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Jewish World Review Dec. 6, 2000 / 10 Kislev, 5761

George Will

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Consumer Reports

A Chastened Court -- WITH MONDAY'S two swift strokes of judicial swords, Americans learned that they are at the end of, not the midpoint of, the Clinton-Gore era.

Al Gore's crushing, because comprehensive, defeat in Judge Sauls's court means that the faltering pulse of his campaign will at long last be extinguished unless he wins from Florida's Supreme Court a complete reversal of Sauls's ruling. And on Monday the U.S. Supreme Court put Florida's Supreme Court on notice: There is adult supervision. We are watching how mindful you are of federal law.

The next, and probably perfunctory, act in this farce will be in Florida's Supreme Court, author of the farcical opinion that dismantled the Florida legislature's statutory provision for finality in elections. So notice what the U.S. Supreme Court said Monday about that opinion. It said the Florida court's reasoning was so awful--or at least so awfully murky--that it is unclear how that court reasoned, and hence it is unclear what that court actually did.

The Supreme Court considered whether the Florida court, in extending the certification deadline from Nov. 14 to Nov. 26 and setting in motion selective recounts in Democratic strongholds, merely construed supposedly conflicting provisions of state law; or whether it put in place a new rule of law, thereby violating the federal law that elections should be decided under laws in place before Election Day. The court also considered whether the Florida court's actions violated the U.S. Constitution's stipulation that presidential electors must be chosen under arrangements determined by state legislatures.

Monday the court asked Florida's court to explain how its reasoning is compatible with the Constitution and federal law. Team Gore said the decision was "neutral," but team Bush was right to be "gratified," for three reasons.

First, the U.S. Supreme Court has vacated the decision that supplied oxygen to Gore's post-Nov. 7 campaign by moving the certification deadline.

Second, the court's opinion coolly says the Florida court considered "how to reconcile what it spoke of as two conflicts in Florida's election laws" (emphasis added). With those five words the court signaled skepticism about "reconciliation" as a justification for what the Florida court did.

Third, and most important, the court pointedly insists that Florida's court "relied in part upon the right to vote set forth in . . . the Florida Constitution." Here the court's opinion clearly reflects the thinking behind Justice Scalia's suggestion, during last Friday's oral argument, that Florida's court committed the solecism of making the state constitution superior to the U.S. Constitution. That is, Florida's court used the state constitution to strip from Florida's legislature the power to determine how presidential electors are chosen, a power deeded to state legislatures by the U.S. Constitution.

The court's per curiam--unanimous--opinion probably represents as much as the nine justices could agree on, and the reluctance of some justices for the court to be divided in ruling on a controversy of this magnitude. The opinion perhaps also expresses the court's awareness of the gravity of the possibility that the judicial system could give a victory to one candidate after the other candidate has constantly held the lead for a month, and has been certified the winner.

Conceivably, the Florida Supreme Court's final role in all this will be to swat back to Seminole County a reckless ruling in a frivolous lawsuit. A Democratic trial lawyer--of course!--is suing to have 15,000 absentee ballots thrown out because some of them--fewer than one third--were cast by people who benefited from Republican workers correcting mistakes (adding voter identification numbers left off because of software problems) in applications for absentee ballots. The trial in this case is due to begin today before a judge who is a former Democratic activist and a protege of Florida Attorney General Robert A. Butterworth, who, by the way, is a Gore elector.

But last week, when Florida's Supreme Court rejected the contention that the design of Palm Beach County's "butterfly" ballot was legally flawed, the court pointedly said: "As a general rule, a court should not void an election for ballot form defects unless such defects cause the ballot to be in substantial noncompliance with the statutory election requirements" (emphases added). This looked like a message to the Seminole County judge: Don't even think about disqualifying 15,000 ballots--all of them clearly recording the voters' preferences--because some nit has been picked about the applications for those ballots.

What remains to be seen is how much this damaging episode can be redeemed by the timing and tone of Gore's concession, after which he can launch his campaign for the presidency of ... Harvard.

Comment on JWR contributor George Will's column by clicking here.


