I commend to those of you on the election law list looking to follow the
debate over Miguel Estrada's confirmation the appellate law weblog (or "blog"),
"How Appealing." (appellateblog.blogspot.com). The site is edited by Howard
Bashman, an appellate lawyer. It has attracted a remarkable degree of attention
for those intimately involved in the debate (Bashman was the first one to
post the White House Counsel's letter to the Democrats the other day), and
is a wonderful site to follow developments in appellate courts.
As many of you know, Justice Scalia gave a speech at Penn Law School last
night about the over-politicization of judicial appointments (not a coincidence
given the Estrada controversy). One of Bashman's readers gave a detailed
description of Scalia's speech, and Bashman posted the description at:
http://pda-appellateblog.blogspot.com/2003_02_01_pda-appellateblog_archive.html#90321498
According to the reader, Scalia said the following regarding Bush v. Gore:
"Not surprisingly, Scalia failed to avoid being asked a question on Bush
v. Gore. He was asked whether that decision (and the Supreme Court’s
choice to grant certiorari in the first place) achieved Scalia’s feared politicization
of the judiciary. Scalia admitted that 'no one was happy' that the case
came to court, but that such a decision rested with Mr. Gore. Once the
choice to litigate was made, Scalia argued, a court would have to resolve
the matter, and the question was whether that should be the Supreme Court
of the United States or the Florida Supreme Court. Noting that the case
presented 'serious, non-frivolous constitutional claims,' he questioned 'on
what basis [the Court could have] turn[ed] it down.'"
An obvious follow up would have been: what about the political question doctrine?
--
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html