Seriously, there is no need to video of most trials unless it is a high profile case that many people will be interested in watching. Of course the rules were changed for this case, in a ‘reasonable’ amount of time. Video can not be said to benefit one side or the other, it would have enabled the citizens to understand the process.

Kazinski: If the Legislature votes to assign the electors to a candidate, or comes up with procedures that do not require use of state workers or state money, then the veto would have no effect.

“Regardless of how the people vote, all electors shall vote for the candidate of the Democratic Party” would not be subject to the governor’s veto?

AF: “This Court has repeatedly held, in accordance with the statutory law of this State, that so long as the voter’s intent may be discerned from the ballot, the vote constitutes a “legal vote” that should be counted.”

That line however, is inherently problematic in borderline cases. However, when we had a manual recount in Washington State a few years ago, what they did was have representatives for the races count and check eachothers’ work. In other word, a Democratic representative would count a stack of ballots and hand them to a Republican representative or vice versa. If there were disagreements about specific ballots, those could be handled separately.

We had much more credibility in that process, even though the margin was TINY than Florida did.

I wonder if Florida has other ballot counting problems though. There seem to be real problems with the optical scan machines and these problems seem to span vendors. While I have heard generational arguments for the anomilies found, when combined with evidence of other problems, I am not at all sure that is the end of it.

As for the specific posts at issue, they suggest that Judge Walker’s sexual orientation influenced his decision. That position is at least tangentially related to the topic.

While I generally agree with this attitude, this particular situation is one where I don’t. The reason is that an accusation that someone is biased because he’s gay doesn’t get anywhere. Exactly the same accusation could be made against someone who’s straight. This means the whole universe of potential judges is “suspect”, yet somebody must hear the case. In situations like this, the claim is irrelevant to any conceivable argument.

I am not sure I buy your analogy.

I think SCOTUS would have intervened in Bush v Gore, regardless, because SCOTUS didn’t want the Florida Supreme Court deciding a Presidential election, regardless of federalism concerns. That is essentially what Kennedy and Scalia said about the decision later.

Here, it may be that the SCOTUS majority thought that Chief Judge Walker didn’t follow the court’s local rules and the proper procedure for amending them. I am not sure I agree with the conclusion, but a reasonable argument can be made that Judge Walker did so (I don’t think a reasonable argument supports Bush v. Gore majority, only a non-frivolous one).

For those who don’t know Judge Walker, he is a very independent-minded judge. I have appeared before him a few times, and respect his intellect. I think he will be hard to predict on this case.

As for his sexual orientation, I think it has no more and no less relevance than many other personal characteristics, such as gender, religion and ethnicity. Should people move to disqualify Roberts, Kennedy, Scalia and other Catholic justices because of the Roman Catholic church’s support for Prop. 8? Accuse them of bias? I guess people make that claim, but I would hope that justices try to put those matters aside when ruling. By the way, I have no idea whether Judge Walker is gay; I do know that the “Gay” Olympics case almost prevented him from being appointed to the District Court in 1989/90, when he was nominated by Bush 41.

Given that history, it would be somewhat ironic now if Judge Walker winds up striking down Prop. 8.

Orin Kerr: I’m curious about other views…

If one purpose of this forum is to encourage meaningful and entertaining discourse on the topics posted, you should adopt a liberal policy as to what commenters post. If the post is related to the topic of discussion, even tangentially, it should stand, however distasteful, inarticulate, or unreasonable. Only if the post is completely irrelevant to the topic, or so completely lacks a factual basis as to be useless or unbelievable, should it be censored. I realize this is a pretty low standard, but probably necessary to get a comprehensive view on a topic among non-experts.

As for the specific posts at issue, they suggest that Judge Walker’s sexual orientation influenced his decision. That position is at least tangentially related to the topic. If that position is considered wrong, a swift and severe response with supporting facts is the appropriate redress, not censorship.

Orin Kerr: Is it?

Shouldn’t it be?

Finally, I agree that considering calling someone gay a grievous insult unfortunately re-inforces the belief that there is something wrong with being gay.

