The 9th Circuit Court of Appeals has deservedly won
the reputation as a hot-house of left-wing judicial
activism, so it's no wonder Republicans - already
measuring the drapes in the governor's office, as one
Gray Davis aide put it - are incensed at the court's
decision to delay the recall election of California's
Who can blame them?
Democrat Gray Davis, who is now being supported by
national Democrats including Bill Clinton and Jesse
Jackson, has temporarily been saved from an Oct. 7
recall by a liberal three-judge panel. If the decision
stands - the 9th Circuit's 11-judge panel is revisting
the decision Monday - and the election rolls until
March, most observers believe Davis will prevail.
That's a good bet. Many people believe this partisan
court, which in some years has been reversed by the
Supreme Court on nearly nine out of 10 decisions, wants
to save Democrats from a surging Republican-led recall
effort. Davis is disliked, and Californians have had
enough, so Democrats are relying on a handful of
appointed judges to save them.
Although I share this revulsion to the 9th Circuit
and the panel's asinine delay of an election, I wonder
whether the decision, whether it is overturned or not,
could be a blessing in disguise by energizing California
voters behind the recall out of disgust for the court.
The delay could also give Republicans more time to unite
behind one candidate rather than split the vote between
Last weekend at the California Republican Party
Convention in Los Angeles, delegates, politicians and
the media were focused on one thing: Will state Sen. Tom
McClintock step aside to help actor Arnold
Schwarzenegger win the recall election? People wanted to
know whether Schwarzenegger, who holds liberal views on
many issues, could make peace with the party's
conservative base. A Republican cannot win a statewide
election in California by only appealing to
conservatives, but good luck winning without them.
Schwarzenegger seemed to succeed, but a poll released
early that weekend showed Davis gaining ground and Lt.
Gov. Cruz Bustamante in the lead to replace the governor
if the recall succeeds. Some media reports portrayed the
convention as a fount of optimism. Granted, given the
party's dismal success in the last nine years, this was
as optimistic as I had ever seen an assembled group of
Nevertheless, many people were worried, yours truly
The math is quite simple: Bustamante's support has
stalled, thanks to his far-left political appeal and the
criticism he has received for his acceptance of millions
of dollars of questionable campaign donations from
Indian tribes. But if McClintock surges, and
Schwarzenegger falls, the Democrats have a good chance
of retaining the office.
Schwarzenegger aide George Gorton fears a planned
independent expenditure from Indian casino interests on
behalf of McClintock will cut directly into
Schwarzenegger's support. The Indians actually want
Bustamante, so they will support McClintock to harm
The McClintock forces believe that Schwarzenegger
will stall once his celebrity aura wanes, and people
start demanding specific solutions to the state's
problems. If McClintock tops 20 percent in the polls,
they say, the 51 percent of Schwarzenegger supporters
who call themselves conservatives will flock to
McClintock. That's the point at which McClintock looks
like he can win.
I'm not so sure.
This refrain is common: "We love Tom, a true-blue
believer in limited government who knows where the
bodies are buried in Sacramento, but we are voting for
Schwarzenegger because he can win, and we sure as heck
don't want Bustamante."
Schwarzenegger supporters believe most conservatives
will do as stated above, and they see the McClintock
strategy as a pipe dream. They doubt that McClintock has
the 18 percent support shown by the Sept. 13 Los Angeles
Times poll. They know he doesn't have anywhere near
enough money to run a credible statewide race. Some
conservatives think he is too dogged and self-assured to
work with legislators, and they fear what will happen if
McClintock is a spoiler.
U.S. Rep. Dana Rohrabacher, R-Huntington Beach,
lauded Schwarzenegger's Saturday speech, in which the
actor labeled himself a small-government conservative,
referred to Ronald Reagan's legacy, including a staunch
stance against the forces of communism.
"Gray Davis isn't riding a tank into Budapest,"
Rohrabacher told me, "but he is destroying the economy
of California. If McClintock stays in, he screws
conservatives. If we lose by 2 percent, Republicans will
look at conservatives as spoilers. If Arnold wins
anyway, and McClintock gets 10 percent, Arnold will say,
'Why do we need these guys?'"
For his part, McClintock talked at his press
conference about Californians, their backs against the
wall, rallying to save their state through his
candidacy. "It's time to paint our positions in bold
colors, not bland pastels." And he was unequivocal in
his refusal to get out of the race.
You see what's happening here. The principled,
disciplined but underfunded McClintock might have enough
moxie to drive down Schwarzenegger's support. But,
realistically speaking, it's a longshot that
Schwarzenegger will fade away, given his celebrity
appeal and his support among moderate Republicans,
independents and even some Democrats.
The result: Schwarzenegger and McClintock each do
well enough to assure Bustamante's victory. The recall
will have been for naught, and that's assuming Davis
will even lose it.
Although the Times poll tends to be a bit out of sync
with others, all the polls show slipping support for
Question 1: whether or not to recall the Immobile
Governor, the man who does nothing while Sacramento
burns. The Times had support at 50 percent to 47
percent. That's wafer-thin. And Davis' last-minute
Democratic partisanship, and strategy of depicting the
recall as illegitimate, appears to be having some
I still think Davis would lose - if the election is
held Oct. 7. But while Davis is busy campaigning to save
himself, his opponents are sniping at each other. No
one, really, is making the direct case for removing the
governor from office. It's not a done deal.
But thanks to the activists on the 9th Circuit,
recall supporters have a new rallying point. As the San
Francisco Chronicle reported, "The decision ... sent a
unifying jolt of energy through the state's most avid
pro-recall forces as campaigns and candidates tried
Tuesday to sort out what the court's decision could
The court's reasoning is bizarre. It wants to
postpone the election until March because voters in six
counties would be disenfranchised because they would be
forced to use the same punch-card voting machines that
have been used for several decades in California, and
which were used to elect Davis to office the last two
times. The court believed it is a dire problem when
people "undervote" - i.e., do not vote on every question
or race on a ballot.
Don't think about it too much. We'll see what the
11-member "en banc" panel decides, and whether the case
makes its way to the Supreme Court, which might be leery
about looking at it given the divisive experiences in
Bush vs. Gore.
The three-judge panel's ruling should be overturned.
The election should go on as scheduled. A new date in
March will not only cause new problems, but will be a
boon for Davis, little question about it.
Still, whether sanity prevails or not, disgusted
Californians will have yet another reason to get
energized, remove the incompetent Davis from office, and
replace him with someone better.
Even a nattering nabob of negativism like me needs to
look for silver linings.