Both major parties are marshaling armies of lawyers — tens of thousands of them — to be ready for battle over every important aspect of this year’s election process, before, during, and after Election Day, wherever the potential for partisan advantage exists.Targeting sympathetic judges and election officials who might be predisposed to tip the results in battleground states including Florida, Missouri, New Mexico, Ohio, and Pennsylvania, these lawyers will be cooking up grounds — or pretexts — for Florida-2000-style recounts and other challenges. It seems all too possible that if the presidential election is close, the courts will once again put us through weeks of uncertainty and once again determine the outcome. The resulting explosion of bitterness could dwarf the one after Bush v. Gore, further depleting the legitimacy of our political and legal processes alike.
The three federal appeals court judges who gave California Gov. Gray Davis a new lease on life on September 15 delighted many a liberal law professor by purporting to follow Bush v. Gore, the Supreme Court precedent that Democrats most love to hate.
Last January, a month after the supreme court handed down its hugely controversial decision in Bush v. Gore–ending the month-old election stalemate and turning the White House over to George W. Bush–legal scholars across the country joined in protest. In a full-page ad in The New York Times, 554 law professors accused the high court of “acting as political proponents” for Bush, and “taking power from the voters.” Worse, the ad scolded, “the Supreme Court has tarnished its own legitimacy.”
That criticism has yet to subside. Some nine months into the Bush presidency, the debate over the ruling among legal scholars goes on. Many of the country’s most respected legal minds have weighed in on Bush v. Gore. The critics contend the court should never have taken the case in the first place. It was a matter of state law, and should be left to state courts, as is the tradition, they argue. The majority’s claim that the Florida State Supreme Court’s recount procedures violated the Constitution’s equal-protection clause is both novel and out of whack with conservative doctrine, they add. And they smirk at the justices’ suggestion that their legal analysis should not carry the power of precedent.
The attacks are framed in unusually unflattering terms. Here’s a sample. Yale Law School’s Bruce Ackerman: “A blatantly partisan act, without any legal basis whatsoever.” Harvard’s Alan Dershowitz: “The single most corrupt decision in Supreme Court history.” American University’s Jamin Raskin: “Bandits in black robes.”
The left-liberal reflex reaction to Bush vs. Gore will not be challenged widely in the academy, though the decision is no more vulnerable to criticism than many of the cases that liberals cherish…. Surrounded by the like-minded, browsing comfortably in a herd, implicitly defining a narrow channel of left liberalism as the mainstream, many professors of constitutional law have become dogmatically complacent. Their conversational community is an echo chamber. They utter as truisms what a detached observer would recognize as prejudices.
The debate over the U.S. Supreme Court’s Dec. 12 decision ending Al Gore’s claim to the presidency has so far been dominated by the passionate outcries of those who portray it as a rank political act by conservative Justices willing to betray their own purported legal principles to hand the White House to George W. Bush.
Long after George W. Bush takes office, the 2000 election will continue to cast a shadow over the Supreme Court. Democrats are seething at what they consider a blatantly political, conservative activist decision by five Republican-appointed justices to end all recounts in Florida and hand the presidency to Bush. Many conservative Republicans, who have long fought against liberal judicial activism, are equally uncomfortable with the activist aura of the court’s decision–no matter how pleased they may be with the outcome. They are now counting on Bush to fill any vacancies on the court with reliable conservatives who would move the law to the right. With speculation that both 76-year-old conservative Chief Justice William H. Rehnquist and 70-year-old centrist Justice Sandra Day O’Connor may retire in the next year or two, Washington is already bracing itself for what could be the nastiest confirmation battles since Robert Bork and Clarence Thomas. "Whoever gets it is going to go through hell," predicts one Republican leader.
Yet some good could still come from the lingering bitterness over Bush v. Gore. Skepticism about liberal and conservative activism, combined with the near-even Democratic-Republican split in the Senate, could create the strongest movement in memory to fill court vacancies with moderate justices who are genuinely committed to that old conservative motto, "judicial self-restraint."
