Clicking on banner ads enables JWR to constantly improve
Jewish World Review Dec. 26 2000 / 29 Kislev, 5761

Nat Hentoff

JWR's Pundits
World Editorial
Cartoon Showcase

Mallard Fillmore

Michael Barone
Mona Charen
Linda Chavez
Ann Coulter
Greg Crosby
Larry Elder
Don Feder
Suzanne Fields
Paul Greenberg
Bob Greene
Betsy Hart
David Horowitz
Marianne Jennings
Michael Kelly
Mort Kondracke
Ch. Krauthammer
Lawrence Kudlow
Dr. Laura
John Leo
David Limbaugh
Michelle Malkin
Chris Matthews
Michael Medved
Kathleen Parker
Wes Pruden
Sam Schulman
Amity Shlaes
Roger Simon
Tony Snow
Thomas Sowell
Cal Thomas
Jonathan S. Tobin
Ben Wattenberg
George Will
Bruce Williams
Walter Williams
Mort Zuckerman

Consumer Reports

Media should stop misleading public about High Court's actions -- IN THE TURBULENT WAKE of the Supreme Court's decision in Bush v. Gore, it is not the Court's credibility that, in the long run, will be diminished. Instead, the intellectual integrity of its attackers -- from law professors to Jesse Jackson -- will be at risk.

To begin with, much of the media has downplayed or ignored the fact that the Supreme Court vote was 7-2 on the crucial constitutional issue. That majority found that the case involved the federal guarantee of equal protection of the laws.

The core of that division in the Court can be found in an exchange between Justices Antonin Scalia and John Paul Stevens when, on Dec. 9, the United States Supreme Court vacated the Florida Supreme Court's decision to recount disputed ballots in selective counties.

Justice Stevens insisted that "every legal vote should be counted." In response, Justice Scalia made the logical point that since Election Day, Nov. 7, the controversy had been over which votes were indeed legal in Florida. Said Scalia: "Count first and rule about legality afterwards is not a recipe for producing election results that have the public acceptance that democracy requires."

Justice Scalia could also have reminded his colleague of what the Queen of Hearts roared at the start of the trial in "Alice in Wonderland": "Sentence first -- verdict afterwards!"

During the repeated hand recounts that had already taken place, television viewers could plainly see there were different standards for deciding which votes were legal from county to county -- and in some counting rooms, from table to table.

Clearly, those recounts were not treating voters equally under the United States Constitution's guarantee of "equal protection under the laws."

The court's 5-4 decision, on which most of the media focused, concerned the remedy by which this violation of equal protection could be fixed. Justices David Souter and Steven Breyer, who were among the seven justices agreeing on the "equal protection of the laws" violation, wanted to send the case back to the Florida Supreme Court so that there could be a recount under new and uniform statewide standards.

However, even if the deadline had been extended to Dec. 18, there would not have been time to promulgate those standards, implement them, and provide appellate review by all the courts of the inevitable challenges to the results of that recount.

I would add that since these would be more hand recounts, the already handled, rehandled, diluted ballots would be further degraded -- despite whatever new standards were in place. Indeed, if some critics of the Supreme Court's decision go ahead with their plan to have a postelection recount of all votes cast in Florida, that result will be even more debased, and therefore not credible either.

This is not the first time the Supreme Court has ruled against a state's election laws. In the landmark one-man, one-vote decision Reynolds v. Sims (1983), the Court emphasized the 14th Amendment's guarantee of "equal protection of the laws" as crucial to the right to vote.

In Bush v. Gore, the Supreme Court -- with regard to what was happening in Florida -- quoted from Reynolds v. Sims, saying that it must be remembered that under the equal protection clause, the right to vote "can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise" of the right to vote.

Moreover, those charging that the United States Supreme Court should not have interfered in the state court's decisions were answered in a 1983 decision by Justice John Paul Stevens, who is now a bitter dissenter in Bush v. Gore. Back then, in Anderson v. Celebrezze, Stevens emphasized that since "the president and vice president are the only elected officials who represent all the voters in the nation, the state has a less important interest in regulating presidential elections than state or local elections because the outcomes of the former are largely determined by voters beyond the state's boundaries."

In all the states, Americans who voted in the presidential election were involved in ensuring that the results of the Florida balloting met equal protection standards.

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


12/18/00: A government that executes children
12/11/00: Caucus speaks out on slavery in Sudan
12/04/00: This year, give the gift of the Constitution
11/27/00: Is capital punishment a deterrent?
11/20/00: Punishing the Boy Scouts
11/06/00: Joe Lieberman's excommunication
10/30/00: CNN discards journalistic responsibility
10/23/00: The basic flaw in the debates
10/16/00: Nader's American history lesson; or: Silencing Jesse Jackson
10/06/00: Hate-crime laws: The real message
10/03/00: Why Clinton was not convicted
09/25/00: Protecting babies born alive
09/25/00: A selective zeal for justice
09/06/00: The power of nonviolence
08/28/00: Should Dr. Laura be silenced?
08/22/00: Trashing the Bill of Rights in Philly
08/14/00: The repressive hand of China
08/07/00: A racial incident on a train
07/31/00: Attention Jesse Jackson: Sudanese children are still branded and enslaved
07/24/00: Open up the presidential debates!
07/17/00: A stealth attack on privacy
07/03/00: Plea to the Congressional Black Caucus
06/26/00: Burning 'bad' ideas at college
06/19/00: Affirmative action beyond race
06/12/00: Students discover the Constitution
06/06/00: The Liar's legacy and America's delusions
05/30/00: Reining in the majority's will
05/23/00: Press swoons for a bunco artist
05/15/00: The China that tourists don't see
05/08/00: The coverage of Reno's lawless raid
05/01/00: In Clinton and Castro's best interests
04/24/00: Elian's human rights
04/17/00: Crime's down, but arrests keep rising
04/10/00: Teacher brings Constitution to life
04/03/00: The Americans who keep disappearing
03/27/00: The censoring of feminist history
03/20/00: Should there be a chaplain in Congress?
03/13/00: Big labor, big China, spinning Gore
03/03/00: The ACLU violates its principles --- yet again!
02/28/00: Still two nations?
02/11/00: You bet we should disbar Bubba
01/31/00: Where was Jesse?
01/24/00: Is suing church for sexual harassment an entanglement?
01/18/00: Will Miranda make it?
01/11/00: ACLU: Guilty until presumed innocent?
01/03/00: Liberty lion should be Man of Century
12/28/99: Drug tests that tear families apart
12/20/99: Get ready for decisive ruling on school vouchers for religious schools
12/13/99: Guess who is taking the lead in anti-slavery movement? Hint: It ain't Rev. Jesse
12/06/99: When we refuse to buy the 'otherly-challenged' excuse
11/29/99: Expelling 'Huck Finn'
11/22/99: Pleading the First
11/16/99: Goal of diversity needs rethinking?
11/08/99: Prosecution in darkness
11/02/99: The accuracy that's owed to readers
10/26/99: Disappeared Americans
10/18/99: The blue wall of silence
10/11/99: Bill Bradley's speech tax
10/04/99: 'Technicalities' that keep us free
09/27/99: Our 'Americanism'-ignorant generation
09/20/99: ACLU better clean up its act
09/13/99: A professor of infanticide at Princeton
09/07/99: The Big Apple's Rotten Policing
08/23/99: Lawyerly ethics
08/16/99: To Get a Supreme Court Seat
08/02/99: What are the poor people doing tonight?
07/26/99: Lady Hillary and the press

© 2000, NEA