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Jewish World Review Dec. 14, 2000 / 17 Kislev, 5761

Jim Wooten

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Our divided nation --- and those who caused it -- PUBLIC ACCEPTANCE of ideas and notions once deemed controversial comes sometimes with uncomfortable rapidity. Consider, for example, how we felt just a month ago about the Florida Legislature or Congress intervening in the selection of a U.S. president. It was inconceivable, beyond the pale, impermissible, unacceptable and unallowable. Now a month is passed. It happened. Next time, for better or worse, this precedent will exist.

As this era slow-walks in interminable creep to an ever-distant close, the landscape is littered with reminders that yesterday's truths are today's opinions and its saints are today's mortals. What a tough, tough time the rule of law has suffered of late, and what regrettable diminution has befallen those who administer it.

The nation stands today, at long last, with a president-elect. It should be, and is in most respects, a glorious moment. And yet, the nation is deeply divided, unnecessarily divided, a division that is reflected in surprisingly shrill tone by the liberal Justice John Paul Stevens, who asserted: "Although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the law."

We know, of course, with complete certainty the identity of the winner of this year's presidential election. To the extent there's doubt, it's only because the simplistic notion exists that where voters departed from clearly stated instructions, mortals can venture with complete or even reasonable accuracy to divine their true intent.

That's an impossibility even with worlds of time. It's inconceivable if required to be done in days or hours and in a universe where no established standards exist. But that is yesterday's news.

The reality today is that the election is over and the nation is far more divided than need be, as Stevens' dissent expresses, precisely because four naive and activist judges on the Florida Supreme Court interrupted with judicial adventurousness the nation's process of accepting the election outcome.

As chaotic and litigious as the process had been, it was essentially over last Friday with the rulings in two Florida counties not to throw out absentee ballots. The country was poised to accept the election of George W. Bush. The country had come to accept the results and to a consensus that hand recounts were impractical because the reading of intent depended on the interpretation of the beholder.

The nation, therefore, had moved from surprise and denial into acceptance of the reality of the results and the impossibility of achieving a fairer or more accurate count of miscast ballots. Until Friday. Until four judges on the Florida Supreme Court reopened all the partisans' wounds and dangled the absurd proposition before them that, hey, maybe it would be possible to win this election in the courts.

Their decision pushed the nation toward crisis and, suddenly yesterday's incomprehensible notion -- that the Florida Legislature and Congress would intervene -- became today's appropriate remedy. They should not have taken us there.

So now we have the boundaries pushed, a judicial system that has been drawn deeply and, in the case of the U.S. Supreme Court reluctantly and regrettably, into presidential election politics -- something that can do the judiciary no good at all because it engenders distrust and bitterness.

We were there as a nation. We had accepted. It was over. And four judges not only put us through a prolonged and unnecessary ordeal, but forced the U.S. Supreme Court to waste its capital and credibility on a dispute that never should have been back there. If ever there was an argument against results-oriented judicial activism, this is it.

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© Jim Wooten