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Politics : The Left Wing Porch -- Ignore unavailable to you. Want to Upgrade?

To: LTK007 who wrote (777)	12/11/2000 4:06:02 PM
From: Daniel Schuh	Respond to of 6089

News Analysis: Collision With Politics Risks Court's Legal Legitimacy nytimes.com One thing I always liked about the good gray Times, they can do irony without going overboard into sarcasm, unlike me. Here, they turn Scalia's "legitimacy" case on its head. Justice Scalia said it was "the counting of votes that are of questionable legality" that was "casting a cloud," not on the process in general but specifically on what Mr. Bush "claims to be the legitimacy of his election." In other words, the majority's justification for the stay was that if the vote counting proceeded and had appeared to make Vice President Al Gore the winner by the time the court could decide the merits of Mr. Bush's appeal, the Bush position would be untenable as a political matter even if it prevailed as a matter of law. That justification put the court in the position of seeming to protect Mr. Bush — who has endorsed Justices Scalia and Clarence Thomas, named to the court by his father, as his ideal justices — from whatever uncomfortable truth the uncounted ballots might reveal. The fact that the justices entered the stay at midafternoon Saturday, with the counting under way and most of it expected to conclude at 2 p.m. on Sunday, gave the court the appearance of racing to beat the clock before an unwelcome truth could come out. In reprieving Mr. Bush from any political embarrassment the vote totals may hold, the majority may have only postponed the governor's problem. Under Florida's expansive "sunshine" law, the ballots will be publicly available for counting by news organizations and others. Public response today to the court's action was intense, with much of the debate focused on the propriety of the stay. Terrance Sandalow, a law professor and a former dean of the University of Michigan Law School, said the "balance of harms so unmistakably were on the side of Gore" that the granting of the stay was "incomprehensible." In an interview, Mr. Sandalow, a judicial conservative who said he opposed Roe v. Wade and supported the 1987 nomination of Robert H. Bork to the Supreme Court, called the stay "an unmistakably partisan decision without any foundation in law." Charles Fried, a former solicitor general in the administration of President George Bush, who filed a brief today on behalf of the Florida legislative leadership, took an opposite view. It was the Florida Supreme Court's decision to order statewide recounts that was "lawless," Mr. Fried said, while the stay "prevents them from garnering the fruits of their lawless behavior." Beyond debate is the fact that the court has now placed itself in the midst of the political thicket where it has always most doubted its institutional competence and where as a personal matter the justices have always appeared least comfortable. Eyebrows were raised last January when, for the first time in history, not a single justice showed up for the State of the Union address. Several were sick or had family obligations. Others were said to be weary of serving as props for the political pageantry of the event. It will be interesting to see if any justices appear next time, now that they are no longer props but players. Couple more Scalia/Thomas style nominations, and the SC will play just fine. The property of all of W's big buck donors seems to be in good hands. Cheers, Dan.