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Politics : PRESIDENT GEORGE W. BUSH -- Ignore unavailable to you. Want to Upgrade?

To: sunshadow who wrote (115491)	12/14/2000 12:22:54 AM
From: sunshadow	Read Replies (1) \| Respond to of 769670

Supreme Irony Bush v. Gore was William Rehnquist's finest hour. Thursday, December 14, 2000 12:02 a.m. EST (WSJ OJ) So Al Gore is a statesman for finally conceding defeat after 36 days of legal street-fighting. But Chief Justice William Rehnquist has "scarred" our institutions by doing his duty and deciding a case he preferred not to hear. This is the conventional wisdom in the wake of Tuesday's Supreme Court verdict against the Vice President. Too bad it turns history on its head. Mr. Gore's concession last night was gracious and much needed. It repairs some of the damage his unprecedented legal challenge has wrought. He can take pride in winning the popular vote, and we think history will be kinder to his pre-election campaign than today's media have been. Bill Clinton's ethical legacy cost Mr. Gore the electoral votes of Tennessee and the heartland more than anything the Vice President did. But Mr. Gore's ferocious post-election campaign is another story, which shouldn't now vanish as if it were routine. He and four members of the Florida Supreme Court are responsible for the political wreckage since November 7. They are the exceptions who violated the informal rule required for democratic consensus that a loser admits defeat in a timely fashion. This rule is all the more important the higher the office and closer the election. But Mr. Gore tried to steal the election by changing the rules after November 7. His lawyers never asked for the statewide manual recount with a uniform standard that Justice Stephen Breyer proposed in his Supreme Court dissent. Asked directly in Florida court if his client wanted such a recount, David Boies declined. Mr. Gore asked instead for a recount of only some ballots, in largely Democratic precincts, to be conducted by mainly Democratic vote counters under standards of their own choosing. At several stages, moreover, Mr. Gore could have conceded and salvaged more respect. He might have stopped after the machine recount; after Democratic Judge Terry Lewis said Katherine Harris behaved correctly; after some of the Democratic canvassing boards decided not to count dimpled chads; after Mrs. Harris's certification, which met the Florida Supreme Court's first deadline extension, or especially after Democratic Judge Sanders Sauls ruled against his election "contest." But Mr. Gore charged on, abetted by the brazen Florida Supremes. They enjoined Mrs. Harris without even being asked, overturned Judges Lewis to mandate one recount scheme, and then overturned Judge Sauls and local canvassing boards to mandate another, even in the face of a gentle but firm rebuke by the U.S. Supreme Court to heed federal law. Amid this bloody-mindedness, how could Chief Justice Rehnquist and his colleagues decline to take the case? Were they supposed to ignore this nose-thumbing by a lower court? A nose-thumbing deplored by that lower court's own chief justice in dissent? Mr. Rehnquist clearly did not want the High Court to be seen as deciding an election. But he had no choice once the Florida Supreme Court decided it could rewrite election rules in a way that favored Mr. Gore. As the majority states, "When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront." The irony is that Mr. Gore was finally defeated by the very legal process he sought to exploit. Much is now being made of a "fractured" High Court. But seven of the nine justices found that the Florida Supreme Court's recount scheme was unconstitutional. Somehow all of this reality--from the recounting in selective Democratic counties to the constitutional problems identified by even Justices Breyer and Souter--is swept aside by Democrats now wailing about fairness. Justice David Souter's half-dissent called the multiple recount standards "wholly arbitrary" and a violation of one-man, one-vote jurisprudence. Justice Stephen Breyer's dissent acknowledges that "the use of different standards could favor one or the other of the candidates." This seven-vote majority more than justifies the High Court's decision to stop the recount in its tracks on Saturday. No doubt Mr. Rehnquist wanted Justices Souter and Breyer to join his remedy of halting the recount, as well. But at least he assembled five votes that drew a line in the sand against Florida's judicial activism. As the Chief's concurring opinion puts it, "This inquiry does not imply a disrespect for state courts but rather a respect for the constitutionally prescribed role of state legislatures." Legislatures are at least elected. Voters delegate power to them to write laws that set the terms of elections in advance. They do not delegate to courts the right to rewrite those rules after the fact to benefit one candidate or another. For defending these principles, this week's decision was William Rehnquist's finest hour.