- The Washington Times - Thursday, December 14, 2000

Last night, Vice President Al Gore spoke to the nation, finally conceding the presidential election to George W. Bush. In a speech characterized by a graciousness that probably took many pleasantly by surprise, he called on his supporters to put aside partisanship and unite behind their next president. While Mr. Gore said he "strongly disagreed" with the Supreme Court's Tuesday night ruling, he also said he accepted its finality. It was what had to be said, and Mr. Gore rose to the occasion.

What brought Mr. Gore to his much-belated acceptance of defeat was the extraordinarily historic ruling by the U.S. Supreme Court. In the appropriately named case of Bush vs. Gore, a 7-to-2 majority of the U.S. Supreme Court ruled that the manual recount scheme devised by the Florida Supreme Court violated on several fronts the equal protection and due process clauses of the 14th Amendment to the U.S. Constitution. It had long ago become clear that Mr. Gore's efforts to capture the presidency depended specifically upon the flawed recounting scheme sanctioned by the Florida Supreme Court, whose decision was reversed by the same 7-to-2 majority of the U.S. Supreme Court. With that, Mr. Gore's hopes evaporated.

Let us be very clear about one very important point. For all the talk about a "bitterly divided" U.S. Supreme Court, one simple fact bears repeating. Seven of the U.S. Supreme Court's nine justices voted to reverse the Florida court's ruling: Chief Justice William Rehnquist, Antonin Scalia, Clarence Thomas, Sandra Day O'Connor, Anthony Kennedy, David Souter and Stephen Breyer. Generally liberal Justices Souter and Breyer, the latter of whom was appointed by President Clinton, joined in. No matter how hard Democrats will try to portray this opinion as a bitterly divided decision, the simple fact is that the seven-member majority represented a broad spectrum of the high court. Only Justices John Paul Stevens and Ruth Bader Ginsburg, the court's two arch-liberals, failed to perceive the violations of equal protection and due process.

As it happened, the U.S. Supreme Court obliterated the recounting plan on the very day that a federal statute required a "conclusive" selection of electors in order for Florida to take advantage of the statute's so-called safe-harbor provision, which would essentially prevent any challenge in Congress to the state's electoral slate. In a companion 5-to-4 decision, the high court had no recourse but to rule that given the time constraints, "it is evident that any recount seeking to meet the Dec. 12 date will be unconstitutional."

It is worth noting that the high court completely vindicated the unusual concurring opinion Justice Scalia unilaterally issued Saturday regarding the court's 5-to-4 decision on that day to halt the manual recounting in Florida. "Count first, and rule upon legality afterwards," Mr. Scalia wisely observed, "is not a recipe for producing election results that have the public acceptance democratic stability requires." If Florida's manual recount had been permitted to run its course Saturday and Sunday, the nation would have faced a constitutional crisis once seven justices later concluded such counting was unconstitutional. In hindsight, it is clear that America's 200-plus years of democratic tradition were duly honored by the bold decision made Saturday afternoon by five justices to shut down what seven justices later conclusively confirmed was an unconstitutional undertaking.

Now let us move forward.

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