuit, is that it is a string of factual assumptions linked together by policy judgments. And it is the type of decision, which you might find compelling or convincing on a policy level. But...

HUME: You mean, in other words, if politicians, the policy people, made it, that's what their job is.

TURLEY: That's right.

HUME: This is different because it should be just a pure matter of law, right?

TURLEY: That's it. There's more "we want" than "we have to" act in this matter. And the court is saying, look, it's going to be better for everyone if we do this. But it reads a lot like a committee report in Congress. It reads less like a court. Courts are very reluctant to make decisions that could have major effects on politics. They're very reluctant to micro manage state elections. And this decision just takes leaps into a state election.

HUME: So is it automatic that the Supreme Court, if it gets the case, would reverse it or not?

TURLEY: Well, you see, that's part of the problem. And that is Bush v. Gore is a legal question. But it's wrapped in many political issues, including intra core political issues. These justices just went through a year of just being slammed over Bush v. Gore and about their entrance into that election. And there are many, I think, that will look at this and say, you know, let this cup pass from my lips. I do not want to do this again.

HUME: Let's keep our hands off this decision.

TURLEY: Keep it off.

HUME: On the other hand, they're not intervening to overrule a state court here. They'd be intervening to overrule or uphold a lower federal court. So the federal courts are already in the case, right?

TURLEY: Although the problem is if they take this thing, they're going to have to answer that equal protection issue. They're going to have to clarify it.

HUME: And say we didn't mean what we said in this case?

TURLEY: Look, Bush v. Gore may be many things, but it is not clear. It is a morass. It is not a good opinion in terms of clarity. It is not a good opinion in terms of doctrine. And it is something, I think, many of them are reluctant to go back to. They didn't do a very good job the first time

HUME: And would the judges on the losing sides of this case be likely to say…justices now say now look at the mess you've made? We told you so?

TURLEY: Look, I think there will be many justices and judges who don't really, you know, loathe the possibility that there is going to be a crash in this case.

HUME: How much chance, in your judgment, is there that the Ninth Circuit writ larger…the full Ninth Circuit or larger panel thereof, will throw this thing out?

TURLEY: Well, I think it is 50/50 because this court is divided roughly 50/50 and they're going to vote on this. They need a majority to get that in bank. The Supreme Court is likely to wait until they make that decision. They almost never accept a case until the court of appeals decides if they'll step in and shoulder this burden.

HUME: Your sense is it could happen, but no way to tell.

TURLEY: This is one I'd never bite on.

HUME: All right. Jonathan, great to see you. Thanks.

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