Justice Kennedy's vote
11/30/2000 12:00:00 AM - Robert Novak
WASHINGTON -- "We're screwed," bemoaned one of Al Gore's political lieutenants when he learned last week that the U.S. Supreme Court had accepted the Florida recount case (though he used stronger language than that). The prospects for counting Vice President Gore into the White House dropped precipitously. The last Democratic hope now may rest on very tenuous grounds: Justice Anthony Kennedy once again betraying conservatives.
Gore's lawyers never expected the Supreme Court to enter the case. Since it did, they have doggedly pursued election contests in a Tallahassee courtroom and publicly expressed confidence in the Supreme Court's ultimate decision. Privately, however, Gore's politicians doubt that the court would accept George W. Bush's appeal only to rule against him in behalf of the Florida Supreme Court.
What's more, they know that if the U.S. court overrules the Florida court, Gov. Bush's 950-vote lead in Florida as of Nov. 14 would be frozen as final. The Broward County recount's gain of 567 votes for Gore would be wiped away. Democratic contests in three other counties would become moot, if the court rules out the manual recounts. So would other myriad judicial proceedings. "It would be over," one Gore official told me, asking that his name not be used.
Enter Anthony Kennedy. As President Ronald Reagan's last nomination to the Supreme Court, he substituted for the rejected Robert Bork but was thought by many backers to be even more conservative. Not a chance. In 1992, he broke hearts when he flipped his position on abortion, from voting in conference to overturn Roe v. Wade to a final vote upholding it in a 5-to-4 decision. As the court's swing man, he swung leftward on school prayer, term limits, gay rights and flag burning.
As I reported in 1992, Kennedy's astounding flip on abortion was widely attributed to the influence on him by constitutional scholar Laurence H. Tribe. The supposedly conservative jurist and the liberal Harvard law professor became friends, and Tribe talked Kennedy into hiring a former student as his law clerk. Now, not surprisingly, Tribe is a prominent soldier in the army of lawyers trying to win the presidency for Gore.
Nevertheless, experienced conservative court-watchers are confident that Kennedy will swing right this time. A lifelong Republican, his record has been more conservative over the past year -- most notably dissenting as the court voted 5-to-4 to rule that a Nebraska statute outlawing partial-birth abortions was unconstitutional. Moreover, nobody with a vestige of conservative legal values would find it easy to support the Florida Supreme Court's order barring Secretary of State Katherine Harris from certifying the Bush vote.
That was not comprehended by David Boies, the famous trial lawyer heading Gore's legal team, when he advised Gore that the Supreme Court would not take the case. Bush found at least four justices who believe sufficiently in judicial restraint that they place rules over the activist Florida Supreme Court's quest for "justice." A majority of the Supreme Court, including Kennedy, figure to follow the federal statute requiring that voting regulations be set before the election. Some court-watchers suspect that even apostate Republican Justices John Paul Stevens and David Souter could decide to overturn.
This is difficult to understand for Boies, who predicts the Supreme Court will back the Florida court just as confidently as he forecast that it would not take the case. However, while the politicians around Gore may not appreciate judicial restraint, they have dreaded that their challenge of Bush will encounter a hostile atmosphere in the high court.
A presidential candidate personally attacking an individual Supreme Court justice is without precedent, but all year long Gore has battered Justices Antonin Scalia and Clarence Thomas. He assailed their dissents on partial-birth abortion as "very bitter in tone and divisive in nature" and charged that more justices like them "would put certain rights in jeopardy."
Realists in the Gore campaign expect the worst from Scalia and Thomas. But they are praying that once again, Anthony Kennedy will save the liberal cause. This time they may be mistaken. If they are, the long count of 2000 will be over.