Rule by courts

Posted: Dec 14, 2000 12:00 AM
The New York Times and the Washington Post fretted audibly on their front pages Monday morning, worrying that the Supreme Court was "risking its legal credibility" by deciding Bush v. Gore. The Post took a poke at Justice Antonin Scalia, wondering about how the tribune of state's rights was going to justify a federal override of the Florida Supreme Court. This is rich -- on many levels. In the first place, far from urging courts to remain aloof from political squabbles in the past, liberals have invited and welcomed judicial intervention and usurpation. Name any of the newly-minted rights -- the right to purchase contraceptives, the right to abortion, the right to die -- and what they amount to are judicial power plays. These vexing questions rightly belong to state legislatures where they can be debated, regulated, and altered as the electorate sees fit. But liberals have been discontented with ordinary politics because, at least for the past 30 years or so, they have cared more about outcomes than procedures. If the court could get universal abortion for them by finding a "right" in the Constitution -- great. It's so much trouble to try to convince millions of people who may have annoying religious convictions to legalize abortion -- far easier to persuade just a few individuals in robes. But one needn't travel back 27 years to find liberal enthusiasm for judicial lawmaking. The New York Times, for one, was cheering it just three days ago. When the Florida Supreme Court, by 4-3, chose to rewrite the Florida election law for the second time to give Gore what children call "a do-over" (actually a second do-over), the New York Times smiled editorially, saying, "By acting boldly, the court also acted wisely." What has been most distressing, even to many Democrats, about Gore's behavior in the post-election season is the intrusion of Clintonite tactics of spin-and-win into the solemn and, heretofore, unassailable process of voting. Richard Nixon knew that the 1960 election had been stolen from him, but he chose to bow out gracefully for the sake of stability. By sending in teams of lawyers to "discover" the intentions of voters too incompetent to put a pin through a hole, Gore will, if he prevails, remove the expectation of certainty that elections until now afforded. The damage he is doing is potentially immense, as there is every reason to expect that this year's squeaker election may well be replicated. The nation is evenly divided. Not just votes for the presidency, but also the House and Senate are split down the middle. If deadlines can be overcome by the loser who has a strong interest in trolling for votes among the detritus of incompetently punched ballots, no election will ever be final. But as much as contesting the election when there is no reasonable basis for doing so (no machine malfunction, no fraud, no hurricane) is unseemly, the manner of Gore's challenge has been much worse. Anyone who happened to stand in Gore's way was maligned and vilified personally. There have been baseless suggestions from Gore's team that Katherine Harris was corrupt, that Judge Sauls was not honored among his colleagues, and perhaps most absurd of all, that Justice Antonin Scalia should recuse himself because his son practices law at the same firm as Theodore Olson, Bush's advocate before the U.S. Supreme Court. James Baker offered a statement to the press following the Florida Supreme Court's second piece of election law writing. One of the reporters present asked whether Baker thought the Florida court was politically motivated. Baker replied, "I've criticized the decision here, and I've tried to do so in temperate terms on the basis of the law, because I think it can be criticized on the basis of the law. I do not suggest that it is politically based, and I do not criticize it on political grounds. I think it is very vulnerable on legal grounds ... " What a concept! To treat the other side with respect, to disagree without assigning motives or attacking the opponent's integrity, didn't that used to be called civility?