Constitutional Opinions
Rabkin, Jeremy
CONSTITUTIONAL OPINIONS by Jeremy Rabkin The Right Call In Bush v. Gore, the high court did what it had to do. After all the lawyers and all the chads, most Americans just wanted to get away...
...So let's start from a distance...
...In a society where per-sonal rights trump all and the pursuit of self-interest is thought to be a natural right, the place you go to defend your rights becomes supremely important...
...Nine justices signed on to an earlier rul-ing seeking clarification on this point- and thus, implicitly acknowledging that the approach of the Florida court was highly questionable...
...No method is adopted...
...say, Australia...
...Supreme Court-all threatening to carry the election deadlock to the eve of Inau-guration Day and perhaps beyond...
...Even if the Court does suffer some loss of prestige in the short-term, that is not a strong argument against what the Court did...
...So we trust the locals- -but not very much...
...Even-tually, even law professors may acknowl-edge the point...
...The warning that the Court has inflicted great harm on its prestige is far-fetched...
...It is conservatives who resist endless appeals of capital sen-tences in the name of finality...
...Even now, proposals for federal reform legislation focus on grants to states to improve local voting procedures, not on setting up a new federal inspectorate...
...they would sometimes just give him orig-inal documents from the files and figure he could make better use of them than they would...
...This time the most popular complaint from the legal academics and their media mouthpieces, like Linda Greenhouse of the New York Times, was that conservative justices in Bush v. Gore had acted on sheer partisan preference, because their ruling went contrary to their usual ideo-logical leanings...
...It is hardly surprising that judges who resist racial preferences generally would reject this sort of argument...
...no documents are gathered, even if it would be easy to do it...
...Tocqueville noticed that one, too, of course...
...And it shouldn't be surprising that when the Florida Supreme Court got things tangled up, the matter found its way to the U.S...
...The country already seems to have done so...
...50 February 2001...
...Acting as they did, the five conserva-tives ended the matter within 24 hours...
...The argument is silly...
...It shouldn't be surprising, then, that so many election contests wind up in the courts...
...Can you imagine our govern-ment trying to require everyone to vote...
...Tocqueville would probably have felt right at home with some of those Flori-da canvassing boards...
...no collection is composed...
...This time, it happened to be a Democratic presiNo case will test whether Bush should really retain the keys to the White House for the next four years...
...They were so casual about their offices, he report-ed, that when he asked for information, JEREMY RABKIN is a professor of govern-ment at Cornell University...
...First, they wouldn't have had all those inexpe-rienced voters messing up their ballots...
...Crikey...
...Controversial rulings on sub-jects like abortion or religion remain controversial because they are on-going, repeatedly challenged and tested in new rounds of litigation on similar policies...
...At the 1998 conference of the Association of American Law Schools, relates Neal Devins in the Pennsylvania Law Review, when one speaker was introduced as a former clerk to Judge Kenneth Starr the audience booed at the mere mention of Starr's name...
...S even justices did agree that the Florida Supreme Court's plan for a totally standardless recount was in violation of the Equal Protection clause...
...Don't complain and don't explain, and someday, son you could be president...
...So we fall back on the courts...
...One had to believe that it was better to risk two competing slates of Florida electors, a messy challenge from the state legislature, a divided response from a divided Congress, a new certification of Bush electors by Florida Governor Jeb Bush, with new rounds of appeal to the Florida Supreme Court and the U.S...
...But that's no surprise: A1998 sur-vey found that only ten percent of law professors describe themselves as "con-servative in some degree" and 8o per-cent are registered Democrats...
...We are told that the Court must husband its credibility and prestige by staying out of the "political thicket...
...The Gore claim was that voters who didn't follow the rules in punching out their chads might still have had a discernible intention to vote for Gore...
...In the Florida recount, after all, the Gore forces were urging something quite analagous to affirmative action...
...Sure, the media rounded up a slew of law professors to express their disap-proval...
...But there are good reasons to dismiss their teeth-gnashing in this case...
...With any luck, the Supreme Court won't be called on to settle a presidential election until gen-erations of new justices have come and gone from the Court...
...The American Spectator For ideological explanation, there's more than enough in the conservative preference for finality...
...But to rest the ulti-mate decision on this ground would have required the Court to slap the Florida Supreme Court in the face...
...Supreme Court...
...As long ago as the 183o' s, Tocqueville marveled at the "extreme administrative instability" in American practice...
...The cleanest argument in this case was that the Florida Supreme Court, by rewrit-ing the recount deadlines, had violated the federal constitutional rule according to which presidential electors are to be chosen as the state legislature determines...
...To take the Breyer and Souter claim seriously, one had to believe that what the Florida Supreme Court hadn't been able to achieve in the previous five weeks, it would actually accomplish in the next five days-before the December 18 meet-ing of the electors, established by federal law...
...Even if you think the justices should let themselves be swayed by such institu-tional concerns, you have to wonder what it is they are saving their prestige for- if not to deploy it in a case like this, where they were able to save the country from what might have been a very nasty and protracted constitutional stand-off...
...The American Spectator o February 2001 51...
...Indeed, the Gore team kept reminding us that voters who had problems following the rules were disproportionately minority voters, so it was extremely important to re-eval-uate their votes in light of what the vote might have been-especially given the history of voting discrimination against blacks...
...In Australia everyone is required to vote, so they know how...
...Conservative justices have been quite prepared to invoke the Equal Protection clause against states in some areas-for exam-ple, in rulings against racial preference measures...
...Two others (O'Connor and Kennedy) contented themselves with the observation that there was no longer time for Florida to orga-nize a new recount on acceptable grounds, while another two (Souter and Breyer) urged that the Court give Florida one more chance...
...He was talking about local administrators...
...This time, it's Democrats who protest the Court's arrogance and overreaching...
...Supreme Court that much...
...CONSTITUTIONAL OPINIONS by Jeremy Rabkin The Right Call In Bush v. Gore, the high court did what it had to do...
...We have trouble enough iust getting peo-ple to pay taxes...
...The Florida fiasco couldn't happen in Oz, one of my mates there told me...
...Did conservative justices real-ly have no reason to object to wildly divergent recount procedures in different Florida counties...
...dential candidate rather than a convict-ed murderer who got cut off...
...Only three justices (Rehnquist, Scalia, Thomas) were prepared to take this step...
...If you are looking for ideological expla-nations, you can find more than enough in the conservative preference for final-ity in legal process...
...In this setting, it made sense to conclude (as five justices did) that the recounts should be ended, because there was no time left for a proper recount...
...While we don't trust federal com-missions, then, we don't really trust local administrators, either...
...As A1 Gore liked to say, "This is America...
...For disputes there is a specialized Commonwealth (i.e., federal) agency to settle the matter...
...Supreme Court should decline to inter-vene at all in the Florida recount...
...presidential elections generally don't only because they are rarely so close...
...Only two justices (Stevens and Ginsburg) thought the U.S...
...In the end, we don't even trust the U.S...
...No one worries about what has been done before him...
...After all the lawyers and all the chads, most Americans just wanted to get away from it...
...Conservatives, they say, usually defer to the states and generally don't put much weight on the Equal Pro-tection clause...
...Everyone trusts that agency to behave with impartiality and competence...
...And does anybody think a federal election inspectorate would have been trusted to reach a fair result in the Florida recount-with so much at stake and Bill Clinton still in the White House...
Vol. 34 • February 2001 • No. 1
