Patterico's Pontifications


TOM SUPPORTERS SILENT ON THE POLL: I have been cruising the blogosphere, and there is uniform silence on the fact that I report immediately below: in a 2-way race against Mr. N-Word Cruz Bustamante, Arnold and Tom do almost exactly the same. I would like to know the thoughts of people who have expressed support for Tom in the past, like The Interocitor, Lex Communis, or The Angry Clam.

Meanwhile, the Arnold supporters are gliding over this inconvenient fact, and are using the poll numbers to rail against McClintock for staying in the race. For example, Hugh Hewitt complains that the poll numbers show that, by staying in, McClintock has "denied Arnold a pure majority" -- but does not note that the numbers show the reverse to be true as well. Hewitt's reaction to the poll is fairly representative of the reaction of the pro-Arnold camp as a whole.

Don't get me wrong. There are reasons, which I discuss immediately below, which suggest that these numbers could be misleading. But we don't know that to be true. And these poll numbers -- by themselves -- don't show Tom to be a spoiler any more than they show Arnold to be a spoiler. Yet the Arnold supporters are shouting from the rafters that these very poll results prove that McClintock's campaign is "hopeless," and that McClintock is basically a stubborn jerk who is spoiling everything for Republicans.

If you really love Arnold, more power to you. Personally, I don't understand how true conservatives can be so rabidly in favor of a guy whose idea of "conservative principles" includes saying that he wants to insure "every child in California" (apparently including illegals). But I know a lot of people, including conservatives, really just like Arnold -- and that's fine. There are reasons to like him. I will discuss some in the days to come.

But -- many are voting for Arnold mainly because he can win. I understand that. I have myself expressed support for the idea -- if necessary -- of voting for Arnold for practical reasons. But if that's what you are doing, don't forget that you are making a compromise. Even if you support Arnold, you don't need to trash McClintock in the process. And these poll results do not really provide a basis to do so.

UPDATE: Some people are now beginning to take note of this story. Daniel Weintraub mentions it here but gives no analysis. The Interocitor says here that he is once again conflicted as to what his vote should be. And The Angry Clam lives up to his name with his unprintable reaction here. Lex Communis is still remaining mute.

FURTHER UPDATE: Blogosferics says the results mean there is justice in the world.


THE UNREPORTED STORY OF THE USA TODAY POLL: MAYBE McCLINTOCK COULD WIN IF ARNOLD DROPPED OUT: I just took a closer look at the actual poll results from that USA Today poll I linked to this morning.

They actually asked the questions I had hoped they would ask -- in particular about a 2-way match between McClintock and Mr. N-Word (Cruz Bustamante). Read the numbers for yourself. I will concentrate only on numbers for likely voters, since that is the most meaningful figure.

Given a choice between Mr. N-Word Cruz Bustamante and Arnold, likely voters picked Arnold, 58% to 36%.

Given a choice between Mr. N-Word and Tom McClintock, likely voters picked McClintock, 56% to 37%. These numbers are basically indistinguishable from the Arnold vs. Cruz numbers.

Schwarzenegger's most recent approval rating among likely voters is 63%; his most recent disapproval rating is 30%.

McClintock's most recent approval rating among likely voters is 58%; his most recent disapproval rating is 18%.

Now, I don't mean to overstate the significance of this. Dan Weintraub (in posts reviewed by his editors) has pointed out that: 1) the "likely voter" calculation in this poll assumes an unusually high Republican turnout; and 2) McClintock has been getting a pass from Democrats [and, I would add, a boost from the Indians] precisely because they want him to do well, which they believe will hurt Arnold. Mr. N-Word has even been actively talking up Tom's candidacy. So I don't know what to read into these poll numbers.

However, I find it interesting, a little disturbing, and entirely predictable that nobody in the media seems to have noticed these particular findings. They do appear to contradict much of the conventional wisdom about who could win this race.

THE PRIORITIES OF SHEILA JACKSON LEE: I am late to the news that Rep. Sheila Jackson Lee wants to put the "French" back in French fries and French toast on the House menu.

I hope her plea is successful, so we can move beyond such trivia and get back to our nation's important business -- like naming hurricanes after black people.

A POSSIBLE SOLUTION TO THE TOM/ARNOLD DILEMMA: I may have found a way to resolve the dilemma that I have spoken about repeatedly (see here and here): Arnold or Tom? Practicality or principle?

Tom is the obvious choice for those of us who want to see the three Cs in government: conservatism, competence, and character. Tom has all three. Comparatively, Arnold has none.

For fans of the movie Broadcast News, McClintock is the character played by Albert Brooks: a knowledgeable, competent guy who is terrible in front of a camera. Arnold is the William Hurt character: a vapid and popular on-screen personality. I liked both characters in their way, but I always liked the Brooks character better. (You're supposed to.)

There is a great scene where Albert Brooks is talking to Holly Hunter about the empty William Hurt character (ironically named Tom):

I know you care about him. I've never seen you like this about anyone, so please don't take it wrong when I tell you that I believe that Tom, while a very nice guy, is the Devil. . . . What do you think the Devil is going to look like if he's around? Nobody is going to be taken in if he has a long, red, pointy tail. No. I'm semi-serious here. He will look attractive and he will be nice and helpful and he will get a job where he influences a great God-fearing nation and he will never do an evil thing . . . he will just bit by little bit lower standards where they are important. Just coax along flash over substance . . . Just a tiny bit. And he will talk about all of us really being salesmen. . . . And he'll get all the great women.
I love this speech. It sums up much of what I think about life. And these sorts of thoughts make it almost physically painful to contemplate voting for Arnold.

Plus, one difference between the William Hurt character and Arnold is that William Hurt in the movie was actually a pretty nice guy. From what I have seen, Arnold appears to be an arrogant jerk (see here and here for examples).

But Arnold sure has moved up in the polls. So the dilemma remains, painful as ever. What to do? Will it really come down to voting for the "Devil"?

Here's my personal solution. My wife, who is a Democrat, has all along leaned towards voting for Bustamante. (Don't ask.) She loves Albert Brooks' character in Broadcast News too, and the quote above is one of her favorite speeches in any movie. She hates the idea of Arnold being Governor, and she hates the idea of my voting for him. So we have discussed the following compromise (nothing definite yet): if I vote for McClintock, she'll vote for Camejo.

If we do this, I eat my cake and have it too. I vote on principle, but it's not a vote for Mr. N-Word Cruz Bustamante -- because my vote takes a vote away from BoostaMyTaxes.

I think it's the perfect solution.

UPDATE: A regular reader and Arnold supporter writes to tell me (among other things): "your harebrained idea of 'vote-swapping' may be illegal." I will admit that I had not considered the issue before. However, I must disagree with my good friend (who normally is a friend of the First Amendment), and register my opinion that it would be "harebrained" to deem our arrangement illegal.

The main point is this: what my wife and I propose is not really "vote-swapping." We are not proposing to vote in a way inconsistent with our true feelings. To the contrary, we are simply agreeing that we will both vote the way we want to vote on principle -- were we not to concern ourselves with how other people may vote. In essence, we have persuaded each other to stick with our respective principles. This is pure political expression, which lies at the heart of the First Amendment.

Moreover, even crude vote-swapping, of the type that Naderites and Gore supporters were doing across state lines in the 2000 election, is arguably protected under the First Amendment. Our very own Ninth Circus has ruled that efforts to block such arrangements threaten to chill First Amendment rights. (Porter v. Jones, 319 F.3d 483 (9th Cir. 2003).) (Relying on the Ninth Circus! Can I sink any lower?!) Also, vote-swapping is such a time-honored tradition among federal and state legislators at every level that they have a name for it: "log-rolling."

Far more important than the opinion of the Ninth Circus is the judgment of common sense. The applicable statutes are described in this article in Slate. Federal statutes prohibit only offering your vote "for something of monetary value" -- language that clearly doesn't apply to vote-swapping. In California, it is a crime to get "any money, gift, loan, or other valuable consideration" for "induc[ing] any other person to . . . vote or refrain from voting for any particular person or measure." An agreement to vote a certain way cannot be "valuable consideration" under this statute. Otherwise, it would be a crime to try to convince ("induce") someone to vote a certain way, and use as part of your argument the assurance that you feel so strongly about the issue, you will vote that way too. Nonsense!

