Bush’s legacy begins, ends with Supreme Court

  • Jim Hoagland / Washington Post columnist
  • Saturday, December 16, 2000 9:00pm
  • Opinion

WASHINGTON — The foundation of dynasty is not the throne but the institutions on which the throne rests. Relatives, friends or allies must dominate the Praetorian Guard, the regency council or the business empires that bless the transfer of power from one family generation to the next. To that list now add the Supreme Court of the United States of America.

The Bush family understood and applied at some level the requirements of modern political dynasty far better than did the Kennedys, Rockefellers and others. The Bush restoration to the White House after eight years of interregnum is powered by family and political loyalty that became crucial when Florida’s presidential voting ended in a statistical tie.

The question faced by the nation for the past five weeks has been determining an electoral winner when either candidate could reasonably claim to be that winner. Dynastic networks marginal in the democratic phase of electioneering suddenly became decisive when the contest became one of legitimacy and shifted into the institutions of government.

By design or serendipity, the presumptive president-elect’s brother, Jeb, stood by ready to deliver certification and, if needed, the votes of Florida’s Legislature. George W. Bush’s father supplied the consigliere needed to guide the highly effective post-campaign campaign in the person of Jim Baker. And Supreme Court justices named or elevated by the elder Bush or his presidential mentor Ronald Reagan provided the will and votes needed to snatch the legal case out of Florida and end undervote counting there.

This does not mean that the Texas governor’s victory is illegitimate or that his presidency is doomed as it starts. It does mean that Bush can overcome the enormous doubts and skepticism his presidency faces only by understanding and responding to the circumstances that have made him president-elect.

In the limbo of Florida deadlock, the Bush legal and political teams dominated the battle for control of perception and procedure. They were far more focused, tough-minded and agile than were Al Gore’s operatives, who failed to head off fatal legal counterattacks when they did not seek an immediate statewide manual recount. If effectiveness in crisis is an important qualification for a president, Bush through his agents easily won the political contest that began on Nov. 7. He secured at least a certain Darwinian political legitimacy for himself.

But to rule effectively Bush must now find moral authority. Simply not being Bill Clinton will no longer do the trick. Neither will a gracious acceptance speech or sprinkling his Cabinet with Democrats. Instead he must focus on two fundamental measures of national reconciliation: Providing equitable power-sharing for Democrats in the divided Congress, and helping restore credibility to the judiciary, the American institution most damaged in the election aftermath.

It will be hard to dispel the perception that the election finally turned on Bush’s justices in Washington trumping Gore’s allies on the Florida Supreme Court. This perception was intensified by an unseemly rush to judgment by a five-member majority of the federal court Tuesday night to meet a midnight deadline that served only to insulate the Bush electoral slate in Florida from challenge in Congress.

Departing from states’ rights ideology to take the case and then to slap down the Florida appellate body, the conservative judges issued an evasive, confusing and too-cute-by-half opinion Tuesday night that sought to deflect all blame for the judicial mess the highest court participated in creating onto Florida courts and canvassing boards. Justices Rehnquist, Scalia, Thomas, O’Connor and Kennedy lacked the courage of their cynicism. They killed the recount and then washed their hands by remanding the corpse to Tallahassee.

This was a shameful substitute for the clear, compelling argument to the nation they had obliged themselves to give by intervening in a matter of state jurisdiction. If there was a whiff of political panic in the Florida Supreme Court’s unsteady actions, there was a whiff of political anger and disdain in the final ruling of the majority of the Supreme Court.

George W. Bush’s legacy clock begins ticking with that opinion. As his opponents predicted during the campaign, the appointments he is likely to make to the Supreme Court may well turn out to be the dominant feature of his presidency. More than any American president in this past century, Bush must appoint people to the bench for their integrity, judicial temperament and reasoning — rather than for their political views or partisan service. This Supreme Court already seems to have enough of those qualities.

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