Bush's "Liberal" Legalisms

[Clanton, Brad]

Ann Althouse wrote:

"It is interesting to see it gradually sinking in that election law really
is overwhelmingly a matter of state law. The standard for striking down
state law on constitutional grounds that Republicans are currently trying to
use is reminiscent of the activist approach to rights enforcement more
commonly attributed to the activist judges they usually condemn. If they get
their injunction and Bush wins, does this mean that they will follow through
with their constitutional philosophy and support the appointment of Supreme
Court justices in the Brennan tradition?"



This is the same sort of nonsense that liberals always use to mock
conservative scholars and judges:  create a caricature of their arguments
and proceed to demonstrate how silly the caricature is.  Because
conservatives believe federal courts should trump state laws only when
federal law clearly requires that result, liberals falsely suggest that
conservatives believe federal courts should NEVER declare a state law
unconstitutional.  Therefore, if a conservative opposes striking down state
laws regulating, say, nude dancing, liberals will characterize him or her as
"hypocritical" for voting in another case to strike down a state law
regulating political campaign speech.  Because conservatives believe courts
should do fewer things, liberals suggest that conservatives believe courts
should do NOTHING.    It is obvious that this is an inaccurate
characterization of the conservative position and is not terribly
productive.

Brad Clanton
Counsel
House Judiciary Committee
Constitution Subcommittee
362 Ford House Office Building
Washington, D.C. 20515
202.226.7685 (phone)
202.225.3746 (fax)





 -----Original Message-----
From: Darren Hutchinson [mailto:dhutchin at POST.CIS.SMU.EDU]
Sent: Sunday, November 12, 2000 10:42 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Bush's "Liberal" Legalisms



Ann Althouse said:

"It is interesting to see it gradually sinking in that election law really
is overwhelmingly a matter of state law. The standard for striking down
state law on constitutional grounds that Republicans are currently trying to
use is reminiscent of the activist approach to rights enforcement more
commonly attributed to the activist judges they usually condemn. If they get
their injunction and Bush wins, does this mean that they will follow through
with their constitutional philosophy and support the appointment of Supreme
Court justices in the Brennan tradition?"
>
Yes -- I was also wondering whether Bush would appoint Justices to the Court
who embrace the fundamental interests/equal protection analysis, who would
find equal protection violations despite the "facial neutrality" of the
challenged statute, and who believe that the federal courts should have the
first stab at determining the validity of "local" issues -- despite massive
attention being paid to these issues by local officials.



-----Original Message-----
From: Discussion list for con law professors
[mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Ann Althouse
Sent: Sunday, November 12, 2000 9:37 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Machine vs. hand counting


How can this be an equal protection violation? Both sides had the same
procedures available to them to ask for recounts in places they were
concerned about. Both sides faced a deadline and one side missed it. Rights
can be waived.

I find it amusing that the Republicans were so fond of the argument that the
butterfly ballot could no longer be challenged because there was an
opportunity to approve of it before the election and no complaint was
forthcoming. (They were once so infatuated with this argument that perhaps
they didn't notice the 72 hour time period wasting away!)

Does the notion that one must follow procedures to assert rights or one has
waived them just come and go?

It is interesting to see it gradually sinking in that election law really is
overwhelmingly a matter of state law. The standard for striking down state
law on constitutional grounds that Republicans are currently trying to use
is reminiscent of the activist approach to rights enforcement more commonly
attributed to the activist judges they usually condemn. If they get their
injunction and Bush wins, does this mean that they will follow through with
their constitutional philosophy and support the appointment of Supreme Court
justices in the Brennan tradition?

All of that said, it still is disturbing that the one-sided recounting could
decide the election. How will that sit with the general populace? Maybe
people will accept it in light of the problems identified with the butterfly
ballot and the winning of the popular vote, problems that are not legally
remediable.


Ann Althouse




Paul Finkelman wrote:



Is there anyone on the list who can make an argument against a hand count
where
the machines failed to count votes?



Paul, The problem is that machines tend to undercount ballots, but we live
with it because they do so uniformly. The Gore request to have a hand count
only in 4 heavily Democrat counties, without conducting a similar hand count
in the rest of the state, would disproportionately eliminate the undercount
for Gore voters. That is where the cynicism lies, and potential equal
protection violations, too. Your proposal to count all is apparently not one
of the options. So as between hand counting 4 heavily Democrat counties only
or hand counting none, the only course likely to give us an accurate
reflection of the statewide winner is not to conduct the hand count.
John Eastman
Chapman University School of Law
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