I continue to believe that my wife and I have hit upon the perfect solution to the Tom/Arnold problem. And next time we watch Broadcast News, we won't have to wince when Albert Brooks delivers that great "Devil" speech.



GREAT IDEA, CRUZ -- BUT, UH, WE ALREADY DO THAT: In a blog entry cleared by his editors, Daniel Weintraub reports that Mr. N-Word Cruz Bustamante in the debate offered an amazing fix for the worker's compensation system: lower rates for safer workplaces. It's such a great idea that -- they already do it.

I love Weintraub's conclusion: "Experience in government, it seems, is no guarantee that a candidate knows what he is talking about."

FOOTNOTE ONE: THIS DECISION DOES NOT APPLY TO MY TELEPHONE NUMBER: The telephone number of U.S. District Judge Edward Nottingham, the judge who ruled the Do-Not-Call list unconstitutional, is . . . on the Do-Not-Call list.

Maybe Nottingham anticipated that irate citizens with a sense of irony would be deluging him with phone calls after the issuance of his decision. This actually happened after Jay Leno made the following quip on his T.V. show: "The judge says the telemarketers can call you whenever they want. You know what we should do? Let's all call this judge tonight at home during dinner."

(Via SoCalLawBlog.)

TEASE: I have read Judge Nottingham's decision, and will explain in the next day or two why I disagree with it.

UPDATE: Howard Bashman says that this shows that the judge was applying the law regardless of his personal interest. Interesting take.

MORE THOUGHTS ON McCLINTOCK AND ARNOLD: I would like to elaborate a little on comments I made recently regarding the "Arnold or Tom?" dilemma currently facing California conservatives. Our local Dog Trainer today has a back-page story on Tom McClintock, in which Tucker Carlson says that the abandonment of McClintock by some California conservatives is "nauseating."

Let's put aside for a moment the fact that Tucker Carlson is a clueless boob who had to publicly eat a shoe-shaped cake because he stupidly said that Hillary Clinton's book would not sell a million copies. Let's also put aside the fact that that incident showed Carlson's capacity for underestimating the public's stupidity -- an accurate estimation of which is critical to making voting decisions in this race. We'll just place all that to one side for a moment, and examine the thesis of Tucker "Shown Up By Hillary" Carlson. Is it indeed "nauseating" for conservatives to abandon Tom McClintock?

I have recently argued that, assuming that the polling shows McClintock can't win, voting for Arnold is the best thing that supporters of Tom McClintock can do for McClintock.

I keep reading people saying McClintock needs to drop out. He is not going to do that. McClintock has really boxed himself in with his public assurances that he won't quit. He can't now. His supporters have to save Tom from himself.

This doesn't mean I am quite endorsing Arnold yet, as stated by Lex Communis. Just that I almost certainly will. I am willing to wait and see a few more polls.

I want to address something: this is not an easy decision. It ultimately means that I am going to let a few hundred random Californians (the poll respondents over the next few days) determine my vote. I am not heartened by this. When I walk down the street and pick a Californian at random, I do not feel comfortable with the idea of that person having any input in my vote. Frankly, in most cases, I am not all that thrilled at the prospect that that person may be casting his or her own vote. It is truly galling to think of a group of such slack-jawed, uninformed folks controlling what I (and others like me) do in the polling booth.

Moreover, there is a circularity to all of this. Many people are basing their vote on what they think other people will do, based on the views of poll respondents. Meanwhile, many of those poll respondents will themselves base their answers to the poll questions on what they think other people will do. As the shampoo commercial used to say: "And so on, and so on, and so on."

As I recently said, I would at least like for the polls to pose the question of who people would vote for if they just voted for the candidate they liked best. Such polling could test the assertion of evangelical James Dobson, who is quoted in today's Dog Trainer as saying: "Everybody's saying McClintock can't win. If all of the conservatives who are complaining about him would vote for him, I believe he would pull it off." I think Dobson is wrong, but I'd at like least to see pollsters address the subject.

But I doubt they will. Ultimately, whether it is based on perceptions, or Californians' unwillingness to vote for social conservatives, or whatever, I still think that McClintock is unlikely to pull within striking distance. If he can't, the more accurate view of McClintock is the one expressed in this morning's Dog Trainer article by Kevin Starr: "He's the Ralph Nader of the California Republican Party."

Those of us who like McClintock should wish better for him.


IS HARRY PREGERSON DECIDING IRAQ POLICY?: The New York Times reports: Iraq Leaders Seek Greater Role Now in Running Nation. Apparently, many Iraqis are complaining that the U.S. is taking too long to turn over governing power to Iraqis. The story provides one possible explanation for the delay:

Some senior American and British officials say privately that they are concerned that if an election was held today, a Shiite muslim cleric might well dominate the polling on the strength of the 60 percent Shiite share of the population.
Translation: let's delay the election because we might not like the results if it happened now. Sounds like the judges from the Ninth Circus three-judge panel recall decision are running policy in Iraq!

(BY THE WAY: I love the way the Times reporter says that officials told him this "privately" -- as in: "just between you and me . . . and anyone who reads the New York Times.")

RETALIACRATS REDUX: Newsweek reports this quote from Gray Davis, on what will happen if he is recalled by voters: "There will be a recall in retaliation because the Democrats have promised that."

Now what could be more principled than that?

UPDATE: Kevin Murphy says: "This would be the single stupidest thing that the Democrat Party has done in my lifetime." Wow. That is a bold statement (which Kevin accordingly puts in bold type). Kevin may overstate matters slightly, but I think he has a point: this would not appear to be one of the shrewder moves the Retaliacrats could make.

Does that mean they wouldn't try it? I wouldn't say that. I think retaliation is an essential part of their nature now.

ANOTHER GREAT RECALL DEBATE REVIEW: Can be found here. There are no permalinks, so go to the entries for 9/26/03 [Friday] and scroll down to the last, a post by John Mark Reynolds from 5:38 a.m. Sure, it's a lot of work, but it's worth it.

The author has a family game called: "What Disney Character?" in which you associate actual people with a Disney film character. He has done that for the 5 candidates in the recall debate. For example: "Peter Camejo is the loveable Goofy. He is wrong about everything in a harmless and innocent sort of way."

Good stuff.

SUPPORT TOM, BY VOTING FOR ARNOLD: I am becoming convinced that people who support Tom McClintock (as I do) should vote for Arnold Schwarzenegger -- not simply for the sake of California, but also for the sake of Tom McClintock. I say this, not as an Arnold shill, but rather as someone who has leaned towards McClintock throughout this race -- and finds Arnold somewhat distasteful. (See my posts here, here, and here.) Let me explain.

My analysis will assume that, come election day, the polls will clearly show that McClintock cannot win. From everything I have seen, this is a realistic assumption to make.

If that assumption is true, then one of two things will happen (assuming the recall succeeds): Arnold will win, or Mr. N-Word Cruz Boosta-My-Taxes will win. If Mr. N-Word wins, many will never forgive McClintock. His political future could be dead. If Arnold wins, I think it is beyond dispute that people will not resent McClintock -- even if McClintock did nothing to encourage his voters to vote for Arnold. No harm, no foul. McClintock could go on to contest Boxer in the next U.S. Senate race.

The logic is indisputable. Assuming that McClintock cannot win (our operating assumption), even people who care more about McClintock than anything else should want Arnold to win.

Now, it is not clear from the polls whether Arnold needs to peel off McClintock votes to win. As Fresh Potatoes recently pointed out, "most polling shows Schwarzenegger virtually tied with Bustamante," and Republican turnout is likely to be high. However, the race is close. We should not simply hope that Arnold pulls it off; we need to help him do so.

The bottom line: A vote for McClintock is a vote for McClintock to lose by a smaller margin. A vote for Arnold is a vote for McClintock's long-term political future. This is why strong supporters of McClintock should seriously consider voting for Arnold on October 7.

RECALL DEBATE ANALYSIS: A reasonably funny analysis of the recall debate can be found here. (Via Slings and Arrows.)


WATCHERS COUNCIL: I just learned about this cool Internet blogging contest called the "Watchers Council." Even if e-Claire were not begging bloggers to link to the page which announces the winners, as well as the two winning entries (here and here), I would still want to link to them to explain the contest and show the quality of the winning posts.

If I ever write any decent posts, I will enter this contest. Heck, I may even enter it anyway.

