A dishonest Rehquist Five

By Thomas Oliphant, Globe Columnist, 12/17/2000

REMEMBER DEC. 12! - a dreary battle cry to be sure, but central to understanding why George W. Bush's accession to the presidency must be accepted and why the cloud over it will remain.

Al Gore has led the way with eloquence and humor, and his supporters should follow, in observing without qualification the rituals of acceptance.

But Gore's class act can redirect an important cause down three streams that have nothing to do with making way for a legal and legitimate new president - researching the famous Florida ballots for history; supporting a relentless examination of the unconscionable treatment of poor people in general and African-American voters in particular by Florida's white establishment; and treating the Rehnquist Supreme Court as the political pinata it has degenerated into.

That's where Dec. 12, the ''deadline'' that wasn't, comes in. In selecting Bush as the next president, the court needed a reason to deny Gore any opportunity to have ballots counted by hand under a statewide standard by the time of tomorrow's formal vote of presidential electors.

Not having one at hand, the Rehnquist Five simply made one up - an act that fits every definition of dishonesty there is.

In her crisp dissent, Justice Ruth Bader Ginsburg said that the majority's concern about Dec. 12 was ''misplaced'' - an elegant euphemism whose stronger point is emphasized by her continuous placing of the word deadline in quotation marks.

The reason is found in several misstatements of fact - one should assume they were deliberate - in the unsigned order that gave Bush the presidency. These misstatements are central to the court's order.

The first one: ''The Supreme Court of Florida has said that the Legislature intended the state's electors to `participat[e] fully in the federal electoral process''' as provided in federal law.

That is false. In its unanimous opinion on Nov. 21 that authorized manual recounting, the Florida court in one section defined two circumstances in which Secretary of State Katherine Harris could ignore ballots counted after the initial, statutory deadline in order not to ''compromise the integrity of the electoral process.'' One of them involved ''precluding Florida voters from participating fully in the federal electoral process.'' That's all it said. The Rehnquist Five not only misstated the opinion and covered up its context, they also added an allusion to federal law that the opinion did not make.

To compound this dishonesty, they then decided which provision of which law the Florida court hadn't cited, in order to proceed with their order that reversed the judgment allowing the recount to proceed.

That would be the portion of the late 19th century statute that gives a ''safe harbor'' from Congress' final arbiters to electors chosen in states that have resolved all election contests six days before the electors meet and vote.

That's Dec. 12. Since the Rehnquist Five had already made it impossible, via their order halting the recount before last week's argument, to do anything by then, they had to couch their reversal in equal protection language to hide the fact that what they were really doing was running out their artificial clock.

Indeed, there is an implicit confession of dishonesty in their order's reference to ''the December 12 date.'' They couldn't actually use the word ''deadline''; that would have been too obvious a lie.

Finally, dishonesty was required to block any avenue between the 12th and tomorrow's Electoral College vote. For this, the target was Justice Stephen Breyer's attempt to send the case back for a manual count under a statewide standard that would have met alleged 14th Amendment deficiencies.

To accomplish this perfidy, the Rehnquist Five said his idea ''contemplates action in violation of the Florida Election Code.''

Did not. Not only was no provision cited (because there was none), Breyer was merely being accurate when he wrote that the question of what can be done in Florida before Dec. 18 under Florida law ''is obviously a matter for Florida courts, not this court, to decide.''

Gore's statement last week of strong disagreement with the Rehnquist Five is all the guidance his supporters need to turn the heat up on this farce and, more important, to make sure no one lacking true judicial temperament gets anywhere near the federal bench in the next four years.

Nowhere have I seen reference to Justice Ginsburg's terse summary of what happened last week: ''the court's conclusion that a constitutionally adequate recount is impractical is a prophecy the court's own judgment will not allow to be tested. Such an untested prophecy should not decide the presidency of the United States.''

The only missing conclusion about the Rehnquist Five is what the facts show: They lied.

-- Liberal (Voice@Here.com), December 17, 2000

Answers

The only missing conclusion about the Rehnquist Five is what the facts show: They lied.

Corruption abounds. As fell the Roman Empire, so shall we. Tick-tock.

