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THE RECALL CAMPAIGN

Various Legal, Political Factors Can Sway Court

Public opinion and ideology play roles as judges decide a case. Many observers think 9th Circuit will restore Oct. 7 as election date.

September 22, 2003|Henry Weinstein | Times Staff Writer

SAN FRANCISCO — When 11 federal appeals court judges take the bench today to decide whether to allow California' recall election to go forward on schedule, the televised hearing will once again focus attention on the intersection of law and politics.

Inevitably when judges issue rulings that touch on elections -- as a smaller panel of the U.S. 9th Circuit Court of Appeals did last week in ordering the recall postponed -- many members of the public suspect that politics has influenced the result.

Legal scholars agree -- up to a point.

Most of the Constitution is written in what the late Supreme Court Justice William J. Brennan referred to as "majestic generalities."

When they decide how those general statements apply to specific cases, judges almost always turn not just to their lawbooks, but to their life experiences and their views of the role judges should play in society.

They also are influenced by public opinion.

"Most judges do not stray far from public opinion," said Howard Gillman, a professor of political science and law at USC. Either the judges are sensitive themselves to public views or they were picked by politicians who do "not appoint these people to be iconoclastic."

"All judges should feel obligated to vote their conscience and render the correct legal decision regardless of whether it's popular," he said, "but their sincere judgment is often influenced by public opinion because they are part of the public too."

So ideology clearly affects how judges look at cases. But the relationship most of the time is far less direct than partisans on either side admit.

Eight of the 11 judges who will reconsider the recall decision were appointed by Democratic presidents -- seven by Bill Clinton. Nonetheless, a broad range of legal scholars and lawyers close to the case expect the court to reverse field and set the election back on schedule.

To the extent that public opinion plays a role, it will be different in this case than in 2000, when the U.S. Supreme Court stopped the Florida recount and sealed George W. Bush's victory in the presidential race.

In 2000, "Republicans were in the streets" attacking the idea of a statewide recount, said Gillman, who wrote a book about the Florida case, "The Votes that Counted: How the Court Decided the 2000 Presidential Election."

This time, by contrast, "there is no hue and cry among Democrats" to postpone the recall vote, Gillman said. "Even a smart legal interpretation can be threatened by the lack of a political constituency behind it," he said.

In 2000, the high court justices, the majority of whom were appointed by Republican presidents, knew that halting the recount would put Bush in the White House. This time, judges and political strategists can only speculate.

Initially, most strategists thought that a delay would help Davis. In the last few days, however, with polls showing the recall race tightening, Davis and his aides have seemed more anxious to go ahead with the election on schedule.

The expectation that the new 11-judge panel will reverse last week's order and allow the election to proceed is based in part on the 9th Circuit's track record.

The appeals court reversed two-thirds of the cases it agreed to reconsider from 1994 to 2000, according to a study by Arthur Hellman, a University of Pittsburgh law professor.

But the belief also is based on what legal scholars, lawyers and fellow judges know of the panel members.

The Clinton appointees who dominate the current panel range in their legal records from moderately liberal to conservative. None of them has a reputation as a "judicial activist." In that manner, they reflect Clinton's overall record of appointing judges who, with some exceptions, are less activist and less liberal than those appointed by Jimmy Carter.

They also generally have a more circumspect view of the role of judges than did the three jurists who issued last week's ruling.

The seven Clinton appointees include a Japanese American, A. Wallace Tashima, who as a child was placed in a World War II internment camp; three former prosecutors -- Johnnie B. Rawlinson, Barry G. Silverman and Richard C. Tallman, who also is a Republican; a former Oregon Supreme Court justice, Susan P. Graber; and two former partners in the Seattle office of a large corporate law firm, M. Margaret McKeown and Ronald M. Gould. McKeown has cast a number of liberal votes on the court, while Gould's record is more conservative.

The panel also includes Chief Judge Mary M. Schroeder of Phoenix. A Carter appointee, her record is moderately liberal, but she also is known to be quite concerned about the 9th Circuit's reputation for frequently having its rulings overturned by the Supreme Court.

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