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Carol Platt Liebau

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Carol Platt Liebau - Columnist

Carol Platt Liebau is a senior member of the editorial board. She is an attorney, political analyst and commentator based in San Marino, CA, and has appeared on the Fox News Channel, Orange County News Channel, Cox Cable and a variety of radio programs throughout the United States. A graduate of Princeton University and Harvard Law School, Carol Platt Liebau also served as the first female managing editor of the Harvard Law Review.

Driven to Judicial Fiat
Desperate Davis Turns to the Courts for "Leadership"
[Carol Platt Liebau] 7/24/03

Consistency may be the hobgoblin of little minds, but the oversized mind of California Governor Gray Davis clearly has a high tolerance for irony, as well.

That became apparent last week when Davis signaled his support for California Superintendent of Education Jack O'Connell's plan to ask the state Supreme Court to force legislators to enact a spending plan and proposed tax increases by majority vote, notwithstanding California's constitutional requirement that tax hikes must be approved by 2/3 of the legislature. It's ironic, because on the same day that he pledged to join O'Connell's lawsuit unless a budget were passed soon, Davis disparaged his upcoming recall election as a "hijacking" of state government.

Of course, O'Connell and Davis' new plan to circumvent the state budgeting process through judicial fiat was inspired by an outlandish recent decision from Nevada's Supreme Court, which high-handedly ruled that a constitutional duty to fund education had more legal weight than the constitutional requirement for a 2/3 vote in order to increase taxes. Never mind that the Nevada Supreme Court blithely diluted both the legislature's and voters' votes, in violation of the Equal Protection and Due Process clauses of the U.S. Constitution - or that their action is a textbook definition of depriving Nevadans of their property without due process of law.

Not surprisingly, the serious constitutional deficiencies of the Nevada decision are lost on Gray Davis. What is surprising, however, is that in the midst of a recall campaign - which he's fighting on the grounds that it constitutes an illegitimate usurpation of power by certain voters - Davis would openly advocate a process that permits such a usurpation by unelected judges.

No less shocking, Davis was willing to sign on in principle to O'Connell's radical measure in order to force a tax increase in the same week that a California Field poll revealed that ever-greater numbers of Californians believe that the budget crisis can be resolved without resorting to tax increases. Finally, as indicated by the Field poll, voters may have discovered that there was no need for a budget deficit at all - over the past several years, revenues have increased 25%, four percent more than the combined increase of 21% in inflation and population growth during the same period. Slowly but surely, they are learning that it was the Democratic legislature and the governor - gleefully embarked on a spending spree that increased expenditures by 40% -- who actually created the fiscal hole that they are being asked to fill.

For once, California Republican legislators have been sticking together to oppose tax increases, and their intransigence in service to their principles has been yielding dividends.

Voters are beginning to understand that a state budget can be readily passed with a full 2/3 majority of Senate and Assembly votes -- that budget just can't contain tax increases.

Whether or not they support the recall, Republican lawmakers ought to cross their fingers that Gray Davis will continue to back O'Connell's rush to court to overturn California's 2/3 requirement for tax increases - not only will it seal Davis' doom, it may even provoke the kind of cataclysmic voter backlash that will mark the beginning of the Republicans' long march back to power in Sacramento.


CRO columnist Carol Platt Liebau is a political analyst and commentator based in San Marino, CA.


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