RFK Jr. said what needs to be said: Biden's use of government power to suppress the speech of his political antagonists is a worse threat to democracy than whatever Trump has done.

"I can make the argument that President Biden is the much worse threat to democracy, and the reason for that is President Biden is... the first president in history that has used the federal agencies to censor political speech, so to censor his opponent. I can say that because I just won a case in the federal court of appeals — and now before the Supreme Court — that shows that he started censoring not just me but, 37 hours after he took the oath of office, he was censoring me (sic). No President in the country has ever done that. The greatest threat in democracy is not somebody who questions election returns but a President of the United States who used the power of his office to force the social media companies — Facebook, Instagram, Twitter — to open a portal and give access to that portal to the FBI, to the CIA, to the IRS, to [???], to NIH, to censor his political critics. President Biden, the first President in history, used his power over the Secret Service to deny Secret Service protection to one of his political opponents, for political reasons. He's weaponizing the federal agencies. Those are really critical threats to democracy."

The interviewer — perhaps only pretending to misunderstand — asks how what Trump did is not a threat to democracy. RFK Jr. answers:

"Going home after a long day, I cannot help but observe that those of my colleagues who were protesting so vigorously that the Court’s judgment today will do it irreparable harm..."

"... have spared no pains – in a veritable blizzard of separate dissents – to assist that result. Even to the point of footnote 4 in Ruth’s offering (I call it the Al Sharpton footnote), alleging on the basis of press reports 'obstacles to voting disproportionately encountered by black voters.' I am the last person to complain that dissents should not be thorough and hard-hitting (though it would be nice to have them somewhat consolidated). But before vigorously dissenting (or, come to think of it, at any other time) I have never urged the majority of my colleagues to alter their honest view of the case because of the potential 'damage to the Court.' I just thought I would observe the incongruity. Good night. Sincerely, Nino."

Wrote Justice Scalia to the rest of the Supreme Court on December 12, 2000, quoted in a CNN article by Joan Biskupic, "New documents show how Sandra Day O’Connor helped George W. Bush win the 2000 election."

To paraphrase: I'm all for vigorous dissents — I do them myself — but I dissent to tell the truth as I see it, and you just did it to say we ought shrink from the truth. Ha!

ADDED: That headline is terrible.  The article is about how Sandra Day O’Connor kept Chief Justice Rehnquist from having a majority for deciding the case the same way on a different legal theory. Either way Bush would win, so she didn't "help him win."

Will Trump and the GOP Senate get a new Justice confirmed before the election?

My first thought was that they won't even try. They'll use the open seat as a political issue — an argument why it is so important to reelect Trump and to keep a GOP majority in the Senate. And the backup plan can be that if Trump loses, they can accomplish the appointment after the election, before the new Senate and President are sworn in. So what if they said something else before the election?!

But then — in discussion here at Meadhouse — the thought came up that this election could be contested. There's so much talk about election fraud and mail-in voting, that there could be Bush v. Gore type litigation arising in various states, and the outcome of the election could well depend on that. Right now, the Supreme Court has only 8 Justices, and though there are presently 5 conservatives and only 3 liberals, a 4-4 tie is possible, with one vote switch, and Trump might want his person on the Court to lock in a conservative majority.

ADDED: The strongest argument for Trump to go right ahead and immediately nominate someone is that President Obama made a nomination in the election year of 2016 when Antonin Scalia died. Obama's nominee was not confirmed, but that was because the GOP controlled the Senate. There was nothing about Obama's lack of support in the Senate that made him more willing to put forward a nomination in an election year. He made the nomination in spite of the lack of support. Why should Trump refrain when he has Senate support?

AND: "McConnell says Senate will move to confirm Ginsburg replacement" (WaPo).

“President Trump’s nominee will receive a vote on the floor of the United States Senate," McConnell said in a statement hours after the court announced Ginsburg’s death.

Also at that link: "More than 90 minutes after news of Ginsburg’s death broke, President Trump — speaking at a campaign rally in Bemidji, Minn. — seemingly remained unaware of the news.
While closing out the rally, however, Trump alluded to the importance of the Supreme Court’s direction in the upcoming election. 'We will nominate judges and justices who interpret the Constitution as written,' Trump told the crowd, to cheers and shouts. He told his supporters that the next president 'will have anywhere from one to four' vacancies on the Supreme Court to fill. 'Think of that,' Trump said, warning that conservatives would be 'stuck' for decades with a Supreme Court they did not like if the Democrats won in the fall."