DOG TRAINER CONTINUES ITS QUEST TO POLARIZE L.A. COUNTY ON RACE ISSUES: Even the liberal wife of Patterico was annoyed by a story in our local Dog Trainer about a white guy arrested for killing the sister of the tennis-playing Williams sisters (Venus and Serena). The headline reads Race of Compton Suspect Startles Police.

Goodness gracious, we have some racist police in Southern California! They catch a killer, he turns out to be white, and they are "startled"!

Well, it's not quite that simple. As Mrs. Patterico observed, what really surprised police is that a white guy was a member of the Crips -- a traditionally black gang which typically excludes members of other races. Not quite the tale of racism promised by the Dog Trainer's headline, huh?

As the body of the article explains, "a white associate of the Crips is so unusual in Compton that seasoned investigators did double takes." Not only are white residents rare in Compton, which is overwhelmingly black and Hispanic (about 1% of the population is white), but white gang members are even more rare. This might surprise you, but gang members aren't the most racially tolerant folks on the planet. Not only do they tend not to admit people of other races as members, they tend to kill people of other races. When whites do join minority gangs, they tend to be Latino gangs:

The racial makeup of Los Angeles County street gangs is reinforced by the culture of prisons, in which inmates commonly divide themselves along color lines, [Sheriff's Dept. Captain Cecil] Rhambo said — blacks with blacks, Latinos with Latinos. When whites enter the mix on the streets, Rhambo said, it's more common to see them join Latino gangs.
Another captain in the Sheriff's Department, Frank Merriman, echoed the sentiment. "[Merriman] said he knew of only one other case in his 35-year career in which a non-Latino white had been linked in this way to a black gang."

So the real headline should have been: "Police Surprised That Racist Black Gang in Compton Allowed White Guy as Member." But that headline would not inflame any racial tension -- so where's the fun in that?

COMMENTS: Blogger/Blog*Spot does not support comments. However, I understand that there are ways to accomplish this, even with Blogger. (We have ways of allowing you to talk.) I have until now resisted comments, because, well, I am a control freak. I have this urge to control the content on my site. This is born of elitism; I'll admit it. I think a lot of people are idiots. I don't want idiots putting content on my blog.

However, I also like feedback. And, Gentle Readers, you aren't giving it to me at the rate that I would like to see. Ranting is fun. It's more fun than I ever would have imagined. But sometimes I feel like I am speaking into a black hole. When I get feedback of any sort, it reverses that impression, which is very gratifying.

As I mentioned recently, I have entered the Bear Flag League. This is a very exciting development which is already generating more traffic for the site. As I cruise the Bear Flag links (which I do several times a day, and I recommend that Patterico readers do the same), I notice that everyone has comments. What's more, I am doing a decent amount of commenting on other people's blogs, and that's fun. All this makes me think: hey, maybe there is something to this commenting deal.

Right now, I am still agnostic. I would like feedback on the issue. I am eager especially in hearing from regular readers, although I am interested to hear from everyone. If you have an opinion on whether Patterico should incorporate comments, please e-mail me at the link to the left. I will make a decision soon.

VOTE "NO" -- I MEAN "YES": Rob Long has a cute piece in the Dog Trainer called Accentuate the Negative. Long advises Davis to run "Vote No on Davis" ads. Here's his logic:

It's a tricky thing, this ballot. Think about it: To vote no is to essentially vote yes. "No on the recall" means "Yes, more Gray Davis, please." This may not be confusing to those of us who read and write oped pieces for the newspapers (two groups mostly made up, let's face it, of the same people), but it could quite possibly be confusing to — how can I put this? — slightly less detail-oriented Californians.
Which raises another point: if butterfly ballots "disenfranchised" (stupid) people, then surely the formulation of the recall question could possibly "disenfranchise" (stupid) people. But if Davis defeats the recall, will conservatives wring our hands and cry and moan about the poor people who thought they were voting to get rid of Davis? No. We have more self-respect -- and that is one of the things that makes us different.

WHEN WILL TOM "OBLIQUELY DEFER"?: Anyone who has seen an interview with Tom McClintock in the past day or so knows he doesn't sound at all like a guy who's getting out of the race. There is no coyness in his denials. "I made a promise when I entered this race that I would be in it to the finish line, and I keep my promises." There is no waffling there.

But, as many have noted, such rigidity could cost Republicans the Governor's mansion. Quite a dilemma.

John Fund thinks he knows the solution:

Mr. McClintock has already signaled his understanding that this may not be the year for him to win statewide. In a revealing Sept. 10 interview on Fox News Channel's "Hannity & Colmes" he predicted that "in the closing days of the campaign, support is going to migrate from one column to another. And I think that if the momentum continues in my direction, we're going to see that migration in my favor. If it doesn't, we'll see that migration in Arnold's favor. That's up to the voters."

When pressed if this meant he might pull out, he told interviewer Alan Colmes, "If I'm not making any more progress over the next four weeks, I would have no doubt that many of my voters are going to migrate to Arnold. And similarly, if I am showing that momentum you will see the other side happen." That formulation gives Mr. McClintock an out. Technically, he cannot drop out of the race; his name will remain on the ballot. But he could stay in the race and still, as Dan Walters of the Sacramento Bee puts it, "obliquely defer" to Mr. Schwarzenegger. If he doesn't pick up postdebate momentum in the polls, he risks losing much of his support anyway. A Chamber of Commerce poll earlier this month asked McClintock voters what they would do if their man appeared unlikely to win on Oct. 7. By 67% to 23% they said they would vote for someone else, usually Arnold Schwarzenegger.
This "migration" may be the thing that saves Tom McClintock's political career.

LEFT, LEFTER, AND LEFTIST REDUX: I have written before about a political debate program that can be heard on our local NPR station, called Left, Right, and Center. The guy whom NPR picked to represent the "center" is Matt Miller, who wrote this piece in yesterday's Dog Trainer. Here is my favorite quote illustrating what a centrist this guy is:

Let me also stipulate that Republicans are often evil, and their claim to champion poor children is largely a hoax. We know this because they've enacted $300 billion a year in tax cuts mostly for the best off — tax cuts that have bled the Treasury of cash that would have been better devoted to, say, poor children.
That's National Public Radio's idea of a centrist, folks.

(By the way, David Frum is the guy from the right on the show, because the previous person representing the right is on hiatus. That person is running for Governor of California, and her name is Arianna Huffington.)


Gary Leff reports that Northwest Airlines is allowing metal knives on flights again.

Sounds like a really dumb idea at first -- but don't worry. The metal knives are allowed in first class only.

That will take care of any potential danger, because after all, hijackers don't buy first-class tickets, right?

(Leff link is via The Volokh Conspiracy.)

STEVEN HINKLE LAWSUIT FILED: Eugene Volokh reports: "The Foundation for Individual Rights in Education is now suing Cal Poly over the Steven Hinkle matter." The press release is here.

If you don't know about this matter, you need to. It is one of the most outrageous examples of university-style P.C. I have ever heard about. For full details, read my July 11 post about it here.

BEST LINE OF THE DAY: Dale Franks has the best line of the day, in his review of the debate. If you didn't see the debate, this comment sounds mean. If you did, you'll understand:

Arianna Huffington: Now I know why Michael Huffington turned gay.
(Via Slings and Arrows.)

IF I WERE THE POLLSTER: If I could take a poll on the recall race right now, I'd include these questions, which I haven't seen asked anywhere:

1. Is it important to you that candidates discuss the issues?

2. Who do you think did the best job discussing the issues in the debate?

3. If you didn't have to worry about who you thought would win, but simply voted for the candidate you liked best, for whom would you vote?

4. If Arnold dropped out of the race, for whom would you vote?
If someone asked these questions, the answers might surprise people.

MORE ON DEBATE: One of the most interesting questions last night was the question of how much money the candidates believed California should be spending on health care for children of illegal immigrants. The question became a chance for the candidates to say how they felt about illegal immigration generally, and to put in their two cents about the bill giving driver's licenses to illegals.

According to Mr. N-Word Cruz Bustamante: "They work hard, they pay taxes." (Illegal immigrants pay all their taxes?! How does that work?) Cruz said they deserve driver's licenses. No surprise there from the MEChista.

Arnold, while continuing to oppose the driver's license bill, said he wanted to "insure every child in California."

Camejo expressed outrage at the use of the word "illegal" to describe illegal immigrants.

