*QL*: Court Scrutinized for Supreme Intervention
Court Scrutinized for Supreme Intervention
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THE NATION
Court Scrutinized for Supreme Intervention
Law: The Florida recount is long over. But its
legal legacy lives on in
academia and in books.
By DAVID G. SAVAGE
TIMES STAFF WRITER
August 26 2001
WASHINGTON -- The Supreme Court's Bush vs. Gore
ruling may have brought a
quick end to the disputed presidential election
of 2000, but the legal battle
lives on, fought out in the pages of six books
coming out this year.
Most are written by law professors, who remain
sharply split over whether the
high court was right to halt the Florida recount.
"Constitutional law professors form a different
breed, with longer memories
and deeper resentments," said University of
Chicago law professor Richard A.
Epstein in introducing a book of 11 essays,
called "The Vote: Bush, Gore and
the Supreme Court." At least a half-dozen books
focusing on the Bush vs. Gore
case will be out by fall, most published by
university presses. While hardly
classic beach-reading fare, two of the books have
hit the bestseller lists
this summer. And several more are due out by
year's end. They will find a
ready market in law schools and political science
departments, some
professors say.
"If you teach constitutional law, you can't avoid
teaching Bush vs. Gore,"
said New York University law professor Richard
Pildes, co-author of "When
Elections Go Bad." "It's clearly one of the
momentous decisions in the
court's history. And students are interested in
hearing about it."
Said Georgetown University law professor Mark
Tushnet: "Everybody is using
the case, either to talk about the role of the
court or to focus on equal
protection. I plan to use the University of
Chicago book this fall. It's a
good way to talk about the role of the court in a
democracy."
Both best-selling books, one by Harvard law
professor Alan M. Dershowitz and
the other by former Los Angeles prosecutor
Vincent Bugliosi, are scathing
attacks on the court's five conservative
justices--William H. Rehnquist,
Antonin Scalia, Clarence Thomas, Sandra Day
O'Connor and Anthony M.
Kennedy--painting them as lawless and partisan.
In "Supreme Injustice," Dershowitz argues that
the court's 5-4 decision to
halt the Florida recount was an egregious error
of a special sort. The ruling
is "the single most corrupt decision in Supreme
Court history, because it is
the only one that I know of where the majority
justices decided as they did
because of the personal identity and political
affiliation of the litigants."
Had George W. Bush been the one trailing by a few
hundred votes and seeking a
recount, the conservative justices certainly
would not have intervened to
stop it, he writes.
Bugliosi is the outspoken former Los Angeles
deputy district attorney best
known for prosecuting cult murderer Charles
Manson. More recently, he wrote
in "Outrage" that O.J. Simpson got away with
murder.
This year, he is calling the five conservative
justices "criminals" for their
decision that ended Al Gore's recount quest and
effectively put Bush in the
White House.
"The stark reality is that the institution
Americans trust the most to
protect its freedoms and principles committed one
of the biggest and most
serious crimes this nation has even seen--pure
and simple, the theft of the
presidency," Bugliosi writes in "The Betrayal of
America."
On Dec. 9, the day after the Florida judges
ordered a statewide hand count of
the untabulated paper ballots, the Supreme Court,
on a 5-4 vote, issued an
emergency order to stop the counting. Late on
Tuesday, Dec. 12, the court
handed down an unsigned opinion ruling that,
because the state had no precise
standards for deciding what is a legal vote, its
recount violated the
Constitution's guarantee of "equal protection of
the laws."
The surprising success of Dershowitz's and
Bugliosi's books may signal a new
publishing phenomenon. Over the last decade, the
bestseller lists have
regularly featured books by conservatives that
pilloried various
liberals--their favorite targets, Bill and
Hillary Rodham Clinton, and anyone
associated with them. But these new bestsellers
suggest there are plenty of
angry liberals willing to buy books that roast
conservatives.
The academic books are more reserved in tone, and
many of the law professors
engaged in a type of soul-searching.
The conservative professors, while agreeing with
the court's decision, admit
that they had to struggle to defend its
reasoning. For the liberal
professors, who think the court erred, the
struggle was determining the
effect of its decision on the court itself and
the rule of law. Was this a
onetime mistake, prompted by an extraordinary
sequence of events, or does it
prove, as Dershowitz contends, that the Rehnquist
court is an "activist,
right-wing Republican court" not worthy of trust?
Harvard law professor Frank Michelman takes a
middle ground in an essay
titled "Suspicion." The court will remain on
probation in the minds of many
for its actions in December, he said. "A great
many Americans suspect that a
certain five justices of the Supreme Court . . .
were prompted in their
actions by a prior personal preference for a Bush
victory," he said.
