I am not the only one who is still riled up by the Bush/Gore election of 2000, as shown by a conservative criticism ("Weekly Standard," 2/4/02) of Gore lawyer Laurence Tribe's interpretation of the US Supreme Court decision. It is notable that the author is Peter Berkowitz, a law professor at George Mason University School of Law, apparently someone who should know what he is talking about. Nonetheless, his criticism has the half-truth, biased or clueless nature of too much of those who were involved (ultimately everyone, since choosing of the President of the US a.k.a. "the free world," is involved). Currently, such ignorance and outrages concern us as applied to Enron, but given the importance of democracy, the courts, who is president, equality, and so on, this issue is important too. After all, hasn't it been the source of more than its fair share of books that no one has read?
At any rate, why don't we just attack the article head on? We start with the statement that Bush v Gore isn't going away since liberal (at least those named are) critics are still writing about it. This is not surprising in that (1) it's pretty important (2) the conservatives basically "won" because their candidate did and (3) complex interpretation of the decision would open up a can of worms, since the basic concepts behind it really can't not honestly be easily limited to this case. This is the case even if the US Supreme Court tried to do so. Finally, books like one by Judge Posner and articles like this one, suggest conservatives did comment and write about (at times criticizing) this case in some detail, which is only fair and honest to do.
The article argues that the heart of Tribe's critique is that the Constitution, federal law, and precedent all clearly show that the Bush v Gore decided a "political question" best left to others. First off, part of these "others" are Florida courts, so Tribe is not being hypocritical by saying that the US Supreme Court shouldn't have decided as it did. Furthermore, the article makes no mention of the weight a decision by the US Supreme Court is given in this country, suggesting Congress could have still stepped in. Yes, it should have, but the weight of the Court's decision was just too much for Al Gore and those in Congress with the bravery to admit something was wrong could overcome. After all, political branches has a long history in this country of avoiding troubling issues by handing them to the courts to decide. Conservatives have a history of being upset about this when applied in ways they dislike, but apparently here they have less of a problem with it.
Berkowitz admits the US Supreme Court need not have taken this case, and have political biases that are a reason for them not to, but implies they had to in this case to defend the right to vote. Though three justices were concerned with state power issues, the heart of the ruling was that the recount had equal protection problems. And who better to determine this than the US Supreme Court in a 5-4 vote! Berkowitz again uses the tactic of arguing seven justices voted for the equal protection component of the decision, but ignores two of them felt the Court shouldn't have taken the case and later that there was time for the problem to be fixed. He, of course, feels the time limit was justified (ignoring how vaguely the state court mentioned it, that by taking the case the Supreme Court made it worse, and that time limits for much less important things traditionally are stretched when events merit it).
Berkowitz argues conservative judicial philosophy is that the Court should invalidate state action only when "grounded in settled precedent and explicit textual statements." The uniqueness of the case, the badly split nature of the courts who decided upon it, and the vagueness of such statements as "equal protection of law" all make this doctrine of little use to him in this case. Conservative court precedents surely reflect "moral values and substantive goods thought to be implicit in the Constitution." After all, where in the Constitution does it say that Congress cannot pass laws allowing state employees to sue state employers to protect the rights of groups other than racial minorities? Or that a state citizen cannot sue states? Or that "equal protection" does not apply to sexual orientation? And, is not Roe v Wade (1973) settled precedent? How about not allowing official prayer in public schools?
Furthermore, it ignores the obvious to suggest that stopping the recount because the rules imperfectly were implied is the only way "equal protection" could be protected in this case. Common sense and further study shows that there are quite a few variables (e.g. the appearance and actuality that the uncounted votes disproportionately harming minorities as well as ultimately Al Gore) involved here than confusing little used election law (which Berkowitz fails to explain largely involves questions of state law the federal courts had no business deciding) involved here. Ultimately, the political branches should deal with such inexact and complex business. The US Supreme Court's decision might have seem to give the imprimatur for Congress to ignore this, but it is not less true.
The logical response to the equal protection problem of the recount was to start again and do it right this time. After all, Canada at about the same time counted millions of votes (not under two hundred thousand, even counting overvotes that later studies showed might very well have gone Al Gore's way; not that the author is concerned about it) in a day! Therefore, procedural concerns could have been fixed without just tossing all the votes out the proverbial window, which seems to be an illogical interpretation of the "explicit textual" demand of equal protection. Furthermore, as noted, pushing back deadlines is also "settled precedent," except for recent conservative death penalty jurisprudence. Finally, this would not raise yet again the doubts of the 1876 Hayes/Tilden precedent, which is inexact, but much less so than he would want to admit.
The article seems more concerned with "formal procedures" than their ultimate end, namely the democratic choice of the people. Put aside the trouble of the Electoral College, which is the concern of another essay. Also, let's put aside for now that the "formal procedures" was interpreted differently by forty four percent of the Court. It is a bit naive to put it mildly to ignore that the procedures (as a result of largely Bush friendly individuals) were ultimately carried out in an unequal fashion, resulting in someone who had lets votes (quite possibly even in Florida) than the loser. The political process doesn't always result in fair results, but politics is obviously often messy. It is quite another thing when inequitable political results are a result of five out of nine justices with a controversial (and quite arguably misguided) decision not clearly dictated by precedent or explicit constitutional doctrine.
"Enforcing a rule differs from selecting a winner." "Select" means "choose," and there were two conflicting choices of who would be President, George Bush and Al Gore. By stopping the recount, the US Supreme Court "selected" George Bush as the winner of the lawsuit. The result, as they and most people knew was likely to be, was that Bush's electors became the official electors for Florida, and thus, George Bush became President. Therefore, it is naïve to say that the US Supreme Court's ruling was markedly different from them selecting the winner. And yes, to use Berkowitz's sports analogy, if the tying score of the Super Bowl was overturned by an inconclusive review, the official can be blamed for being essential in selection of the winner of the contest.
The article ends with him criticizing Tribe for his sarcasm concerning the ruling's ignoring the "political question" doctrine that traditionally counsels the courts to stay away from rulings that are the role of others. Tribe overstates his case (the concurring opinion, for instance, argued the case was so egregious, court action was necessary in this specific case), but not because Gore didn't mention the doctrine. Gore obviously didn't want to go too far with this argument because it might be taken to mean he that shouldn't have went to court in the first place. Yes, this is a simplistic view and ultimately a counterproductive strategy, but makes some sense. Furthermore, the Twelfth Amendment was raised by a dissenting opinion, so merited discussion. Quickly put together politically motivated briefs and legal arguments (resulting in error and bias) are quite different from academic law review articles.
Thus, though various arguments against Bush v Gore are somewhat flawed (as all arguments in such controversial issues tend to be), they also are not in general "intemperate and deeply" flawed. The reasoned debate and issues such dissenters raise deserve much more respect than that. The results as well as article like this one suggest the passionate nature of some of this criticism be warranted, if not totally constructive. Should one not be passionate if they feel a great injustice was done, and thus threatens cornerstones of our national ethos (democracy, equality, the rule of law, and so on)? At any rate, Berkowitz should be careful when ending essays like this one by "expos[ing] the failure of academic critics to fulfill their obligations as scholars." After all, people in glass houses should not throw stones.