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Jewish World Review Nov. 28, 2000 / 1 Kislev, 5761

George Will

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Consumer Reports

Florida's rogue court -- IN SEPTEMBER 1945, as bejeweled dancers swirled at one of London's first postwar high society balls, a gentleman murmured contentedly, "This is what we fought the war for." A droll lady, gesturing to the dancers, responded, "Oh, do you mean they are all Poles?" Few in 1945 remembered that the world conflagration began over Poland, and few today remember that Al Gore began sowing chaos in Florida by challenging Palm Beach County's butterfly ballot.

Perhaps George W. Bush, with his tin-eared remarks Sunday night (an inappropriate moment to reprise campaign rhetoric about prescription drugs), hoped to begin peeling Democrats away from Gore. Certainly Gore's interests and those of congressional Democrats diverge. Even if there were a reservoir of affection for him among them, which there is not, Democrats, weary of minority status, crave committee and subcommittee chairmanships, which are most apt to come to them if they do not hold the presidency in 2002.

In Joseph Lieberman, a natural vice president, Gore has a gentrified Spiro Agnew to rally Democrats by saying demagogic things, such as his Sunday night assertion that "the integrity of our self-government" will be lost unless there is a "complete and accurate vote count." Well. Two Sundays ago on four interview programs he said something patently untrue--that he and Gore would never "authorize," "tolerate," "countenance" or "approve" efforts to invalidate absentee military ballots. Gore-Lieberman lawyers had been doing just that for days.

Sunday evening Lieberman said he and Gore "have no choice" but to keep on suing. People often claim to "have no choice" when they choose an intellectually indefensible course of action, such as the opportunistic pursuit of what is obviously a chimera--complete "accuracy" in Florida's vote counting. The chimera leads to courtrooms.

Especially since the school desegregation decision 46 years ago, courts, and particularly the U.S. Supreme Court, have enjoyed vast moral prestige and deference. But too much deference can intoxicate courts, convincing them they have unlimited authority and competencies.

Florida's is not the first Supreme Court to become impatient with the political branches of government and to decide to settle protracted disputes by judicial fiat. The U.S. Supreme Court did so 143 years ago, regarding slavery, and 27 years ago regarding abortion. The Dred Scott case presaged civil war; the embitterment of American politics by Roe v. Wade continues.

The U.S. Supreme Court will consider whether Florida's Supreme Court rewrote election law when it moved the reporting deadline to facilitate selective recounts under shifting standards in Democratic strongholds. If so, it violated the 1887 federal law that states must resolve controversies relating to the appointment of presidential electors under "laws enacted prior to" Election Day. During the 1887 congressional debate, Ohio Rep. William Craig Cooper, opposing retroactive rulemaking to resolve electoral disputes, exclaimed: "To what anarchy, to what confusion, to what riot, if you please, Mr. Speaker, might such a course of procedure lead!" Now we know.

The Supreme Court also will decide whether the Florida court's improvisation of election rules violates the U.S. Constitution's stipulation that electors shall be appointed in each state "in such manner as the legislature thereof may direct." Gore's position--of course--is that it depends on what the meaning of "legislature" is. Gore says it does not mean only the legislature but also the legislature's decisions as construed by courts. But Florida's court did much more than construe when it denounced as "unnecessary" the legal framework for reaching finality in elections.

Four justices must agree on the court taking such a case. Berkeley law professor John C. Yoo, who clerked for Justice Clarence Thomas, thinks it unlikely that four would have done so unless they doubted the legality of what Florida has done and thought they could find a fifth vote to prevent their doubts from being rejected.

However, perhaps the court took the case only as an act of institutional comity owed any presidential candidate. But if the court rules for Bush, this will be judicial intervention in defense of the prerogatives of the two political branches of Florida's government--the prerogatives of the executive branch (the secretary of state) also have been attacked--against Florida's rogue Supreme Court. This would be an appropriate end to an election in which the most important policy difference between the candidates concerned the kind of judges they would nominate. The final manic flurry of Gore-Lieberman lawsuits underscores how little Lieberman understands how right he is in saying that what is at issue in Florida is indeed the integrity of self-government.

