While thousands of legal votes in Florida went untallied, only
five votes counted in the end: those of the conservative wing of
the U.S. Supreme Court, which declared George W. Bush the new president.
Rarely has the Supreme Court ever issued such an incompetently argued
and plainly political decision, one that blithely ignored the Constitution,
Florida law, and the very principles of deference to state autonomy
that the far-right justices have fearlessly defended in their years
on the bench.
Although the Supreme Court's failure to follow the laws doomed
Al Gore's chances, the vice president bears the ultimate responsibility
for a failed campaign both before and after November 7. Gore lost
in the courts for the same reasons he failed to win a majority of
the votes on Election Day: Gore's campaign was more concerned about
public relations than making serious arguments needed to gain the
support for victory.
Just as Gore lost the confidence of voters by moving to the center,
blindly following the polls and failing to stand with integrity
on key political issues, so too did the Gore campaign lose the legal
challenge because of its desire to pander to the media.
The first mistake was the Gore campaign's obsession with the protest
phase rather than the more winnable contest phase, where the broad
provisions of Florida law permit the courts to create any remedy
deemed necessary. But the Gore lawyers pushed the Florida Supreme
Court to extend the protest phase deadline, and lost several days
that proved crucial in the end.
The second major mistake was sending David Boies, an antitrust
lawyer with little experience before the Supreme Court, to argue
Gore's case. Boies may have been successful as the face of the Gore
campaign in the court of public opinion, but he failed miserably
before the highest court. The views of the swing justices were not
completely unpredictable. The fact that Justice Antonin Scalia had
cited the equal protection argument prominently in his concurrence
should have been a hint, and the Gore lawyers must have realized
the need to sway Anthony Kennedy or Sandra Day O'Connor. Yet the
Gore brief was nothing more than a rehashing of the same old arguments
that had already proven so ineffective.
Boies could have proposed a resolution for the concerns about the
equal protection clause. Instead, Boies actually seemed to strengthen
the Bush team's argument that hand recounts were an arbitrary and
unfair system demanding judicial intervention. The worst moment
in the oral arguments came when Boies, apparently suffering from
a bout of temporary insanity, confessed that the vote-counting standards
in Florida varied not only from county to county, but "can vary
from individual to individual." Ironically, despite all of the conservative
complaints about the Florida courts illegally "inventing" new law,
in the end the Supremes attacked the judges only for failing to
invent enough new law: If the Florida Supreme Court had imposed
a specific uniform standard for chad counting, the decision might
have gone the other way--or at the very least, the U.S. Supreme
Court majority would have been forced to come up with a different
excuse to begin the Bush presidency. Boies also failed to make the
key point before the court that December 12 was not a compelling
legal deadline (he even endorsed the "safe harbor" deadline at one
point). The invention of this date as the final deadline was the
majority's worst mistake, and proved to be the ultimate undoing
of the Gore candidacy.
Chief Justice William Rehnquist's argument about "deadline" looked
more like a transcript of a call to a psychic hotline than statutory
construction: "Surely when the Florida Legislature empowered the
courts of the State to grant 'appropriate' relief, it must have
meant relief that would have become final by the cut-off date."
But Rehnquist did not explain how he intuited why the Florida Legislature
would demand to meet this deadline that is unmentioned in state
law, even when it would mean breaking the specific state laws requiring
a contest phase remedy.
Gore's final error was failing to fight this ruling. After all,
the majority noted that "a desire for speed is not a general excuse
for ignoring equal protection guarantees," and then falsely used
lack of time as the excuse to ignore these guarantees in Florida.
Instead of conceding, if Gore had convinced the Florida Supreme
Court to clarify that December 12 was not the deadline, then O'Connor
and Kennedy--who claimed to rely upon the Florida ruling--would
have been forced to allow the counting.
Boies' incompetence doesn't excuse the willingness of the Supreme
Court to ignore the law and precedent in its pursuit of a political
victory. And the justices desired a Bush victory so deeply that
almost anything Boies said wouldn't have mattered in the end.
The Supreme Court waded into the Florida swamp and created a constitutional
crisis, when the truth instead might have been discovered, and the
law upheld. In a cruel irony, the conservative justices who have
been indifferent to the cause of equality actually had the gall
to cite cases where the court overturned racist rulings of state
courts as a reason not to count these Florida undervotes, which
were disproportionately cast by minorities and the poor due to outmoded
punchcard voting machines that had an error rate five times that
of optical scan machines.
Why did these five Republican-appointed justices work so hard to
ignore the law and ensure that Bush would become president? It's
impossible to ignore the partisan and ideological biases involved.
While the Florida Supreme Court would not be affected by the election
outcome, the U.S. Supreme Court justices certainly will be. Scalia
is hoping to replace Rehnquist as chief justice. The conservatives
on the court want Bush appointees who will give them a working majority.
Justice John Paul Stevens became unusually personal in his dissent
when he seemed to hint at the court's bias: "Although we may never
know with complete certainty the identity of the winner of this
year's presidential election, the identity of the loser is perfectly
clear. It is the nation's confidence in the judge as an impartial
guardian of the rule of law." Unfortunately when the guardians in
the Supreme Court choose not to obey the rule of law, there is no
one to guard them.
John K. Wilson (firstname.lastname@example.org)
is the author of How the Left Can Win Arguments and Influence
People: A Tactical Manual for Pragmatic Progressives (NYU Press).