Hello. I'm a newbie to the listserv and to the teaching profession, so I doubt I can add much of value to the more experienced and insightful voices here. However, to offer my two cents anyway, my sense is that less than four (if any) of the dissenters would want to lend legitimacy to the decision by treating it as precedent to be applied or distinguished in the California recall case. In short, I think they simply would prefer to put the case behind them. So I think the ACLU read the tea leaves rightly (if that was what they were doing).
Professor Joseph T. Thai University of Oklahoma College of Law [EMAIL PROTECTED] > -----Original Message----- > From: Michael Zimmer [mailto:[EMAIL PROTECTED] > Sent: Wednesday, September 24, 2003 8:36 AM > To: [EMAIL PROTECTED] > Subject: Re: CA9 takes case in banc > > My colleague, Charlie Sullivan, thinks the ACLU ought to petition for > cert. > With the rule of 4, what would the Bush v. Gore dissenters do with that? > > Michael Zimmer > Seton Hall Law School > > > > > > Michael Zimmer > <[EMAIL PROTECTED]> To: > [EMAIL PROTECTED] > Sent by: Discussion cc: > list for con law Subject: Re: CA9 takes > case in banc > professors > <[EMAIL PROTECTED] > v.ucla.edu> > > > 09/23/03 10:22 PM > Please respond to > Discussion list for > con law professors > > > > > > > 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
