I. The Ghost of Bush v. Gore
There’s separation of powers for you. Just when Democrat Gray Davis looks like he may survive the October recall, along come three Democratic-appointed judges to postpone the vote.
Monday’s decision by a three-judge panel of the 9th Circuit Court of Appeals didn’t merely scramble the already jumbled electoral situation in California. It was also a direct challenge to the Supreme Court’s Gang of Five, the justices who plunked down George W. Bush in the White House three years ago with their ruling in Bush v. Gore.
Now, the 9th Circuiters have called Bill Rehnquist’s bluff. Did he really mean all that stuff about extending the Equal Protection Clause to voters who stood a greater chance to be disfranchised due to the absence of a uniform standard of counting votes? Was he really concerned about the tabulation disparities between one county and the next? Or was Bush v. Gore just a one-time-only decision crafted to elect a Republican president?
“Plaintiffs’ claim presents almost precisely the same issue as the Court considered in Bush, that is, whether unequal methods of counting votes among counties constitutes a violation of the Equal Protection Clause,” the three judges wrote. “In Bush, the Supreme Court held that using different standards for counting votes in different counties across Florida violated the Equal Protection Clause.”
Before the recall was a mote in any Republican’s eye, former California Secretary of State Bill Jones had already agreed to end the disparity in California vote counting by ordering counties to eliminate their punch-card voting machines by next March’s primary. Monday’s decision pushes the recall back to March despite a state law that calls on the state to hold a recall within 60 to 80 days of certifying the signatures. To justify this move, the appellate judges twice quote the same passage in Bush: “The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal process guarantees.”
In short, the three 9th Circuit Court judges are asking the Supremes to apply their application of the Equal Protection Clause equally, even when the likely beneficiary of such a decision is — oh, the horror — a Democrat. What’s at stake — to quote Justice John Paul Stevens’ mighty dissent in Bush — “is the nation’s confidence in the judge as an impartial guardian of the rule of law.”
Recall opponents are prepared to make the most of that lack of confidence among Democratic voters should the Court ultimately reverse the three-judge panel (The case will first be heard by 11 members of the 9th Circuit.) “We’ve been down this Supreme Court route before, so we’re continuing to go full blast with our [voter mobilization] campaign,” says Miguel Contreras, head of the L.A. County Federation of Labor and architect of the nation’s most successful Democratic get-out-the-vote campaigns over the past decade. If the Supremes overturn the decision, says Contreras, it would “give us an issue with Democratic voters: There they go again, the Supreme Court playing partisan politics.”
Delaying the vote until March would immediately confound the calculations of all Davis’ challengers. The two front-runners, Cruz Bustamante and Arnold Schwarzenegger, have been speed-skating on thin ice, hoping to reach the finish before their weaknesses become so apparent that they’re plunged into the briny deep. Bustamante’s dependence on tribal casinos for virtually all his funding has already rocketed his negatives up to 50 percent in the latest L.A. Times poll, and extending that dependence for five more months may render him nearly as unpopular as Davis.
In a campaign slated to run just three more weeks, Schwarzenegger has plainly been hoping that he can continue to duck behind the scenery whenever the press looms menacingly to ask him just what he would do as governor. Five more months of hiding under rocks would make Arnold look sillier still, if such a thing is possible.
Schwarzenegger’s GOP rival, Tom McClintock, would have to simultaneously defend his state Senate seat in the March primary, and would surely face a furiously well-funded Republican senatorial opponent if he had the temerity to stay in the governor’s race, too. Arianna Huffington would run out of both money and free media.
By contrast, shifting the recall to coincide with the Democratic presidential primary in March would clearly help Davis. Then again, if an initiative to overturn the law he just signed granting driver’s licenses to illegal immigrants were to qualify for the March ballot, that could cancel out almost any Davis advantage. The white backlash that is already an implicit factor in the recall campaign would become an explicit factor shaping an electorate that would not be Davis-friendly. All in all, moving the vote to March might prove little better than a wash for Gray.
II. The Ghost of Californias Past
That white backlash was clearly in evidence at last weekend’s Republican State Convention at the airport Marriott. At times, it took the form of the anti–illegal immigrant jihads to which the California right is periodically prey. More often, though, it came cloaked in nostalgia.
Indeed, California Republican conventions are hard-wired for nostalgia. The delegates, largely aging and almost entirely white, look representative either of Nebraska today or of California before the Latino and Asian migrations of the past 20 years (or the black migrations of the 1940s through the ’70s). And the presentations of both Schwarzenegger and McClintock to the delegates were remarkably backward-looking.
