Supreme Court Is Big Prize For Presidential Outcome

No matter what Chicken Little claims, the sky is not falling because Gov. Bush won the most electoral votes that count – or that Vice-president Gore won the popular vote consolation prize.

The reason Americans are not rioting in the streets – despite the best effort of Rev. Jesse Jackson – is precisely because the authors of the U.S. Constitution removed the election of a president from the clutches of popular passion.

Nonetheless, we are witnessing a back-door assault on the Constitution by Gore. His relentless pleas to the judicial branch of government seek to usurp the primacy of the legislative branch.

Crystal clear is Article II, Sec. l of the U.S. Constitution -- “ The President ….shall be elected as follows: Each State shall appoint, in such manner as the Legislature thereof may direct, a number of Electors equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress. Electors shall meet in their respective states and vote by ballot …. for the President.”

The Florida Supreme Court created the present mess by nullifying the vote certifications – according to state statute -- of Secretary of State Katherine Harris.

It testified that Bush had a plurality of 930 votes.

It is of more than passing interest that the Florida court consists of seven Democrats appointed by Democrat governors.

The court’s rationale is astonishing: “The right of the people to vote takes precedence over a hyper-technical reliance upon statutory provision.”

In plainer language: the court asserted that duly adopted laws are meaningless if they conflict with personal opinions of politically appointed justices. They claim the right to make law by fiat rather than interpret laws created by elected representatives of the people.

The Florida court gave another week for Gore to pad his vote with a recount of the recount of the election returns in three Democrat precincts. This reduced Bush’s plurality to 537 – but still a win.

Again, Harris certified the final-final result. And again Gore went shopping for compliant judges.

Gore’s assault on the legislative process did not go unnoticed by Florida legislators. Members on both sides of the aisle gave Harris a prolonged, standing ovation when she attended the swearing in ceremony for newly elected representatives and senators.

Bush appealed the Florida Supreme Court ruling to the U.S. Supreme Court. To the surprise of everyone, the nine justices there accepted jurisdiction. Conflict between the Florida judiciary and legislature is critical.

The Supreme Court hearing last Friday is unprecedented. As this is written, a decision is pending.

Inasmuch as the U.S. court -- with a conservative 5-4 majority -- is just as political as courts elsewhere, Bush likely will benefit most from the decision.

If the Florida court is over-ruled, Harris’s certifications will stand and the matter is settled.

If the Florida court is upheld, and truck loads of sloppy ballots are hand-counted once again, the state’s Republican Legislature has indicated it will pick its own slate of electors -- as permitted by law.

Either way, Gore is behind the 8-ball.

Politics ain’t bean-bag.

The big prize in this election is the power to appoint a couple of Supreme Court justices and a hundred or more federal judges. Congress is a lost cause at least until the 2002 mid- term elections.

The present court is finely balanced 3-3-3 on most issues.

Conservatives are Chief Justice William Rhenquist (appointed by Nixon), Antonin Scalia (Reagan) and Clarence Thomas (Bush).

Swing voters are Anthony Kennedy (Reagan), Sandra Day O’Connor (Reagan) and David Souter (Bush).

Liberals are John Paul Stevens (Ford), Ruth Bader Ginsburg (Clinton) and Stephen Breyer (Clinton).

On heavy, ideological decisions, Kennedy and O’Connor go with the conservatives, Souter with the liberals, to produce a 5-4 conservative vote.

Beltway readers of tea leaves, have it that Rhenquist, age 75, is tired and wants to resign. Stevens, 80, is in excellent health but is considered an actuarial risk. O’Connor, 70, has had cancer problems, but is vigorous and likes her job. The younger justices are subject to the vagaries of life just like everyone.

There are many controversial issues facing the next courts – including, abortion, filth on television, gun control, campaign finance, school vouchers and (now) vote-counting reform.

No one wishes problems on sitting justices. Nevertheless, to be desired is a more-numerous cadre of moderate judges providing more-conclusive decisions.

In the meantime, it behooves Bush and Gore to accept the U.S. Supreme Court decision and one of them concede. The nation is bigger than both of them.

PARTING SHOTS

Don’t believe in miracles -- depend on them.

* * *

Advice for east coast voters: “When all else fails, read the instructions.”

* * *

Ryder Truck Rental charged Palm Beach County one penny to cart a half-million ballots to Tallahassee. Katherine Harris thinks that is about what the cargo was worth.

Lindsey Williams is a Sun-Herald columnist

Williams – courts

Sunday – Dec. 3, 2000

6 col head and byline logo for editorial column