And (same link): "Days before she died, Ginsburg told her granddaughter that she felt strongly that her Supreme Court seat not be filled until after the presidential election, according to NPR. 'My most fervent wish is that I will not be replaced until a new president is installed,' she dictated in a statement to her granddaughter, Clara Spera."

Joe Biden ought to come right out and say who he will nominate if he is elected.

Should Justice Ginsburg at least explain why she does not recuse herself in the travel ban case?

Lawprof Ronald Rotunda — in a WaPo op-ed — says that she should.

We already know what Ginsburg thinks of the president. She told us more than a year ago that she “can’t imagine what the country would be . . . with Donald Trump as our president.” Facing criticism for her apparent endorsement of Hillary Clinton and her attacks on Trump, Ginsburg doubled down, emphasizing in a CNN interview: “He is a faker.” She then went on “point by point, as if presenting a legal brief,” the CNN analyst said.

Her statements are particularly troubling in the context of the travel ban case, in which the crucial issue — at least, according to the lower courts and the plaintiffs — is the personal credibility of Trump and whether he delivered his executive order in good faith — in other words, whether he is faking it....

This reminds me most of Justice Sandra Day O'Connor, watching the election results at a party on November 7, 2000, as described (on Christmas Eve, 2000) by Michael Isikoff in Newsweek, :

[S]urrounded for the most part by friends and familiar acquaintances, she let her guard drop for a moment when she heard the first critical returns shortly before 8 p.m. Sitting in her hostess's den, staring at a small black-and-white television set, she visibly started when CBS anchor Dan Rather called Florida for Al Gore. "This is terrible," she exclaimed. She explained to another partygoer that Gore's reported victory in Florida meant that the election was "over," since Gore had already carried two other swing states, Michigan and Illinois

Moments later, with an air of obvious disgust, she rose to get a plate of food, leaving it to her husband to explain her somewhat uncharacteristic outburst. John O'Connor said his wife was upset because they wanted to retire to Arizona, and a Gore win meant they'd have to wait another four years.

Not long after that outburst, O'Connor participated in the Bush v. Gore litigation. Should she have recused herself?

Ah, here's a Washington Post piece by Aaron Blake from the summer before the 2016 election, talking about whether Ginsburg should have to recuse herself:

It's not clear that there is any real precedent for what Ginsburg just did.

Then-Justice Sandra Day O'Connor was criticized by some in 2000 after Newsweek reported her saying, "This is terrible," at an election-night watch party after Florida was prematurely called for Al Gore. Some argued that she should have recused herself from Bush v. Gore.

In some ways, what O'Connor did seems worse, since she revealed a personal interest in seeing Bush elected (though she did not retire until after he was re-elected). But Rotunda identifies a special problem with Ginsburg's indiscretion: The case may turn on whether to trust Trump about whether the purported reason for the ban is the real reason. She's asked to decide if it's real or fake, and she called Trump a faker.

"If this judge isn't careful, he might determine the course of the election and discredit the judiciary branch..."

"... as the Supreme Court did with its election of Bush even against the popular count. Judges should stay out of the political process and let the people decide how much honesty or bombastery they want."

That's the most-liked of the NYT-picked comments on the NYT article, "Hillary Clinton’s 15,000 New Emails to Get Timetable for Release." The article begins:

The dispute over Hillary Clinton’s email practices now threatens to shadow her for the rest of the presidential campaign after the disclosure on Monday that the F.B.I. collected nearly 15,000 new emails in its investigation of her and a federal judge’s order that the State Department accelerate the documents’ release.

As a result, thousands of emails that Mrs. Clinton did not voluntarily turn over to the State Department last year could be released just weeks before the election in November. The order, by Judge James E. Boasberg of Federal District Court, came the same day a conservative watchdog group separately released hundreds of emails from one of Mrs. Clinton’s closest aides, Huma Abedin, which put a new focus on the sometimes awkward ties between the Clinton Foundation and the State Department....

