Hugh Hewitt - Principal Contributor
is senior member of the CaliforniaRepublic.org editorial board.
Clean Up Act?
If the full 9th doesn't do the job, SCOTUS will...
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
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.
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
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
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
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
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 HughHewitt.com
and he writes a weekly column (Wednesdays) for WorldNetDaily.com.
But Not Of
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