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March 2001

Sanctimony serving politics: the Florida fiasco

by Robert Bork

Reflections on the Supreme Court’s internvention in the battle for Florida’s electoral votes.

Agreat deal more than the name of the new president was at stake in Bush v. Gore. As columnist Tony Blankley wrote in The Washington Times on November 11,

[W]hat is sticking in the craw this time is the brazen, slick, daylight heisting of the votes. ...In this regard, Mr. Gore has learned from Mr. Clinton that when he violates the nation’s values in front of the public—staring us down, daring us to do something about it—our failure to defend ourselves morally weakens us for the next time. And there will always be a next time.

In that sense, the Supreme Court, at considerable cost to itself, saved us, at least momentarily, from a further precipitous decline in our public morality.

Few events illustrate so starkly the debased state of America’s political and legal culture as did Vice President Gore’s frenzied attempts to overturn Governor Bush’s narrow victory in the Florida presidential election. Almost no one and no institution emerged unscathed from the toxic mixture of unrestrained personal ambition and liberal ideology that forced the contest to ultimate resolution in the United States Supreme Court. Yet the lessons of that unseemly brawl have been obscured by the welter of recriminations, celebrations, and invincibly ignorant punditry that have followed.

The battle for Florida’s twenty-five electoral votes, and hence for the presidency, involved so many lawsuits on different theories in both state and federal courts, as well as the possibilities of action by the Florida legislature and Congress, that it was impossible for a time to calculate all the possible outcomes of the chaos. Only in retrospect did the story line become clear.

As the entire world now knows, the disputed Florida votes were cast by punching out a chad opposite the preferred candidate’s name. The votes, cast on November 7 and counted by machine, gave Bush the victory and, it seemed, the presidency. The closeness of the contest automatically triggered a machine recount, which confirmed the outcome, albeit by a narrower margin. Gore then sought a manual recount of all “undervotes” (ballots on which the machines had detected no vote for president) in four heavily Democratic counties. Florida’s secretary of state, to whom the returns were to be made, refused to waive the November 14 statutory deadline, however, which left too little time for the recount and the inevitable challenges in court. But the Florida Supreme Court, composed of six Democrats and one independent, acting on its own motion, enjoined the certification of the vote. Citing the necessity of determining the “will of the people” (a phrase with ominous associations) and the need not to be deterred by a “hypertechnical reliance upon statutory provisions,” the unanimous court ordered that the recount proceed to find the “intent” of the unknown persons who had not fully dislodged the chads on their ballots. Purporting to exercise its “equitable powers,” the court extended the deadline to November 26, a date unrelated to any statute and apparently chosen simply to help Gore.

The U.S. Supreme Court, to the surprise of almost all court-watchers, took the case, unanimously stayed the recount, and remanded the case to the Florida court for clarification of the basis for its decision. Now divided four to three, the Florida court reinstated the November 26 deadline and held that all Florida counties must be recounted. Yet the court also said that votes counted after November 26 could be included, thus, in defiance of Florida law and its own opinion, creating a flexible “deadline” to give Gore the maximum opportunity to win. The shamelessness of this performance practically forced the U.S. Supreme Court to accept Bush’s appeal. In an opinion issued on December 12, the court fractured. Five justices held that the deadline was that same day, that the Equal Protection Clause of the Fourteenth Amendment was violated by the disparate standards used by the recounters to determine the “intent” underlying each ballot, found the time (which amounted to a few hours) too short to conduct a proper recount, and ordered the process stopped. Two justices agreed to the equal protection ruling but thought the deadline was December 18, when the electors were to meet, and would have allowed the state the extra six days to attempt the surely impossible task of adopting adequate standards, completing a recount in all counties, and deciding all court challenges. Two justices would simply have affirmed the Florida court. Though the decision appears to be five to four, seven justices agreed that a violation of equal protection was in progress and, since a valid recount could not have been completed even by December 18, Bush had, in practical effect, won seven to two.

