Message 14914497
Gore's last, desperate chance
November 30, 2000
BY ROBERT NOVAK SUN-TIMES COLUMNIST
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, 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. 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, Kennedy will save the liberal cause. This time they may be
mistaken. If they are, the long count of 2000 will be over. |
