Monday, November 22, 2010

Waxing Nostalgia, Waning Outrage

What should have been
In recognition of the 10-year anniversary of Bush v. Gore, Sunday's N.Y. Times Op-Ed page provides tender reminiscences of hanging chads and dimpled ballots.  It is one thing for Ted Olson, counsel for Bush-Cheney, to recount (so to speak) popping expensive bottles of champagne in victory.  But what of the other side?  We have Laurence Tribe bravely accentuating the positive, focusing on "decency" and "perseverance," and Ron Klain speaking wistfully of the hopelessness of a negotiated settlement.  And then there is former Supreme Court reporter for the Times, Linda Greenhouse, who cleverly refers to the decision as a"bad hair day," rather than a tragedy or travesty.

There is no sense of outrage.  Whether this is because the Times chose only moderate voices or because of a waning sense of disgust over what happened is unclear.  What should be clear is that this was one of the most shameful episodes in the history of the Supreme Court.  The decision which stopped the Florida recount and handed the presidency to George Bush was a severe blow to democratic rule.  It was a legally unsound, politically motivated decision.  Conservative justices, who invariably relied on principles of federalism to avoid redressing unjust actions by state governments, intervened in a state's voting process, relying on an indefensible interpretation of the Equal Protection Clause.  The opinion itself implicitly conceded its flawed legal reasoning by explicitly stating that it was “limited to the present circumstances” and could not be cited as precedent.  Justice Souter, appointed by the first President Bush, was so disturbed by the ruling that he considered resigning at that time. 

Bush v. Gore was plain and simple "crudely partisan," as Souter later described it, putting a lie to the notion that the liberals on the Court were the judicial activists.  Justice Breyer, in dissent, described the majority decision as a "self-inflicted wound -- a wound that may harm not just the Court, but the Nation.”  Prescient words.  The harm to the Court, as Justice Stevens dissented, was that it gave credence "to the most cynical appraisal of the work of judges" and undermined the country's "confidence in the judge as impartial guardian of the rule of law."  (This view has only been exacerbated by such cases as Citizens United, which also blatantly ignored established precedent to reach a nakedly partisan result). 

By a narrow 5-4 margin, the Supreme Court interfered with a presidential election and gave us George W. Bush, the majority's preferred candidate.  That would be "the wound" that "harmed the Nation."  There should be more outrage and fewer fond remembrances.


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