The conclusion that the Equal Protection Clause had been violated raises serious difficulties, however. At first glance, it seems hard to deny that an essentially standardless process by which some votes are valid and other, identical, votes are not raises equal protection problems. Some recounters considered only partially detached chads a vote while others settled for a dent or a crease, and these differences occurred not only from county to county but also within counties and between recounters. But these and similar disparities have always existed within states under our semi-chaotic election processes. By raising that to the level of a constitutional violation, the court federalized state election laws. The opportunities for uncertainty, litigation, and delay in close elections seem endless, which is probably why federal courts have never entered this particular briar patch before. Once the Equal Protection Clause is unleashed, it will apply to every federal, state, and local election in the country. Ironically, several justices known for their concern about the independence of states struck a blow against federalism.

Three justices—Rehnquist, Scalia, and Thomas—offered a better rationale in their concurring opinion. They relied on Article II, Section 1, Clause 2 of the Constitution, which provides that “Each State shall appoint, in such manner as the Legislature thereof may direct, a Number of Electors” and on Section 5 of Title 3 of the United States Code which requires that the laws governing an election must be made beforehand. The Florida court violated these requirements by changing after the election both the final date for certification and the responsibilities of the various state agencies as the legislature had defined them. Counsel for Gore was put in the untenable position at oral argument of contending that the Florida court could make post-election changes in the law that the legislature could not. Had two of the other four justices who relied upon equal protection gone along with this analysis, the decision would have been sounder and much future difficulty avoided. Article II and Section 5 of Title 3 speak only to presidential elections and do not rule out every difference in election procedures within a state. But that rationale did not command a majority, perhaps because the other four justices found the familiar rhetoric of equal protection more comfortable.

So fraught with complications and dangers is the court’s equal protection rationale that some commentators have expressed the hope that it will prove to be like a railroad ticket good for this day and train only. If so, that would merely reveal the inadequacy of the original ruling, and, in any event, courts are not supposed to issue decisions that cannot be shown to be aspects of more general principles. But the hope of inconsistency is probably forlorn anyway. If the Supreme Court intends to back away from equal protection in future election cases, that fact will not be known in advance to lower court judges who may proceed to federalize state election laws as the seven justices in Bush v. Gore suggest they should. In order to stop that trend, the court may have to shift to the different ground offered in the concurring opinion. That said, it must be remembered, in extenuation, that the justices were working under tremendous pressure of time and public scrutiny. It is no easy thing to hammer out a legal brief in one or two days, and the task is made almost impossible if several law firms are involved. The justices, each with four clerks, operate as nine separate law firms. Herding cats isn’t even in it.

Though the majority has been criticized for setting the cutoff date on the twelfth rather than the eighteenth of December, that seems a minor sin given the fact that neither date could realistically have been met. We are entitled to speculate that, with good reason, the majority so distrusted the recount process in Florida and the state’s courts that it seemed better to end the matter on the twelfth rather than put the country and the court through six more days of legal chicanery and useless turmoil.

Cruder commentators, with which the print and electronic media and law school faculties are amply supplied, put the decision down to raw political partisanship. But the idea that each of the seven justices who found a constitutional violation and the five who voted to end the recounts immediately were voting for a Bush presidency is a bit too crass to be credited, particularly if you know the people involved.

The more likely explanation is that the justices saw an election being stolen in Florida and that the Supreme Court of Florida was not only complicit but also willing to defy the U.S. Supreme Court. Yet the court majority could not agree on a valid constitutional doctrine to remedy an incipient constitutional crisis. The justices could hardly admit that they shared Justice Stevens’s version of the Bush position:

What must underlie the petitioners’ entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote were to proceed.