As stated that is true, but there’s more to it, especially in the light of this particular case. A huge part of the underlying issue in this case is the examination of the degree to which the mere perception of being gay affects the way someone is treated by society, that those who are seen or known to be gay are seen as dangerous, subversive, deviant, and unwelcome in the social structure other citizens participate in.

Even if you agree that there is nothing wrong with being gay, it is not unreasonable or inappropriate to object that someone bringing the subject up is doing it specifically to devalue or attack someone, especially when the context makes it clear that they see it as an negative thing.

Is it?

Orin Kerr: Andrew, Doesn’t your argument hinge on the purpose of Judge Walker’s order, which is a contested question? As I understand it, critics of Judge Walker claim that the real purpose of the order was to help the plaintiffs make their case to the public: Televising the case and letting the witnesses testify about their life stories could make this the Scopes trial of our day, changing public opinion on a matter of great public importance to further the side that Judge Walker favors as a policy matter. In contrast, I don’t think anyone has ever suggested a similar motive in the decision to release the audio of Bush v. Gore. I should add, for what it’s worth, that I personally would have liked to see the video, and I also would prefer that court hearings like that be televised. Still, the comparison between that and the decision to release the audio of Bush v. Gore seems inapt to me.

Mr. Kerr,

Why are we even looking into the subjective intent of the individual judicial officer? Isn’t the objective reasonableness of the order (or lack thereof) the only relevant question?

But if that’s the way things are normally done in that state, why not?

Let’s suppose, for instance, that a state has a long tradition of providing that electoral challenge time limits are discretionary and may be waived on a showing of good cause. (I’m not saying this was the case in Florida– I’m just positing it for purpose of argument.) The state, which could write the good cause standard into the statute, doesn’t. But every electoral deadline case that has ever gone up has applied the good cause standard.

So now, Bush v. Gore comes up, and one of Bush’s arguments is the challenge is untimely. The Court, applying its established rule of construction, finds the time limit discretioanry and remands for a showing that Gore established good cause for the delay.

As I read MacPherson and Bush v. Palm Beach County Elections Board, that’s not permissible because the rule didn’t come from the legislature. But the problem is, what if the reason the legislature didn’t bother to put the good cause standard in the statute is because it is always read into every elections statute by the Court?

It seems to me to be much better to say that the “legislature” means the state lawmaking process, with the Supreme Court accepting the determination of the state courts as to the meaning of state law.

That said, I think Professor Kerr hits the nail on the head as to why the Supreme Court DID NOT do that in Bush v. Gore– they thought the Florida courts were mucking around with the law to get the outcome they wanted. (Unfortunately, the US Supreme Court remedied that by… ahem… mucking around with the law to get the outcome they wanted.)

Dilan Esper: In other words, I think the only REASONABLE reading of “legislature” in that context is to repose in the state lawmaking process (as opposed to the Congress) the power and duty to set election rules. How a state wants to distribute that power and what checks it wishes to put on it is up to the state.

Especially since a state legislature is a creature of the state’s constitution, you’d think that a legislature can only act as such to the extent that the constitution allows. But wasn’t there a question as to the extent that the court was using principals like equity to craft a remedy outside of state statutory law? That strikes me as stretching a little far.

The problem is that draws a nonsensical distinction.

Simply put, states have processes where something becomes “law” just as the federal government does. Those processes involve the legislature, but do not only involve the legislature– they also involve the executive branch, administrative agencies, courts, the people through the initiative process, state constitutions, etc.

Without any evidence to support it, I don’t see the justification for the Supreme Court’s conclusion that the word “legislature” in the election clause constitutes a bypass of all those legal procedures giving the legislature direct and absolute power over the electoral process. Of course, I don’t think the Supreme Court really believes that, even though it said it. But if it doesn’t believe that, what’s the warrant for saying that the governor’s action matters but a court’s action doesn’t? And what’s the warrant for saying that the state courts which have the final say on the meaning of state law in every other circumstance won’t have that final say here?

