On the national and state front
From the Publisher/Arnold York
The recall election was just beginning to look like a real election, with the field finally narrowing down to Gray Davis and Cruz Bustamante, Arnold Schwarzenegger and Tom McClintock and boom, the 9th U.S. Circuit Court of Appeals goes and throws a monkey wrench into the whole thing, and we’re back to loony tunes again. The worst part of it is that we now may have to put up with this entire campaign until next March-when we could finally get to vote, maybe. I’m sure there are some good legal reasons for the court’s decision, but it sure feels as if the 9th Circuit is rubbing the U.S. Supreme Court’s nose in its Bush vs. Gore decision and almost challenging it to step into this one. The Supreme Court is in a dilemma. For one thing, the Supreme Court justices have been accused of stealing the last presidential election and now, if they step in, they’re going to add some credence to the widely held belief among Democrats that they’re trying to steal California also. Courts typically are very concerned about how they are perceived. No matter how partisan they are, none of them wants to be perceived as being in the pocket of one political party. I suspect this is a case most of them would prefer to avoid rather than risk a real rupture of public confidence in a country split 50/50.
Life goes on
Meanwhile, the California gubernatorial candidates are pretending the campaign just goes on. I say pretending because if the court decision holds, there is bound to be a drop in public interest until things start back into full swing again in the beginning of next year. For one thing, media in California is so expensive that you have to save your big bucks until the end, or you run out of dollars. All the free media the candidates are getting will also drop off as the public interest drops. Besides, this recall could turn out to be interminable. There also seems to be a question if it’s possible to get all the punch card voting machines replaced by next year in time for a March election. Suppose they can’t. What then? Suppose L.A. County drags its feet or just doesn’t have the money?
Dangerous precedents
There is also a bigger problem involved in all this, a problem that I see growing. That is the courtroom is becoming another political battlefield, and that is a very dangerous precedent. In the last few decades there has been a major loss of public confidence in both the executive and the legislative branches of government. The one branch that has survived relatively unscathed is the judiciary, but that could change. I first thought there might be a major reaction after the Supreme Court’s decision in Gore vs. Bush put a somewhat questionable end to the 2000 presidential campaign, but it didn’t turn out that way. The truth is, its decision put us out of our misery and most people were so glad it was over they were willing to accept any decision, even an arbitrary one, just to see it end. Unfortunately, the Supreme Court set a precedent. It wasn’t just a legal precedent. More important, it was a judicial cultural precedent, and more and more we may see courts willing to substitute their judgment for the voters’ judgment.
Let me give you a local example of how this plays out. In November, we’re going to go to the polls to vote on whether we want to approve the Malibu Bay Company Development Agreement. It’s a straight majority rule political decision, with strong feelings on both sides. The group on one side, the Malibu Community Action Network, known as Malibu CAN, has just filed a lawsuit challenging the proposed development agreement, claiming it violates the California Environmental Quality Act, the Coastal Act and a host of other things. The effect of the lawsuit is, if the development agreement is approved at the polls, the battle merely shifts into the courts, where it could take years. If it loses at the polls, I’m sure the Malibu Bay Company will be back with alternatives and those will most certainly end up in court. Very little in land use ever gets decided. Soon we’re going to be like India where lawsuits can go on for generations.
My own sense is that no sizable project, no matter what it is, can ever be approved in the coastal zone unless you have 20 years and millions of dollars. Let’s just flip the coin over in the Civic Center. The Malibu CAN group and its friends are proposing wetlands in the center, which it thinks is a more environmentally sensitive alternative. Well, it might be environmentally sensitive to them, but to others it’s going to look like a major multi-year construction project. Large trucks taking out earth to dig holes for the wetland. Major changes in the hydrology of the area, changing the salinity, affecting the flora and fauna, and all of the septic systems and the surf. Sound, traffic, vibrations. Where is it all going to go? To court of course, and probably for the rest of our natural lives.
It seems to me there has got to be a better way to make political decisions than in a courtroom. Political decisions may be imperfect but they’re far better, and represent far more of the thinking of the community, than some judge making a decision in a courtroom.
I think the 9th Circuit should let this governor’s race go to the polls and let the people decide. If need be, let them hire some extra poll workers to explain how to deal with hanging chads. The solution it’s mandating is silly.