 

Stevens was arguing that the court had no right to entertain such misgivings. But there were excellent reasons to do just that. One might add that there was a justified lack of confidence in those who would do the actual recounting. Canvassing boards regularly split two to one along party lines in finding valid votes for Gore. Once the boards decided that a dimple or a crease on a chad could indicate a voter’s intent, an impossibly subjective element was introduced. (A crease may be created, of course, by the thumbnail of the recounter.) Scalia noted, moreover, that it was “generally agreed that each manual recount produces a degradation of the ballots, which renders a subsequent recount inaccurate.”

The court’s choice was between an inadequate majority opinion and permitting the stealing of a presidential election. It does not help a great deal to say, as some have, that the court’s performance was statesmanlike. That is an excellent quality in other branches of government but it is not a primary aspect of judicial virtue. Adherence to law is. It is just as well, therefore, that there is a valid rationale for what the majority did even if only three justices subscribed to it. The defiance shown by the Florida Supreme Court coupled with the obvious purpose of the repeated recounts of selected counties to produce a victory for Al Gore cried out for someone or some institution to save the integrity of the electoral process. That the U.S. Supreme Court did.

The majority opinion raises a further question: whether a desirable result can ever be an adequate reason for law-bending. That seems to depend on one’s political sympathy. The question lay at the heart of the court’s ruling in United States v. Nixon requiring the president to comply with the special prosecutor’s subpoena of White House tapes. Strictly speaking, the case was not justiciable, for it involved a dispute between the head of the executive branch and a subordinate officer. Such disputes can be resolved definitively by an order from the president to the subordinate, which means that there is not the “case” or “controversy” that Article III of the Constitution requires for the exercise of judicial power. James St. Clair, Mr. Nixon’s attorney, tried to make that argument to the Supreme Court but Justice Potter Stewart responded that in the ordinary case that would be true, but here the president, through the acting attorney general, me, had given the prosecutor a charter that guaranteed his right to go to court. That was not, of course, a complete answer. The case would not have been different if a president gave a charter to the secretary of defense promising not to interfere in military decisions and then sued to make a reluctant secretary order the invasion of Grenada. No court, in the ordinary course, would have entertained that suit since, charter or no, the president has the constitutional power as commander in chief to control the military. The issue would be as nonjusticiable a question as can be imagined. St. Clair, however, did not respond to the charter argument, and the court relied upon it in deciding the case against Nixon.

The court was, however, under enormous “hydraulic pressure.” The Watergate scandal had reached the highest pitch of public emotion, and it was unthinkable to the public that the court would refuse to decide; the general outrage that there seemed to be no way to get the (expected) incriminating evidence from the White House, that the Watergate controversy was unresolvable, was more than the court could be expected to bear. So it was with the ongoing subversion of the presidential election in the seemingly endless demand for selective recounts in Florida. With a difference: when, jurisdiction or no jurisdiction, the tapes case went against Nixon, there was no suggestion by liberals, and little enough by anybody else, that the decision was illegitimate. Instead, there was general satisfaction. But when a decision that may be criticized goes against a Democrat, as this one did against Gore, there is widespread denunciation of the court as having behaved politically.

It is possible to be at once critical of the majority’s legal performance in Bush v. Gore and yet recognize that such performances are inevitable, or at least almost irresistible, when the pressure is high enough. Very few people today are critical of the court’s 1803 decision in Marbury v. Madison, though this first broad assertion of the power of judicial review came in a case over which the Supreme Court had no jurisdiction and which required the wilful misconstruction of a congressional statute in order to gin up a bogus constitutional issue. John Marshall was combating the centrifugal force of the Jeffersonians, who held the presidency and a congressional majority and who sought to weaken the national government so that the United States would once more resemble a confederacy rather than a unified nation. That may not be an adequate justification, but the case is now regarded as sacred writ.

Some of the fiercest attacks upon the Bush v. Gore majority came from within the court. Justice Stevens announced that the “loser” is “the nation’s confidence” in the judiciary “as an impartial guardian of the rule of law.” The judiciary, and in particular the court upon which Stevens sits, has not been an impartial guardian of, or even particularly interested in, the rule of law. Stevens is himself a leader of the most political wing of the court, regularly finding policies in the Constitution that are really only items on the liberal agenda for the nation.

