WASHINGTON — Democratic partisans are complaining that the presidential election has been settled not by the people but by judges. This is amusing. Who turned this into a lawyers’ contest anyway? Within hours of Election Night, the Gore campaign parachuted dozens, ultimately hundreds of lawyers into Florida with one objective: To find judges to undo their loss.
They went judge shopping, court shopping, venue shopping, loophole shopping. They sued everywhere and anywhere: To overturn the "illegal" butterfly ballot in Palm Beach; to force selective manual recounts in heavily Democratic counties; to impose on these counties scandalously loose criteria for judging "voter intent" (the notorious dimpled chad). They sent lawyers to every county to disqualify overseas ballots; Democratic activists sued to throw out 25,000 valid absentee ballots in Seminole and Martin Counties.
Where did they expect all this lawyering to wind up if not in the U.S. Supreme Court? After five weeks of testing every legal mechanism to overturn the results, they are now shocked — shocked — that the Supreme Court has, by its final verdict, determined the identity of the next president. Live by the courts, die by the courts.
The Democrats, nonetheless, now impute illegitimacy to the final outcome because it was decided by the Supreme Court. But who is the real agent of illegitimacy in this saga? Has everyone forgotten where we were last Friday? After a trial, Circuit Court Judge N. Sanders Sauls had resoundingly, methodically, unmercifully rejected Gore’s challenge to the second recount.
That recount had been granted by the Florida Supreme Court in a victory Democrats had cheered lustily. It was said at the time: Let that recount, however questionable, go forward, and if Gore fell short, that would produce the most legitimate possible outcome.
Well, it went forward. Gore lost the count. He then lost the case. We were on the threshold of legitimacy and finality. The country was ready to accept Sauls’ ruling. So was Gore, who had his concession speech prepared.
Re-enter the Florida Supreme Court, with gusto. In an astonishing burst of willfulness, it reversed the trial court judge and created yet another electoral scheme: a statewide, undervote-only recount to be completed in four days. More than one dissenting Florida justice denounced it for "departing from the essential requirements of the law" — a scheme both "impossible to achieve and which will ultimately lead to chaos."
The Florida court’s willfulness had a point. In an election this close, there are two ways to resolve the issue: procedural fairness or cosmic fairness. Procedural fairness simply says: We’ll never know who "really" won (because the margin of victory is smaller than the margin of a vote-counting error), so we’ll go by the rules as they were on Election Day and let the chips fall where they may. By this accounting, George W. Bush won twice, weeks ago.
But for good liberals like the Florida Supreme Court, mere procedural justice is inferior to abstract right and cosmic justice. It would therefore invent new and better rules and impose them ex post facto on this election.
They were on a mission. They let nothing stand in their way. They overturned critical lower court rulings not once, but twice. They stripped the executive officer in charge of Florida elections of any discretion to regulate and certify elections. They even thumbed their nose at a unanimous opinion of the U.S. Supreme Court that vacated their original election concoction because it found its justification indiscernible.
Undeterred, the Florida Supremes created yet another concoction, invalidating their first invented deadline (cosmic justice requires such constant refinement) and ordering another recount — selective, standardless, seat-of-the-pants.
That is where they were hoist with their own petard. The U.S. Supreme Court found that this scheme, dreamed up in the name of fairness, was so arbitrary and capricious as to be not only unfair but unconstitutional. Not five but seven justices found it offensive to elementary notions of equal protection.
Justice Souter, who agreed that there were constitutional problems with the recount, dissented nonetheless from the majority, arguing that the Supreme Court should have stepped aside and let the process continue. "It is entirely possible that … political tension could have worked itself out in the Congress" — meaning, Congress selecting the president by choosing between a Gore and a Bush set of electors.
Would that have been better? On the contrary. Political tension would only have grown — this would not have been resolved until January! — and created a train wreck. The majority of the court wisely declined this reckless invitation to a true constitutional crisis — a crisis created by the willfulness of a rogue state supreme court and averted by a U.S. Supreme Court that decided finally to step in and play Daddy to a court playing God.
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