SbH - I agree with your comments and thanks for an interesting article. Although I'm a Republican, in the 1988 primaries I found Gore to be an attractive potential Democratic candidate (and don't forget it was his campaign that introduced Willie Horton to the public, so even then he wasn't averse to using questionable, though defensible, tactics). I never found his fund-raising activities particularly offensive (to paraphrase PJ O'Rourke; "hey, I'm a Republican, I have nothing against sleazy fund-raising"). It was the contrast with his self-righteousness that diminished him in my eyes.
And "poetic justice" seems to be the operative phrase in this decision. The lead line from this morning's George Will piece:
washingtonpost.com
There was poetic justice--the prosaic sort is being deliberated by the Supreme Court as this is written Tuesday afternoon--in Monday's oral argument.
What I don't understand about the decision is why this particular issue wasn't the key one:
Monday, Justice Anthony Kennedy, who occupies the seat for which Bork was nominated, asked the question which properly should have signaled checkmate against Al Gore's protracted search for a way to get a court to make him president.
The gravamen of Kennedy's question to Gore's lawyer, David Boies, was this: Suppose that, after the Nov. 7 election, Florida's legislature had made by statute the changes--new deadlines for recounting and certifying votes, selective re-counts, and so on--that Florida's Supreme Court made by fiat. Would that have violated the federal law that requires presidential elections to be conducted under rules in place prior to Election Day?
Boies, somewhat flummoxed, began his answer, "I think that it would be unusual. I haven't really thought about that question." Boies's admission that he had never thought about the large question of political philosophy involved in the Florida turmoil was altogether believable.
...Recovering his equilibrium, Boies replied to Kennedy that, yes, it would be contrary to the federal law for Florida's legislature to have done what Florida's highest court did because that "would be a legislative enactment, as opposed to a judicial interpretation of an existing law."
Goes to the heart of the question you asked a few days ago:
Is it permissible for judges to be proactive and allow their own wish to the results of the political outcome bias their judgment? IE: in their minds, is the judiciary co-equal or superior to the legislative branch of govt? |
