John Leo
The election that wouldn't end finally concluded with a memorable image: confused TV reporters standing in the dark, fumbling for meaning in a strange, six-opinion U.S. Supreme Court decision that nobody could quite figure out. Embarrassed for themselves, and perhaps for the court as well, the reporters couldn't even decide on the spot whether the justices were saying that the election was really over.

The country needed clarity and a decision that couldn't be dismissed as narrow or partisan. What we got was a jumble of impenetrable prose, tortured thinking and the usual 5-4 conservative-liberal split on the key issue. Even for Bush supporters, it was a dispiriting end to a sad campaign.

"This baby is going to the U.S. Supreme Court," former senator Alan Simpson said on Nov. 13. That was an alarming prediction for those of us who think the judiciary is well into its imperial phase. Better for the Supreme Court to restrain itself, think hard about the separation of powers, and refuse to decide the presidential race. But the turmoil reached a point where the worst-case scenario came true: a president picked by a court that seemed to be voting its preferences along party lines.

In defense of the court, it was provoked into a rushed decision by the unexpected 4-3 decision of the Florida Supreme Court. That decision, in the opinion of many analysts, including the Florida court's own chief justice, remade state election law after the fact and virtually begged the U.S. Supreme Court to overrule it. The decision allowed a recount that clearly would have been unfair to voters, particularly Bush voters. Some standards changed from place to place and week to week.

Mickey Kaus, on his kausfiles Web site, pointed out that the Florida decision allowed shifting standards for judging ballots even within a single county. In Miami-Dade, early counting in mostly pro-Gore districts used a permissive standard under Democratic auspices, but the rest of the ballots, including those from neighborhoods favorable to Bush, were trucked to Tallahassee and readied for counting under a different standard.


John Leo

John Leo is editor of MindingTheCampus.com and a former contributing editor at U.S. News and World Report.

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