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11/27/00: This willful court
11/22/00: Ferocity gap
11/17/00: Slow-motion larceny
11/13/00: Gore, Hungry for Power
11/09/00: No, the System Worked
11/06/00: The case for Bush
11/03/00: The Framers' Electoral wisdom
10/30/00: Political astronomy
10/27/00: Candidates condescending
10/23/00: No Partners For Peace
10/20/00: Talking peace with thugs
10/11/00: A feast of retreats
10/10/00: .. And what's gotten into the Danes?
10/05/00: The Agony of Debate
10/02/00: Senate Canvas
09/28/00: Milosevic: Not Another Saddam
09/25/00: Blaming the Voters
09/22/00: Saying No to the Euro
09/18/00: Farewell, Mr. Moynihan
09/14/00: When 'Choice' Rules
09/12/00: Colombia Illusions
09/08/00: Will He Spend It All?
09/04/00: Back in the U.S.S.R.
08/31/00: Stonewalling School Reform
08/28/00: Uphill for a California Republican
08/24/00: Sauerkraut Ice Cream
08/21/00: The Partial-Birth Censors
08/18/00: A Party to Prosperity
08/14/00: The National Scold on the Stump
08/10/00: The Thinking Person's Choice
08/07/00: The GOP of Powell And Rice
08/03/00: Panic in the Gore Camp
07/27/00: . . . Both Radical and Reassuring
07/06/00: Harry Potter: A Wizard's Return
07/03/00: Recalling the Revolution
06/29/00: An Act of Judicial Infamy
06/26/00: Life, Liberty and ... the Pursuit of Foxes
06/21/00: Fumble on Prayer
06/19/00: The unified field theory of culture
06/15/00: Schools Beset by Lawyers And Shrinks
06/12/00: Missile Defense Charade
06/07/00: The Grandparent Dissent
06/05/00: Liberal Condescension
06/01/00: Great Awakenings
05/30/00: Suddenly Social Security
05/25/00: Forget Values, Let's Talk Virtues
05/22/00: AlGore the Hysteric
05/15/00: Majestic Avenue
05/11/00: Just How Irrational Is the Exuberance?
05/08/00: Home-Run Glut
05/04/00: A Lesson Plan for Gore
05/01/00: The Hijacking of the Primaries
04/28/00: The Raid in Little Havana
04/24/00: Tinkering Again
04/17/00: A Judgment Against Hate
04/13/00: Tech- Stock Joy Ride
04/10/00: What the bobos are buying
04/06/00: A must-read horror book
04/03/00: 'Improving' the Bill of Rights
03/30/00: Sleaze, The Sequel
03/27/00: How new 'rights' will destroy freedom
03/23/00: Death and the Liveliest Writing
03/20/00: Powell is Dubyah's best bet
03/16/00: Free to Be Politically Intense
03/13/00: Runnin', Gunnin' and Gambling
03/09/00: And Now Back to Republican Business
03/06/00: As the Clock Runs Out on Bradley
03/02/00: Island of Equal Protection
02/28/00: . . . The Right Response
02/24/00: Federal Swelling
02/22/00: Greenspan Tweaks
02/17/00: Crucial Carolina (and Montana and . . .)
02/10/00: McCain's Distortions
02/10/00: The Disciplining of Austria
02/07/00: Free to Speak, Free to Give
02/02/00: Conservatives in a Changing Market
01/31/00: America's true unity day
01/27/00: For the Voter Who Can't Be Bothered
01/25/00: The FBI and the golden age of child pornography
01/20/00: Scruples and Science
01/18/00: Bradley: Better for What Ails Us
01/13/00: O'Brian Rules the Waves
01/10/00: Patron of the boom
01/06/00: In Cactus Jack's Footsteps
01/03/00: The long year
12/31/99: A Stark Perspective On a Radical Century
12/20/99: Soldiers' Snapshots of the Hell They Created
12/16/99: Star-Crossed Banner
12/13/99: Hubert Humphrey Wannabe
12/09/99: Stupidity in Seattle
12/06/99: Bradley's most important vote
12/03/99: Boys will be boys --- or you can always drug 'em
12/01/99: Confidence in the Gore Camp
11/29/99: Busing's End
11/22/99: When We Enjoyed Politics
11/18/99: Ever the Global Gloomster
11/15/99: The Politics of Sanctimony
11/10/99: Risks of Restraining
11/08/99: Willie Brown Besieged
11/04/99: One-House Town
11/01/99: Crack and Cant
10/28/99: Tax Break for the Yachting Class
10/25/99: Ready for The Big Leagues?
10/21/99: Where honor and responsibility still exist
10/18/99: Is Free Speech Only for the Media?
10/14/99: A Beguiling Amateur
10/11/99: Money in Politics: Where's the Problem?
10/08/99: Soft Thinking On Soft Money

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