Huffington used the opportunity to once again berate Arnold. She got on a liberal soapbox about how immigrants like Arnold deserve licenses, etc. She choked on the word "illegal" -- a common problem with liberals.

McClintock's answer is worth reprinting in full. Let's go to the transcript:

I think you are all losing sight of a very important fact, and that is we are talking about families that are in this country in violation of our nation's immigration laws. Now this nation has the most generous immigration policies of any nation in the world. Illegal immigration undermines that process of legal immigration that's the strength of our nation, and there are millions of people who are willing to abide by our immigration laws to come to this nation, become Americans and see their children grow up and prosper as Americans. Illegal immigration is the process of cutting in line in front of them, and I don't believe we should be rewarding such behavior. Illegal immigration is costing this country $4 billion in direct costs out of our treasury by the most conservative estimates available. We've got to make sure our immigration laws are enforced. I led the opposition to the [driver's license] measure on giving driver's licenses to illegal immigrants because it undermines the enforcement of our immigration laws.
Now, I think reasonable people can debate whether the state should spend money to provide health care to illegal immigrants. I think one can express frustration at the problem of illegal immigration, rail against the federal government for allowing the problem to have reached this point -- and yet want to insure that the immigrants who are here don't get tuberculosis and infect the rest of us. (I also see Camejo's point that many of us might illegally cross the border ourselves if faced with the situation illegals face.) This is one of the reasons I voted against Proposition 187.

But I respect Sen. McClintock's position, his ability to articulate it, and his commitment to principle. This is a good example of why, as I say in the post immediately below, McClintock was clearly the most impressive candidate.

Still, I think the consensus is that he didn't help himself enough. As ScrappleFace explains, in a link I got from PrestoPundit:

California gubernatorial candidate Tom McClintock failed to prepare any clever 'zingers' he could have used to make his opponents look foolish in tonight's debate.

Instead, state Senator McClintock came with nothing but detailed analysis of a variety of issues, and a commitment to cut spending and balance the state budget without tax increases.

A flash poll conducted minutes after the televised debate showed that Mr. McClintock's lack of witty personal assaults left doubts in the minds of many voters about his readiness to serve as governor.

The zinger void will come back to haunt him, according to an unnamed political scientist.

"Arnold Schwarzenegger had that great line about driving his Hummer through Arianna's tax loophole," said the expert. "And Arianna shot right back about Arnold's attitude toward women. Cruz Bustamante kept talking to Arianna and Arnold like they were morons. But McClintock was clearly unprepared for meaningful political discourse. It was embarrassing to watch him with that pedantic, deliberate focus on issues, facts and proposals."
As Homer says: it's funny because it's true.


DEBATE: A brief opinion before I go to bed. Wasn't it perfectly obvious that Tom McClintock was the most impressive, articulate, knowledgeable candidate? By a long shot?

This doesn't mean voting for him is clearly the thing to do (though I am still leaning in that direction). I haven't been following the minutae of the horse race over the past two weeks, because I have been out of state and otherwise preoccupied. I know a lot of conservatives are justifiably worried about a split ticket on the Republican side, causing Mr. N-Word Cruz Bustamante to become our new Governor. Valid concerns all. Perhaps McClintock is better served being a good soldier and setting himself up to run against Boxer for the U.S. Senate seat. I am a little paralyzed by indecision over all these issues, and haven't decided exactly what I'll do in the voting booth.

But, come on. If all you ever knew about these people was what you saw tonight, it would be easy to decide who the best candidate is.

DEBATE TIME: I am off to watch the debate. Sounds like it could be a fun one.

BEAR FLAG LEAGUE: I have just obtained membership in a cool association of bloggers: the "Bear Flag League." (Thanks to Xrlq for his support, and for his kind announcement of my new membership.) For those unfamiliar with the Bear Flag League, it is described in this post by Bear Flag founding member Justene at Calblog. As Justene explains, the League is "a loosely aligned group of right-leaning blogs based here in the home of the Bear Flag state" -- which is, of course, California.

It looks like membership is shooting up, and they may clamp down on new applications. I feel lucky to have gotten in when I did.

Anyway, this is a great group of bloggers. As soon as I can figure out how to do it, I will add links to all the blogs on the margin in the proper format. I heartily commend the blogs in the League to my regular readers.

UPDATE: The links are now on the left margin. I can't say I have checked out each and every blog on the list, but I have read, and can recommend: Calblog, damnum absque injuria, fresh potatoes,, Shark Blog (who is an expatriate), Right on the Left Beach, and The Southern California Law Blog. Given the high quality of the ones I have seen, I have confidence that there will be others on the list that I will soon be reading regularly as well. Have fun exploring.

ODD COMMENT FROM ANDREW SULLIVAN: Linking to a Drudge Report item concerning the naked Arnold pictures, Andrew Sullivan asks: "Which real Californian wouldn't vote for someone with a body as good as that?"

What would people think if I provided a link to a picture of Mary Carey's bare breasts, and then made the comment: "Which real Californian wouldn't vote for someone with a body as good as that?" I venture to say that many people would conclude that I was a boor. Why is this different?

FULL DISCLOSURE: I know what some of you are thinking: why don't you provide a link to a picture of Mary Carey's breasts, Patterico? Well, actually, I should note that I have on this blog provided a link to Mary Carey's web site. (At the time, that link got me more traffic than anything I had posted previously. I got hits from interesting places, too, including Centcom and the House of Representatives.) Her web site does contain a picture of her bare breasts. (No direct link here -- find it yourself if you're that interested.) However, the content of my post related to her platform, which I found amusing. I think that is different from Sullivan's strange comment.

HEH: Dave Barry suggests that this judge be put in charge of the recall election. I say the guy commands more respect than the judges from the original three-judge panel decision.

FINISHED ORAL ARGUMENT: I watched the rest of the oral argument in the recall case last night. It was worth it just to see the end. As you no doubt know by now, Mark Rosenbaum of the ACLU had a slip of the tongue, and referred to "this circus" when he meant to say "this Circuit." Embarrassed, he quipped that he was the "biggest clown" and sat down.

Wrong again, Mr. Rosenbaum. The biggest clown in the Ninth Circus is Harry "that's their problem" Pregerson.


LOST ARCHIVES: I have lost all archives from July to the present. The main problem this creates is that people trying to link here from Mickey Kaus's blog cannot do so. Also, many of the internal links in the posts don't work. I have been working on this problem for hours now. I don't know if it is a Blogger problem or a Patterico problem. I would apologize to the people who can't access my page, but . . . well, you see the problem, don't you?

Blogger [insert your favorite verb-expletive here]s.

UPDATE: I checked the "How Appealing" website (another Blogger victim), and noticed that its archives are also gone from July 2003 to the present. So, it's yet another Blogger problem. If it hadn't happened while I was making changes to my template (adding a bunch of great new blogs for your enjoyment), I would have known it was a Blogger glitch. As it is, it took hours of pointless attempted "fixes" before I finally realized that there's nothing I can do about it.

Blogger strikes (out) again.

BOGUS RECALL DECISION OVERTURNED: This happened at 9 a.m. this morning, but I have a strict no-blogging-from-work policy. So I don't get to comment until now, and it doesn't seem exciting any more, because everyone knows already.

Here's something you might not have thought about, though. As you're doing that jig, re-read the en banc panel's decision again. I'll wait -- it's a short opinion.

Done already? Good. Now, doesn't it seem a little like they're inviting the plaintiffs to contest the election -- if it's really close -- based on the Voting Rights Act? Sure, at this point it's a "speculative possibility," but once the election is done, it won't be -- if it's really close.

Plus, as a local radio program observed, this whole fiasco has been very distracting and has taken momentum out of the recall. Somewhere, Harry "that's their problem" Pregerson might still be smiling.

Just some things to think about. But don't let me be a wet blanket. Take satisfaction in the decision. The bogus three-judge panel decision is history! Its ridiculous equal protection argument was interred with the respect it deserved: a dismissive one-paragraph smackdown. No matter what else happens, rationality won the day, decisively, with no dissents -- in the Ninth Circuit. Judges Pregerson, Thomas, and Paez have been rightfully shamed. Now that is something to celebrate!

