The 9th U.S. Circuit Court of Appeals' decision to stay the California recall election makes clear as never before that the entire effort to recall Gov. Gray Davis can only be understood in light of the Florida recount struggle of 2000 -- and of the larger efforts by the Republican Party to undermine democracy in order to seize and control power.
The court's decision creates some powerful ironies for the GOP, as well as for its supporters who have argued that Bush v. Gore was correctly decided. During the Florida debacle, the U.S. Supreme Court, led by Justice Antonin Scalia, justified its halting of the vote count and its virtual declaration of George W. Bush's victory on the basis of the rights of voters and equal protection under the law. But now, on the basis of those exact same principles, the 9th Circuit has ruled that the California recall vote must be delayed.
Enraged Republicans, with their radio talk-show minions out in front, are now in the position of opposing, at least in theory, the basis on which the Supreme Court handed the presidency to Bush.
But the ironies, and their importance, run deeper than that. If the Supreme Court decides to accept an appeal and then voids the 9th Circuit's stay, it will become more obvious than ever that, for a majority of the justices, the naked exercise of power takes precedence over coherent constitutional principles. If the high court decides not to hear the case, or upholds the 9th Circuit's stay, it will strongly suggest that the Court has become embarrassed by Bush v. Gore and wants to avoid revisiting the relevant issues less than three years later -- and with a new presidential election looming.
Either way, the political outcome will almost certainly favor the Democrats. Turning aside the stay would inflame opponents of the recall, who have been building great momentum in recent days anyway. Upholding it would delay the recall election until the date of the state's presidential primary next March. Davis' fate would thus be decided on a day when vast numbers of California Democrats turn out to vote anyway, with the pressure brought on by the state's immediate budget crisis that much further in the past and with the meltdown of the California Republican Party -- epitomized by the split between Arnold Schwarzenegger and state Sen. Tom McClintock -- that much further advanced.
And for getting itself into this mess, the Republican Party has no one to blame but itself. The California recall effort, from the start, had been of a piece not just with the Florida recount but with the partisan impeachment drive against President Bill Clinton in 1998, the GOP's voter suppression efforts in the 2002 elections (directed chiefly at racial minorities) and the continuing redistricting war in Texas. In each instance, the Republicans have shown that they will mangle established rules and procedures in order to gain power -- even when, as in the cases of the 1998 impeachment, the 2000 election and now the California governorship, the GOP has not won the backing of the majority of the voters. The Republicans will stop at nothing, and use any pretext or excuse (backed up with their greatest resource, special-interest money), to prevent rightfully elected Democrats from carrying out their responsibilities in office -- or from taking office at all.
The California decision, coming as it does on the heels of Bush v. Gore, makes clear the shaky legitimacy of the conservative majority on the Supreme Court. Immediately following Bush v. Gore, respect for the Supreme Court plummeted to its lowest levels since the Roger Taney Court rendered its blatantly political decision in the Dred Scott case in 1857. Now, thanks to renewed Republican power grabbing, the court's reputation stands to suffer another blow, no matter what it decides to do.
The Republicans like to present themselves merely as hardball political operatives, a myth affirmed by a vicarious and source-reliant Washington press corps. But the Republicans' fundamental disrespect for the spirit as well as the letter of democratic and constitutional procedures is leading to a legitimacy crisis of the highest order. And, though the prospects for California's Democrats may have brightened after the 9th Circuit's ruling, there is no reason to believe that this crisis, brought on by the Republicans' relentless assaults, will not deepen through the election of 2004.
Sean Wilentz is the Dayton-Stockton Professor of History and director of the Program in American Studies at Princeton University.