That is, the timetable is what it is because Clinton didn't turn over all the email. It's not as though the judge is synchronizing the email with the eve of the election to try to affect it. It's more as though he's endeavoring to get through his work in time to thwart what looks like a scheme of depriving us of material we need until after the election.

And I love the way the opening line of the NYT article is structured to eclipse the human actor: "The dispute over Hillary Clinton’s email practices now threatens to shadow her for the rest of the presidential campaign...."

Is Hillary the person even there? The subject of the sentence is the "dispute." Better watch out for the active and dangerous character called The dispute. It "threatens." What does it threaten to do? To shadow her. The dispute is a creepy stalker! Hillary is there in the sentence. Not where her name is. That's the possessive, modifying "practices," which is what the dispute is about. Hillary the person is there as the "her," the victim of the creepy stalker that is the dispute.

Did Justice Ginsburg express so much contempt for Donald Trump that she'll have to recuse herself, if he becomes President, in all the cases involving the President?

This Washington Post column entertains that proposition.

Imagine a Bush v. Gore type election this year, with the outcome subject to a Supreme Court vote. There will only be 8 Justices on the Court. If Ginsburg has to recuse, it produces a 4-to-3/conservative-liberal balance on the Court.

The irony! Ginsburg's horror at the idea Donald Trump winning the presidency could cause Donald Trump to win the presidency.

Here's the NYT interview where Ginsburg displayed her political feelings. What she said was: "I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president... For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.” And then, quoting her husband, she added, "Now it’s time for us to move to New Zealand." We're told she was "smiling ruefully."

IN THE COMMENTS: HoodlumDoodlum said:

Professor: how do you feel about Ginsburg's statement and/or her decision to make it? 

I don't think she really said that much. She just said "I can't imagine...." You have to flesh it out with ideas of your own for it to mean anything. I would have ignored it. I ignored the interview when it appeared in the NYT, even though I always read the Times and the story was pushed heavily on the front page. I was annoyed at the NYT playing to its readers in the usual way — fawning over Ginsburg, eager to serve up more Trump hate in what must have seemed to be a delicious new form. But when The Washington Post took it so seriously and interviewed lawprofs about recusal, it got interesting. I would have left her alone to have a little freedom of speech about politics, and it's helpful to the people to get some information on how political the Justices might be. What Ginsburg most clearly expressed is that she wants Scalia's seat filled with someone who's on her side.

Federal appellate courts mark 88% of their opinions as "unpublished," meaning that they are not to be regarded as precedent...

... even though we can see these opinions, so they are, literally, published. Adam Liptak, who writes about the Supreme Court in the NYT, notes a recent "unpublished" 4th Circuit opinion that Justices Thomas and Scalia wanted to review:

“True enough, the decision below is unpublished and therefore lacks precedential force in the Fourth Circuit,” Justice Thomas wrote. “But that in itself is yet another disturbing aspect of the Fourth Circuit’s decision, and yet another reason to grant review.”

I don't think judges have the power to designate their opinions as lacking in power as precedent (though they're certainly capable of saying in advance that they don't find their own opinions worth much). I could go into more detail about the nature of judicial power, but this is a blog post, and I'll get right to something Liptak wrote that caught my attention:

"'This is Bush v. Gore all over again,' one friend said as we struggled to absorb the news last Friday afternoon."

"'No,' I replied. 'It’s worse.'"

Oh? Is that an admission from Linda Greenhouse that Bush v. Gore wasn't really all that bad? Actually, yes!

In the inconclusive aftermath of the 2000 presidential election, a growing sense of urgency, even crisis, gave rise to a plausible argument that someone had better do something soon to find out who would be the next president. True, a federal statute on the books defined the “someone” as Congress, but the Bush forces got to the Supreme Court first with a case that fell within the court’s jurisdiction. The 5-to-4 decision to stop the Florida recount had the effect of calling the election for the governor of Texas, George W. Bush. I disagreed with the decision and considered the contorted way the majority deployed the Constitution’s equal-protection guarantee to be ludicrous. But in the years since, I’ve often felt like the last progressive willing to defend the court for getting involved when it did.

That’s not the case here. There was no urgency....

"Here" = King v. Burwell. That's the new Obamacare case that's freaking people out.