Public comments on the case, some of them thoughtful, more of them intemperate, virtually all missed the point that there was a solid rationale for the decision even though only three Justices articulated it. Stuart Taylor, Jr., one of the more thoughtful commentators, said in National Journal on December 16 that

the U.S. and Florida Supreme Courts have done very little to make the law respectable. If this cloud has a silver lining, it comes as a reminder to a court-worshipping nation that judges are as fallible (and sometimes as political) as politicians.

Aside from the fact that the nation is very likely to go on worshipping courts, what, exactly, could the nation do if it got over its worshipping ways? The courts might modify their adventurism somewhat if public opinion turned decisively against them, but that is unlikely. Too many influential groups—law school and university faculties, print and electronic journalists, Hollywood, all of our faux intelligentsia— support and encourage the court’s political role because it usually results in the political results they like.

 

Taylor also holds out a hope that seems to me forlorn:

[F]orceful criticism of unstatesmanlike decisions such as this one—and of the Florida court’s hubristic, judicial imperialism—is a vital antidote to the tendency of judges of all political stripes to aggrandize their own power. Indeed, if judges cannot be persuaded to restrain themselves, they risk a dangerous and destabilizing popular backlash.

It is unclear what would be dangerous and destabilizing about a popular backlash against judges who undertake to rule without a warrant. The questions to be asked are whether the courts are not now themselves a dangerous and destabilizing force in our polity and whether a popular backlash could produce a result worse than the continuing displacement of popular self-government by judges. Indeed, it is not at all clear what a backlash could accomplish. We are hardly likely to deprive courts of their power of judicial review. Perhaps for that reason, repeated warnings of an effective backlash have never been borne out.

 

During the era of the Warren Court, the contempt for law and the desire to make major policy were so blatant that even the court’s supporters repeatedly warned that results reached with so little respect for craftsmanship and candor made the court vulnerable. We have learned that those failings, however egregious, have not lessened the power of the court to do want it wants. There is, unfortunately, no particular reason to believe that will change. Indeed, Earl Warren, the exemplar of lawless judges, is now celebrated as a great and humane jurist.

The New York Times reporter Linda Greenhouse, who has covered the court for years, cautions that the need for the court to explain its actions in terms the public can understand and accept “is arguably greater than ever when the court can be perceived as stepping over the fine but nonetheless still distinct line that separates law and politics.” “Beyond debate” she said, “is the fact that the court has now placed itself in the midst of a political thicket where it has always most doubted its institutional competence and where as a personal matter the justices have always appeared least comfortable.” That would be a remarkably obtuse observation for any observer of the court’s adventures. But it is a particularly astounding admonition coming from a woman who marched in pro-abortion demonstrations to the Supreme Court to support abortion and Roe v. Wade. She should have no illusions about the political thicket the court long ago entered, with her enthusiastic approval.

The most strident attacks on the court’s performance, however, came from Jeffrey Rosen of The New Republic and the lawyer-novelist Scott Turow. In an article with the title “Disgrace: The Supreme Court commits suicide,” Rosen wrote that the five justices in the majority have “made it impossible for citizens of the United States to sustain any kind of faith in the rule of law as something larger than the self-interested political preferences” of the five. “We’ve had,” Mr. Rosen informs us, “quite enough of judicial saviors.” He thinks “The appropriate response [to Bush v. Gore] is to appoint genuinely restrained judges, in the model of Ginsburg and Breyer, who will use their power cautiously, if at all, and will dismantle the federal judiciary’s imperious usurpation of American democracy.” That sentence produces intellectual whiplash. Ginsburg? Breyer? Those are two of the four activist liberal judges on the court. They regularly ignore the Constitution as those who wrote and ratified it understood its principles, substituting instead their own extremely liberal social and cultural preferences. Justice Ginsburg wrote U.S. v. Virginia et al., suddenly finding that after a century and a quarter of peaceful coexistence, the Fourteenth Amendment and the maintenance of the Virginia Military Institute as all-male were in irreconcilable conflict. Justice Breyer, as the junior member of the court, has been assigned few major opinions but has joined, with Justice Ginsburg, in cases such as VMI, Romer v. Evans—creating special voting rights for homosexuals—Stenberg v. Carhart—striking down a ban on partial birth abortions—and Santa Fe School District v. Doe—holding unconstitutional student elections permitting speech that might be used for prayer prior to high school football games. Sadly for Mr. Rosen’s panegyric to the judicial left, the only justices who in any way resemble, though in different degrees, a restrained judiciary are the very justices he denounces as lawless.