P.S.: I doubt that I will live up to my promise of blogging about the rest of the oral argument. This whole post feels very "nine hours ago" as it is. The only thing more anticlimactic than reporting the en banc decision nine hours after it's issued, would be to discuss the oral argument any further than I already have. This is the cost of a no-blogging-from-work policy.

P.P.S.: I just saw the headline in the Dog Trainer and thought: wow, if I felt like I was behind the curve, I wonder how the reporters feel, knowing people are reading day-old news!

TALK TO YOUR LOCAL POLLSTER: I can't tell you how often I hear otherwise intelligent people saying that they won't take calls from pollsters. I have quite the opposite take.

Should McClintock drop out? Should Republicans pressure him to do so? Should voters who hate Gray Davis, but think Mr. N-Word Cruz Bustamante would be worse than Gray Davis, vote against the recall to avoid an N-Word governorship?

Interesting questions, all. And all questions whose answers will be determined by polling.

Let me say something unpatriotic, anti-American, anti-mom, apple pie, and Chevrolet: your one vote will almost never make a difference. I know there may be a situation where it could. And there may be a situation where you could win the lottery. But neither will ever happen. It's one vote.

But if you respond to a poll . . . ah, now we're talking. For some reason, now your opinion means something. People pay attention to it. And that gives you leverage. Archimedes said he could move the earth with leverage. You can move the political world if you can find a way to be the guy the pollsters call. If I could, I would submit to a political survey every night of the week.

If this bonanza comes to you out of the blue -- if you get a call from a political pollster -- take the call! At least if you're a Republican or a libertarian or something sensible like that. If you're a Demmycrat -- you're right. Those polls are a big waste of time.

DECISION TODAY: How Appealing reports that the en banc panel will issue a decision today. With Blogger having been down last night, I just learned about this for the first time.

I suppose that announcement of a decision does not necessarily mean that there will be an opinion already. Judge Kozinski (who, as I mentioned below, has a good chance of being the one who will write the opinion) is a hard worker, but getting something out by now would seem to a bit much, even for him. At the same time, it is highly unusual to issue a decision without an accompanying opinion. I don't remember ever seeing an example of that happening.

By the way, don't rule out the remote possibility that the Chief Judge goes along with a decision upholding the trial court's denial of an injunction. If the vote is looking lopsided, which would not surprise me, she might not want to end up on the wrong side. Partisan as she is, she isn't Harry "that's their problem" Pregerson.

FURTHER CRITICISM OF BOGUS RECALL DECISION: The post below got me thinking about another problem with the bogus Ninth Circuit panel decision delaying the recall election. As you probably know if you have been following the story closely, the panel considered only the equal protection argument (a constitutional question) and therefore did not rule on the plaintiffs' Voting Rights Act arguments (a statutory issue).

Didn't I learn in law school that courts generally try to avoid deciding constitutional issues unless absolutely necessary? Why, I think I did! As the U.S. Supreme Court has stated:

A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.
(For you legal geeks, the decision is Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 445 (1988).)

So if the Voting Rights Act claim (a mere statutory claim) was sufficient to warrant an injunction, the panel should have so ruled. And if it wasn't, the panel should have rejected the Voting Rights Act claim before ruling on the equal protection argument.

So why would the Ninth Circuit panel have violated this "fundamental and longstanding principle," ignored the statutory issue, and reached out to decide the constitutional issue? I have already answered that question. If you don't know the answer by now, you haven't been paying attention!

RECALL COVERAGE: Well, earlier I promised to provide a review of the Ninth Circuit oral argument. I forgot that I was going to see Blue Rodeo tonight. (Here's hoping Greg Keelor's dad is doing okay!) After I got home from work I had only about half an hour to watch my tape of the argument before we had to leave.

But what a half-hour! Judge Kozinski had Laurence Tribe pounded into submission within 5 minutes. It was truly an amazing thing to watch. Kozinski jumped on Tribe right away, focusing on an issue at the very heart of the plaintiffs' claim, having to do with the statistical study which concluded that punchcards have a high error rate.

Kozinski got Tribe to agree that the study's error rate did not take into account the possibility of manual recounts. Given that California has a uniform standard for determining which detached chads will count as votes, Kozinski said, we don't have a Bush v. Gore situation (thank you for saying that, judge!). Therefore, California can conduct a constitutional manual recount, and can recover votes that were lost in the machine count. The study does not take the potential recovery of these votes into account. So, as far as the evidence in the record shows, Kozinski asked Tribe, we don't really know whether punchcard ballots are any worse than any other technology. Right?

There may have been good responses to this question. But if there were, Tribe didn't make them. He ended up saying -- and I'm paraphrasing, but I think it's a fair paraphrase -- that all of this may be true, but there is still a problem if people using punchcard ballots think that they are using a second-class system. I heard that and thought: game over! He just conceded that the plaintiffs haven't really shown that punchcards are less reliable!

As I reluctantly turned off the TV, Mark Rosenbaum of the ACLU was trying to pull Larry's fat out of the fire -- but with the limited time he had, he was so busy being pulled to and fro by the various judges like a wishbone, he had no chance to make an articulate point.

I hasten to add that oral argument is generally a chance for smart judges to probe the weaknesses of each side's case. Since the plaintiffs (as the losing party in the trial court) went first, they are naturally the ones who got hammered first. But, based on the limited news coverage I have seen, it looks like the judges had some tough questions for the other side about the Voting Rights Act. Since this issue was not addressed by the bogus panel decision, I am less familiar with it. We'll leave the matter there for now, until I can fire up my VCR again tomorrow evening.


AN INTERESTING CONTRAST: I read a couple of interesting stories in the news recently that I think relate to each other. See if you can spot the connection.

Story Number One was a fairly snarky profile in our local Dog Trainer (aka Los Angeles Times) of blogger Mickey Kaus, who runs a blog called Kausfiles at the Slate website. The piece asks:

Could somebody please make sense of Mickey Kaus? Why is a high-level thinker (his 1992 book "The End of Equality" was praised as a refreshing exploration of why traditional liberalism could never resolve poverty) playing on the Web? Why is a Harvard Law School graduate using so many exclamation points (some sardonic, some earnest) in his postings?
Kaus plays it off with humor: "Earnest exclamation points? They're all ironic. Honest!" But all of this is merely background for:

Story Number Two: The Sacramento Bee has been running an excellent blog by a reporter named Daniel Weintraub. On that blog, Weintraub suggested that Mr. N-Word Cruz Bustamante would never have gotten as far as he has if he had not been a Latino. This observation is difficult to dispute, but it predictably set off the Latino caucus, who complained to management. Although Weintraub had simply been giving his opinions, the Bee decided that Weintraub will no longer be allowed to blog unfiltered. His comments will now be shown to an editorial page editor or his deputy before being posted on the paper's website.

Do you see the connection? All of a sudden, Mickey Kaus's "playing on the Web" doesn't sound so bad, does it?

Don't get me wrong. I don't mean to imply that Weintraub will not continue to be insightful even while "muzzled" by his editors. He writes a column that has always been subject to the heavy hand of the editor, and it has still been damn good. But we'll never really know what he's thinking now, especially if the issue involved has any P.C. overtones. And, because all his observations will now have to be reviewed by an editor, he can't post his thoughts immediately -- a tremendous pleasure (and sometimes, a critical advantage) on the internet.

Kaus himself has clearly noticed the connection. In reporting on Weintraub today, Kaus ended an entry with the observation: "Warning: What you've just read has not been pre-cleared. Click if you do not want to see this notice again." But Kaus has not made any explicit connection between the Weintraub story and the recent Dog Trainer article about his own website. Perhaps he is too modest (or thinks it would sound too defensive?) to point out explicitly that the Weintraub debacle proves that the recent Dog Trainer piece was misguided. While Kaus may have given up "prestige" (in the form of gaining the approval of smug Dog Trainer reporters), Kaus has retained more: the absolute ability to say whatever he wants -- and what's more, to say it now!

UPDATE: Kaus reports that the decision to screen Weintraub predated the complaint from the Latino caucus, and came from P.C. forces within the paper.

SLOPPY ERRORS IN BOGUS RECALL OPINION: They are pointed out by a Democratic partisan writer for the Dog Trainer (sorry for the oxymoron) here.

My favorite is this description of Proposition 54:

It would prevent the state from collecting or retaining racial and ethnic data about health care, hate crimes, racial profiling, public education and public safety.
The Dog Trainer calls this characterization "open to dispute." Translation: it is false, but saying so would offend a lot of PC-types at the newspaper.

