Narrow decision may hinge on one vote

greenspun.com : LUSENET : Unk's Wild Wild West : One Thread

http://abcnews.go.com/sections/politics/DailyNews/supct_strategy001211.html

Casing the Court

Narrow Decision May Hinge on One Vote

By Geraldine Sealey

Dec. 11 - As lawyers for Al Gore and George W. Bush prepare for today's oral arguments before the U.S. Supreme Court, they face a bench clearly split on the issues at hand.

Although predicting how the secretive high court will rule is always dicey business, Democratic lawyers must know they are on shaky ground. For the court to stop the recounts on Saturday, a majority had to find that the hand counts would have caused “irreparable harm” to Bush.

But if the justices' leanings on the recount matter can be divined from where they fell on the emergency stay, Democrats may only need to persuade one of the five justices in the majority to get a win at the high court.

But who?

Finding the Swing

The court's conservative wing -- Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas -- plus justices Anthony Kennedy and Sandra Day O'Connor, comprised the majority on Saturday's stay. The court's more liberal to moderate justices, including John Paul Stevens, Ruth Bader Ginsburg, David Souter and Stephen Breyer, dissented.

Although the presidential election case is unlike any other the Rehnquist court has considered, Democrats are likely looking to the two justices who usually serve as swing votes -- justices O'Connor and Kennedy.

Although O'Connor and Kennedy were both nominated by Ronald Reagan, both justices have proved willing to make an ideological break from conservatives on the bench. O'Connor has voted with liberals on abortion and affirmative action cases, although as a former state legislator with strong allegiance to state laws she may be reluctant to side with Gore.

Kennedy has sided with liberals on First Amendment, abortion, and gay rights issues, but his votes in such cases may not provide clues as to how he will view the claims before the court today.

The Democrats' best hopes, says a constitutional expert, is convincing one of these two justices -- both staunch supporters of states' rights -- to defer to the state courts here.

“They don't like federal courts getting involved in matters of state law,” said ABCNEWS legal analyst Steven Gey. “To see them leaning in the direction of involving the U.S. Supreme Court in this case seems to contradict with what they have been saying about states' rights for 20 years.”

But, Gey notes, this case is unlike any others the justices have faced and so far has been anything but predictable.

-- (The@2000.election), December 11, 2000


Moderation questions? read the FAQ