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Jewish World Review Feb. 20, 2001 / 27 Shevat, 5761

Nat Hentoff

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Misteaching the rule of law -- A FULL-PAGE ad in the New York Times -- signed by 585 law professors at 115 American law schools -- joined Jesse Jackson in declaring that George W. Bush is an illegitimate president because the U.S. Supreme Court was guilty, the ad read, of "Stopping the Vote Count in Florida."

This horde of independent academic minds makes me wonder about the quality of teaching in many of our law schools. The incensed law professors accuse the Supreme Court, for instance, of "suppressing the facts to make the Bush government seem more legitimate."

And on Feb. 4, Jeffrey Rosen -- a professor at the George Washington University law school, legal affairs editor of The New Republic, and a frequent television commentator -- chimed in, accusing the majority of the court in Bush v. Gore of "greatly damaging the Court's reputation" in the 5-4 vote.

What, then, are the actual facts -- and Supreme Court precedents -- that the 585 law professors themselves suppressed in their ad, and that professor Rosen chooses to overlook?

First, there were two parts to Bush v. Gore. In the first part, seven -- not five -- justices found a constitutional violation of "equal protection of the laws" in the chaos of Florida's presidential election. One of those seven justices was David Souter. He joined the four-justice minority in saying that the recount should continue. Nonetheless, he wrote the following about the remarkably different standards used for counting votes in Florida: "I can conceive of no legitimate state interest served by these differing treatments of the expressions of voters' fundamental rights. The differences appear wholly arbitrary."

The Supreme Court's Bush v. Gore decision came down on Dec. 12. Even if the Court had allowed further ballot counting under uniform standards, the absolute deadline would have been Dec. 18, as set by Congress -- the date when the presidential electors were to give their votes on "the same day throughout the United States."

Stuart Taylor, a former Supreme Court reporter for The New York Times, pointed out in the National Journal that this is what would have had to take place between Dec. 12 and Dec. 18: The Florida courts would have had "to hear testimony and opposing arguments before setting a uniform statewide chad-counting standard. Then the vote counters would have had to inspect the condition of the more than 60,000 undervote ballots while allowing time for attorneys for Bush and Gore to record objections."

Then there would have had to have been time for "ballot-by-ballot judicial review and the inevitable appeals up to the Supreme Court. It would have left no time to inspect the more than 100,000 so-called overvotes (let alone the rest of the state's 6 million ballots)."

Furthermore, considering how many of the disputed ballots had already been handled and rehandled, how many of them would have been degraded by then?

In addition, the 585 law professors and professor Rosen neglected to mention that in the historic one-man one-vote decision (Reynolds v. Sims), the Supreme Court of the United States underlined the 14th Amendment's guarantee of "equal protection of the laws" as being basic to our fundamental right to vote.

And in Anderson v. Celebrezze (1983), the Supreme Court ruled that a state's election law must be nondiscriminatory with regard to both state and federal offices. That means equal protection of the laws. Writing for the court, John Paul Stevens -- a bitter dissenter in Bush v. Gore -- stated: "The State has a less important interest in regulating statewide or local elections than in presidential elections" because "the president and vice-president are the only elected officials who represent all the voters in the nation."

In his accusatory New York Times article, professor Jeffrey Rosen -- who was almost hysterically indignant on National Public Radio the day the decision in Bush v. Gore was handed down -- charged that "the one branch of national government that still commanded respect in a fractious society is now as weakened and discredited as the others."

He also wrote, unwittingly describing himself and the 585 law professors, that "once you take a side in a polarized situation, you are likely to feel increasingly committed to it, even if the legal arguments on behalf of your opinion turn out not to be very convincing."

And the professor quoted William Jefferson Clinton as an authority on Bush v. Gore: "That was one of the worst Supreme Court decisions in my lifetime," Clinton told him, "and one of the five worst decisions of all time."

Now that is a most impressive, dispassionate, scholarly analysis to be cited by law professor Rosen. How come the 585 other law professors left the famously credible Mr. Clinton out of their advertisement?

JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.


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