Most of the attacks on the U.S. Supreme Court’s 5-4 ruling on Dec. 12 halting Florida’s statewide manual recount have proceeded from the assumption that the Florida Supreme Court had acted reasonably-or at least defensibly-in its stunning, 4-3 decision four days before to order the rushed recount. The assumption is wrong, as I demonstrate below, and my next column will discuss what the U.S. Supreme Court should have done about the Florida case.
The Florida court’s decision was so blatantly, one-sidedly pro-Gore that but for the U.S. Supreme Court’s intervention, it would have had the foreseeable effect of rigging the recount in the guise of "counting every vote." To be precise, the Florida court’s decision-aside from making a hash of Florida’s election laws and denying George W. Bush any semblance of due process-awarded Al Gore several hundred more "votes" than he would have gained from any fair and credible vote-recounting process. If Gore had pulled ahead of Bush by, say, 300 votes in the further recounts ordered by the Florida court, such phony "votes" would have provided his entire margin of victory, and then some.
I won’t focus here on legalisms. Let’s just count the votes, as the saying goes. Starting with some undisputed numbers from three counties that have received far less attention than they deserve: the Broward 567, the Miami-Dade 168, and the Palm Beach 176. These are the margins (totaling 911) by which the new "votes" generated for Gore exceeded those for Bush in the manual recounts that had already been done, before Dec. 8, by the Democratic-dominated canvassing boards in these three big, mostly Democratic counties. (Superlawyer David Boies, who represented Gore, has repeatedly put the Palm Beach number at 215. He has repeatedly been wrong.)
"If we desire respect for the law, we must first make the law respectable."
MARGARET WARNER: For some analysis of where things stand we turn to two law professors and two journalists: Pam Karlan, an election law specialist at Stanford Law School; John Yoo, of the Boalt Hall Law School at the University of California, Berkeley; Stuart Taylor, legal affairs columnist for the "National Journal"; and Anthony Lewis, a columnist for the "New York Times." Welcome back all. Let’s start with a couple of nuts and bolts. Today is December 12 — the deadline we have been all fixated on. Pam Karlan, what is the status now of Florida’s electors if the Supreme Court doesn’t rule today versus if it does?
PAM KARLAN: Well, I don’t think that it makes much difference – the Supreme Court’s ruling. There is a slate of electors on file. So, if, for example, the U.S. Supreme Court were to reverse the Florida Supreme Court and end the recounts right now, there is a slate of electors on file with the National Archives, and that slate is within the "safe harbor." Anything else that happens takes you beyond the safe harbor and really out to a completely uncharted sea. There is no way there could be a slate pledged to Al Gore that would fit within the safe harbor. And if the Florida legislature votes a slate through tomorrow, that slate too won’t be in the safe harbor so you’re virtually guaranteed if there is a slate for Gore and a slate for Bush, that there will be a contest in Congress.
MARGARET WARNER: John Yoo, how do you see it, the relationship between today’s date and a possible Supreme Court ruling or not?
Never in recent history have the courts looked so much like another bunch of partisan players in the political wars, camouflaged in black robes that cannot hide their partiality and willfulness. The worst may be yet to come: A 5-4 U.S. Supreme Court decision this week anointing George W. Bush president–with the more conservative justices outvoting the more liberal ones–would be hard to see as anything but evidence that either the majority or the dissenters (or both) were swayed by politics, not law. And although I haven’t altogether given up hope for a unanimous decision, the smart money is betting on a bitter 5-4 split as the oral arguments (at 11 a.m. ET Monday) approach.
Election 2000–with the Republican-controlled Florida Legislature in open revolt against the Florida Supreme Court, with top Republicans in Washington trashing the Florida court as a bunch of political hacks, with top Democrats intimating the same of the 5-4 U.S. Supreme Court majority that stopped the Florida court’s manual recounts in an interim order Saturday, with some of the justices themselves lobbing thinly veiled charges of hypocrisy back and forth–has been a disaster for the judiciary’s image (at least in some circles) as politically impartial. The election aftermath may also have started a cycle that could destabilize the rule of law for years to come by launching a new era of warfare between imperial judges and other branches of government. The backlash against the Florida judges–and against others across the nation who are deemed to have usurped legislative and executive powers–will reverberate for a long time, in ways both foreseeable and unforeseeable.