They often say: "Read the whole thing." Here, you can stop reading near the end, with the paragraph beginning: "All this said . . . " The rest is liberal claptrap to make up for the fact that the writer is criticizing a liberal decision.

RECALL ANALYSIS TONIGHT: I am taping the oral argument in the en banc rehearing of the bogus recall decision. I expect to post analysis tonight after I have had a chance to see it.


TRIAL COURT DECISION VS. BOGUS PANEL DECISION: I just read the trial court opinion in the recall case for the first time. Amazing how much more persuasive it is than the bogus panel decision.

NEW BLOGS: While pontificating about the bogus recall decision this week, I found some cool new blogs that are doing an outstanding job on the recall and the panel decision. Check out fresh potatoes, Right on the Left Beach, damnum absque injuria, and Quite a bonanza of sensible Southern California bloggers.

I especially like the slogan used by Right on the Left Beach: "Throwing away any chance of becoming a judge." I wish I'd thought of that one.


PREGERSON SAYS PANEL DECISION WILL BE REVERSED: Incredible. Pregerson is quoted in the Dog Trainer today as saying: "You know who's on the panel, right? Do you think it's going to have much of a chance of surviving? I wouldn't bet on it."

As How Appealing points out, Pregerson's statement not only violates standard ethical rules, but arguably even the Ninth Circuit's own rules regarding discussion of the merits of a case while it is pending.


EN BANC HEARING WILL BE ON TV: The order that says so is here.

UPDATE: It will be televised live on C-SPAN. Get those VCRs ready!

MORE VOTE-COUNTING: How Appealing has gotten a couple of e-mails from former Ninth Circuit judicial clerks with interesting insights on the vote-counting. Consistent with what I said immediately below, one former clerk says: "Kleinfeld and O'Scannlain will vote with Kozinski for sure. And I think Kozinski can get Graber, Tallman, and Rawlinson to go with him. That's the six he needs." The clerk adds that (because, as I say below, Schroeder is almost certain to vote to uphold the panel opinion), if the en banc court reverses, Judge Kozinski will likely write the opinion as the senior member of the majority.

I'm licking my chops now. It truly is payback time!! But this payback will be articulate, intelligent, and principled. What could be sweeter?

BIG NEWS: Rational people in California have some reason to celebrate, as the en banc panel reconsidering the bogus recall decision is a good one. The judges will include Chief Judge Schroeder and Circuit Judges Kozinski, O'Scannlain, Kleinfeld, Tashima, Silverman, Graber, McKeown, Gould, Tallman, and Rawlinson.

Kozinski, O'Scannlain, and Kleinfeld are solid folks. Kozinski is a brilliant libertarian, and O'Scannlain and Kleinfeld are solid conservatives. Schroeder is a raging liberal -- about the worst on the panel, as far as I can tell. Tashima is fairly liberal. I know little about the rest. However, there is nobody from the original panel (it often happens), and no Reinhardts or Pregersons. That's all good news.

The reportage from How Appealing says conservatives did well with the other picks. Howard Bashman says: "Judge Tallman, while a Clinton nominee, was actually selected by a Republican Senator as part of a deal to get someone else's nomination approved. Judge Rawlinson, also a Clinton nominee, regularly votes with the Ninth Circuit's more conservative judges." Bashman also says Judges Silverman, Gould, Graber, and McKeown are moderate (a reporter says the first two of those are "conservative/moderate).

When I hear a judge described as "moderate," I don't know what to think. That label often means: "fairly liberal." Still, this sounds like a panel that may well reverse.

Let me do some vote-counting. I will be a little presumptuous and assume that I know how some will vote; the obvious caveat is that people do sometimes surprise you.

Conservatives need only 6 votes. I would say they have 3 in Kozinski, O'Scannlain, and Kleinfeld. (Schroeder is a definite vote to uphold the panel opinion, and I would guess Tashima is another.) The question is whether conservatives can pick up 3 more votes from among Silverman, Graber, McKeown, Gould, Tallman, and Rawlinson. From what I am hearing, it is not an outlandish hope.

The fun begins on Monday, at 1:00 p.m. local time in San Francisco. That is when the argument will take place, and we'll get (second-hand, through our reliable media) a chance to assess whether those six judges will yield 3 more votes.

BREAKING NEWS: How Appealing reports that the Ninth Circuit has, contrary to Patterico's prediction yesterday, granted en banc review of the bogus recall decision.

Not sure how to feel about this, but I'm hopeful it means this ridiculous decision can be interred without having to involve the Supremes. As Howard Bashman at "How Appealing" points out, the important information is: who are the eleven judges who will rehear the case? If you know that, you know a lot. Unfortunately, this critical information is not yet available. I will report it to you when I learn it.

EDITING STANDARDS AT FINDLAW: I was interested to read a piece on the recall by Vikram David Amar, a California law professor who has a regular column at But I couldn't get past the first couple of paragraphs, which I quote below, because of the stunning number of typographical errors. Keep in mind that this is a completely accurate quotation, cut and pasted from the article:

What a difference a couple of weeks makes. I had intended to use this column to talk a bit more about California's Proposition 54, the so-called Racial Privacy Initiative scheduled for the next statewide ballot. But the meaning and the merits of Prop. 54 were shoved aside by On September 15, the U.S. Court of Appeals for the Ninth Circuit's ruliedng on Mondaythat the Proposition, along with the more publicized and more important gubernatorial recall election, must be pushed forward backfrom itsthe October 7 date everyone had been counting onto a date thatwhich could be as late as next March. During the interim,, when antiquated punch-card machines currently that are in use in some populous counties are to canbe replaced by more modern and ostensibly more accurate machinery. The opinion was issued by a three-judge panel, per curiam - that is, without a named author.

As of this posting, that Monday'sruling by a three-judge panel iis in legal limbo as the entire Ninth Circuit decides whether to hear the case en banc - , that is, by a panel of eleven of its judges, rather than just three. But whatever happens from here on out, an analysis of the reasoning of the three-judge panel's per curiam (that is, without a named author) opinion is certainly warranted.
It's like this was written by a twelve-year old child. I count almost a dozen errors in those two short paragraphs, many of which could have been picked up by a spellchecker (which, by the way, is a tool not available to this blog).

As for what he is trying to say in the piece -- who knows?

UPDATE: It looks like they have finally cleaned the piece up. Maybe I'll try to read it now.


YET ANOTHER LIBERAL RIPS THE RECALL DECISION: This time it's Slate's liberal legal pundit Dahlia Lithwick: "There's really only one way to read the panel's decision from Monday. It's a sauce-for-the-gander exercise in payback. Pure and simple."


GRAY'S FAVORITE LAW: Gray says: "My favorite law after being five years as governor is the law of unintended consequences."

Damn. He signed that one too?

Okay, so that was a stupid thing to say, but he saved himself when he followed up with this:

My vision is to make the most diverse state on earth, and we have people from every planet on the earth in this state. We have the sons and daughters of every, of people from every planet, of every country on earth.
Someone has to ask the obvious: what planet is he from?

LONG LIVE JILL STEWART: Read her piece on the awful bills recently rushed through the California legislature. A couple of the wackier ones include this one:

AB 1742. If your taxman has more than 100 clients, he now must send your return in via Internet. Your privacy is at risk.
And this one:

AB 587, by Mark Ridley-Thomas. A box asking your skin color will now go on voter registration forms. It's voluntary---but expect a move next to make it required. Davis signed this creepy law Wednesday.
But the real doozy was this:

AB 231, by Darrell Steinberg. "Reforms" the food stamp program, which required that nobody own a fancy car if taxpayers were buying their food. Up to now, car value was capped at $4,650. But now? Now, you can own a Rolls, and your household can own as many luxury cars as it wishes. Also, no more face-to-face interviews to qualify. Just give a buzz. Who's this for---busy, jobless billionaires? If it's really so poor workers can keep reliable cars, why wasn't a new cap set of $15,000? Did I mention that California's food stamp program is rife with fraud, and in particular is being targeted by con artists who are not poor?
Interesting piece, and a nice "only in California" companion to my otherwise relentless onslaught of recall coverage. By the way, as Stewart points out, good luck finding this stuff in the Dog Trainer. (Via Kausfiles.)

