Here is my read: Whether "we" agreed with the result in Bush v. Gore or not, almost all of us were surprised the Court took the cases in the first instance. Most of us, in our hearts even if it was not only justified but necessary, nevertheless thought that the Court in making the decision to stop the recount was making much less of a decision as a court deciding a question of law and much more of a non-judicial political decision. The original 9th Circuit panel members are probably not much different than "we" are in these regards. They thought, ok, the Court said it was acting as a court deciding a question of law in Bush v. Gore, so let them deal with it in this context. I think the en banc panel decided to let the Court out of the bind between the rock -- Bush v. Gore is law, so equal protection jurisprudence is implicated punch card problems with 135 candidates in the recall -- and the hard place -- confessing that Bush v. Gore was a political, non-judicial decision.
Should anyone try to take the en banc decision to the Court, does anyone think it would hear the case? Michael J. Zimmer Seton Hall Law School