This is a naked power grab by conservative justices who two years ago just missed killing the Affordable Care Act in its cradle, before it fully took effect.

Naked power grab? It's a naked power grab to grant review of a case that's been decided by a Court of Appeals panel, just because there's no split in the circuits? The Supreme Court has discretion over whether to grant certiorari, and its own rule on "Considerations Governing Review on Writ of Certiorari" refers to "compelling reasons," then lists a few things that it says are "neither controlling nor fully measuring the Court's discretion" but that "indicate the character of the reasons the Court considers." One of the things on the list is a split in what different courts have said about federal law. But another is: "a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court." So: It's an important question. Where's the power grab — naked or clothed?

The nakedness metaphor must have really stood out to the headline writer. The piece is called "Law in the Raw." Greenhouse doesn't like that the Supreme Court inserted itself — its naked, grabby self — into the controversy when there was going to be a rehearing by the full D.C. Court of Appeals (which had vacated the judgment of the 3-judge panel). But if it's an important question that in the end the Supreme Court is going to resolve, maybe it's also important not to drag things out. Get it resolved so we can move forward either knowing things need to be redone or freed from the cloud of possible illegality.

But Greenhouse's real complaint is that she — like many others — reads the Court's impatience as revealing the opinion on the merits: "There is simply no way to describe what the court did last Friday as a neutral act... [T]he justices have blown their own cover...." By "the justices," she means the 4 Justices she presumes voted to grant review:

Certainly Justices Anthony M. Kennedy, Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr. — the four who two years ago would have invalidated not only the individual mandate but the entire law — voted to hear King v. Burwell....

An intriguing question is whether there was a fifth vote as well, from the chief justice. I have no idea, although I can’t imagine why he would think that taking this case was either in the court’s interest or in his own; just two months ago, at a public appearance at the University of Nebraska, he expressed concern that the “partisan rancor” of Washington could spill over onto the court.

Wait! Taking cases based on self-interest actually would be naked power-grabbing. I love the way Greenhouse signals to Roberts what he needs to do to win the respect of the legal elite, not that he can ever really have it. He can have a little, and, you know, sometimes a little love, with true love withheld, is just what keeps a love-seeker pursuing love... nakedly grabbing.

"Americans’ willingness to accept the Supreme Court’s mystical role is partly a symptom of disappointment in our own democratic capacities."

"Congress is the most directly representative body of the federal government, and almost no one sees it as having principled authority or moral charisma. Hoping that the Supreme Court will make us better than we can otherwise be, better than our own representative institutions, is neither self-respecting nor very likely to succeed."

Writes lawprof Jedediah Purdy in a very layperson-accessible presentation of the progressive case against judicial review. I think he's quite wrong, by the way.

Expect to see much more of this sort of thing in the press as Erwin Chemerinsky's book "The Case Against the Supreme Court," hits the market this September. From the book's description at Amazon:

Jeffery Rosen's complicated idea about why the Supreme Court really should uphold Obamacare.

Generally, I'm tired of these MSM articles that seem to be trying to push the Court to uphold the Affordable Care Act — as if the Justices are reading these articles and vulnerable to efforts — by writers who obviously politically support the law — to scare them into thinking people will lose respect for the Court. I say "seem to be" because I think these articles are really about shaping public opinion. They're not telling the Justices that people will disrespect them. They are stoking the people's disrespect in advance of an opinion that strikes down the law (in case that's what happens), and they are laying the groundwork for arguments about why Obama should be reelected (and Democrats need to keep control of the Senate).

But I'm going to link to this new Jeffrey Rosen piece in The New Republic. Why? It's just so amusingly complicated. I'll paraphrase the points he makes, in order:

1. A new poll (which we talked about on the blog here) shows declining approval for the Supreme Court and a belief that the Justices are sometimes influenced by their personal/political beliefs.

2. Some people — including Chief Justice John Roberts — think that public opinion is affected by all the 5-4 decisions that reveal that there is a set of conservative Justices and a set of liberal Justices.

3. There's a new study (by Nathaniel Persily and Stephen Ansolabehere) that says people decide whether they approve of the Court based on whether they like the outcomes of the cases, which suggests that an effective way for the Court to get respect would be simply to provide the outcomes people want.