Elizabeth Garrett, a dean for academic affairs at
the University of Chicago,
said the high court should have followed the law
and allowed politicians in
the Florida Legislature and Congress to resolve
the dispute. A presidential
race had been deadlocked before, she pointed out.
After the disputed Hayes-Tilden election of 1876,
Congress passed the
Electoral Count Act, which set rules for
resolving such disputes. States were
given deadlines for finalizing their slates of
electors, and disagreements
were to be decided in the House and Senate. The
law's sponsor, Sen. John
Sherman, was adamant in saying that the Supreme
Court should play no role.
"It would be a very grave fault indeed and a very
serious objection to refer
a political question in which the people of the
country are aroused . . . to
this great tribunal," Sherman said on the Senate
floor in 1887. "It would
tend to bring that court into public odium of one
or the other of the two
great parties."
Ironically, Sherman's law was used but his advice
ignored last year. On Nov.
24, the Supreme Court cited the Electoral Count
Act as its legal basis for
intervening in the Florida election dispute.
The conservatives offer different defenses of the
court's ruling. Epstein, a
free-market conservative, said the majority's
conclusion that the hand
recount violated the "equal protection" clause of
the Constitution is a
"non-starter at best, which deserves much of the
scorn that has been heaped
on it." Instead, he said it was the "sorry
performance" of the Florida
Supreme Court that justified the Rehnquist
court's action.
In "Breaking the Deadlock," Judge Richard A.
Posner of Chicago, a Reagan
appointee also known for his free-market
conservatism, argues that the
court's ruling can be best defended as a
"pragmatic" decision, not a legal
one. It saved the nation from a "looming
political and constitutional crisis."
Because the Florida judges had "butchered" their
state law to order recounts,
the justices were justified in reversing them,
Posner adds. "What the court
wrought was a kind of rough justice."
Still another defense is offered by University of
Utah law professor Michael
McConnell. He says the court's equal-protection
ruling was "both sensible and
persuasive." There is no justification for using
different standards to count
legal ballots, he says.
But McConnell then argues that the high court
should have allowed the hand
recount to continue. "I think the decision to
halt the recount was incorrect
as a matter of law," he writes in an essay that
first appeared in the Wall
Street Journal and appears in expanded form in a
University of Chicago book.
"The 5-4 split created the appearance--whether or
not justified--that the
Court voted its politics instead of the law," he
writes.
He also faulted Bush's lawyers in Florida for
resisting hand recounts. Using
fair and uniform rules, Bush would have prevailed
in the recount, he says.
"If Bush's position had been a little more
accommodating, he might have
obtained a more secure mantle of leadership."
McConnell's candor was not held against him,
however. When President Bush
announced his first round of 11 judicial nominees
in May, McConnell was
there, selected to sit on the U.S. Court of
Appeals in Denver.
(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)
Books on Bush vs. Gore Case
* "Bush vs. Gore: The Court Cases and the
Commentary"
Edited by E.J. Dionne Jr. and William Kristol.
Brookings Institution Press,
Washington. A source book that includes the
various court decisions and
newspaper opinion pieces.
* "When Elections Go Bad: The Law of Democracy
and the Presidential Election
of 2000"
By Samuel Issacharoff, Pamela Karlan and Richard
Pildes. Foundation Press,
New York. A textbook for law classes.
* "Supreme Injustice: How the High Court Hijacked
the Election"
By Alan M. Dershowitz. Oxford University Press.
Bestseller.
* "The Betrayal of America: How the Supreme Court
Undermined the Constitution
and Chose Our President"
By Vincent Bugliosi. Paperback by Thunder's Mouth
Press, New York. Bestseller.
* "The Vote: Bush, Gore and the Supreme Court"
Edited by Cass Sunstein and Richard A. Epstein.
University of Chicago Press.
Essays by 11 law professors. To be published in
October.
* "Breaking the Deadlock: the 2000 Election, the
Constitution, and the Courts"
By Richard A. Posner. Princeton University Press.
To be published in
September.
* "The Votes That Counted: How the Court Decided
the 2000 Presidential
Election"
By Howard Gilman. University of Chicago Press. A
USC political science
professor offers a step-by-step account, analysis
of the Florida election
dispute. To be published in October.
* "The Unfinished Election of 2000"
Edited by Jack Rakove, a Stanford University
historian. Basic Books. Essays
by law professors and historians. Due out this
year.
* "The Longest Night: Polemics and Perspectives
on Election 2000"
Edited by Arthur Jacobson and Michel Rosenfeld.
University of California
Press. Essays by law professors. To be published
next year
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