12/01/00: Counting on some slippery language
11/28/00: Florida's rogue court
11/27/00: This willful court
11/22/00: Ferocity gap
11/17/00: Slow-motion larceny
11/13/00: Gore, Hungry for Power
11/09/00: No, the System Worked
11/06/00: The case for Bush
11/03/00: The Framers' Electoral wisdom
10/30/00: Political astronomy
10/27/00: Candidates condescending
10/23/00: No Partners For Peace
10/20/00: Talking peace with thugs
10/11/00: A feast of retreats
10/10/00: .. And what's gotten into the Danes?
10/05/00: The Agony of Debate
10/02/00: Senate Canvas
09/28/00: Milosevic: Not Another Saddam
09/25/00: Blaming the Voters
09/22/00: Saying No to the Euro
09/18/00: Farewell, Mr. Moynihan
09/14/00: When 'Choice' Rules
09/12/00: Colombia Illusions
09/08/00: Will He Spend It All?
09/04/00: Back in the U.S.S.R.
08/31/00: Stonewalling School Reform
08/28/00: Uphill for a California Republican
08/24/00: Sauerkraut Ice Cream
08/21/00: The Partial-Birth Censors
08/18/00: A Party to Prosperity
08/14/00: The National Scold on the Stump
08/10/00: The Thinking Person's Choice
08/07/00: The GOP of Powell And Rice
08/03/00: Panic in the Gore Camp
07/27/00: . . . Both Radical and Reassuring
07/06/00: Harry Potter: A Wizard's Return
07/03/00: Recalling the Revolution
06/29/00: An Act of Judicial Infamy
06/26/00: Life, Liberty and ... the Pursuit of Foxes
06/21/00: Fumble on Prayer
06/19/00: The unified field theory of culture
06/15/00: Schools Beset by Lawyers And Shrinks
06/12/00: Missile Defense Charade
06/07/00: The Grandparent Dissent
06/05/00: Liberal Condescension
06/01/00: Great Awakenings
05/30/00: Suddenly Social Security
05/25/00: Forget Values, Let's Talk Virtues
05/22/00: AlGore the Hysteric
05/15/00: Majestic Avenue
05/11/00: Just How Irrational Is the Exuberance?
05/08/00: Home-Run Glut
05/04/00: A Lesson Plan for Gore
05/01/00: The Hijacking of the Primaries
04/28/00: The Raid in Little Havana
04/24/00: Tinkering Again
04/17/00: A Judgment Against Hate
04/13/00: Tech- Stock Joy Ride
04/10/00: What the bobos are buying
04/06/00: A must-read horror book
04/03/00: 'Improving' the Bill of Rights
03/30/00: Sleaze, The Sequel
03/27/00: How new 'rights' will destroy freedom
03/23/00: Death and the Liveliest Writing
03/20/00: Powell is Dubyah's best bet
03/16/00: Free to Be Politically Intense
03/13/00: Runnin', Gunnin' and Gambling
03/09/00: And Now Back to Republican Business
03/06/00: As the Clock Runs Out on Bradley
03/02/00: Island of Equal Protection
02/28/00: . . . The Right Response
02/24/00: Federal Swelling
02/22/00: Greenspan Tweaks
02/17/00: Crucial Carolina (and Montana and . . .)
02/10/00: McCain's Distortions
02/10/00: The Disciplining of Austria
02/07/00: Free to Speak, Free to Give
02/02/00: Conservatives in a Changing Market
01/31/00: America's true unity day
01/27/00: For the Voter Who Can't Be Bothered
01/25/00: The FBI and the golden age of child pornography
01/20/00: Scruples and Science
01/18/00: Bradley: Better for What Ails Us
01/13/00: O'Brian Rules the Waves
01/10/00: Patron of the boom
01/06/00: In Cactus Jack's Footsteps
01/03/00: The long year
12/31/99: A Stark Perspective On a Radical Century
12/20/99: Soldiers' Snapshots of the Hell They Created
12/16/99: Star-Crossed Banner
12/13/99: Hubert Humphrey Wannabe
12/09/99: Stupidity in Seattle
12/06/99: Bradley's most important vote
12/03/99: Boys will be boys --- or you can always drug 'em
12/01/99: Confidence in the Gore Camp
11/29/99: Busing's End
11/22/99: When We Enjoyed Politics
11/18/99: Ever the Global Gloomster
11/15/99: The Politics of Sanctimony
11/10/99: Risks of Restraining
11/08/99: Willie Brown Besieged
11/04/99: One-House Town
11/01/99: Crack and Cant
10/28/99: Tax Break for the Yachting Class
10/25/99: Ready for The Big Leagues?
10/21/99: Where honor and responsibility still exist
10/18/99: Is Free Speech Only for the Media?
10/14/99: A Beguiling Amateur
10/11/99: Money in Politics: Where's the Problem?
10/08/99: Soft Thinking On Soft Money

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