4. A survey shows that people do like the outcomes of most of the big Roberts Court cases, and that's out of line with the declining approval of the Court, but it might be that people are giving extra weight to some of the big cases, the ones they don't like — maybe Kelo (for Republicans) and Bush v. Gore (for Democrats).

5. Maybe people support or reject the Court based on whether they are conservative/liberal and whether they believe that the Court is what they are — conservative/liberal.

6. A lot of people don't know which Justices were appointed by Republican Presidents and which were appointed by Democratic Presidents. (Rosen assumes the conservative/liberal split among Justices tracks whether they were appointed by Democrats/Republicans, which happens to be true of the current Court, though it was untrue before the Obama appointments were made.) But a study found that in the set of people who know that Republican Presidents have appointed a majority of the Justices, Republicans tend to support the Court, and Democrats are less supportive.

7. Even though a large majority of Americans say they want to see the health care law stricken down, and despite the Persily/Ansolabehere finding that people like the Court when they like the outcome, it's a mistake to think that the Court's approval rating will climb if it strikes down the law by a 5-4 vote. This is because, over time, 5-4 decisions remind people that the Court has a partisan split, and while this will make Republicans like the Court more, Democrats will like it less. Rosen doesn't specify this point, but it needs to be understood here: Only 24% of Americans surveyed by the NYT/CBS want the Court to uphold the law, so it would seem that many, perhaps even a majority of Democrats will approve of the outcome. But Rosen is saying that somehow it will still hurt the Court's approval among Democrats because they will see the Court as partisan and conservative — especially with "elites, including the President" pestering them to think about the Court that way. 

8. Rosen concedes that even if everything in point #7 is right, the Court might move up in the approval rankings because of the increased approval coming from Republicans who like the Court for being so partisan and conservative.

9. John Roberts should eschew that method of moving up in the approval ratings, because he'd be a better leader if he avoided the appearance of partisanship.

ADDED: Here's my analysis:

1. Rosen had material that added up to the conclusion that the Court would improve its stature among Americans if it struck down the health care law.

2. Rosen doesn't want the Court to strike down the health care law.

3. Rosen wrote some complicated paragraphs and then declared that he'd shown why the Court shouldn't strike down the health care law.

NYT/CBS poll shows low approval rating of the Supreme Court... but why?

A poll of 976 adults shows 44% approve of "the way the Supreme Court is handling its job," 36% disapprove, and 20% judiciously opine that they don't know. When asked if "the current U.S. Supreme Court Justices decide their cases based on legal analysis without regard to their own personal or political views, or do you think they sometimes let their own personal or political views influence their decisions?," 76% give the answer that is obviously prompted by the question: They sometimes let their own personal or political views influence their decisions.

You really have to be naive or to restate the question in your head before answering to resist the "sometimes" and say legal analysis only, but 13% did. 7% had the wits to quibble with or qualify the question and say that some of the Justices do or "it depends." The restrained "don't know" crowd dwindles to 4% at this point (which I think suggests that they took advantage of the "sometimes" prompt in the question and jumped on the obvious "yes").

Here's the analysis in the NYT by Adam Liptak and Allison Kopicki, who stress that the approval level is as low as it's been in a quarter century. But why is approval on the decline? Is it because of the new Obama appointees and what's going on with the liberal wing of the Court? Or is it John Roberts and the coterie of conservatives that the NYT would like to push back? The poll questions do not attempt to extract this particularity.

They don't ask, for example: 1. Do you think that the Supreme Court should strike down statutes that exceed the Framers idea of limited, enumerated powers?, 2. Do you think that the Court should define constitutional rights to accord with evolving notions of equality and individual autonomy?, 3. Can you name a Supreme Court Justice who is accurately applying legal analysis without regard to his or her own personal or political views?, 4. Can you name a Supreme Court Justice who has allowed his or her personal or political views to influence decisionmaking?

Different answers to questions like that could take us in quite different directions. But Liptak and Kopecki seem to assume that the conservatives are the problem:

The decline... could reflect a sense that the court is more political, after the ideologically divided 5-to-4 decisions in Bush v. Gore, which determined the 2000 presidential election, and Citizens United, the 2010 decision allowing unlimited campaign spending by corporations and unions....