Turow wrote in The Washington Post that the court’s decision “to stay the hand count of undervote ballots was the most overtly politicized action by a court that I have seen in 22 years of practicing law. It was an act of judicial lawlessness that effectively terminated Gore’s chance to win the presidency.” The prize for sanctimony in the service of politics, however, must be awarded jointly to the 554 law professors whose full-page ad in The New York Times, paid for by the left-wing People for the American Way Foundation, declared that

By stopping the vote count in Florida, the U.S. Supreme Court used its power to act as political partisans, not judges of a court of law. . . . By taking power from the voters, the Supreme Court has tarnished its own legitimacy. As teachers whose lives have been dedicated to the rule of law, we protest.

The insufferable smugness of this statement is difficult to top. It is to be doubted, given the notorious politicization of the nation’s law schools, that there are anything close to five-hundred professors whose lives are dedicated to the rule of law. There are many times that number, including many who signed the ad, whose professional careers have been devoted to seeing that the rule of law does not hamper judicial advancement of the liberal agenda.

 

Even more extreme and shrill was Alan Dershowitz’s labelling the Florida Secretary of State Katherine Harris a “crook” aiding and abetting the Bush campaign. Character assassination is merely part of the ultra-liberal repertoire. More dangerous was Jesse Jackson’s and the congressional Black Caucus’s claims that Bush’s victory had been won by fraud, intimidation of black voters, a partisan Republican Supreme Court, and that racism infected the whole process. This added racial tension to an already emotionally charged controversy and could only intensify the damaging sense of perpetual victimization that such leaders rely upon for their continuing power.

Such hypocrisy did not, fortunately, go entirely unmasked. Fred Barbash, a Washington Post columnist, wrote,

The shock expressed by partisan critics, their portrayal of a once-pristine court now forever sullied, drips with irony. Liberals counted on, and exploited, ideologically predictable court voting patterns for decades.

Randy E. Barnett, a professor at Boston University School of Law, also put paid to the liberal commentators’ nonsense. Writing in The Wall Street Journal, he noted that

we are urged that conservative judges must exercise the restraint they say they believe in. It is a convenient argument indeed. A kind of intellectual jujitsu that tries to turn an opponent’s own thrusts against him. Activist judges are acting true to their principles when they escape the bounds of the law, while conservative justices are hypocrites if they abandon their principles of `estraint’ to bring wayward courts back to earth. Heads, activist justices win; tails, conservative justices lose.

 

The reaction and ferocity of the liberal assaults upon the court majority were stunning. Conservatives in the modern era have never mounted anything comparable. It is clear that liberals do not view conservatives as legitimate adversaries but rather as vermin—sexist, racist, hysterical about homosexuality—in short, primitives who are not entitled to govern, who win elections solely because large portions of the American public are equally corrupt. It follows that conservatism has no legitimate role in our politics or law, and, since civilization is at stake, any weapon may be used.

