- The Washington Times - Tuesday, December 19, 2000

The U.S. Supreme Court's fragmented decision in Bush vs. Gore has unleashed vocal critics who charge that it pivoted on partisan politics, not evenhanded justice. As a consequence, say the detractors, the high court's legitimacy has been eroded in many quarters and the rule of law wounded.

The charge that the court bent the Constitution to favor George W. Bush over Al Gore is serious, but seems discredited by serious analysis. The narrow 5-4 majority reversing the Florida Supreme Court's sprawling and whimsical manual recounting of ill-punched ballots, some critics insist, shows partisanship, not a constitutional divide among the justices. But razor-thin majorities are commonplace, especially in demanding and impassioned litigation.

The Supreme Court, for instance, split 5-4 in a pair of flag-burning cases that triggered clamor for a constitutional amendment (Texas vs. Johnson and United States vs. Eichman). Ditto for the partial-birth-abortion decision earlier this year (Stenberg vs. Carhart), and the landmark precedent of Miranda vs. Arizona (1966). For decades, highly charged church-state cases have turned on one vote, or yield no opinion that commands a majority, as in the most recent school aid decision in Mitchell vs. Helms.

The fragmented-court argument as evidence of partisanship loses additional force in light of the court's unanimity in the predecessor Palm Beach County vacating and remand to the Florida Supreme Court, a virtual dress rehearsal for what culminated in Bush vs. Gore.

Seven justices chorused in Bush that the equal protection clause of the 14th Amendment condemned the manual-recount decree as riddled with caprice and irrationality. The "voter intent" standard pronounced by the state tribunal exhibited more the inconstancy of opportunistic politicians and infatuated lovers than the unchangeability of the North Star. The Bush majority elaborated: "A monitor in Miami-Dade County testified at trial that he observed that three members of the county canvassing board applied different standards in defining a legal vote. And testimony at trial also revealed that at least one county changed its evaluative standards during the counting process. Palm Beach County … began the process with a 1990 guideline which precluded counting completely attached chads, switched to a rule that considered a vote to be legal if any light could be seen through a chad, changed back to the 1990 rule, and then abandoned any pretense of a per se rule, only to have a court order that the county consider dimpled chads legal… ."

"The State Supreme Court … mandated that the recount totals from … Miami-Dade and Palm Beach be included in the certified total. The court also appeared to hold … that the recount totals from Broward County … were to be considered part of the new certified vote totals… . Yet each of the counties used varying standards to determine what was a legal vote. Broward County used a more forgiving standard than Palm Beach County, and uncovered almost three times as many new votes, a result markedly disproportionate to the difference in population between the counties."

None of the legions of brilliant jurists and advocates in the Bush litigation was able to articulate evidentiary guidelines to avoid the partisan manipulation of voter intent invited by sanctioning Jackson Pollock-like post-impressionist standards. The Florida Supreme Court defaulted twice, Circuit Judge Terry Lewis despaired after long hours of oral argument, Gore advocate David Boies was flummoxed before the U.S. Supreme Court, and its two premier dissenters, Justices John Paul Stevens and Ruth Bader Ginsburg were likewise confounded. And partisan manipulation was not simply a hypothetical worry, it was evident in prime colors in the regular 2-1 voting along partisan lines in the manual recount by the Broward County canvassing board.

The Bush equal-protection critics urge that statewide elections routinely feature county discrepancies in ballot design, the use of optical scanners or otherwise that were not denounced. But these differences are nonpartisan, unlike the typical canvassing board member. And if they were motivated to boost a political party, the invidious discrimination would affront the equal-protection clause.

The accusation that the Bush majority expediently abandoned its states' rights principles to achieve a Republican victory is also unsustainable. What was at stake was the plenary power of the Florida Legislature under Article II, Section 1 of the Constitution to appoint presidential electors and to require finality by Dec. 12 to insure Congress would count the state's 25 electoral votes. The Bush ruling honored federalism principles by preventing the state judiciary from usurping the constitutional role of the state legislature; indeed, the latter was poised to renounce the Florida Supreme Court by direct appointment of electors when Bush was announced.

Except for result-oriented extremists, the precedent has left public confidence in the impartiality and integrity of the U.S. Supreme Court undisturbed. Neither Mr. Gore nor his surrogates nor Democrats in Congress have endorsed the partisanship charge. No clamors for impeachment or curtailing the jurisdiction or powers of the high court have been heard, in contrast to times past. And the likelihood is nil that Dec. 12 will prove an annual occasion like the Jan. 22 anniversary of Roe vs. Wade for protesting Mr. Bush as the theft of a presidential election.

In sum, the world-riveting case proved one of the court's finest hours markedly superior to other participants in the drama and confirmed that our independent federal judiciary is a precious jewel in our constitutional crown.

Let's keep it that way.

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