OF ALL THE FALSEHOODS in the Florida Supreme Court’s unanimous decision in favor of Vice President Al Gore and his recount attorneys, the greatest is this: “We have consistently adhered to the principle that the will of the people is the paramount consideration. Our goal today remains the same as it was a quarter of a century ago, i.e., to reach the result that reflects the will of the voters, whatever that might be. This fundamental principle, and our traditional rules of statutory construction, guide our decision today.”
In fact, this court’s hallmark is a persistent pattern of overruling the will of the people of Florida. This has often taken the form of nullifying widely supported laws enacted by the legislature, most notoriously on capital punishment. In recent years, the Supreme Court of Florida has also turned its wrath against the voters themselves, invalidating laws passed under Florida’s provision for initiative and referendum — and even denying the state’s voters the right to vote on initiatives altogether. Last year, the court deep-sixed an anti-quota initiative similar to ones passed and implemented in California and Washington, for which Florida advocates had obtained far more signatures than legally required. The increasingly imperial court invalidated the measure in an unsigned unanimous opinion, rebuking its advocates for the “confusion” that would have been caused had Florida’s voters been allowed to decide for themselves.
Now, in the name of the voters, the very same court orders a Democratic-controlled hand recount, and praises a loose standard of counting that it misleadingly claims is used in Illinois. The campaign of George W. Bush has been correct in resisting the temptation to accept Team Gore’s honey-coated offer to bring Republican-leaning counties into the Democratic-dominated manual recount. For any such decision by Bush would have meant tacit acknowledgement not just of the legitimacy of the Gore campaign’s weeks-long search for new votes, but of the appointive Florida Supreme Court’s supremacy over laws enacted by elected state legislators, or administered by elected state executives with legal authority to implement the election laws.
To be consistent — and to give Bush the greatest chance to win the presidency, should the judge-sanctioned Gore-Lieberman vote hunt be successful by its 19th day this Sunday — Bush and his strategists need to stick to that stance. That means no requests for hand recounts in additional counties. It means continuation of the ground war for every vote in the Democratic-tilted hand recount. And it means firm refusal of the newest poison pill offered by the Florida Supreme Court and Team Gore: the prospect of a two-week “contest” under Florida law, presumably following a Supreme Court-mandated certification of the Gore electors on November 26 or 27.
It is predictable that not much good awaits a candidate who initiates a “contest.” Given the growing public dismay at what is happening, the losing candidate who challenges the result in court will see his negatives soar, which will hurt any chance of a reversal. The process itself, like the statewide manual recount the Bush forces wisely spurned, will resemble a vast, unappetizing scramble for both Republican and Democratic votes, with both sides looking venal and the eventual winner looking less like a victor than a successful scavenger. On top of that, if the losing candidate initiating the “contest” is Bush, he will be placing himself irretrievably at the mercy of the Florida Supreme Court.
It would also be a mistake, in the event Gore takes the lead by Sunday, for Bush to put too much hope in the federal courts. Bush and his lawyers may have a decent case that the selective recount, together with decisions by county election officials to change the standards for counting ballots in the middle of the recount, violate the doctrine of equal protection. But it is hard to imagine, in real time, a decision by a federal court to overturn a slate of Gore electors certified by a state. We know all too well how that is likely to go: Most GOP-appointed judges will vote as federalists, for the right of states to prevail on election law; Democratic-appointed judges will vote for Gore.
The right course for Bush, in the event Gore is awarded the lead on Sunday, is the one strongly hinted at late Tuesday by James Baker: intervention by the Republican-controlled Florida legislature to award the state’s electors to Bush on the basis of the 930-vote lead he had at the deadline specified by Florida law on Friday, November 17.
The manner and timing by which the Florida legislature certifies the Bush-Cheney electors is open to discussion, and should be publicly and privately discussed with all relevant parties, especially secretary of state Katherine Harris, whose insistence on following the law in the face of relentless vilification by the Clinton-Gore slander machine is worthy of high praise. But what is not in doubt is that the Florida legislature is the controlling legal authority in determining the disposition of Florida’s electors. The Constitution, in Article II, Section I, mentions no other institution, not even the governor, in its description of how members of the Electoral College shall be chosen: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”
Yes, a certification of Bush’s Florida electors achieved with the help of the Florida Legislature could be appealed by Al Gore to the federal courts, though probably with little chance of success. Yes, such a Bush victory in the legislature would be unwelcome to Jonathan Alter, Paul Begala, Alan Dershowitz, and other Clinton-Gore apologists. And, yes, millions of more innocent Gore backers would be left with an uneasy impression that, somehow, some way, their man was robbed.
But he won’t have been. Jim Baker’s decision to bring up the Florida legislature as his only example of a “remedy” to the injustice being done by the Florida Supreme Court was a key moment. It opens up the clearest Bush victory path in the event the pro-Gore recount achieves its aim. It was the most effective way for the Bush high command to signal a steely resolve to Republicans attempting to fight the Gore juggernaut in Dade County and elsewhere. It is also the most solid constitutional ground on which Bush should fight — not just for himself, but for the country.
The Bush campaign is right, both morally and legally, to identify the Florida Supreme Court’s decision as a willful encroachment on the roles of both the legislative and executive branches. Baker, echoed by Bush in his press conference the following day, homed in on the right issue. For the way in which Al Gore is trying to steal the election is exactly the way modern liberalism has tried to hijack the American people’s ability to govern itself.
For many years, economic conservatives (not to mention moderate Republicans) watched, often with indifference and sometimes with satisfaction, as judges at all levels overruled popular majorities on social issues like abortion and public prayer. As long as the judges stayed out of economic micromanagement, they thought, the country would do just fine.
But then came the rise of the elite trial lawyers. At first, they targeted outcast industries like asbestos. Then came the tobacco settlement, never achievable in Congress or any legislature, with hundreds of billions changing hands as a result of pure judicial power. Today trial lawyers as a profession are more politicized (and more Democratic) than public employees, and far richer. Does anyone think it an accident that David Boies, the brilliant trial lawyer masterminding Al Gore’s recount strategy, is the same man who has scored colossal break-throughs against America’s two strongest industry groups, computers and pharmaceuticals? Elite trial lawyers no longer find themselves restricted to dining on outcast industries.
Now they show every desire, and every ability, to ravage our political system as well. To his credit, George W. Bush is their most important target, because of his success at serious tort reform in Texas. If he winds up as president in spite of the best efforts of David Boies, Bush should compromise on almost anything before he compromises on reform of the legal system.
But shocking and alarming as their rise is, there is nothing inherently evil about trial lawyers. Their outsize role in economics and politics is merely a symptom, at that a lagging indicator, of the far deeper drive in modern liberalism toward judicial supremacy. The new Bush administration, or the Republican congressional opposition to Al Gore, if it comes to that, should remember the Florida Supreme Court. Either should remember what Bush said Wednesday, that “writing laws is the duty of the legislature, administering laws is the duty of the executive branch”; and that though the court “cloaked its ruling in legislative language,” it in fact rewrote the law. A Bush administration, or a Republican congressional opposition, could use this moment of judicial usurpation in November 2000 to lay the groundwork finally to mount a serious challenge to the doctrine and practice of judicial supremacy that in the past few decades has done so much damage to our Constitution.