Liberal viciousness and mendacity in its current virulence may be traced to the election of Ronald Reagan in 1980. Since several prominent leftish Democratic senators went down to defeat along with Jimmy Carter, some of us made the mistake of thinking that the election represented a decisive shift in American culture. We could not have been more mistaken. That was the point at which the liberals became vicious, and their fury seems only to have intensified since. The Eighties was the time when the 1960s generation became active in national politics, and they brought their intransigence, intolerance, and irrationality (including a disregard for facts) with them from the campuses to politics and to a swarm of activist organizations. Hatred and intolerance migrated from the campuses to the national scene.

Republicans and conservatives (overlapping but by no means identical categories) behaved as the university faculties and administrations had before them: they went on the defensive and made concessions in futile attempts at appeasement. When they resist, they do so apologetically, rarely with the vigor and relentlessness necessary to meet the liberal attack. As Richard Brookhiser wittily if wistfully said of Republicans, “In their hearts they know they’re wrong.”

The attacks on Katherine Harris and others demonstrated that the politics of personal destruction, an invention of the Democratic Party, is alive and flourishing. I know something of that technique as do Clarence Thomas, Kenneth Starr, Henry Hyde and the House managers in the Clinton impeachment proceedings, and now John Ashcroft. It is by no means confined to politicians but is the common tactic of much of the media, of academics, and of the luminaries, so to speak, of the entertainment world. America is engaged in a religious war: a contest about culture and the proper ways to live. Judges, though this court-worshipping nation does not realize it, are combatants and extremely powerful ones. The activists, however, know what the public does not. Courts today are, more often than not, the heavy artillery of liberalism, engaged, for example, in creating and expanding a right to abortion, normalizing homosexuality, and driving religion from our public life.

It is not too surprising that the vast majority of Americans do not understand the role of courts or when they go astray. Constitutional law is like inside baseball: only those who play the game have any chance of real understanding. There is no point in bemoaning the fact that schools and colleges do not teach about constitutional law. Imagine trying to teach the intricacies of just one case, Bush v. Gore, explaining the comparative merits of basing the decision on the Fourteenth Amendment’s Equal Protection Clause or Article II of the Constitution and Section 5 of Title 3 of the U.S. Code. There is no hope whatever that many laymen can be taught to judge the performance of the court across the range of important constitutional issues. The vast majority of us are uninformed about this extremely, and increasingly, powerful branch of government. That ignorance, which seems incurable, does not bode well for American democracy. The American judiciary, both federal and state, has done more to shape our future than any outcome of the 2000 election could possibly have done. That is part of the case for restrained judges: they will leave to the people what belongs to the people, whether the people know it or not. Blankley’s warning about Gore’s tactics applies equally well to imperialistic courts: they stare us down, daring us to do something about their usurpations, weakening us morally for the next time, and there will always be a next time. The “next time” now comes several times a year in the Supreme Court. And, so long as the result pleases liberals, there is not even a ripple of backlash.

Viewing the win-at-any-cost temper of the Gore forces in Florida, I and others quoted Learned Hand’s familiar passage:

This much I think I do know—that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish.

True enough, but those words do not quite fit our situation today. Too often overlooked is Hand’s immediately following observation. Speaking of the temper of moderation and faith in the sacredness of the individual, he said:

If you ask me how such a temper and such a faith are bred and fostered, I cannot answer. They are the last flowers of civilization, delicate and easily overrun by the weeds of our sinful human nature; we may even now be witnessing their uprooting and disappearance until in the progress of the ages their seeds can once more find some friendly soil.

 

Hand was prescient in suggesting that even in his day America might be witnessing the suffocation of the last flowers of civilization by the weeds of our nature. What we see, then, is not courts powerless to enforce moderation but courts too often actively destroying that indispensable virtue. Bush v. Gore was a valiant effort, legitimate in law, to rein in runaway political passions and a lawless state court those passions had captured.

Robert Bork isRobert H. Bork (1927–2012) was an American jurist and legal scholar. 


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This article originally appeared in The New Criterion, Volume 19 March 2001, on page 4

Copyright © 2014 The New Criterion | www.newcriterion.com

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