Bush's "Liberal" Legalisms
Garrett Epps
gepps at LAW.UOREGON.EDU
Mon Nov 13 10:21:10 PST 2000
While we may each have our own preferences for the
presidency, Brad, it is far from "nonsense" to suggest that
the philosophy of federalism that many Republicans espouse
as proper for the judiciary does make the arguments set
forth in the Bush complaint highly suspect. Whether the
choice of electors SHOULD be a matter of state law is
grounds for discussion. That it IS, I submit, is a lot
clearer. That those who argue that the XIV Amendment
shouldn't give Courts a right to protect citizens in other
contexts do risk being accused of hypocrisy when they insist
the amendment should protect George Bush. I would be
interested in the distinctions as you see them. Saying
something is 'nonsense' doesn't enlighten any of us.
"Clanton, Brad" wrote:
> 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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--
Garrett Epps
Associate Professor
University of Oregon School of Law
357 Knight Law Center
1221 University of Oregon
Eugene OR 97403
PHONE: (541) 346-1578
FAX: (541) 346-1564
gepps at law.uoregon.edu
Trouble sleeping? Try my latest works:
http://www.law.uoregon.edu/faculty/epps/default.html
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