Friday, December 03, 2004
Everyone is now on pins and needles awaiting the Supreme Court decision whether to annul the second round of Ukraine's elections. I mentioned briefly Scott Clark's analysis before (riffing of yesterday's late night musing.) It deserves closer inspection:
If the Supreme Court sided with the people against these other centers of power, they might just put this over the top and bring about the kind of reform the people are demanding right now. In an odd way, that would pave the way for them to actually become independent. And they would earn the respect of the people by doing this, a respect that courts need in the end to do their jobs.I'm not a lawyer but watch law with keen interest (and have taught law and economics a couple of times as a pinch-hitter for other faculty), and it has been my impression that courts don't like taking such roles. I said earlier today that I thought there were narrow ways out of this -- declaring the votes in Donetsk and Luhansk alone invalid, which would be narrow and still likely to tip the result to Yushchenko if the revote there is done fairly. It will be hard to believe this can happen, but then again, nobody believed there would be people in the streets either, as John Radzilowski (updated to spell name correctly, sorry John!) pointed out yesterday.
There can be problems with this but I think that people of goodwill in these institutions might just establish their institutions on a stronger foundation--if they play it right.
In defense of this argument, I would say that Marbury vs. Madison wasn�t so much a legal opinion as much as it was a political one and it established the power of the Court to nullify law that is unconstitutional. My argument is if the Supreme Court here is astute they may be able to establish their institution on an independent and surer foundation than it is on right now. And that is even if they do it by ignoring specific laws or consitutional provisions. Maybe they could appeal to some underlying constitutional principle instead?
As it became clear the election was being stolen, the Ukrainian people, supposedly numbed by years of Soviet rule, political corruption, and powerlessness, said no. Thousands poured into the streets to protest. Then tens of thousands and hundreds of thousands. Members of the militia began to join the demonstrators. The government, not the people, acted as if they were the mindless, numbed ones.Do not doubt for a moment that the judges are as dumbstruck as the members of the government, since they are appointees and friends of the government, at the very least. Still, everything is so unpredictable right now. So we wait. Our Ukranian grad student is planning on putting a lot of orange around SCSU tomorrow; I think it's mostly to relieve his tension. We're all feeling it now.