By a process intellectual historians will one day scratch their heads bloody over, articulate Americans — a good many of them, anyway — seem lately to have rejected the very possibility of honest argument about issues of great public moment. In the pages of our finest newspapers, for example, whenever national politics give rise to some especially divisive controversy, it is simply assumed, and assumed appropriate, that each party to the conflict will grunt and claw toward its desired goal by every available legal and rhetorical means. It is assumed that neither side’s asserted objections to the other’s designs can be intrinsically respectable. It is assumed, indeed, that the more vigorously such objections are advanced, the less respectable they likely are.
It is assumed, that is to say, that our debates are mere sport; that their results, especially if they carry a veneer of judicial sanction, are always more or less self-validating; and that any and all claims about what ought to be the results are self-defeating. Because the claimants are inevitably “partisans,” you see. And in the mouths of “partisans,” arguments about reality and principle are rarely much more than home-team cheerleading — which only a fool would ever take seriously.
So it is that the nation’s professional discourse-shapers watch Al Gore’s attempt to have himself declared president — as the legal complaint we quote above makes baldly obvious — by a local judge. By a local judge, and by a fifth tabulation of Florida’s popular vote, where four previous tabulations have proved unavailing. And by a fifth tabulation performed to specifications fashioned specially for the occasion, after the fact, so as to vindicate a “law” no one dreamed existed before Election Day. It has come to American journalism’s attention that some people are unusually hot and bothered about what’s going on here, and American journalism has dug deep to find out why. Turns out it is “conservatives” who are upset. Which means, of course, the “news analyses” explain, that the true origin of — and best explanation for — any current anger with the vice president is pre-existing partisanship and partisanship’s attendant mental illness. “Conservatives” want George W. Bush’s tax cut. “Conservatives” (who are “paranoid” verging on “insane,” in the medical judgment of the scrupulously nonpartisan New Republic) have transferred an irrational animus against Bill Clinton to Al Gore. “Conservatives” therefore disdain Gore’s post-election machinations in Florida. Enough said.
We dissent. We dissent from the view, implicit in all this, that “consider the source” might ever serve as a sufficient rejoinder in American political debate. We continue to believe, instead, that the justice of a man’s particular case has everything to do with what exactly he says and does about it — and almost nothing to do with who his regular dinner guests might be. Where Al Gore’s ongoing struggle for Florida’s 25 electoral votes is concerned, for example, we think it hardly worth mentioning that he is a “liberal” — whatever that means nowadays — and quite important, even dispositive, by contrast, whether Gore’s specific claims actually have merit.
We would not have thought there could be anything especially “conservative” about insisting on this question. And we cannot see how reference to this magazine’s conservatism — or anyone else’s — might by itself be enough to disprove or neutralize our conclusion: that Gore’s weeks-long effort to reverse the apparent result of a national election has been characterized, start to finish, by extraordinary distortions of rhetoric and law. And that by his willingness to bulldoze through central institutions and processes of American government this way, Gore has revealed himself to be an altogether unpresidential prospective president.
Our bases for such a conclusion are hardly obscure. In the middle of the night November 8, just hours after the polls closed on Election Day, two horns honked loudest in Nashville. There was that truculent insistence that Gore had won the nationwide popular vote, carrying with it the vague and anti-constitutional suggestion that a Bush presidency would be offensive to democracy. And, of far greater practical consequence, there was that startlingly confident allegation that Gore had had an Electoral College majority stolen from him — by means of an “illegal” ballot design in Palm Beach County that nullified thousands of otherwise victory-clinching Democratic votes.
We want to be clear about something here: Had this charge been true, THE WEEKLY STANDARD would have been as troubled as anyone about its implications, and we would undoubtedly be publishing a very different editorial this week. The fact remains, however, that Gore’s aides could not have known the charge to be true when they made it. And their many supporters in the petition-signing and talk-show-hollering communities could not have known the charge to be true when they obediently echoed it. And that group of Palm Beach plaintiffs could not have known the charge to be true when they just-as-obediently transformed it into a series of state-court lawsuits demanding a second chance to put Al Gore in the White House — through a patently unconstitutional, extra-innings local “re-vote” of the presidential ballot. (Or, as they would later bizarrely propose in legal filings few reporters have bothered to examine, through a judge-ordered mathematical “reapportionment” to Gore of “at least 7,000” Palm Beach votes, a number that has been established correct to a “near absolute scientific certainty” by “some of the most respected statisticians in the county [sic].”)
