Jewish World Review Nov. 28, 2000 / 1 Kislev, 5761
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
11/27/00: This willful court