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Hugh Hewitt - Principal Contributor

Mr. Hewitt is senior member of the editorial board.

Supreme Clean Up Act?
If the full 9th doesn't do the job, SCOTUS will...
[Hugh Hewitt] 09/19/03

While the rule of law would be served by a quick reversal of the Ninth Circuit 3-judge panel by a Ninth Circuit 11-judge panel, I am torn.

If the Ninth Circuit passes on the opportunity to repair its own reputation, the Supreme Court enters the picture. As I have said before, I hope the Supremes slap the panel so hard that their teeth end up in Hawaii. But that would not be the only benefit. A very public rebuke might firm the Senate GOP's effort to blow past the filibusters in the Senate. One of those filibusters is threatened for Ninth Circuit nominee Carolyn Kuhl, a sitting Superior Court Judge in Los Angeles who is extraordinarily well-qualified but who has been made a target Barbara Boxer. Boxer is well known as a silly lightweight, but she screeches so often and for such prolonged periods that her colleagues on the Democratic side haven't got the heart to deny her a filibuster. Imagine the spectacle of such obstructionism in the aftermath of the first-ever cancellation of a state-wide election by a federal court. It will not deter Boxer from labeling Kuhl an "activist" judge, but the laugh track will be on for a long time thereafter.

Some commentators are pointing to the initial reluctance of the Supremes to get involved in the Florida mess in 2000 and the Court's complete refusal to inject itself into the New Jersey U.S. Senate dust-up last year as evidence that the Court will not disturb the Ninth Circuit's result, no matter what it is.

I think this reasoning underestimates the wildly radical nature of Monday's decision. Bush v. Gore was a case of first impression on how ballots should be recounted in a Presidential election after the polls had closed. Monday's ruling takes that very narrow case --decided reluctantly and under extraordinary pressure, and then only following widely recognized irresponsibility by the Florida Supreme Court-- and, using a Dr. Frankenstein technique, changes it into a license for federal judges to assume control over all state elections in the future. The current Supreme Court is best known for resurrecting protections for states against federal power, and the authors of Bush v. Gore know how carefully they wrote the opinions in that dispute in order to prevent just this sort of piracy. I don't believe the justices will stand by and see three out-of-control partisans loot and pillage constitutional tradition because they are afraid that Paul Krugman and Maureen Dowd might write something nasty in the New York Times or that Joe Conason will issue another unread book. Nobody watches Capitol Gang anymore anyway, so why care what Al Hunt and Margaret Carlson say?

In other words, the Supreme Court will act. Justice Jackson in his dissent in Korematsu warned of decisions that lay around "like loaded pistols" on the desk. Such is Monday's decision. If the Ninth Circuit does not do the necessary clean-up, I expect the Supreme Court will. Principal Contributor Hugh Hewitt is an author, television commentator and syndicated talk-show host of the Salem Radio Network's Hugh Hewitt Show, heard in over 40 markets around the country. His opinions on national issues can be found at and he writes a weekly column (Wednesdays) for

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