L.A. WEEKLY GUY MAKES SENSE ON RECALL: "Whaaaa?" is what I said when I read this piece in the L.A. Weekly.

The L.A. Weekly is your typical alternative rag: great for looking up whether your favorite rock band is in town, full of of ads for prostitutes, and overflowing with political commentary so leftist that Noam Chomsky once called its editorial staff "a bunch of pinkos."

So I was surprised to a guy writing in the L.A. Weekly denouncing the bogus recall decision. It's a pretty good piece, which responds point by point to the nonsense of the Democrat hitmen at regarding the recall. My favorite line in the piece is not an original point, but I like the way it's phrased: "All because the paper ballots that were sound enough to elect Gray Davis are all of a sudden too unreliable to unseat him."

MORE ON BOGUS RECALL DECISION: Marc Levin makes some nice points I hadn't seen elsewhere about why the recall decision is bad.

The most salient, in my opinion, is that "it cannot be assumed that this election will be so close as to make it even statistically possible that the disparity in voting technology could affect the outcome." But Levin notes that even if that happens, California has generous provisions for election contests and manual recounts -- with a clear, uniform standard for whether a vote counts or not.

And, this all becomes a problem only if people don't punch the chad all the way through. As a top Los Angeles election official said: "Who could fail to punch their chad all the way through after all the attention this has gotten?"

Nice piece.

PREDICTION: The Ninth Circuit will not rehear the recall decision en banc. There will be at least one written decision dissenting from that denial.

Worth what you paid for it.


LONG LIVE SCRAPPLEFACE: Scrappleface reports that the Ninth Circuit has issued a new controversial ruling: one reversing the results of all elections held in this country's history which used punchcard ballots.

If Scrappleface went an extra step, it might observe that the court then held that its ruling was itself invalid -- because it was issued by judges illegally appointed by presidents illegally elected in elections featuring the illegal punchcard technology.

OUTSTANDING PIECE ON THE BOGUS RECALL DECISION: It's by a Harvard Law professor, if you can believe that. You can read it here. What I especially like about the piece is that the professor quotes much of the same language I quoted yesterday from the Bush v. Gore decision. I especially like his opening sentence:

The Ninth Circuit federal court's decision delaying the California recall elevates a straw-man argument against Bush v. Gore into constitutional principle, and then employs that bogus principle to deny the California electorate its constitutional right to oust its governor.
Amen, brother.

The professor also points out that Gray Davis was elected under the same system. Is he in office unconstitutionally?

The piece is just brilliant. Go read the whole thing now. It's reasonably short and very well written.

(The link, like most of the links I provide on the recall, is via How Appealing -- an invaluable source on the recall, and the first to debunk the Reuters story yesterday that an en banc rehearing had been granted.)



DOG TRAINER OPPOSES RECALL DECISION: I am shocked. The Dog Trainer opposes the Ninth Circuit's decision to delay the recall election. I am speechless.

UPDATE: Reader Henry writes to say he thinks that the Dog Trainer is simply happy with Davis's recent progress in fighting the recall and doesn't want to see his momentum disrupted.

EN BANC GRANTED: I just read that the recall decision will be reheard en banc. Don't hold your breath waiting for the Ninth Circuit to clean up its own mess.

UPDATE: How Appealing says the news story I link to above is wrong. The Ninth Circuit is just considering en banc review.

RECALL DECISION ANALYZED: I am still vacationing, and don't have a lot of time to put into analysis of the recall decision. I'll give you my main thoughts. Keep in mind that I have read almost no mainstream coverage of what the talking heads and experts are saying. So if what I am saying is wildly divergent from what you have heard -- or, at the other end of the spectrum, if it just repeats what you have heard -- I apologize in advance. You are getting nothing more or less than my thoughts upon reading the Ninth Circuit opinion -- and re-reading Bush v. Gore.

First, don't be absolutely shocked if the U.S. Supreme Court declines to wade into this mess. Despite what some of us in California might think, and despite the way the national media is covering this story, the California gubernatorial election is not that big a deal. Traditionally, the Court really does try to avoid getting into these kinds of messes. They could just give the whole thing a pass.

That said, I am inclined to think that they'll take the case, if only because the Ninth Circuit has really, really mucked this up. The decision purports to rely heavily on Bush v. Gore, so I thought I'd actually go back to the source, and remind you of some of the things that the U.S. Supreme Court said in that case. (You can read it for yourself here.) I want to focus on what the issue actually was, and what the Court (and dissenters) said about the issue of using different voting systems in the same state. (All emphasis will be mine.)

We'll put the stuff about Article II to one side and just look at the equal protection argument, since that carried the day. The Court stated that the relevant question presented was "whether the use of standardless manual recounts violates the Equal Protection and Due Process Clauses." The Court concluded that the Equal Protection Clause was violated.

That was the issue. The issue was not whether a state may use different voting systems within the same state. The Court was quite clear on this point: "The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections."

Souter's dissent echoes this point. In it, he says: "It is true that the Equal Protection Clause does not forbid the use of a variety of voting mechanisms within a jurisdiction, even though different mechanisms will have different levels of effectiveness in recording voters' intentions; local variety can be justified by concerns about cost, the potential value of innovation, and so on." Souter explained why the situation in Florida was different:

But evidence in the record here suggests that a different order of disparity obtains under rules for determining a voter's intent that have been applied (and could continue to be applied) to identical types of ballots used in identical brands of machines and exhibiting identical physical characteristics (such as "hanging" or "dimpled" chads). . . . I can conceive of no legitimate state interest served by these differing treatments of the expressions of voters' fundamental rights. The differences appear wholly arbitrary.
As the majority explained, the problem was not the state's "intent of the voter" standard, but "the absence of specific standards to ensure its equal application. The formulation of uniform rules to determine intent based on these recurring circumstances is practicable and, we conclude, necessary."

Just to remind you of what an incredible disaster the process was, let me recount some of the examples of different standards applied to similar ballots noted by the Court. The opinion stated that "three members of the county canvassing board applied different standards in defining a legal vote." It further noted that "at least one county [Palm Beach] changed its evaluative standards during the counting process." Finally, the Court observed that the Florida Supreme Court's decision "gives no assurance that the recounts included in a final certification must be complete." In other words, you could have partial recounts determining a presidential election.

This is the travesty that Bush v. Gore stopped. And so we come to the Ninth Circuit decision.

First, some background on the judges. The decision was issued by two Clinton appointees, together with a Carter appointee (Harry Pregerson) who is second only to Stephen Reinhardt as the most liberal judge on the Ninth Circuit (and thus one of the most liberal judges in the nation). Pregerson once issued so many illegal stays of an execution that the U.S. Supreme Court had to issue an unprecedented order: no further orders in that case would be valid unless issued by the Supreme Court. This order was issued specifically to keep Harry Pregerson from issuing more unlawful orders. That should be embarrassing to a judge. For Pregerson, it was a point of pride.

Pregerson is also the judge who, when the Supreme Court recently upheld California's Three Strikes law as applied to petty thieves, refused to apply the decision on remand. Because he kept getting overruled 2-1, it never affected the outcome of a case, but it tells you something about the man.

I will bet 50 thousand dollars that, when Bush v. Gore was issued, judges Pregerson, Thomas, and Paez all ridiculed the decision to their friends and family. These same folks now call the current equal protection claim a "classic voting rights equal protection claim."

The court says that Bush v. Gore held that "using different standards for counting votes in different counties across Florida violates the Equal Protection Clause." It then characterizes the current plaintiffs' claim as "the same" because of the different error rates involved with punchcard systems.

This is a deliberate misreading of Bush v. Gore. The clearest evidence of this is the court nowhere addresses the language I have emphasized above from Bush v. Gore -- language which makes it clear that states may use different voting methods in different counties, despite the presence of different error rates. Even David Souter admits this!

My preliminary conclusion, from a quick reading of the opinion, is that it is (unfortunately) what I suspected it would be from the makeup of the panel: a result-oriented, cynical opinion that attempts to throw Bush v. Gore back in the face of the Supreme Court. This Ninth Circuit panel pretends to simply follow Bush v. Gore while wholly ignoring the holding of that opinion and the most relevant language. Disappointing but predictable.

P.S.: I live in Los Angeles County, and therefore am likely to be "disenfranchised." Bah! If I fill out the card right, I have no doubt that my vote will get counted. I am not worried.

