Jewish World Review Dec. 12, 2000 / 15 Kislev, 5761
http://www.jewishworldreview.com -- THEY'RE TEARING my country apart. The case that now has been argued before the Supreme Court of the United States has been argued there before. It has been argued before the Supreme Court of Florida twice. It has been argued constantly on the talk shows and editorial pages, via e-mail and photo-ops, over dinner tables, after church, between strangers, over drinks . . . .
A month after a presidential election should have ended, a second presidential election continues. This time the president is to be chosen not by the voters but by the judges, and the election returns are just as close: 4 to 3 on Florida's Supreme Court, 5 to 4 on the nation's. Those are the late returns as I write, but like the ones in Florida, they are subject to change.
This is not just a division between Republicans and Democrats. In some ways it is a generational difference: It may be no coincidence that the three dissenters on Florida's Supreme Court who wanted to end this thing, and accept the certified results, were also the three senior members of the court.
The three dissenters understood that by now justice can only be a vague approximation in this case as in life. But chaos can be a very real alternative with every day that passes, and every wild card played. Florida's legislature is now poised to intervene, and after that, God help us, Congress. The three dissenters proposed to stop this game now.
The four justices in the majority on Florida's highest court had no such fears. They seemed to have every confidence that The Will of the People could be discerned in a swirl of chad hanging, dimpled, rogue or imagined. They seemed oblivious not just to the federal issues involved, but to the mounting conflict and confusion they have invited.
Crisis, what crisis? Why, this was just another garden-variety state or local election, and the Florida Four would take care of it. Everybody else would meekly acquiesce. Theirs was the admirable confidence of youth, or, looked at from farther down the road, its sublime arrogance.
This is indeed a difference between conservatives and liberals: Some of us are most concerned about continuity and stability. Others are most concerned about following an abstract principle like justice, right over the cliff if necessary. Not that they see any cliff. They think this whole matter can be resolved by peering at the cards again. And if necessary, again.
On one side are those who think we can know just how many votes each presidential candidate received in Florida, and know it on the very next recount, or maybe the recount after that. Some seem to think we can even know how the people of Florida (ital) intended (unital) to vote.
Then there are those of us who are willing to live with that uncertainty, but not with an uncertainty in the presidential succession.
Surely only lawyers could be so removed from reality as to argue that "no irreparable harm'' is being done here. Forget the harm being done to the president-not-quite-elect, whose regularly proclaimed and at least once certified victory is still in doubt. That is the least of it.
What of the harm being done to the presidential transition, to the continuity of American history, to the clarity of the law, and therefore to the integrity of our institutions? The law in its best and broadest sense, the law as a teaching and light, must be concerned with more than law. It must take cognizance of the world from which it sprang and which it will shape, or misshape.
In his decision, the chief justice (and chief dissenter) of Florida's highest court, Charles T. Wells, spoke plainly about the constitutional crisis ahead, and indeed already under way:
"I have a deep and abiding concern that the prolonging of judicial process in this counting contest propels this country and this state into an unprecedented and unnecessary constitutional crisis. I have to conclude that there is a real and present likelihood that this constitutional crisis will do substantial damage to our country, our state, and to this court as an institution.''
Anticipating the action of the country's highest court the next day, Chief Justice Wells explained how we got into this mess:
"Judicial restraint in respect to elections is absolutely necessary because the health of our democracy depends on elections being decided by voters, not by judges. We must have the self-discipline not to become embroiled in political contests whenever a judicial majority subjectively concludes to do so because the majority perceives it is 'the right thing to do.' Elections involve the other branches of government. A lack of self-discipline in being involved in elections, especially by a court of last resort, always has the potential of leading to a crisis with the other branches of government . . .''
That crisis already looms, as Florida's legislature meets and Congress waits in the wings. All sorts of mad scenarios are being sketched, including one in which Vice President Al Gore casts the deciding vote in the Senate on which set of electors to recognize.
The crisis should never reach that surreal point. But it should never have been allowed to reach this point, either. And it wouldn't have, if Chief Justice Wells' warning had been heeded.
In his dissent, Florida's chief justice quoted my own favorite, concise mathematical analysis of these election returns. It came from John Allen Paulos of Temple University: "The margin of error in this election is far greater than the margin of victory, no matter who wins.''
There is no resolving this arithmetical question. We'll never know who got the most votes in Florida. Historians will be arguing over Bush-Gore the way they now do Hayes-Tilden. The debate will go on forever, but the election must not.
If this presidential contest-cum-crisis is allowed to continue indefinitely, we will have entered the Age of Recounts, in which every close presidential race becomes two: first the election, then the litigation. We may not be able to have justice. But we can have clarity. And continuity. And a president.
We live in a time when it is necessary to spell out the obvious: The time to avert a constitutional crisis is before it arrives. And even now this presidential election of 2000 is becoming the election of 2000-01. It needs to end.
It would be nice if the Supreme Court of the United States handed down a unanimous, Solomonic decision that would please all. I just can't imagine how it can do that at this juncture that should never have been reached. But minds can change. Especially great minds.
What the court can do is finally, definitively end this historical anomaly before it becomes the historical pattern. In a matter it should never have had to decide, the Supreme Court of the United States can yet do the republic a great service.
They're tearing my country apart, and I want it