These people could not have known their charge about the Palm Beach “butterfly ballot” to be true . . . because it was false. The ballot was legal, and no one any longer much bothers to pretend otherwise. But in those key first few days, the objective truth or falsity of the “butterfly” complaint was not the point, and its intended political effect was realized regardless: The widespread impression obtained that the initial result of Florida’s decisive popular vote was not just painfully close, but quite possibly tainted by wrongdoing. Which hint of taint then helped rationalize, as common-sense prudence and equity, what would otherwise have appeared ludicrously incautious and unequitable: a Gore-campaign-instigated and standardless “recount” of invalid or incomplete Election Day ballots — conducted by Democratic election officials in four heavily Democratic Florida counties.
As the world now knows, Florida law broadly authorizes a post-election “protest” period during which candidates may request, and local canvassing boards may decide to perform, such recounts. The boards may amend their original returns as a result of those recounts, and they are entitled to have the amendments counted — provided the retabulations are delivered to Florida’s secretary of state within seven days of the election. On November 14, that deadline arrived, with recounts in three of Gore’s chosen counties still underway, and with Bush still maintaining a nearly 1,000-vote statewide lead. So Gore’s attorneys brought suit to have the deadline “interpreted” by the Florida Supreme Court. Having authorized post-election manual recounts, David Boies informed the justices, the state legislature could not have meant a seven-day deadline for their completion to be hard and fast. For “full manual recounts could almost never be completed timely in Florida’s larger counties.” It “can’t be done in a week,” agreed state attorney general Bob Butterworth, Florida chairman of the Gore campaign.
As the world now knows, too, the Florida Supreme Court bought this argument on November 21 and, abjuring what it called “hypertechnical reliance upon statutory provisions” enacted by the legislature, invalidated the seven-day recount deadline and extended it to nineteen days, through November 26. This ruling raised an impressive host of complications where the U.S. Constitution and federal statutes are concerned. Among other things, Article II of the Constitution vests exclusive authority to determine the means by which a state’s presidential electors will be selected with each state’s legislature, not with its courts. Which would plainly suggest that Florida’s legislature was entitled to establish a seven-day deadline for post-election recounts — and that Florida’s supreme court was not entitled to extend that deadline almost three-fold.
Last week’s big news was George W. Bush’s challenge of this Tallahassee judicial edict before the U.S. Supreme Court. We have no idea how the high court will untangle the unprecedented mess it now confronts — or even whether it will try to. Meantime, though, we would call your attention to a little detail that’s been almost lost in all the jurisprudential hubbub.
On the same day the Florida Supreme Court agreed with David Boies and decided that no large county in that state could finish a full presidential vote recount in seven days, one large Florida county, Broward County, had all but finished its full presidential vote recount — in six days. And on the same day last week that another Al Gore advocate, Harvard professor Laurence Tribe, was defending this thinly rationalized Florida Supreme Court ruling, as proper and necessary, to the federal Supreme Court in Washington, David Boies was . . .
Well, David Boies was back in Tallahassee, demanding that the Leon County Circuit Court ignore the decision Tribe called final and binding. On November 26, you see, Gore still trailed Bush by several hundred Florida popular votes. So the November 26 deadline, too, must fall, apparently. Nineteen days isn’t enough. And how many more days will be enough? Oh, we can do it all in “seven days, starting tomorrow,” promises the vice president himself. Seven more days: that is, the same amount of time that was supposed to be insufficient in the first place.
We think it a positive travesty that Al Gore would be eager to accede to the American presidency this way: by dint of so much dishonesty and self-contradiction, and as a consequence of so many manipulations of established law and governmental procedure. And if it is now the case that one must be “conservative” to share our alarm, that is a shame.
David Tell, for the Editors
