Patterico's Pontifications



Filed under: General — Patterico @ 7:44 pm

THE ACHILLES HEEL OF THE RECALL?: The Dog Trainer today prints an op-ed titled A Successor to Davis Is Already in Place. The author is Joseph R. Grodin, a professor of law at UC’s Hastings College of the Law, and a former justice of the California Supreme Court.

Grodin makes a facially excellent case that, under the California Constitution, a successful recall will result in the installation of the Lieutenant Governor, rather than an election for the replacement. (Our current Lieutenant Governor is, of course, racist Cruz Bustamante — or “Mr. N-Word”, as he shall henceforth be known on these pages.)

Grodin’s argument goes like this: in a recall situation (which, remember, could happen to any elected official — not just a Governor), an election for a replacement is held only when “appropriate.” But it is not “appropriate” when the Governor is the one being recalled, because there is already a general provision that operates to replace the Governor. Article X, Section 9 of the state Constitution states that the Lieutenant Governor “shall become Governor when a vacancy occurs in the office of Governor.”

In other words, according to this argument, if Davis goes, the office becomes vacant, and we get Mr. N-Word.

This argument is currently being raised in petitions pending before the California Supreme Court. Grodin makes the point that the author of the “as appropriate” language, Barry Keene, filed one of the petitions that advocates the argument set forth in Grodin’s op-ed. One might think that the author should know better than anyone else what the language means.

At first blush, Grodin’s argument sounds pretty compelling. You might think Mr. Issa and friends may have bought a pig in a poke. However, don’t get too excited. A non-partisan law professor and election law expert, Rick Hasen, says there is no merit to this argument. He says that the “as appropriate” language is most naturally read in conjunction with a provision that specifically excludes elections to replace recalled judges. Thus, it is not “appropriate” to list replacement candidates when a judge is being recalled.

Hasen also explains here that the opinion of Keene (the drafter of the “as appropriate” language) does not necessarily have any persuasive value. Until recently, Keene did not “remember” why he had written the “as appropriate” language. He only recently claimed to recall that it is designed to harmonize with the provision calling for the Lieutenant Governor to replace the Governor. Together with the fact that Keene is a plaintiff in the lawsuit and therefore an interested party, his suspiciously recent memory will likely be viewed as self-serving, and of little value.

So: between Grodin and Hasen, who’s right? You’ll have to ask the California Supreme Court. State courts are doing wacky things nowadays, so anything could happen.


Filed under: General — Patterico @ 7:38 pm

A RARE DOSE OF COMMON SENSE: Francis Fukuyama on how Saddam might really not have WMD. Rather than the polarizing, politicized nonsense you read so much of nowadays, Fukuyama (a professor of international political economy at Johns Hopkins) gives a plausible theory as to how sensible people could have misread the apparent evidence that Saddam had WMD.

Fukuyama rejects the widely believed (by liberals) theory of a sinister plot to mislead the public. He says: “It is much more likely that the weapons were disposed of long ago, and that all of Iraq’s subsequent suspicious behavior was the product of half-hearted efforts at reconstitution that were ultimately fruitless but taken with utter seriousness by others. The failure is not one of dishonest politicians and officials, but of a broader institutional process involving multiple intelligence agencies and the U.N.” Basically, he points out (quite correctly) that intelligence agencies have an understandable bias towards pessimism. This makes sense. If they’re going to be wrong, they’d rather be too pessimistic.

As is usual with a Wall Street Journal featured article, you have to be registered for access — but it’s free, and you really should have access to this feature on a regular basis anyway.

WOW: How did I miss

Filed under: General — Patterico @ 7:21 am

WOW: How did I miss this Los Angeles Dog Trainer editorial on the Inglewood case? (I am using a link to a site called “” because the Dog Trainer links die within a week.) I hadn’t picked up on this until I read the response by the District Attorney’s spokesperson Sandi Gibbons.

The editorial says Cooley should have paid more attention to the case before the trial. “Perhaps then the deputy attorneys Cooley assigned to the case would have tried to pick a jury that more closely resembled Inglewood’s population, which is about half African American, instead of settling for a jury with only one black member.”

That is an incredibly ignorant statement. As Sandi Gibbons points out, the prosecutors fought to retain black jurors. She doesn’t make it as clear as it could be, but the only black juror on the jury had actually been excused by the defense — but the prosecution fought to have him reseated, arguing that he was improperly excused. The judge accepted the prosecution argument and reseated that juror.

Also, the jury pool comes from a much wider geographical area than just Inglewood, and includes several more affluent and largely non-minority areas.

I have criticisms of the handling of the case. (For instance, the only thing surprising about the ten-minute acquittal of Darvish was that it took so long.) But on this issue, the Dog Trainer editorial writer couldn’t be more off-base. It is not only outrageous to imply that prosecutors didn’t try to keep black people on this jury — it is just plain stupid. Is Robert Scheer writing editorials for the Dog Trainer now??

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