Jewish World Review Dec. 20, 2000 / 23 Mar-Cheshvan, 5761
http://www.jewishworldreview.com -- SOON AFTER a bitterly divisive Supreme Court judgment, the Republican who would be president observed that "a house divided against itself cannot stand." Abe Lincoln's foreboding was soon realized in bloodshed. Fortunately, we live in happier times. Both Vice President Al Gore and President-elect George W. Bush have risen to the immediate challenge of healing the wounds. Gore believes the decision that cost him the presidency was fallible, but he ungrudgingly accepted it as binding and called with touching sincerity on Americans to rally round the winner and move forward for the good of the country: "Partisan rancor must be put aside."
Bush, too, pledged himself to "common sense, common courtesy, and common goals." Americans will surely try to respond by supporting their engaging and feisty new president, recognizing the immensity of the challenge he faces. To him falls the principal responsibility of reunifying the country–and the savage irony is that the Supreme Court, which crowned him by a majority of one, has made his task much harder by the shoddiness of its reasoning. The William Rehnquist majority (or is it the Antonin Scalia majority?) managed to produce a judgment as contorted as it is controversial. Having for years led an anti-federalist campaign, the Rehnquist Five overturned Florida's highest court in one of the clearest areas of states' rights–election law. And they did so in a way that erodes the credibility of one of our most sacred institutions.
Catch-22. It was Catch-22. The majority stopped the counting of votes missed by the machines, as mandated by the Florida Supreme Court, before there was even an oral hearing. Then they ruled that there wasn't time to finish the count by the December 12 deadline for selecting electors. They said counting the ballots differently in different counties violated the U.S. Constitution's equal-protection clause–something they could have observed in their very first judgment and thus given the Florida Supreme Court the opportunity to achieve a reasonable solution.
The high court entered the political thicket by its intrusion into an election where many believed that Gore had won the popular vote in Florida while the Republicans controlled the machinery of counting. The state of Florida's conduct brought to mind Joseph Stalin's comment, "Those who cast the votes decide nothing; those who count the votes decide everything." Florida had no independent overseer of the votes. Every official was in one party's camp or the other's.
Politics, it has been said, is a contact sport. But when the U.S. Supreme Court entered the fray, the expectation was that it would resolve matters based on legal principles, not political partisanship. That, clearly, is not what happened. "Although we may never know with complete certainty the identity of the winner of this year's presidential election," Justice John Paul Stevens wrote for the minority, "the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law." Justice Stephen Breyer, in his wise dissent, observed tartly: "Confidence is a public treasure."
But confidence, now, is precisely what has been lost. The legitimacy of the Supreme Court has been compromised. And what made matters worse was that the court did more than choose a new president. It gave a powerful push to perpetuate itself. In the next four years, we will see several vacancies on the court. Bush has made his preferences clear–for more justices like Scalia and Clarence Thomas. Here is the first test of his promise to bring people together. When the moment comes, he must put forward candidates of impeccable independence, not Scalia look-alikes. This will be essential to restore the reputation of the court–and to enhance his own.
We have much to repair. First, we must ensure that our vote, the source of democratic strength, is pure and honest, and that our system is sound, our democracy inviolate. In Florida, we pulled back the curtain and exposed the wizard. People thought that through the exercise of their vote they made their choice and that the candidate with the most votes won. In Florida, it wasn't just about undervotes and dimples. It was about the fact that the voting process was dominated by a partisan political machine, one determined to win at all costs. The line connecting people, through the vote, to the legitimacy of power was strained, if not broken. This too we must find a way to