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Jewish World Review Dec. 13, 2000 / 16 Kislev, 5761

George Will

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Judicial activism on trial -- THERE WAS POETIC JUSTICE--the prosaic sort is being deliberated by the Supreme Court as this is written Tuesday afternoon--in Monday's oral argument. The court was dragged into a new centrality in American politics by liberals' successful 1987 fight against the confirmation of Robert Bork. And Monday, Justice Anthony Kennedy, who occupies the seat for which Bork was nominated, asked the question which properly should have signaled checkmate against Al Gore's protracted search for a way to get a court to make him president.

The gravamen of Kennedy's question to Gore's lawyer, David Boies, was this: Suppose that, after the Nov. 7 election, Florida's legislature had made by statute the changes--new deadlines for recounting and certifying votes, selective re-counts, and so on--that Florida's Supreme Court made by fiat. Would that have violated the federal law that requires presidential elections to be conducted under rules in place prior to Election Day?

Boies, somewhat flummoxed, began his answer, "I think that it would be unusual. I haven't really thought about that question." Boies's admission that he had never thought about the large question of political philosophy involved in the Florida turmoil was altogether believable.

Given the spirit of contemporary liberalism, and given the culture of the trial lawyers' profession, in which the spirit of judicially driven liberalism is distilled to its essence, it indeed probably has never occurred to Boies that, in a republic, legislatures might have policy-making powers equal to, let alone superior to, those of courts. Recovering his equilibrium, Boies replied to Kennedy that, yes, it would be contrary to the federal law for Florida's legislature to have done what Florida's highest court did because that "would be a legislative enactment, as opposed to a judicial interpretation of an existing law."

Note well: Boies said it would have violated that federal "prior to Election Day" law if Florida's legislature had created precisely the same post-election facts that Florida's court created. This sad and awful month will be partly redeemed if it brings to a rolling boil a new chapter in America's political argument, a chapter concerning government by courts.

Until now, the central question in that argument has been: How much government do we want? For some while--at least since the New Deal--the basic answer has been clear: Lots of it. But now that question about the quantity of government should be supplanted at the center of political discourse by this question: What should be the principal source of government--the judiciary or the political branches?

This question, and the exchange between Kennedy and Boies, is, of course, also pertinent to the Constitution's Article II stipulation that "each state shall appoint" presidential electors "in such manner as the legislature thereof may direct" (emphasis added). Regarding this, Gore's lawyers argue, in effect, that the word "legislature" in Article II should be read as "the legislature, as its statutes are filtered through improvising state judges." Which brings us to an exchange between Boies and Justice Sandra Day O'Connor, who, like Kennedy, is often a swing vote on a court that last term produced 19 decisions by 5 to 4 margins.

When Boies, in a colloquy with Justice Antonin Scalia, said the U.S. Supreme Court has generally shown "deference to state supreme court decisions," O'Connor pounced. Citing Article II's presumption of the plenary power of state legislatures regarding presidential elections, she asked Boies this: Must not a state court, in interpreting a legislative act, "give special deference to the legislature's choices insofar as a presidential election is concerned?"

Boies again said that what Florida's Supreme Court did was "within the normal ambit of judicial interpretation" of the legislature's handiwork." But the problem with American governance today is what has become normal in the name of judicial interpretation. O'Connor replied:

"I'm sorry. You are responding as though there were no special burden [for state courts] to show some deference to legislative choices in this one context. Not when courts review laws generally, for general elections, but in the context of selection of presidential electors, isn't there a big red flag up there, 'Watch out'?"

But to Boies, his client the vice president and other advocates of liberalism by judicial fiat, the idea of deference to the political branches of government is like a red flag to a bull. What began in Florida as an argument about who will be the next president has become something much larger and more lasting--an argument about the proper sources of government in this republic.

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