In other words, I think the only REASONABLE reading of “legislature” in that context is to repose in the state lawmaking process (as opposed to the Congress) the power and duty to set election rules. How a state wants to distribute that power and what checks it wishes to put on it is up to the state.

But I admit, the Supreme Court has not adopted this interpretation– and for all my problems with Bush v. Gore, this goes back to MacPherson and is certainly NOT the fault of the conservative majority on the Court in 2000.

In response to your last post, I skimmed Larson’s book (which was on my shelf but had never made the top of my reading list) and read a few of the other new articles on the Scopes Trial and now rescind my earlier comment as something of a cheap shot–the actual story of the Scopes trial seems a lot more complicated than Mencken and Inherit the Wind made it sound.

Like others above, however, I remain unconvinced (1) that it will always be plaintiffs who prefer greater publicity (there are lots of reasons a plaintiff would shy away from public scrutiny including embarrassing facts, fear of reprisal, concern about the weakness of his or her case)and (2) even if that were true, that such a fact would be an argument against televising proceedings (it seems to me that the onus should be on the party seeking to deny the public access to a neutral and accurate record of a public proceeding).

In any event, I happen to think that this argument is actually WAY off– for instance, if you took it seriously, a bill passed by the state legislature and vetoed by the Governor should count in determining what a state’s election law is.

Yes and no. I think if the legislature passes a bill directing the apparatus of the state, and allocates money for the purpose of the Presidential election, then of course the Governors veto would be valid. After all state workers are for the most part under the executive. If the Legislature votes to assign the electors to a candidate, or comes up with procedures that do not require use of state workers or state money, then the veto would have no effect.

No problem. Shoot me an e-mail any time you like. (I guess that’s still technically “online” though. :) I know what you meant.)

As to whether it’s “it’s a sleazy, McCarthyite style of argumentation,” I’m not so sure. It’s a claim of personal interest, and therefore of bias. Such claims are nearly universal in criticisms of the Supreme Court’s opinion here; the argument is that it’s “right wing” Justices trying to squelch public access because they don’t want people to see how gay marriage is a good idea.

The claim of bias on the ground that the judge is gay doesn’t seem very persuasive to me. After all, if he’s straight he might well be biased in the opposite direction. This is similar to situations in which gender bias is in dispute: the judge must be male or female, no other option is available.

That’s distinguishable, I think, from claims of bias due to ideology, which is a spectrum on which it’s at least theoretically possible to find someone in the middle.

All this is distinct from the real standard for judicial bias, which requires something more than the alleged characteristics of the judge.

I fail to see the point. Those who are predisposed to think a judge would bias his views or who think there are no legitimate grounds for any gay rights case to win will say that of course a gay judge will thumb the scales of justice. Those on the other side will say of course not. It’s like “Of course she always sides with the wife in divorce cases.” and “Of course he dismissed that case against the priest; he’s Catholic.”

Discussing the issue will raise the temperature but not the illumination.

Can we take this off line? I would like to continue this, but I don’t see why we need to have this exchange in public.

That’s fine. Professor, look, again, as long as you are evaluating my arguments (even if you think they stink), I’m a happy commenter. Indeed, you do much more than most bloggers in terms of responding and interacting with commenters you disagree, and I commend you for that.

The only thing that bugged me was the implication in your last comment that you were looking at this issue in terms of “Dilan Esper says it, therefore it isn’t entitled to any weight”. But if I drew that inference erroneously, I apologize.

Given the absence of actual video, one can only hope that the play or movie about this trial is written by dramatists as skilled as Lawrence and Lee.

Your arguments struck me as extremely weak on the merits: I didn’t want to get into why because of the unhappy nature of our prior exchange. I asked for other views because I’m trying to get a sense of where most readers are: If others agree with your arguments, as weak as I think they are, I’m happy to defer to that majority view.

Professor:

You are certainly not required to credit my judgment, and frankly, I didn’t ask you to (and think it’s a great idea to hear from other commenters).