But:

On the highest-profile issue now facing the court, the poll found that more than two-thirds of Americans hope that the court overturns some or all of the 2010 health care law when it rules, probably this month. There was scant difference in the court’s approval rating between supporters and opponents of the law.

The court’s tepid approval ratings crossed ideological lines and policy agendas. Liberals and conservatives both registered about 40 percent approval rates. Forty-three percent of people who hoped the court would strike down the health care law approved of its work, but so did 41 percent of those who favored keeping the law.

You can hope for the outcome that you like politically, but still think that the Court ought to do its work in accordance with a purely legal methodology, and you should worry that the Justices are imposing their own political and policy notions as they decide cases. That combination of attitudes is perfectly sensible. In addition, it's natural for human beings to perceive that the judges who aren't doing it right are the ones who are reaching the outcomes that they don't like. That's how the mind works. It's so banal I'm a little embarrassed to put it down in plain words.

And yet, I expect you to argue with me about it. I expect comments that will demonstrate exactly the thing that I just said was natural for human beings to perceive.

Do you care about Congress's limited, enumerated powers and the idea of judicially enforceable federalism?

Or do you think that's all a lot of conservative bull that we shouldn't have to pay attention to? — I ask Bob Wright, who asserts a belief in "legal realism," which I ask him to define... and help him to define:



Click "continue" to hear me defend Bush v. Gore.

Bush v. Gore is "the case of the century" because it "truly altered history," even though it "didn’t change constitutional doctrine."

Writes TNR's Jonathan Cohn setting up a discussion of whether this year's big Obamacare decision will be the new case of the century. Well, the century is pretty young, and admittedly Bush v. Gore felt like a huge deal at the time. But "truly altered history"?

Just think how the years after 2001 would have unfolded if Al Gore had been president.

Ridiculous! I can't believe Cohn doesn't know that if the case had gone the other way Gore would still have lost in the end!

George W. Bush would have won a hand count of Florida's disputed ballots if the standard advocated by Al Gore had been used, the first full study of the ballots reveals. Bush would have won by 1,665 votes — more than triple his official 537-vote margin — if every dimple, hanging chad and mark on the ballots had been counted as votes, a USA TODAY/Miami Herald/Knight Ridder study shows. The study is the first comprehensive review of the 61,195 "undervote" ballots that were at the center of Florida's disputed presidential election.

That's the news from 2001. And speaking of 2001, does Cohn actually think that Gore would not have responded vigorously to the 9/11 attacks? 

Anyway, I have close to zero interest in reading what Cohn has to say about this year's big case.

I generally leave the sophisticated constitutional analysis to Jeff Rosen, my (much) more informed colleague. But you don't have to be a legal expert to....

Fortunately, I can do my own legal analysis. I'm certainly not interested in Cohn's. As for Rosen's... I don't need to read that either. I know what he'll say. 

"Maybe there are good legal arguments why Kagan need not recuse herself..."

"... but there is no good reason that she shouldn't at least come forward and publicly explain her decision."

Not doing so suggests that there is something deeply political (and maybe, like Bush vs. Gore, even something partisan) going on, and that possibility could negatively infect what many of us on the left hope to be Supreme Court affirmation of the constitutional validity of the Affordable Care Act.

"You're a Supreme Court Justice. I'm not. That gives you the right to judge things. That's very convenient."

Stephen Colbert interviews Justice Stevens:

Gov. Walker sues to require the Government Accountability Board to check for fake/duplicate/illegible signatures on recall petitions.

The Journal Sentinel reports:

The GAB has said it's up to challengers to point out problems like those and the board itself cannot automatically toss the signatures for those reasons.

The lawsuit says allowing multiple signatures is a violation of the equal protection clause of the U.S. Constitution because it harms the rights of those not signing. ...

[A]ccountability board spokesman Reid Magney said the board was simply following the law and a carrying out a process that would ultimately weed out bad signatures after Walker's campaign called for striking them.

Meanwhile, signature-gatherers claim they've got 500,000 signatures (of the 540,208 needed to force an election). But who knows how many are fakes or duplicates? And if there is a recall election, the Democrats must put up an actual candidate to defeat Walker.

