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Jewish World Review Dec. 12, 2000 /15 Kislev, 5761

Cal Thomas

Cal Thomas
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Judicial fiat

http://www.jewishworldreview.com --
AT THE END of this election legal nightmare, Detroit should design a car named after the judges who have made such a mess of the beautiful vehicle crafted by America's Founding Fathers. Let them call the car a "judicial fiat.'' Only members of their unique class should be allowed to drive them.

Judges are driving roughshod over our laws and making new ones in their wake. In "Oliver Twist,'' Charles Dickens has Mr. Bumble say, "If the law supposes that...the law is a ass, a idiot.'' The law is neither "a ass'' or "a idiot,'' but some judges and lawyers who would subvert the law to suit their personal and political interests fit that description.

Only in the Clinton-Gore era could a majority of Florida Supreme Court judges claim to be upholding the law while simultaneously violating it, and not cause more than a ripple of dissent. Only in contemporary America, where there is "no controlling legal authority,'' could the Florida Secretary of State be vilified by the Gore team and its media enablers for taking her oath of office seriously enough to do what the law says. If the Constitution is only what judges say it is and has no objective meaning, then why not allow subjective decisions about ballots and mind-reading decisions about voter intent?

Putting the law aside in favor of talk-show notions like "fairness'' is the preferred way to go. To believe otherwise is to invite condemnation. We have been brainwashed to elevate feelings to the level of where law used to be. Florida Chief Justice Charles Wells alluded to this out-of-fashion notion of putting the law first when he wrote in his dissent to the voter re-count order that the majority decision "has no foundation in the law of Florida as existed on November 7, 2000, or at any time until the issuance of this opinion.'' By thinking this way, Judge Wells proves that though he is behind the law, he is surely behind the times.

Judge Wells said that directing a recount of Florida ballots to discern supposed undervotes "violates article 2, section 1, clause 2 of the United States Constitution, in that neither this Court, nor the circuit court has the authority to create the standards by which it will count the undervoted ballots.''

United States Supreme Court Associate Justice Antonin Scalia picked up on Justice Wells' impeccable logic in his concurrence with the majority to hear arguments to stop the mandated ballot recount. Scalia properly appealed to the law when he distinguished between ballots and "legally cast votes.'' He said the time to rule on legal matters was before any further counting takes place, otherwise it becomes even more difficult to distinguish between valid and invalid votes. Scalia also objected to the subjective and arbitrary methods different Florida counties have been using to count votes: "If the petitioner is correct that counting in this (arbitrary) fashion is unlawful, permitting the count to proceed on that erroneous basis will present an accurate recount from being conducted on a proper basis later, since it is generally agreed that each manual recount produces a degradation of the ballot, which renders a subsequent recount inaccurate.''

That is precisely the line of thinking taken by Justice Wells and it is beyond dispute to any but the most partisan Gore advocate.

The Boston Globe discovered some lines from the 1948 film "Key Largo'' which have some relevance to the hardball politics in Florida. The gangster played by Edward G. Robinson says to the character played by Humphrey Bogart: "Let me tell you about Florida politicians. I make them out of whole cloth, just like a tailor makes a suit. I get their name in the newspaper. I get them some publicity and get them on the ballot. Then after the election, we count the votes. And if they don't turn out right, we recount them. And recount them again. Until they do.''

Fifty-two years later. we're seeing life imitating art, except that the gangsters are now wearing black robes.

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