UPDATE: A reader points out that, when I claim the panel "nowhere addresses" the language I emphasized above, that could be taken to mean that the panel did not even quote any of the language. Any such impression would be false. At page 21 of the opinion, the panel quotes the language: "The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections." The panel says that this is also the case for the recall election, and then proceeds to hold that California may not hold an election in which local entities use different systems. Their fig leaf is that the systems do not record votes with equal accuracy, but (as Souter points out) that will always be the case for different voting systems. Essentially, the panel said: "Bush v. Gore said it didn't cover situation x. We agree. This is not situation x. Rather, it is situation x. Accordingly, this situation is unconstitutional." This is not "addressing" the language; it is paying lip service to it, and then wholly ignoring it.


NINTH CIRCUIT RULING MAY CUT L.A. OUT OF RECALL VOTE: Interesting quote from the Dog Trainer's story on the recall delay:

"It's more than a wrinkle," said Los Angeles Registrar-Recorder Conny McCormack. "No one even asked the largest county in the state if we had the capacity to run it in March. The answer is no."
Interesting. I still haven't read the opinion yet, but you would think a court that really cared about everyone's vote being counted would have asked that question.

RECALL DELAY: Well, I am vacationing and slow to get news, so I just found out that the Ninth Circuit has delayed the recall election in California. My first question when I hear something like that is: who were the judges? If people like Reinhardt and Pregerson are involved, it probably stinks. If Kozinski wrote the decision, I would have to look it over carefully.

As it turns out, Reinhardt is not involved, but Pregerson is. Ergo, this likely stinks.

I haven't had time to read the opinion, but I am skeptical -- even putting the court's makeup to one side. I don't read Bush v. Gore as invalidating any election which uses punch-card ballots for some counties but not others.

It seems to me we are headed straight to the Supreme Court, and Queen Sandra Day gets to issue another decree.

More when I have had a chance to read the opinion. Keep in mind that I pointed out over a month ago that an election law expert said there might be some merit to this argument.


DEAN DISQUALIFIED: Howard Dean officially disqualified himself as a serious candidate this week, with the unbelievable statement, reported here: "There is a war going on in the Middle East, and members of Hamas are soldiers in that war."

I have yet to see much commentary about this, but I don't think it's going to die. That insane statement could have been penned by Osama himself. I do not see how any rational American can support Dean now.


BLOGGING NOTE: Blogging will be sporadic and perhaps lighter over the next week or so, as I travel to Texas with my daughter to see my parents, sisters, brother, niece, nephews, numerous in-laws, and countless others. I'll be back in full force around the 22nd.


NICE TRY, TOM: This supposedly reassuring op-ed by Tom Ridge in the Washington Post fails to explain how ABC continues to be able to smuggle uranium into the country.

Meanwhile, the Post reports that federal authorities are considering criminal charges against ABC News for the smuggling operation. Nice. If you can't protect the borders, at least intimidate reporters who try to reveal that fact. Right, guys?


EXTRA! EXTRA! WAPO HAS SENSIBLE EDITORIALS: Why can't more editorials be like this one from the Washington Post? It is titled "Two Years Later, Abroad . . ." and discusses the lessons of 9/11 and some of the issues relating to the war on terror. (A companion editorial, titled . . . And At Home, is also pretty good.)

In truth, the editorial contains no startling revelation or new way of thinking about any of the issues. But it is startling, nonetheless, to see one of our major left-leaning newspapers printing something balanced and sensible -- as opposed to the lies and incompetence the New York Times served up the other day on judicial nominees, or the sanctimonious 9/11 drivel the Times favors us with today.

Even better is this editorial, which denounces the cheap shots Democrats are taking against Bush. For example, John Edwards has recently harshly criticized the Patriot Act -- while forgetting to mention that he voted for it.

I think I am am liking the Washington Post more and more. (For a leftist paper, that is.)

WE CAN'T CONTROL EVERYTHING: I don't mean to be giving terrorists ideas, but the remote control plane described in this story -- which caused a security scare at an Australian jail -- has a range of 755 meters. That's 2,477 feet: almost half a mile. Imagine a terrorist standing at the fence just outside of LAX with one of these babies, and you can see the possibilities.

GOOD OL' LILEKS: You just gotta love this quote:

Two years later I take a certain grim comfort in some people’s disinterest in the war; if you’d told me two years ago that people would be piling on the President and bitching about slow progress in Iraq, I would have known in a second that the nation hadn’t suffered another attack. When the precise location of Madonna’s tongue is big news, you can bet the hospitals aren’t full of smallpox victims.
Of course, I don't really buy the premise. Everybody forgets that Al Qaeda usually goes two years plus without a major attack. I figure the wait just means they want the next one to top the last. Still, I give you the quote (and the piece) because ol' Lileks is a good writer. Read the whole piece.

UH, I'M STILL VOTING YES ON THE RECALL: Gray Davis has apologized (sort of) for his silly remark about Arnold's pronunciation of the word "California."

Interesting that this story managed to find traction. I mentioned it the other day and said that, while it was interesting, it was buried deep in a minor story in the Dog Trainer. I guess the rest of the state doesn't necessarily view things the same way the DT does.

MMMMMMMMMMMM . . . DOG: The Houston Chronicle reports that Cambodians are being urged to eat more dogs. The story features quotes from the city governor of Phnom Penh, who sounds like your mother imploring you to clean your plate: "Come on, dog meat is so delicious . . . The Vietnamese and Koreans love to eat dog meat."

Come on! Timmy likes dog! If you don't eat your dog, you can't have any chocolate spiders for dessert!

WHILE YOU'RE AT IT, COULD YOU ALSO APOLOGIZE FOR RUNNING OUR STATE INTO THE GROUND: "The California Senate voted 19-2 on Tuesday to demand an apology from Democratic Gov. Gray Davis for what many regard as an ethnic slur made against Arnold Schwarzenegger."

I say no apology is necessary. A successful recall is penance enough.

ABCNEWS FOILS CUSTOMS AGAIN: "For a second year, U.S. government screeners have failed to detect a shipment of depleted uranium in a container sent by ABCNEWS from overseas as part of a test of security at American ports."



CHECK THIS OUT: I suspect that these optical illusions are more impressive when not viewed on your computer screen -- where, after all, someone could be pulling some funny business to make the illusion happen.

Still, this is a cool site. (Via John Scalzi.) When you get to "The Sun," experiment with hitting your down and up arrows one time, and watch what the sun does when you are doing it.

Also via Scalzi is this interesting article in New York Magazine, about 16 people who were inside the World Trade Center when it collapsed and lived to tell about it.

A POLL OF IRAQIS: The results are in the WSJ, and they are interesting. (Registration required.)

CROOKED TALK: When a New York Times editorial offers "straight talk," it's time to get suspicious. Today's entry is titled Straight Talk on Judicial Nominees. It states: "Mr. Estrada would not answer senators' questions. Mr. Pryor and Ms. Owens have met resistance for their archconservative views."

Of course, the canard that Estrada would not answer questions is a lie, which I have discussed before. I will never let that canard pass without comment, no matter how many times I see it.

Also, I love it when newspaper editorial writers speak so very knowingly about judicial nominees and their views -- but can't even spell their names right. It's actually "Owen," you straight talkers, you. (The piece spells her name right two sentences earlier. If the editing is this sloppy, could the analysis possibly be sloppy too?)

Reminds me of the equally inane editorial I told you about in May where the Dog Trainer called her "Patricia Owen."

What is it about this woman's name that is so hard to get right?

And what is it about these newspapers that makes it so hard for them to tell you the truth about judicial nominees -- even when they offer "straight talk"?

P.S.: The editorial says:

Hispanic leaders did not oppose Mr. Estrada because he is Hispanic.
Well, it's good to know that Hispanic leaders didn't oppose Estrada. I guess it stands to reason that their non-opposition came from a shared ethnicity. The editorial goes on:

Catholic senators like Richard Durbin and Patrick Leahy do not oppose William Pryor, a nominee to the United States Court of Appeals for the 11th Circuit, because he is Catholic. Senators Dianne Feinstein and Barbara Boxer do not oppose Priscilla Owen, a nominee to the United States Court of Appeals for the 5th Circuit, because she is a woman.
Now that seems like it's going too far. It's nice that some of us are Catholics, and some of us are women, but if you disagree with someone, by gosh, you should oppose them!