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Jewish World Review Dec. 19, 2000 / 22 Kislev, 5761

John Leo

John Leo
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Consumer Reports

Supreme confusion

A rushed decision–did they get it right? -- THE ELECTION that wouldn't end finally concluded with a memorable image: confused TV reporters standing in the dark, fumbling for meaning in a strange, six-opinion U. S. Supreme Court decision that nobody could quite figure out. Embarrassed for themselves, and perhaps for the court as well, the reporters couldn't even decide on the spot whether the justices were saying that the election was really over. The country needed clarity and a decision that couldn't be dismissed as narrow or partisan. What we got was a jumble of impenetrable prose, tortured thinking, and the usual 5-4 conservative-liberal split on the key issue. Even for Bush supporters, it was a dispiriting end to a sad campaign.

"This baby is going to the Supreme Court," former Sen. Alan Simpson said on November 13. That was an alarming prediction for those of us who think the judiciary is well into its imperial phase. Better for the Supreme Court to restrain itself, think hard about the separation of powers, and refuse to decide the presidential race. But the turmoil reached a point where the worst-case scenario came true: a president picked by a court that seemed to be voting its preferences along party lines.

In defense of the court, it was provoked into a rushed decision by the unexpected 4-3 decision of the Florida Supreme Court. That decision, in the opinion of many analysts, including the Florida court's own chief justice, remade state election law after the fact and virtually begged the U.S. Supreme Court to overrule it. The decision allowed a recount that clearly would have been unfair to voters, particularly Bush voters. Some standards changed from place to place and week to week. Mickey Kaus, on his kausfiles Web site, pointed out that the Florida decision allowed shifting standards for judging ballots even within a single county. In Miami-Dade, early counting in mostly pro-Gore districts used a permissive standard under Democratic auspices, but the rest of the ballots, including those neighborhoods favorable to Bush, were trucked to Tallahassee and readied for counting under a different standard.

Betrayal of trust. One of our best legal analysts, Stuart Taylor Jr., wrote in Slate: "In my view, the Florida Supreme Court's majority, not the U.S. Supreme Court–has betrayed its trust and done grave damage to the rule of law" in "a near-indefensible act of partisanship designed to flip a presidential election." Taylor, who says he has never voted for a Republican presidential nominee, asks: "Would the Florida court's majority have shredded so many legal norms and plunged the nation into so unnecessary a crisis had it been George W. Bush asking for more last-minute manual recounts to put himself over the top?"

The Florida court pushed the conservative majority on the U.S. Supreme Court toward two steps it hates to take: telling a state court how to interpret state law and basing a crucial decision on the equal protection clause. Although they dissented, Justices Stephen Breyer and David Souter agreed with the five-person majority that there were fairness problems in a manual recount. If the conservative five had bent toward Breyer and Souter, the case would have been remanded to the Florida Supreme Court with instructions that any recount must be conducted under clear and uniform standards. The five apparently had many reasons for resisting the two. Perhaps the dominant one was fear of much more chaos, two slates of electors and even more serious political damage. The court may have wished to avoid pushing Florida over the midnight "safe harbor" deadline for immunizing its electors from a challenge in Congress. Or maybe the short time frame helped polarize a court that badly needed the solid 7-2 vote that seemed within reach.

A remand to the Florida court might have created a messy recount and even more litigation. But time was running out, and if a fair recount proved impossible before December 18 (the date electors meet to vote), the fault would have been that of the Florida Supreme Court for shortening the contest phase and failing to call for a statewide recount until the last minute. Michael McConnell, professor of law at the University of Utah, wrote: "Now, however, the Supreme Court has taken on its shoulders the responsibility–in some quarters, the blame–for putting the recount to an end, and it has done so by a fractured vote."

The Supreme Court is criticized all the time for being too political. In this case, it wasn't political enough: The partisan-seeming 5-4 vote should have been avoided for the sake of the nation's political health.

The court's ruling did not deny Gore the presidency. Bush was going to win anyway. A number of independent analyses came to the conclusion that the votes Gore needed wouldn't show up in a fair recount under uniform standards. And at any rate, Florida's Legislature and the U.S. Congress were ready to end the mess in Bush's favor.

The problem with the court's decision is that it fits so well into a stab-in-the-back conspiracy theory about the election that could rattle through our politics for some time. The theory can be summed up in two sentences: They didn't count all the votes. The five conservatives gave it to Bush. That is a simple-minded assessment of what happened, but it may take some time to put it to rest.

JWR contributor John Leo's latest book is Two Steps Ahead of the Thought Police. Send your comments by clicking here.


12/11/00: Racial rhetoric conveniently ignores election facts
12/05/00: Savage fantasy
11/27/00: Victims of the year get the recognition they deserve
11/20/00: It's a chad, chad, chad, chad world
11/13/00: The election rhetoric is running much too high
11/07/00: How yesterday's hero becomes tomorrow's heel
10/30/00: Would Bush's Supreme Court picks make a difference?
10/24/00: Yankees, go home!
10/17/00: Un-American activity?
10/10/00: A tempest in an ink pot
10/03/00: The Al Gore quiz
09/26/00: The sleeper effect
09/19/00: Baby-saving made easy
09/12/00: Line between reporting and editorializing continues to blur
09/05/00: In the key of F
08/29/00: Hollywood connection
08/22/00: Some friendly advice to the GOP
08/15/00: You can't make this up
08/08/00: The niceness strategy
08/01/00: When rules don't count
07/25/00: Anti-male bias increasingly pervades our culture
07/18/00: Banned in Boston
07/12/00: What Jacoby had to deal with!
07/11/00: Will boys be boys?
07/05/00: Partial-sense decision
06/27/00: Attitude toward death penalty gets in the way of facts
06/20/00: Double troubles
06/13/00: Fools paradise
06/06/00: Accidental conspirator
05/30/00: Faking the hate
05/23/00: Was it law or poetry?
05/16/00: Here, there and everywhere, people have gone bonkers
05/09/00: Tufts evangelicals are punished for acting on their beliefs
05/02/00: Elian's opera isn't over until nearly everyone sings
04/25/00: All the news that fits: The media serve up many stories from a standard script
04/19/00: Those darned readers: The gap between reporters and the general public is huge
04/05/00: Census sense and nonsense
03/29/00: Hollywood message films leave no room for other views
03/22/00: The Vatican confesses, but is it enough?
03/14/00: Watch what you say: The left can no longer be counted on to defend free speech
03/07/00: McCain's malleable messages
03/01/00: Bush's appearance at Bob Jones U. will dog him all the way
02/23/00: 'Multi-millionaire' show is new evidence we're insane

© 2000, John Leo