Boy, you people sure have a tough time being civil and not descending into partisan name calling.
Today's recap:
1. Rehnquist -- clearly asked narrow questions and showed very little conspicuous bias, though he will likely vote to reverse unless he joins a majority to punt this back to Florida (like last time). I thought his questions at the end of Boies' argument reveal his likely approach -- even if the FSC got it right, there is no way we can do what they ordered without depriving Bush of due process in appealing any adverse decision made by the Circuit Court on the recount/remand in time for the 12/18 electoral college meeting. On the other hand, he may conclude that THAT issue is ultimately one for Congress to decide when they tabulate the votes of the electors in January. Given his history of getting the result he wants in an indirect fashion, he may well join a decision which, on its surface, favors Gore (and the idea of the recount) but which, in practical terms, will ensure that Florida's courts cannot certify a victory for Gore prior to 12/18 (the real deadline here) which will induce the GOP-controlled legislature to act (unconstituionally, I would submit) to pick a slate of Bush electors under a procedure not in place prior to the election (and in complete disregard of the voters) and thus throws this, at worst, to Congress (where Bush has a partisan advantage).
3. Stevens - Though he expressed concerns about the issue of a "uniform standard", he expressed even greater concerns about substituting a Federal Court's judgment for that of the State Supreme Court on an issue of state election law and what it means. I see him as a solid vote for affirming the FSC, though he too may join a majority to punt this back.
3. O'Connor - On the fence. Would prefer to punt this back to Florida and hope Congress ends up being the final arbiter when two slates of electors are voted from Florida. I read her as a vote for Bush, but too close to call.
4. Scalia - Clearly will vote to reverse. I thought his questions were intellectually dishonest, such as the issue regarding whether the FSC ordering a change to the certification had anything to do with the USSC's earlier ruling in the Harris case -- which Boies answered perfectly (it has nothing to do with the earlier case, Judge, because in a "contest" what you are doing is contesting the certification, and any relief would necessarily involve ordering the certification to be changed). And I think Scalia is a man who would pursue a tortured and obscure reading of the constitutional provisions of Article II to justify why the Court can't render a fair and common sense decision even though it would like to, and in doing so, he will have no qualms compromising his own historical views of federal judicial restraint -- all in order to achieve a desired outcome. Ugh.
5. Kennedy - Clearly on the fence. Frankly, he seemed more sympathetic to the Gore position than I expected him to be. I do think he was impressed with many of Boies' answers, but remains very critical of the Gore position regarding so-called "judicial legislation". It remains to be seen what he will do. I think he too could well form part of a majority that chooses to somehow sidestep the issue and punt it back to the FSC (in a way that benefits Bush).
6. Souter - While troubled about the uniform standards issue, and the equal protection issues it raises, he seems very deferential to the State Supreme Court in deciding issues regarding its own election laws, even in the context of a presidential election, and is clearly less troubled than Kennedy about the fact that the Florida legislature did not enunciate a specific standard to apply in a hand count of punch ballots other than the general "standard" enunciated in the Florida statute (intent of the voters - and not rejecting any legally cast ballots) and the notion of working with that standard, imperfect though it may be, since it is what the Legislature provided in the statute. I think he will vote to affirm. BTW - anybody who describes Souter as a "liberal" is smoking something. He is not an ideologue -- he is perhaps the least ideological of the 9 justices -- and is not swayed by ideological appeals. In the view of many ideological conservatives, that makes him a liberal -- which tells you more about how shallow ideological conservatism has become, rather than telling us anything about Souter's approach to judicial reasoning, which is quite conservative when judged by my considerably more progressive standards of judicial reasoning.
7. Thomas - An utter waste. Did not ask even a single question from the bench here, nor did he do so in the Harris case. 3 1/2 hours of oral argument in the most important case to hit the Supremes in decades, and he could not come up with ONE question. A total lightweight. This man is George Bush Sr.'s ultimate gift to the American people, which was an act of cynicism unparalleled in American Supreme Court appointment history (Thomas was the MOST qualified man at the time?? Gimme a break . . . . ), and can be assumed as a Bush vote if for no other reason than the identity of the person who gave him a lifetime appointment, and the political affiliation of those who would have denied it of him. Just pathetic.
8. Ginsberg - Clearly a vote to affirm. Justice Ginsberg thinks the "Federal issue" raised here is BS, and does not believe there is a legitimate reason for the Supreme Court to substitute its judgment for that of the FSC on issues of Florida election law. She made the best point, I submit, when she asked Olsen whether the language of the Contest statute, which specifically authorizes the Court to enter any order which it deems necessary or appropriate in order to ensure that the purposes of the statute are acheived (i.e., to count legal votes and reject illegal votes), could possibly have conferred MORE authority on the Courts than the FSC found that it did.
9. Breyer - His questions seemed to support the existence of a possible coalition to send this back to Florida with instructions to come up with a more objective standard, including re-opening the recounts already concluded in Broward, Palm and Volusia (and the partial count completed in Miami) to apply the standard arrived at by the FSC to those recounts as well. On the other hand, with the timing being what it is, I somehow doubt he will do more than vote to affirm.
Therefore, unless they find a way to creatively punt this back (like they did with the Harris case, and which seems less likely here given the exigent timing issues), the final decision ranges between 5-4 to reverse and 6-3 to affirm. If I were on the Court, I would affirm, because the Florida legislature conferred on the Florida courts the right to enter any order it deemed appropriate to ensure that legal votes are ultimately counted -- this is not "new legislation", this is acting within the authority delegated to it by the Florida legislature, which gave us only a general standard and not a specific one, and clearly expected the courts to act as the final referee if there was a contest. This is really a pretty ordinary case being litigated under extraordinary circumstances -- but those circumstances do not (and cannot) justify deviating from long held principles of federalism, which dictate that the Federal Courts defer to the FSC on this issue, barring compelling constitutional grounds to interject. Nothing in Article II requires the Supreme Court to overrule the majority of the FSC -- Article II says very simply that electors will be chosen in "such manner as the legislatures [of the states] may direct" -- in this case, they enacted an election law which provides for a judicial contest of any election, including a presidential election, and delegates the final decisions in such election contests to the Florida courts. There is no basis raised in this case for a Federal Court to upset that statutory scheme (and the judicial power conferred by the Florida Legislature under it), no matter how much they may disagree with the decision the FSC made here. And if they do it, they will be severely undermining one of their most cherished "conservative" judicial principles (that of federal judicial restraint on issues of state law) and open the door to even more substantive challenges to the authority of state courts to resolve issues of state law in the future without Federal interference.
Last point -- I do not rule out the possibility that a majority of justices might find, as a matter of law, that the FSC did not err in reversing Sauls or in its interpretations of Florida law, but at the same time find that there is simply no relief that can be granted at this point without creating even more problems under the US Constitution. The bottom line is that any standard for manual inspection of undervotes is going to be more accurate than the one Bush has been promoting -- which is not looking at them at all, no matter what they show. Still, it is a possibility that there be such an outcome. If it happens, it will in effect reward the Bush strategy of using state officials as agents to disrupt the process, and then litigation tactics to run out the clock. What it will not do, though, is obscure what Bush has really done here -- he has established his claim to our most imprtant elective office on the principle of fighting at all costs any effort to perform a manual recount specifically contemplated and allowed by state law, even at the expense of undermining the credibility of his own election. Win at all costs? Well, there has already been a cost to this strategy, one that will played out in two years, and then again in four years.
MST |
