{"id":53257,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/the-best-of-times-the-worst-of-times.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"the-best-of-times-the-worst-of-times","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/the-best-of-times-the-worst-of-times.html","title":{"rendered":"The Best of Times, The Worst of Times"},"content":{"rendered":"\n
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The Best of Times, The Worst of Times:
The Low Lows and High Highs of the California Recall<\/span><\/h1><\/td>\n <\/tr>\n

By EDWARD LAZARUS<\/h2><\/a><\/td>\n <\/tr>\n

Thursday, Aug. 21, 2003<\/td>\n\n <\/tr>\n <\/table>\n

“It was the best of times. It was the worst of times”: Dickens’ much-quoted bon mot<\/i> about the French Revolution seems an apt description of the California recall campaign. <\/p>\n \n

The recall embodies the very worst trends in American politics. The stakes here are very high, but the problem is often misidentified. It is not that the recall is something of a circus, though it is. Nor is the problem, as Governor Gray Davis charged on Tuesday, that the Republicans want to steal elections they cannot win. Actually, the GOP probably could have won if it had nominated the moderate Richard Riordan instead of the conservative Bill Simon.<\/p>\n \n

Instead, the real threat posed by the recall is to democracy itself. The way politics are headed, pretty soon, both parties will forsake the idea of living by an established set of recognized rules for the democratic allocation of power. After all, Democrats, wimpy though they have been, can play all these games too. And then Mao will be right: politics really will be war without the bloodshed.<\/p>\n \n

Yet the recall – for all its dangers – also holds real promise for shaking up, and even improving on, the desultory nature of politics as usual. <\/p>\n \n

The Worst of Times: The Trend of Challenging the Final Results of Past Elections<\/b><\/p>\n \n

Let me start with the bad news. A crucial component of a stable democracy is the willingness of candidates and political parties to accept defeat at the polls. Especially where the electorate is closely divides (as ours is), adherence to this concept keeps us from a constant state of uncertainty, turmoil, and political recrimination. <\/p>\n \n

That basic concept, however, has now been under siege for the better part of a decade. And California’s recall campaign is yet another dangerous step in the wrong direction.<\/p>\n \n

This week, The Weekly Standard<\/i>, the nation’s leading conservative opinion journal, published an editorial applauding the recall. The editorial aptly illustrates the point that like sleeping dogs, election results ought to be allowed to lie. <\/p>\n \n

There, Fred Barnes – a respected conservative commentator – justifies the recall because “of the nature of [Davis’s] reelection. He hung on by a thread, winning with less than a majority over a weak Republican opponent. He won despite deteriorating conditions in his state, despite a glaring lack of leadership, and despite a richly deserved reputation for dunning a large campaign contribution out of anyone seeking access to the governor’s office.”<\/p>\n \n

\n\nThis is all true. But with the alteration of a few words, the very same or even worse could be said of President George W. Bush.<\/p>\n \n

After all, President Bush won without even a plurality, thanks to a politically stacked Supreme Court, over a less-than-imposing Democratic opponent. Since Bush took office, conditions in the country have certainly deteriorated; his leadership abilities (9\/11 notwithstanding) invite question; and his fundraising-in-exchange-for-political-access machine (with a nice assist from Vice-President Dick Cheney) is second to none.<\/p>\n \n

Thus, by The Weekly Standard<\/i>‘s criteria, it would have been reasonable (even laudable) if – after the Rehnquist Court hijacked the election and handed victory to Bush – Al Gore, the winner of the popular vote, had refused to recognize the legitimacy of Bush’s election. Indeed, by these criteria, Gore ought to have set up a shadow administration, putting out its own policy pronouncements. Instead, and admirably, he graciously accepted the Court’s decision in Bush v. Gore,<\/i> while at the same time respectfully disagreeing with it. To a remarkable degree, he and other Democrats swallowed the hemlock of the Supreme Court-determined 2002 election, and moved into the role of the loyal opposition. <\/p>\n \n

Indeed, under The Weekly Standard<\/i>‘s criteria, it would also be justified for Democrats now to beat the drum for Bush’s impeachment based on the whoppers he told the American people to garner support for the war in Iraq. (After all, what is the more appropriate impeachable offense: lying about sex under oath, or using lies to sell major policy decisions?). And if they did, it would have been no more than tit-for-tat. One does not have to be a diehard Clinton defender to believe that a substantial part of the Republican Party never accepted his 1992 electoral victory, and schemed from the start of Clinton’s Administration to drag him down – whatever the cost to the institutions of government. <\/p>\n \n

Meanwhile, for the Republicans, at least, it is now becoming standard procedure to tinker with the normal rules of governance in pursuit of political advantage. For example, in Texas, the Republican-dominated State legislature, at the urging of House Majority Leader Tom Delay, has set aside the customary practice of redistricting every 10 years in the wake of the national census. Instead, Republicans are trying to ram through a rump redistricting meticulously calibrated to enlarge the state’s GOP congressional delegation. <\/p>\n \n

Democratic state legislators in Texas have thus far successfully foiled this off-year gerrymandering – by fleeing out of state and depriving the Texas Republicans of a legislative quorum. Yet Republicans in Colorado recently succeeded in a similarly partisan, tradition-defying redistricting ploy.<\/p>\n \n

The California recall fits effortlessly into this disturbing pattern. It began as Hiram Johnson’s idea for wresting away from the wealthy (specifically the banks and the railroads) the power to select California’s government officials. But Republicans have hijacked the recall, using a $1.7 million of a rich man’s lucre to, in effect, buy the signatures necessary to overturn a totally legitimate election. <\/p>\n \n

The Good News: Why the Recall May Actually Help California <\/b><\/p>\n \n

So what is the good news in the California recall? Here is a short list. <\/p>\n \n

First, it Arnold Schwarzenegger emerges as governor of California, it is likely to revitalize the all but defunct moderate wing of the Republican Party. As noted above, Republicans probably lost to Davis in the first place by failing to run a moderate. If Schwarzenegger wins, it’s unlikely they will be interested in running another archconservative for quite awhile. <\/p>\n \n

Second, the recall forced Gray Davis to give a candid speech taking blame for some of the mistakes he has made in office. Once his reported “Rose Garden” strategy of staying above it all proved not to be working, Davis had to descend to confront the problems he had so far largely avoided. In this sense, the recall struck a blow for accountability – always a good thing.<\/p>\n \n

Third, thanks to Warren Buffett, Californians are now talking about revoking Proposition 13 – the politically popular but fiscally absurd property tax cap under which the California budget now suffers. The cap lets Buffet himself pay only about $2,000 a year in property taxes on his $4.5 million dollar house. This proposition helped put California in the financial bind that now fuels the recall. The more Californians come to see it as one of the main culprits, the more they may be ready to revoke it, and give the state the ready source of funds it desperately needs.<\/p>\n \n

Fourth, and most important, the recall, with a half dozen serious candidates running amidst the horde, has Californians genuinely interested in politics and policy. People seem to realize that this state – with high unemployment and a deficit pushing $40 million – is in no small amount of trouble and that it may actually matter who sits in the governor’s chair. <\/p>\n \n

In the end, while the recall undermines the reverence we need to foster for the rules<\/u> of governance, it may at least inspire some reverence for responsible, accountable governance itself. In this depressing political moment, that may be as good a tradeoff as one can hope for.<\/p>\n \n\n\n<\/span>\n\n\n

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\n\n\n<\/a>\nEdward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books – most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court<\/u>.\n

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