It seems likely that there will be enough signatures submitted. Then, we have to go through the process of challenging bad signatures. If there's a wide margin between what is submitted and what is required, the challenge process won't be such a big deal... unless the proportion of bad signatures appears high in relation to the margin.

Next, we'll have to muck our way through the primaries, with Walker able to play a role attacking these candidates, weakening them before he even faces them. Under state law he can raise and spend as much money as he wants, and he's already spent $2.2 million on advertising. Finally, a candidate will emerge from the battering in the primary and face Walker. Walker, I imagine, will have much more money to spend and he'll be running as an incumbent. Won't he win? By a lot?

And if Walker wins, where will the Democrats be? The Walker administration and the Republican legislature will have a new mandate to pass legislation that they might not have dared to attempt if Walker had only been left alone. If somehow Walker is defeated, the new Democratic Governor will have a Republican legislature to stymie him, so things shouldn't be much different than if Walker had been left alone. I don't see why it's worth it to the Democrats to go for the recall. What is the point... except to emit an inarticulate cry of pain?

And yet people sign the petitions. It makes no sense to me.

ADDED: Rick Hasen at Election Law Blog says that Walker's equal protection argument is "a major... stretch":

Though the complaint does not cite any caselaw supporting the equal protection theory, I suspect that if this goes further the Republicans will rely on Bush v. Gore.  

If this goes further... suggests that the point of the lawsuit is mainly to cause the GAB to decide to take on the work of checking the signatures.

Looking at the complaint, I see the idea is that the GAB is failing to take even minimal steps to deal with the problem of some people signing petitions more than once and this dilutes the influence of those who do not sign. Every qualified elector in Wisconsin is entitled to one opportunity to choose to sign or not to sign. Everyone who doesn't sign is, essentially, counted once (as signature-gatherers try to reach a number equivalent to a certain proportion of the total voters). Only those who sign have a way to get counted more than once, and when that misbehavior is not stopped, signing weighs more heavily than not signing.

Therefore — the argument goes — the GAB, by failing to exercise its role in a way that catches the multiple signatures, violates equal protection because it is diluting the political clout of one group as opposed to another.

The GAB is putting the burden on Walker to challenge the signature, but its rules give Walker "only 10 days to examine, compare and then challenge more than 540,000 signatures – more than 50,000 signatures a day," which the complaint calls "a practical impossibility."

Warren Christopher has died.

He was 85. I most remember him from his role in Florida recount in the 2000 election:

Mr. Christopher came under criticism at the time, and later in “Recount,” the 2008 HBO dramatization of the Florida vote dispute, over a lack of legal and political aggressiveness against Mr. Bush’s legal team, led by a former secretary of state, James A. Baker. The movie, in particular, portrayed Mr. Christopher as overly concerned with the niceties of the law while Mr. Baker was waging a bare-knuckled campaign on all fronts.

Mr. Klain said that was an unfair characterization. “Like all dramatic portrayals, they sought dramatic tension by exaggerating people’s personalities,” he said on Saturday. “People often confused Chris’s reserved style and personal sense of propriety with a lack of fierceness on behalf of his client. That would be a mistake.”

He said it was Mr. Christopher’s decision to challenge the Florida result, even as most Republicans and some prominent Democrats were urging Mr. Gore to concede. “People don’t remember how controversial that effort was. Without Chris’s stature and credibility, I’m not sure we would have gotten as far as we did,” Mr. Klain said.

I remember Christopher solemnly intoning: "We need to count all the votes." It was a mantra. And the other side had its mantra. James Baker would say: "The votes have been counted. They've been counted and recounted." Chez Althouse, we were for Gore, so Baker's "votes  have been counted" line drew hoots of derision. Analyzing the litigation calmly, afterward, I accepted the soundness of Baker's point. These were ballots designed to be read by machines, the ballots had gone through the machines twice, and there was no showing that the machines had malfunctioned. Switching to human readers introduced much more ambiguity and risk of deviousness than accepting the verdict of the machines. The machines, as they processed each card, didn't have political preference and awareness of which side was being helped.