Arnold’s talk involved no heavy lifting; he merely sought to assure conservatives that he was the genuine article. He did not do that, however, by taking a range of conservative positions on current controversies: Affirming only to help business and keep taxes down, he made sure all was vagueness and light. The specifics in his talk were all memories: how listening to Richard Nixon and Hubert Humphrey in the 1968 presidential campaign had made him a Republican; how his love for Ronald Reagan had affirmed it. Indeed, Arnold extolled Nixon so often that it’s clear his advisers have concluded that the collective memory of Tricky Dick must be fading into the oblivion of Americans’ historic consciousness. The delegates, though, certainly warmed to the comments; most looked old enough to have walked precincts for Nixon in his first redbaiting congressional race in 1946.
(Indeed, one curious and ominous measure of Republican prospects in today’s California is that neither Schwarzenegger nor McClintock nor any other plenary speaker on Saturday thought to mention the current presidential trickster, George W. Bush, even once. The utter absence of the president’s name from the most heavily attended and covered state GOP conclave in recent history was a stunning acknowledgment that when Republicans seriously seek election in California today, they think it best not to remind voters of their party leader, whose stock is dropping like a Santa Clara dot-com.)
Schwarzenegger really sought to do nothing more in his talk than proclaim Ich bin ein Republican. McClintock was more specific in his, unveiling a laundry list that calls for privatizing much of California government and scrapping a range of nettlesome regulations (though he was not so specific as to note that he was calling for axing the regs that protect workers and the environment). But chiefly, McClintock sounded a battle cry to lead California back to a simpler time for which he plainly ached.
His campaign, he vowed, “will succeed because we have to, if our children are to know the California that once was and, God willing, will be again.” He was referring, he made clear, to the California that he and his parents came to in 1965. “Our parents headed west to this state,” he said, and there — in Thousand Oaks — “they found the Golden State of their dreams.” Though 40 miles from downtown L.A., you could get there by car in 45 minutes, he recalled. The public schools he attended were world-class, and the landscape was adorned with affordable suburban homes and their backyard pools.
I grew up in that Los Angeles, too, and it was indeed a marvelous place — but not for everyone. The year 1965 was a bit more troubled than McClintock’s account would have us believe; there was that nasty Watts Riot, among other things. But that was other people’s problems, in other people’s California — not the white, middle-income paradise that McClintock recalls. “I remember that state,” he told the delegates. “I lived there. You lived there. And it’s been taken from us. Ladies and gentlemen, don’t you think it’s time to take that state back?!”
McClintock insists he means to take it back from liberal regulations, but that’s hardly the only crusade he’s mounting. Surely, the Thousand Oaks of McClintock’s youth has also been taken from us by a wave of low-income immigrants who have settled over the earlier state, and who now are being granted driver’s licenses, though not if Tom McClintock — who backs the initiative campaign to repeal that law — has anything to say about it.
III. The New Testament of Bill Clinton
One day, five miles and a gazillion political light-years from McClintock’s talk at the Marriott, Bill Clinton was also reminiscing about his coming to Los Angeles. Last Sunday at First AME Church, Clinton recalled coming to L.A., as the front-runner in the 1992 Democratic presidential campaign, immediately following the ’92 riots. Noting that California had since become a state “where Americans of European descent were no longer a majority,” Clinton said, “I knew that what happened to you would determine what would happen to America as a whole. I knew that you were the future.”
He did not want that future to include the prospect of recalling elected officials who made tough decisions, he said. Whether decisiveness is the sin for which Gray Davis is being made to pay is open to some question, of course: It was Davis’ dithering during the energy crisis that brought his poll numbers down. But Clinton was preaching forgiveness for sins generally, citing the parable of Jesus challenging sinners to cast the first stone. By the time he had finished, he’d made clear that while the recall might be an artifact of Old Testament vengeance, it could never meet the test of New Testament love and absolution.
Clinton remains the only white man in America who’s just as at home in the pulpit of a black church as Jesse Jackson. He offered practical pastoral advice to particular members of the flock, looking over at plump, 62-year-old Attorney General Bill Lockyer clutching his newborn son, Diego, and telling him, “You’d better take care of yourself, Bill; that boy has got to go to college.” Clinton couched hardball politics in scriptural citation; he kidded and toyed with the congregants. The legendary black diva Ethel Waters once called composer Harold Arlen “the Negro-est white man in America.” That title now is held by Clinton, just as Gray Davis remains the whitest — or, at minimum, the stiffest — white man in America.
But Davis’ whiteness is behavioral only. He does not pine, as do the state’s Republicans, for the lost white California. The governor, who has signed landmark progressive legislation and indentured himself to every moneyed interest on the planet, has come to personify the state’s squalid but — despite himself — hopeful present. The Republicans, simply, are borne back ceaselessly into the past.
Portions of this article appeared in the Washington Post.