Monday, September 15, 2003
It goes without saying, of course, that the 9th Circuit's actions are "the wages of Florida." That doesn't mean that without Bush v. Gore there's no chance that the 9th Circuit wouldn't have done the same. But Bush v. Gore set a precedent that is hard to keep in bounds. Moreover, it has changed the political terms of debate. There's a reason why Senator Schumer, for example, is able to get away with blacklisting conservative judges. Part of that reason is that no one on the left end of the spectrum is really embarrassed anymore by politicization of the judiciary. And a major reason for that is Bush v. Gore, which convinced Democrats that GOP judges are at least as nakedly partisan as Democrat judges. Folks in The Corner are already speculating that this turn of events is good news for the GOP, whatever it means for California taxpayers. But I'm a seller of that. After all, if the Supreme Court overrules the 9th Circuit, Democrats will be absolutely furious, and that fury will come out in the recall vote and in 2004 in California. Ever want to take back Boxer's Senate seat? Kiss that possibility goodbye. And if the Supremes take a pass, it's not obvious to me that the GOP will be able to generate any meaningful righteous anger over the issue.
In any event, it's a good idea for Republican partisans to remember that Bush v. Gore did *not* throw the election to Bush. It ended the recount. Had the recount not been terminated, there were two possibilities: either the recount would have shown a Gore victory or a Bush victory. If it showed a Bush victory, the game would have been over, and Bush would have had marginally more legitimacy in the eyes of Democrats (for what that's worth). If it showed a Gore victory, the Florida and national GOP would have had to decide whether to recognize the legitimacy of a recount obviously rigged by the Florida Supreme Court to produce a Gore victory. There's no doubt in my mind that they would not, and that two slates would have been certified by Florida - one by the Secretary of State, and one by the Florida Supreme Court. If the U.S. Supreme Court continued to refuse to opine on the matter, the matter would have been resolved by the House of Representatives, and the vote would have been by state delegation. And the majority of state delegations were controlled by the GOP. There is no doubt in my mind, then, that the GOP could have assured a Bush victory *if it had the political will to do so.*
The U.S. Supreme Court wanted to spare our democracy that raw contest of will. It feared that, where any outcome would necessarily have been the result of sheer partisan will - Florida Supreme Court Democrats versus U.S. House Republicans - the outcome would not have been deemed legitimate by the American people. But they were mistaken in thinking they could engineer political legitimacy. They did nothing of the sort. All they affirmed was judicial supremacy, and that supremacy necessarily leads to the politicization of the judiciary, as the major parties rightly refuse to bestow so much power on "impartial" and "well-qualified" professionals when they could vest it in partisan hacks.