The criticism of Christopher— that he was too nice and too proper — fails to take into account that he was arguing on the side that would strike many people as scarily chaotic and power-grasping. Baker was arguing for the security of the result delivered by machine.  Baker's attitude of belligerence was used to argue for ending the struggle. Transpose the Baker attitude onto the Christopher side of the argument — struggle, chaos, litigation, and the unknown. Would it have worked better than Christopher's mild demeanor?

It was 10 years ago today. Bush v. Gore.

The much-maligned Supreme Court decision came down, crushing the dreams of those of us whose hearts raced at the legal arguments that took the sound-bite form "count all the votes" and rankled at the other side's sound bite: "the votes have been counted... they've been counted and recounted."

Oh! How I wish I'd been blogging then. There were such interesting details every step of the way. Legal angles that could have been explained and examined. The reporting on the TV news was so biased and stupid. Things would have played out a lot differently if there had been legal bloggers picking through the fast-accumulating wreckage hour by hour. Instead we got those TV sound bites.

Have you noticed that you don't hear about "sound bites" — "5-second sound bites" — anymore? There's "viral video" now. Viral video and internet memes... and bloggers to call bullshit on mainstream media.

Ah, but what fun it would have been to have been calling the bullshit in the late autumn of the year 2000.

Talking Points Memo turns 10.

"The post was about Ted Olson making his debut as the chief Bush lawyer in the emerging Florida Recount battle."

Yes, it's also the 10-year anniversary of the big Florida recount. I wish I'd been blogging then! It would have been so much fun to write about that every step of the way. I'd have liked to show you in real time that I really wanted my guy, Al Gore, to win, and I also accepted nearly everything the Supreme Court did in the complicated litigation over the recount. But there are so many missed blogging opportunities in the past. I'd have loved to have blogged the Clinton scandals too. And the Clarence Thomas hearings. The Bork hearings.

Here's that first TPM post:

As if things couldn't get any weirder, did you notice the name of the lawyer who made the Republicans' unsuccessful arguments before that federal judge today? That would be Ted Olson, a man Washingtonians often refer to as a 'Washington super-lawyer.' Who is Ted Olson? Well, that would be the same one knee-deep in the Arkansas Project, which in league with the American Spectator spent a ton of money digging dirt on Bill Clinton in Arkansas....

Well, now, isn't that weird? I just blogged this morning about that Think Progress blogger who confronted Justice Alito and he was going on about the Arkansas Project:

Last night, the American Spectator — a right-wing magazine known for its role in the “Arkansas Project,” a well-funded effort to invent stories with the goal of eventually impeaching President Clinton — held its annual gala fundraising event....

That first TPM post wove Justice Scalia into its conspiracy-ish riff:

Of course, Olson... is also the Olson from Morrison v. Olson, the supreme court case which upheld the constitutinality of the Independent Counsel statute. Olson was against it. Come to think of it, we Dems now think he and Scalia were right. So maybe chalk one up in his favor.

So that's how TPM first talked about law. Yikes. Spelled "constitutionality" wrong too.

I'm going to start reading the lefty blogs more and writing about them, I think. I'm interested in the way they string ideas together, and I think they need some more push back.

Do you want me to write more about lefty blogs?
	No. Don't give them traffic.
	No. I don't care what they say.
	Yes. They need monitoring and criticism.
	Yes. Broaden your view and see what happens.
	Eh. Not sure. Depends on how sharp and funny you make it.
pollcode.com free polls

How misspelled can a write-in vote for Murkowski be before it shouldn't be counted at all?

Joe Miller is arguing for 100% correct spelling.

Lt. Gov. Craig Campbell, who oversees Alaska elections, has indicated that he will accept minor misspellings of Murkowski's name as long as the "voter intent" is clear.

Intent of the voter. Ah! That brings back delightful memories of the Bush v. Gore recount.

Miller is overdoing it. Clearly, they've got to count stuff like "Murakowski" and "Murkowsky" and "Murcowski" and even "Mercowsky." But where's the line? What about "Merssky"? Or "Murk."? What about "Lisa"? That's dimpled chad territory, no?

ADDED: A poll:

How strictly would you judge the write-ins?
	Miller's right. The spelling must be perfect.
	It must be phonetically accurate or only 1 or 2 letters off.
	If you can tell it was meant as a vote for Murkowski, it should count.
pollcode.com free polls

After the break, a second poll: