- The Washington Times - Thursday, December 14, 2000

WASHINGTON — In the interests of political hygiene, peace on earth, goodwill toward men and plain truth, let’s deal with the most annoying canard of this election season.

It is the claim that a partisan Supreme Court of the United States handed the presidency to George W. Bush.

Democrats and journalists (but I repeat myself) have summoned this argument to insinuate that the court put in a political fix for George W. Bush. Facts don’t support the claim.

The allegation of partisanship arises because the high court ruled by a 5-4 margin that the clock had run out on Florida recounts. That’s true, but it’s also a side issue. The truly important question was whether the Florida Supreme Court imposed a ballot-counting scheme that violated the Constitution by treating different votes (and thus different voters) differently.

On this central matter, the court ruled 7-2 that the Florida court had indeed ordered up a mess. It imposed standardless recounts based on the whims of county election boards and circuit court judges. It delegated the solemn responsibility of counting votes to poor saps who got dragged in to squint at punch ballots, looking for dangling, swinging and otherwise memorable chads. It generated a marvelous chaos, with dimpled chads counting as votes in some counties but not others.

The Florida court also demanded that the state acknowledge recounts that had been vacated by the U.S. Supreme Court — that is, wiped away as if they had never existed. It demanded tallies of “undervotes” — ballots that did not include a measurable vote for president, but not “overvotes” that seemed to indicate more than one presidential choice.

And so on. When the United States Supremes got a good look at this nut-ball scheme, they did the only thing they could: They took out their erasers and wiped it away. They threw out the hand recounts. They tossed out the Florida high-court ukases, especially those that created new deadlines for certifying votes. They obliterated the weird distinctions between classes of chads.

This left the concern that divided the court: What to do. Chief Justice William Rehnquist, and Associate Justices Antonin Scalia and Clarence Thomas said there was no way to create a fair and consistent recounting procedure, since the clock had run out on recounts and challenges. The Florida Supreme Court and the state Legislature repeatedly had identified Dec. 12 as the “drop dead” date for resolving all contests and controversies. The three justices accepted that date as well.

The court’s minority ignored this central fact, and tried to draft a political solution to the crisis. Justice Stephen Breyer suggested giving the Florida Supreme Court a chance to come up with constitutionally sound counting standards. He seemed to believe the Sunshine Solons could draft acceptable rules, distribute them to 67 counties and settle all legal challenges in 122 hours — the time between the publication of the court’s decision and the Dec. 18 meeting of the Electoral College.

This odd solution was doomed. It demanded that the Florida Supreme Court effectively write new law — the sin that led all nine Supreme Court justices to vacate the first Florida court ruling. In addition, it would have instructed the state court to ignore the Florida statute that requires the final resolution of all disputes by Dec. 12.

At best, the “compromise” would have forced Floridians to work 24 hours a day for six days, to brave thermonuclear arguments and organized political rallies — only to have everything blow up in their faces, and probably get reversed again by the U.S. Supremes. This isn’t judicial activism: It’s black-robe sadism.

Finally, the liberals on the court, not the conservatives, practiced partisanship in the case of Bush v. Gore. Justice John Paul Stevens repeated the Jesse Jackson smear that the court majority had ordered “the disenfranchisement of an unknown number of voters.”

Justice Stephen Breyer meanwhile warned that “in this highly politicized matter, the appearance of a split decision runs the risk of undermining the public’s confidence in the Court itself. … (W)e do risk a self-inflicted wound — a wound that may harm not just this nation, but this court.”

Call this extortion. If Breyer was so gung-ho on saving the court’s reputation, he could have joined the majority and abandoned his one-more-recount scheme.

But this is trivia. The court agreed on the big problem and disagreed on the cure. A few people got testy in the process. This doesn’t make the court suspect — just human.

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