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Jewish World Review Nov. 23, 2000/ 25 Mar-Cheshvan, 5761

Larry Elder

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The Florida Supreme Court: Democratic nonpartisans

http://www.jewishworldreview.com -- WHAT TO THINK of the Florida Supreme Court? The court ruled unanimously that manual recounts in pro-Gore Democratic counties shall continue.

Let's see. The Florida Supreme Court consists of how many Democrats? Six, and one "independent" (appointed by a Democratic governor). And, remember these justices must stand for retention by voters to keep their jobs.

Where are the cries of partisanship? Where are the groans that, after all, a court stacked full of Democrats appears hostile to the Republican Party?

But, no. The Los Angeles Times ran an article about a fair, impartial, and independent Florida Supreme Court. Former Supreme Court Justice Alan Sundberg, a Tallahassee lawyer, said, "I would reject out of hand any suggestion that the Florida Supreme Court is either Democrat-oriented or Republican-oriented. I am satisfied to a moral certainty that their party affiliations will not have any effect on the ruling of these cases."

And Randall Berg, executive director of the Florida Justice Institute, a Miami public interest civil rights law firm, stated, "I think it's a very strong court and a very courageous court. They will not kowtow to doing the politically correct thing."

And, how about this one from Nova Southeastern University professor Bruce Rogow, "It's kind of a Populist court, but very independent and often times surprising." Populist? Hmm, didn't a national news magazine once call George McGovern, the 1972 Democratic gubernatorial candidate, the "Prairie Populist"?

Democrats excel at maligning Republicans for "partisanship." This summer, President Bill Clinton complained about the dearth of diversity on the 4th Circuit Court of Appeals. "The 4th Circuit," said Clinton, "has the largest African-American population of any circuit in this country, yet it has never had an African-American appellate judge. It's long past time to right that wrong."

Why, Reverend Jesse Jackson likened conservative justices to Ku Klux Klan arsonists: "At night, the enemies of civil rights strike in white sheets, burning churches. By day, they strike in black robes."

But a Florida Supreme Court stacked full of Democrats -- "independent and often times surprising."

Funny, during one of the election debates, Gore said, "And Governor Bush has declared to the anti-choice groups that he will appoint justices in the mold of (Antonin) Scalia and Clarence Thomas, who are known for being the most vigorous opponents of a woman's right to choose." So, when Republicans get into office, expect them to "stack" courts full of bad-guy ideologues. But when Democrats appoint judges, expect only, well, just judges. Remember Al Gore's remarks to a black church on the eve of this election, "Deep within us, we each have the capacity for good and for evil. I am taught that good overcomes evil, if we chose that outcome. I feel it coming." Evil Republicans appoint evil Republican judges, whereas Democrats appoint good Democratic judges.

The first Rodney King trial, held in Simi Valley, Calif., before a predominantly white jury, resulted in mostly acquittal verdicts for the police officer defendants. Bad. Obviously guilty, double-murderer O. J. Simpson receives an acquittal verdict from a predominantly black Los Angeles jury. Good. O. J. Simpson was found unanimously liable before a largely non-white jury, in Santa Monica. Bad. The Bush team faced a no-Republican Florida Supreme Court. Good.

Remember that the Florida Supreme Court rendered a unanimous decision. Unanimous?! Wouldn't you think that one, just one, guy would raise a hand and say, "Gee, fellas, we're all Democrats here, but does this pass the smell test? Do you think the American people will accept a President who tactically cherry-picked Democratic counties to produce the desired result?"

Wouldn't you think just one person might argue the following: The machines did their jobs, and refused to count improperly marked ballots. Voters received instructions to ask questions if confused, and to remove any "hanging chips" from the ballot. If you don't follow the rules, your vote doesn't count.

Many Americans are hot. They find Al "All-Votes-Must-Count" Gore's gambit slick, shady, and unfair. Not only do "recounters" attempt to discern voter intent, but the standards -- hanging chad, pregnant chad, dimpled chad -- keep changing. Gore may not gain enough votes without loosening the standard for voter intent. A simple indentation, the pro-Gore camp argues, indicates a voter's "intent" to vote for that candidate. Why, then, did the voter successfully push holes in the rest of the ballot, leaving an indentation only for the presidential spot? Maybe the voter simply changed his or her mind.

Now that the Florida Supreme Court allowed manual recounts to continue, the action now turns to the federal courts, possibly the Florida state legislature, and perhaps ultimately to the United States Supreme Court. Bush opponents now cry, "Lose gracefully."

No. Fighting on is absolutely the right thing to do -- tactically and morally.


JWR contributor Larry Elder is the author of the newly released, The Ten Things You Can't Say in America. (Proceeds from sales help fund JWR) Let him know what you think of his column by clicking here.

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© 2000, Creators Syndicate