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Jewish World Review Oct. 7, 2002 / 1 Mar-Cheshvan, 5763

David Limbaugh

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The judicial route to power


http://www.NewsAndOpinion.com | You have to hand it to the Democrats. With moral relativism and judicial activism on their side no obstacle imposed by the law is insuperable. First, it was Florida, now, it's New Jersey.

In Florida, when it became clear that Al Gore had been defeated and would not have sufficient electoral votes to become president, party hacks began devising strategies to challenge the election. When allegations of butterfly ballot confusion didn't do the trick they tried manual recounts. When those weren't working they changed the rules in the middle of the count, literally.

When they still couldn't find enough votes they brought myriad lawsuits in a desperate effort to retain the executive branch. When all else failed, including their scheme to disenfranchise military voters, they turned to the Florida Supreme Court to change the law after the fact, in clear violation of federal law.

When the United States Supreme Court finally put a halt to the chicanery they cried foul with greater volume and intensity, and with less justification than all the preceding Republican complaints regarding their effort to steal the election. And after the dust settled, they continued to complain and "investigate," asserting that George W. Bush was an illegitimate president.

Note that they've never backed away from any of this, though countless post-election polls confirmed that George Bush would have won in any event -- with the possible exception of a manual recount of all counties, which was never requested by the Gore legal team.

Despite their unprincipled attempt to thwart the constitutional process they have managed to convince substantial members of their rank and file that they were the ones aggrieved. They persist with the fiction that because George W. Bush received fewer popular votes than Al Gore -- though we have an Electoral College system -- he shouldn't be residing on Pennsylvania Avenue today.

The Democrats' mantra then was "every vote must count." Of course, that didn't mean that every military vote should count. It didn't mean that every legally cast ballot should count. It meant that every ballot having the slightest indention in Gore's circle (and even some that didn't) must be counted in his favor. This was never about counting every vote or the sanctity of the process, but holding on to power.

Now, here they go again. The presidency is not at stake this time, but the next most important institution, the Senate, is. They're not about to let a little state law interfere with their hold on the majority, which explains their shenanigans in the New Jersey Senate race.

Democrats knew their duly elected nominee, Robert Torricelli, was a certain loser, so they pressured him to withdraw, gambling that they could circumvent the New Jersey State law and find a more electable replacement. I choose the word "circumvent" because the law is unambiguous.

The statute specifies the procedure for selecting substitute candidates "in the event of a vacancy, howsoever caused, among candidates nominated at primaries, which vacancy shall occur not later than the 51st day before the general election. ... " Torricelli dropped out with only 36 days left.

The law clearly does not apply to a vacancy, like the one created by Torricelli's departure, occurring later than 51 days before the general election. The Democrats knew that, yet they petitioned the New Jersey Supreme Court to ignore it and fashion its own law.

Lo and behold, just like the Florida Supreme Court before it, the New Jersey Supremes came through. And, just like the Florida Court, the New Jersey Justices invoked their equitable powers to frustrate the plain meaning of the statute. In its shameful opinion, the Court said, the statute "does not preclude the possibility of a vacancy occurring within 51 days of the general election" and that "election statutes should be liberally construed."

This is abject intellectual and judicial dishonesty. The legislature, by not authorizing this procedure within 51 days of the election, meant to preclude it. What other possible reason is there for a deadline? And you can't read the statute liberally enough to change that conclusion without completely rewriting it.

In both Florida and New Jersey, Democrats pretended to be vindicating the democratic process. In reality, they impeded it by encouraging the courts to disregard the express language of the laws enacted by the democratically elected legislatures and use their own arbitrarily manufactured versions. Democrats won't feel an ounce of shame, though, because the end -- political power -- justifies the means.

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David Limbaugh, a columnist and attorney practicing in Cape Girardeau, Mo., is the author of the just-released exposť about corruption in the Clinton-Reno Justice Department, "Absolute Power." Send your comments to him by clicking here.

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