-Caveat Lector-
November 25, 2000
Playing With Fire
By ANTHONY LEWIS
DALLAS -- However this presidential conflict ends in the Supreme
Court of the United States, it has taken one dangerous turn: the
excoriation of the Florida Supreme Court by George W. Bush and
his lawyer, James A. Baker III.
When the court decided on the night of Nov. 21 that hand counting
of ballots could continue in three Florida counties, Mr. Baker
called the decision a "judicial fiat" that "invented a new system
for counting the election results." He suggested that the State
Legislature would act to overrule the court.
The next day Governor Bush said the court had "usurp[ed] the
authority of Florida's election officials." The court "cloaked
its ruling in legalistic language," he said. "But make no
mistake, the court rewrote the law."
Those menacing words - usurpation, judicial fiat - recalled a
dark episode in our recent history. They were exactly the words
used by George C. Wallace and other Southern governors in defying
court orders to end racial segregation.
Why do the words matter? Because willingness to abide by
decisions of the courts has been an essential element in holding
this great, diverse, disputatious country together.
When a court speaks, presidents accept. Harry Truman was unhappy
but unquestioningly obeyed when the Supreme Court said he had
exceeded his powers in seizing the nation's steel mills to
prevent a strike during the Korean War. Richard Nixon obeyed the
order to turn over the incriminating Watergate tapes that drove
him from the presidency.
So it is dangerous business when a man who would be president
tries to delegitimize a court. And it is despicable when a lawyer
as senior and powerful as Jim Baker denounces a judicial decision
against him and says it will be muscled in the Legislature.
Would we prefer to have legal disputes settled by politicians
rather than judges? Would it be more legitimate for this dispute
to be decided by a Republican Legislature and a Republican
governor who is the candidate's brother?
Long ago this country decided that the third branch of
government, the judiciary, was the right place to resolve
questions about the law. In 1803, in Marbury v. Madison, Chief
Justice John Marshall put it: "It is emphatically the province
and duty of the judicial department to say what the law is."
In this case the Florida Supreme Court followed well-established,
traditional methods. There was a conflict between two sets of
state statutes: one setting times for certifying election
results, the other allowing manual recounts that could not be
completed within those times. The court resolved the conflict by
allowing a limited extension of time to complete the recounts. It
was a minimalist decision, going no further than needed to make
coherent sense of the statutory provisions.
Even before the decision, the Bush camp and its supporters tried
to delegitimize the Florida Supreme Court. Almost all its
members, they noted, had been appointed by previous Democratic
governors. But anyone who watched the argument or read the
exchanges could see that the judges were struggling without
partisanship to make sense of the law ó as judges do.
This country has all kinds of elections that are decided on hand
recounts. Just now a seat in the Texas Legislature was decided
after a recount that considered dimpled chads ó under a state
law, signed by Governor Bush, that says counters should determine
the "intent of the voter."
But Governor Bush and his people have acted as if hand counts in
Florida were an affront to decency. There has been a sense of
Bush entitlement: "Unless I win, it's improper."
Al Gore has every reason to feel morally secure in pressing the
recounts. He had more popular votes nationally than Mr. Bush.
Probably at least 30,000 Floridians who voted preferred him but
accidentally spoiled their ballots. Officials in Miami-Dade
County called off their recount after they felt menaced by a
crowd of angry Cuban-Americans and Republican operatives.
The U.S. Supreme Court will now decide whether, and if so how,
federal law affects the Florida situation. The end is not yet in
sight. But however this does end, we shall be left with the
dangerous legacy of a presidential candidate and his lawyer
encouraging defiance of a court.
=================================================================
Kadosh, Kadosh, Kadosh, YHVH, TZEVAOT
FROM THE DESK OF:
*Michael Spitzer* <[EMAIL PROTECTED]>
~~~~~~~~~~~~~~~
The Best Way To Destroy Enemies Is To Change Them To Friends
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