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.)
Things are getting ugly at the U.S. Supreme Court. In the weeks since the election, the justices have tried to conceal their internal differences about how to resolve the political brawl in Florida–speaking, at least publicly, with one voice. But last week those barely hidden divisions became all too visible. In its extraordinary Saturday ruling that ordered Florida to halt manual recounts, the court split 5-4, along conservative-liberal lines. As the justices prepared to hear arguments scheduled for Monday morning–warp speed for the court–the majority seemed to indicate that it was preparing to put an end to the recounts once and for all.
That may be good news for George W. Bush, but it would be terrible for the court. The justices, whose moral authority as a calm council of wise elders has survived many ideological battles, are now apparently as divided as the res…
Things are getting ugly at the U.S. Supreme Court. In the weeks since the election, the justices have tried to conceal their internal differences about how to resolve the political brawl in Florida–speaking, at least publicly, with one voice. But last week those barely hidden divisions became all too visible. In its extraordinary Saturday ruling that ordered Florida to halt manual recounts, the court split 5-4, along conservative-liberal lines. As the justices prepared to hear arguments sched
"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.
The crowd outside the Supreme Court last Friday was the perfect picture of America in the days since the election–loud, bawdy and rude. A scrappy throng of Bush and Gore supporters, kept carefully at bay by a team of uniformed officers, waved their signs–sore loserman!–and shouted their slogans–"G.W.B., how many votes did you steal from me?" Inside the muted, high-ceilinged marble temple, the scene was more like opening night at the Kennedy Center. In the days before the hearing, all of elite Washington had gently elbowed for scarce tickets to the hottest show in town. Caroline Kennedy Schlossberg chatted with her uncle, Sen. Ted Kennedy, who mingled with legal lion Lloyd Cutler and Sen. Orrin Hatch. Al Gore’s children were there, taking it in from the good seats.
At a few seconds before 10, the cocktail-party chatter was quickly hushed, and soon forgotten, as the nine justices appeared on the elevated bench and the arguments began. Ninety long, combative minutes later, the early predictions that the court would bring quick finality to the election mess seemed unlikely indeed. So did the confident assertions by the Gore camp and so many legal "experts" that the justices would slap down Bush’s case and side overwhelmingly with the Florida Supreme Court–paving the way for more recounts that might put the vice president over the top. Once again this case reminded us of the immutable truth about the court: Predict at Your Peril.
For the argument’s first 45 minutes, the justices–including the more conservative ones–seemed to have Bush lawyer Theodore B. Olson and his colleagues on the ropes, asking tough, skeptical questions. It appeared to many that Gore would coast to a smashing victory. But that abruptly changed in the 45 minutes that followed. While the four m…
"The U.S. Supreme Court was fairly neutral and may have been slightly favorable to us." -Al Gore, Dec. 5, 2000
Don’t believe anyone who claims to know how the Supreme Court will rule in the election mess. Despite all the handicapping by so-called legal experts on TV, it’s a good bet that few, if any, of the justices know yet which side they’ll come down on after this Friday’s hearing. The decision they have to make is whether Florida’s Democratic Supreme Court wrongly rewrote state law when it extended the hand-count deadline and required the results to be included in the state’s official tally. The answer is not self-evident–though the Republican lawyers who brought the appeal have a heavy burden of proof to shoulder. The justices are no doubt aware that their ruling could determine, once and for all, the outcome of the presidential campaign. Their opinion could be surprising–and, despite differences the justices might have behind closed doors, they will probably strive to achieve unanimity.
