Cracked judicial pillar

Posted: Dec 12, 2000 12:00 AM
WASHINGTON -- It was bad enough that the brief celebration by Al Gore's camp was unexpectedly spoiled Saturday when the long-sought manual vote count was halted after a few hours. Even worse, it was stopped by the driving force of liberal activism for the past half-century: the federal judiciary. The U.S. Supreme Court's order was drenched in irony. The court that so often has been the engine of judicial activism decided, 5 to 4, to move sharply against a blatantly activist foray into election politics. Journalists who had shrugged over the Florida Supreme Court playing the political game now were outraged because it had been slapped down. Democratic politicians who scolded critics of the Florida court condemned activism by the U.S. court. The two great pillars of liberalism in America have been the judiciary and the news media, transcending the needs to pass legislation and win public support. These pillars have been integral to plans for winning the presidency in 2000 by the familiar Democratic technique of multiple recounting and exclusion of votes until the outcome is satisfactory -- all made possible by cooperative judges and journalists. But the judicial pillar now seems cracked. Certainly not the Florida Supreme Court, typical of the results-oriented liberal court in persistently defying a conservative legislature. It would have the final word in the Florida voting dispute, Gore strategists made clear. They were betting that the U.S. Supreme Court, lacking a clear ideological majority, would not interfere. They were wrong. On this issue, there was a 5 to 4 majority to curb the activist Floridians. But Chief Justice William Rehnquist managed a unanimous 9 to 0 vote to give the state court a chance to retreat. That kept Gore's hopes alive. Three Florida justices did not get the message. Determined to legislate from the bench, Justices Harry Lee Anstead, Barbara Pariente and Peggy Quince contrived the narrowest reading of the high court's position in order to support Gore's vote-counting scheme. But they needed a fourth judge. Justice Fred Lewis balked at ordering a recount of only three heavily Democratic counties designated by the Gore campaign. He went along, however, when the other three agreed to extend the recount statewide, however unworkable their scheme. The Florida court's majority opinion issued last Friday is a classic exercise of judicial activism. It claimed "broad authority" to resolve this election dispute and asserted its right to be guided by the "will of the voters." A dissenting Chief Justice Charles Wells warned his colleagues that they could cause the state's election results "to be stricken by the federal courts or Congress." He had correctly read the Supreme Court's message. In contrast, Gore's strategists were convinced that once recounting started, there was no way to end it until creative interpretations achieved victory for the vice president. That may explain the rage on the left when the Supreme Court's slim majority did halt the process. With no sense of hypocrisy, liberals now condemned judicial activism. That is true of 80-year-old Justice John Paul Stevens, the Court's most liberal member and reigning high priest of judicial activism. His dissent from Saturday's order, in all seriousness, accuses his conservative colleagues of departing from "venerable rules of judicial restraint that have guided the Court throughout its history." He was joined by the Court's three other most fervent activists (a coalition of two Democrats and two apostate Republicans). "Don't engage in attack politics against the judicial branch of our great democracy," admonished House Democratic Leader Richard Gephardt just minutes before he was bowled over by Saturday's opinion. Gephardt had the good grace not to join the court-bashers, but not the top Democrat on the Senate Judiciary Committee, Sen. Patrick Leahy. On Friday, he was condemning court critics in general after the Florida Supreme Court decision. On Saturday, an angry Leahy attacked the Supreme Court as losing its "credibility" and "moral posture." Leahy advised it was the first time he had criticized the high court, and it may have been the first time it had betrayed his rigid liberalism on a major issue. Television commentators mourned Saturday as if a way of life was lost. How could the justices do this? What's worse, there is no sign that the Supremes will backtrack this week when they must decide the Florida case on its merits.