I would hope, however, that you would evaluate my arguments instead of making this personal– after all, even a broken clock is right twice a day.

That’s not really right. The Supreme Court can certainly examine whether Florida law, as interpreted by the Florida Supreme Court, has the effect of disenfranchising blacks.

But in doing so, the US Supreme Court must take the Florida courts’ declaration as to the content of Florida law as binding. In other words, they can’t overturn a decision on the basis that the Florida courts manipulated Florida law, but only on the basis that the result of whatever they did violated a US constitutional provision.

The problem with presidential election decisions– and I will admit this goes back to MacPherson v. Blacker and didn’t start with the Bush / Gore dispute– is that they ignore this traditional restriction and instead let the federal courts come in and decide that the state courts really didn’t correctly interpret state law. And that’s a pretty big infringement on state sovereignty that isn’t allowed in other areas.

Further, as I noted, the interpretation of “state legislature” in the Constitution to allow this is really dumb– as I said, the governor is not the state legislature, so presumably vetoed laws should also count in determining the content of state election law. The more natural intrepretation of “state legislature” is to just refer to the state lawmaking process, which includes any judicial interpretations (which the state legislature is probably aware of when it decides how to act anyway).

To be candid, after the rather unhappy extended exchange we had just recently on this case, I don’t in any way credit your judgment on the issues related to this case. That’s why I have asked other commenters to weigh in.

Dilan Esper: And the answer to that question is “no”. The Supreme Court simply doesn’t know enough about how Florida election law works, how Florida courts traditionally interpret election statutes, etc. It isn’t their bailiwick.

The Supreme Court has a long history of examining state election laws and finding problems with them. They’re perfectly competent to figure out how Florida election law works. If the Supreme Court were to find that SCOFLA was manipulating the rules to disenfranchise poor blacks, nobody would argue that the Supreme Court wouldn’t know enough about Florida election law to have an opinion. Whether they should intervene is a seperate issue, but it’s not a question of competency.

Orin Kerr: I’m curious about other views on whether to delete the comments suggesting that Judge Walker might be gay.

It might be interesting to have a post on the relevance of whether or not a judge is gay in gay rights cases.

Anti-gay animus drives at least some part of every discussion of gay rights. Hiding it just legitimizes its goals while hiding its nature.

Orin Kerr: As to whether it’s “it’s a sleazy, McCarthyite style of argumentation,” I’m not so sure.

If nothing else, if you do restore them, it might remind you why someone would call them “sleazy”. There are decent ways to raise issues of bias and there are ugly ways of doing so. The ugly ones should stand as well. If nothing else, they shed light on the commenter.

the distinction with accusations that the supreme court is acting politically is that sexual orientation is more like race than political belief. it’s an aspect of someone’s identity, and people are arguing that walker can’t fairly judge this case simply because of who he purportedly is, not what he thinks.

in any event, when you combine that with the ‘outing’ aspect of the argument, it really isn’t any different than mccarthy arguing that seemingly dedicated public servants were secret communist agents.

John Herbison: inaccurately accusing someone of being homosexual is no longer defamatory

Whereas accusing someone of throwing a case because of his or her sexuality is what?

Orin Kerr: In that environment, it will always be the plaintiffs who want it televised and the defendants who don’t, right?

If the defendants hadn’t just spent $50,000,000 broadcasting their views, I could see a point there….

As to whether it’s “it’s a sleazy, McCarthyite style of argumentation,” I’m not so sure. It’s a claim of personal interest, and therefore of bias. Such claims are nearly universal in criticisms of the Supreme Court’s opinion here; the argument is that it’s “right wing” Justices trying to squelch public access because they don’t want people to see how gay marriage is a good idea. I don’t see those claims as very accurate, but I don’t delete them on the ground that they reflect sleazy McCarthyism; it’s just a claim of bias and self-interest, which is pretty common in claims about judicial decisions.

With that said, I’d be very interested in other reader reactions. If most readers think this should be out of bounds, I’ll delete the comments.