From sea to shining sea we seem to be doing nothing but counting and recounting ballots.
I suspect nary a productive lick of work is being done in the State of Florida while the entire state turns out to count ballots, or protest the counting of ballots or protest the failure to count the ballots or just hanging out waiting to see what happens next. The tourist industry is booming with journalists and reporters pouring into the state. I’ve been thinking that the fastest solution to this entire dilemma might just be to count the lawyers — the side with the most lawyers wins.
At first, I wrote off these Florida phenomena to simply too much time spent in the near tropical sun, but then I heard about Malibu. Although it appears that Proposition N beat P, it also appears that P passed by six votes. That means a recount is a distinct possibility. As I write this, N is ahead of P, both in the alphabet and on the political playing fields of Malibu, but only by 100 votes out of more than 6,350 plus votes cast.
Fortunately, none of the other ballots we cast in November is in doubt — wother than Proposition N, Proposition P and who’s going to be the next president of the United States.
In that latter vein, much to everyone’s surprise, and that includes me, at least four justices of the United States Supreme Court decided to grant certiorari, which is what it takes to grant a hearing. The Bush campaign appeal is going to be argued this Friday.
The question is: Why did they take it?
I’ve got my own theory. I think they took it because of a political mistake by the Bush campaign. After the Florida Supreme Court decision extended the deadline for ballot counting, the Bush team made the political decision to go on the attack. The central theme of the attack was that a Republican couldn’t expect to get a fair decision out of a court appointed by a Democratic governor. Therefore, the decision was totally political.
Frankly, I was surprised by the vehemence of the attack. For one thing, the decision was not very surprising, was reasonably consistent with previous Florida law and, other than the fact the stakes were so high, was a reasonable typical bread and butter job of statutory interpretation, which is something that courts do every day. Strangely enough, I thought the decision was also a compromise in which the court set a rather short deadline, when they easily could have given another week to complete the work of the counting. I suspect there was some compromising going on inside the court on that deadline in return for the unanimous decision.
For whatever the reason, and it probably was part of a larger strategy, the attack opened with James Baker accusing the Florida Supreme Court of playing politics to get a Democrat elected. Since Baker is the Bush campaign pit bull, I don’t think that alone would have produced the later Supreme Court reaction. But then, George W. Bush picked up the attack, and that is an entirely different matter, because now you have the possible president-elect saying there is no such a thing as an independent judiciary. Those are fighting words. What he was saying was — just you get me away from these partisan Democrats and put me in front of nine good Republicans and they’ll vote for me. When the Bush camp appealed, the court grabbed its chance.
The argument in front of the U.S. Supreme Court is going to be very strange. The Democrats, who invariably are for stronger federal government and federal judicial intervention, are going to be arguing states’ rights. The Republicans, who invariably are stronger on states’ rights, are going to be arguing for federal court intervention. I wouldn’t be surprised if the lawyers involved gag on what they’re saying, that is, if it’s possible to make a lawyer gag.
The court, I’m speculating, is going to be far more concerned with the independence of the judiciary than who is going to be the next president.
So, if I were advising Vice President Al Gore, I would say to him — say nothing. I’d be very surprised if the court made a Republican party-line decision, because it would cheapen them and make them look hypocritical, particularly since the court conservatives have spent the last 10 years advancing a states’ rights agenda. This is a golden opportunity for Rheinquist, Scalia or Thomas to advance their states’ rights agenda and have all the Democrats go ‘Hosanna’ at the same time, and reaffirm the independence of the judiciary. The last time something like this happened was more than 200 years ago in the case of Marbury vs. Madison. This is when the court gave incoming President Thomas Jefferson what he wanted, and he paid the price for that decision for the rest of his political life.
In any event, there may be several more chapters left before either of these sagas end, so stay tuned.