-- Slippery (Slope@Downhill.com), December 17, 2000.

Related editorial: A Failure of Reason

By ANTHONY LEWIS

"How can I convince my students now that the integrity of legal reasoning matters?"

That was the despairing comment of one law professor after he read the per curiam opinion that spoke for five members of the Supreme Court. His reaction, widely shared among law teachers, points to the real failure of the decision that gave the presidency to George W. Bush.

The problem is not so much that the court intervened in politics. It is that the majority's stated reasons for its decision were so unconvincing.

Courts have an obligation to persuade. Their power is legitimate only if they give reasoned arguments for what they do. By that standard, the decision in Bush v. Gore was a dismal failure.

The 5-4 majority decided that disparate standards for recounting ballots in different Florida counties denied voters the equal protection of the law and that there was no time to carry out a recount under a proper, single standard. Many have noted the irony in that conclusion: The Supreme Court itself, by stopping the recount on Dec. 9, helped run out the time.

But there is a further, even more damaging aspect to the Supreme Court's performance. When Governor Bush asked the Supreme Court to intervene for the first time, on Nov. 22, he raised the equal-protection question, among others. The court granted a review — but not on that question. It sent the case back to the Florida Supreme Court on Dec. 4 without a hint of the equal-protection problem, which could then have been resolved in ample time.

The Florida court could have gone ahead on its own to set a specific rule for all ballot counters, instead of using the vague statutory standard of "the intent of the voter." But if it had done so, the justices in Washington would surely have said that step was an improper change in the law.

The majority, deciding the case at 10 p.m. on Dec. 12, said time was crucial because an old federal law declares that any state certification of its electoral vote is valid if filed by Dec. 12. But states have often filed after Dec. 12, and many missed the date this year.

Would Florida give priority to filing by Dec. 12 or to making sure that its count was complete and fair? Florida statutes aim at both objectives. Which should prevail was a question of Florida law, not one to be made by the U.S. Supreme Court.

Prof. Michael W. McConnell, a legal conservative at the University of Utah College of Law, made just that point in The Wall Street Journal.

"The Dec. 12 `deadline' is only a deadline for receiving `safe harbor' protection for the state's electors," he wrote. "A state is free to forgo that benefit if it chooses. . . . The decision is one for the state to make."

For that reason, Professor McConnell said, it would have been better for the justices to leave the issue to the Florida court. And it would have been the wiser course politically, he said. Two dissenting justices, David Souter and Stephen Breyer, agreed that there were equal-protection problems, so a remand to see whether a recount could be carried out on a single standard by Dec. 18, when the electors are supposed to meet, would have been by a more convincing 7-2 vote.

The majority's rush to judgment has no credible explanation in the per curiam opinion. So the country is left with the impression that five justices acted as they did because they cared more about the result — ending the recount — than they did about the reasoning that ould compel it.

A thoughtful British columnist, Philip Stephens of The Financial Times, said the decision put "indelible stain on the court's always half-illusory reputation as honest guardian of the Constitution." Deciding a case of this magnitude with such disregard for reason invites people to treat the court's aura of reason as an illusion.

That would be a terrible price to pay. The Supreme Court must have the last word in our system because its role is essential to our structure of freedom. Preservation of the public respect on which the institution depends is far more important than who becomes president.

In a recent column I said that if Governor Bush won because the Florida Legislature awarded him the state's electors, he could say of the election what Barry Goldwater said of the Panama Canal: "We stole it fair and square." The statement about the canal was actually made by Senator H.I. Hayakawa.

-- Cheating (Supremes@Partisanship.com), December 17, 2000.

Good cut and paste. It is questionable, isn't it, that the Supremes refused to address the question of the 14th amendment in the original Bush cert, and then turned around and decided the election on that very issue.

Sure, folks are entitled to change their minds in short order, but these are the brightest minds in judicialdom, and one would think that having been elevated as such, they could spot a consitutional issue a mile away-I am sure their minds were not put away in a lockbox during the first few weeks of the controversy. No matter how much prattling they may do, this Rehnquist five will go down in history as partisan boobs-My words will be proven true-just look at this twenty years from now.

-- SydBarrett (dark@side.moon), December 18, 2000.