OT: Kodiak, thought you would enjoy this excellent essay by Bork.
opinionjournal.com
No Court Can Save Us
Society has to end the win-at-all costs mentality.
BY ROBERT H. BORK
Tuesday, December 5, 2000 12:01 a.m. EST
Yesterday's Supreme Court decision in Bush v. Palm Beach County Canvassing Board seems of less legal significance than it is being accorded by commentators. Certainly, it would appear to have been overshadowed by the decision, later in the day, of Judge N. Sanders Sauls, who ruled against Al Gore's bid to recount votes in Florida. But the attention paid to the Supreme Court's decision, as well as its unprecedented nature, requires an estimation of its importance.
The chief effects of remanding the case to the Florida Supreme Court for a clarification of its reasoning may be to shorten the time the Gore forces have to maneuver, and to deal another blow to their morale. But on purely legal considerations it should be noted that though the Supreme Court may not actually have punted, there are punt-like elements to its opinion. There are, moreover, other suits out there (over 40 at last count) that are unaffected by the Supreme Court's decision and could have profound results. More important perhaps than any of the cases is what this unremitting legal/political warfare is doing to American society.
Two questions were before the court. The first was whether the Florida Supreme Court could change the state's procedures for appointing electors after the election had been held. The second was whether the Florida court had changed the way in which electors are to be appointed. An affirmative answer to either question would mean that federal constitutional and statutory requirements had been violated. The rules for selection have to be in place before the election and the legislature, not the courts, must decide the manner of designating electors.
Florida law requires that the secretary of state certify the election results within 10 days. She refused to accept ballot returns beyond the deadline unless adequate cause were shown. The Florida Supreme Court, relying upon the right to vote contained in the Florida Constitution's Declaration of Rights, held that late manual recounts could be rejected only under limited circumstances, and followed that with the extraordinary assertion that "because of our reluctance to rewrite the Florida Election Code, we conclude that we must invoke the equitable powers of this Court to fashion a remedy," thus rewriting Florida election law while denying what it was doing. It extended the seven-day deadline for the return of ballot counts by an additional 12 days.
Whatever else may be said of that result, it was not the election code established by the Florida legislature. It hardly matters whether the court was applying the Florida Declaration of Rights to limit the power given to the legislature by the U.S. Constitution, or was purporting merely to interpret state law. The U.S. Supreme Court has in the past refused to allow obvious misinterpretations of state law to avoid federal requirements. Here, whatever the scope of the discretion allowed the secretary of state, the court had no authority to change the law so that the secretary of state "must" accept late ballots. The U.S. Supreme Court could have said as much and overturned the Florida decision without asking for clarification of its grounds.
The real question will be what happens if the Florida court forswears reliance upon its own constitution and reaches the same result by means of statutory interpretation. Will the U.S. Supreme Court take the case again, perhaps revealing deep fissures within its own membership, or will it let the rewriting of Florida's laws prevail?
In any event, it is not at all clear how important yesterday's decision will prove. There are scores of other lawsuits pending in various state and federal courts in Florida and nobody, apparently, has an overall understanding of all of the issues raised. Several of the suits, however, are of obvious importance.
The certification of George W. Bush as the winner in Florida, contested by the Gore team in the Leon County trial court, was upheld yesterday by Judge Sauls, who refused to order a recount of thousands of disputed ballots from south Florida. An appeal to the Florida Supreme Court was filed right away.
There is also litigation in Seminole County challenging absentee ballots cast for Gov. Bush on the ground that Republican workers wrote required identification numbers on applications for the ballots. Democrats apparently had computers that put numbers on their ballots. Since there is no claim that Republicans in any way influenced the candidate chosen on the ballots themselves, the litigation is meritless. But given the apparent politicization of some Florida courts, no one is taking anything for granted.
Perhaps the most important litigation now pending is the Republican appeal to the U.S. Court of Appeals for the 11th Circuit. That case will be heard this week by the court sitting en banc, which is to say by all 12 judges. This case, more than any of the others, goes to the heart of the problem of the Gore camp's endless requests for manual recounts.
Simply put, the fear is that manual recounts in heavily Democratic counties will prove to be a means of manufacturing Gore votes. The Bush campaign charges that the examination of ballots to determine the intent of the unknown voters is almost entirely subjective and proceeds according to different standards in different counties, and even by standards that change from day to day in the same county. The examiners have discretion whether to count a dimpled chad or one with a crease in it as a vote and, not surprisingly where the decision is made by a vote of two Democrats and one Republican, the net result is a gain in Gore votes.
The Bush position is that these disparities between voters in different parts of the state, and between those whose ballots are examined under shifting standards in the same counties, deny voters the equal protection of the laws and due process. That proposition seems difficult to deny. If it is sustained, manual recounts as presently conducted would be illegal. Mr. Bush was properly certified as the winner of Florida's electoral votes.
But whatever the outcome of the litigations in Florida, the deeper problem is that a spirit of inflamed partisanship is revealing fault lines throughout our society. An open and unashamed win-at-all-costs mentality has been let loose upon the land, due initially to Bill Clinton but now practiced, if possible, even more blatantly by his acolyte Al Gore. As the old unspoken restraints fail, we inevitably turn to courts to repair what has been broken. But that tactic will ultimately fail and will damage the judiciary in the process.
Learned Hand was right: "[This] much I think I do know--that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish."
Mr. Bork, a former federal appeals judge, is a senior fellow at the American Enterprise Institute. |
