On Dec. 6, attorneys for Al Gore urged the Supreme Court of Florida to reverse a trial court decision rejecting vote recounts sought by Gore. Decrying "the radical departure of the trial court from settled Florida statutory law and precedents," Gore's brief concluded that such judicial adventurism "requires immediate resolution by this court." Attorneys for George W. Bush, on the other hand, advised the justices to show restraint. The trial court had "carefully reviewed each of Vice President Gore's claims," they argued. "[T]he best exercise of this Court's discretion would be not to accept this case."
Four days later, after the Florida Supreme Court reversed the trial court and ordered a recount, Bush's attorneys urged the Supreme Court of the United States to reverse that decision. Decrying the Florida Supreme Court's "manifest overreaching," "wholesale revision of Florida statutory law," and "judicially created ad hoc and post hoc remedies," Bush's lawyers advised the U.S. Supreme Court that the Florida ruling "should be reversed." Gore's attorneys, meanwhile, argued that the Florida Supreme Court "did not 'make law.' … Rather, the court engaged in a routine exercise of statutory interpretation." Therefore, "the question is whether this Court may properly override Florida's own state-law process for determining the rightful winner. … Such intervention would run an impermissible risk of tainting the result of the election."
You don't need a law degree to see the hypocrisy. Each side preaches judicial restraint after winning a round in court, and judicial activism after losing the next round. But the conundrum goes deeper. In a situation as complex as the Florida recount litigation—in which one arm of government is preventing another from preventing another from doing what was sought in the first place—a decision not to tread on one contestant in the pile is a decision to let that contestant tread on the contestant below. When one court, having reversed another, faces judgment by a court above, judicial restraint doesn't tell the upper court whether to defer to the middle court or to overrule it for failing to defer to the lower court. Judicial restraint, like "the intent of the voter," is an empty principle.
To illustrate the problem, let's review the recount mess. First, Gore asked several county canvassing boards to intervene against Bush by recounting ballots. Then Republican Secretary of State Katherine Harris intervened against the boards by advising them that in the absence of clear machine error, the recounts were not authorized. Then Democratic Attorney General Bob Butterworth intervened against Harris by advising the boards that the recounts were permissible. Then a county judge intervened at Gore's request, causing the Palm Beach and Broward County boards to consider dimpled as well as punched ballots. Then Harris intervened against the boards, announcing that she would reject any tallies submitted after Nov. 14. Leon County Circuit Judge Terry Lewis intervened against Harris at Gore's request, ruling that Harris couldn't reject late tallies arbitrarily, but he refused to intervene a second time after Harris gave reasons for rejecting the tallies. Then the Florida Supreme Court intervened against Harris at Gore's request, ordering her to accept tallies until Nov. 26. A week later, the U.S. Supreme Court intervened at Bush's request, vacating the Florida Supreme Court's order.
Still with me? It gets better. After the Florida Supreme Court intervened against Harris and issued the Nov. 26 deadline, the Dade County canvassing board, concluding that it couldn't manually recount all its ballots by that deadline, as it had set out to do on Nov. 17, announced on Nov. 22 that it would re-examine only its "undervote" ballots—those on which machines had registered no vote for president. Republican activists intervened, protesting that a recount of only undervotes was unfair. In response, the Dade board reversed its Nov. 17 decision, renouncing its recount plans altogether. Gore asked a judge to order the Dade board to reverse its reversal, but the judge refused. On Nov. 27, Gore contested the election, asking Leon County Circuit Judge Sanders Sauls to reverse the Dade board's reversal and to reject Harris' rejection of the Palm Beach board's late tally. Sauls refused to intervene. So, on Dec. 8, at Gore's request, the Florida Supreme Court intervened against Sauls, ordering a statewide manual recount of undervotes. And on Dec. 9, at Bush's request, the U.S. Supreme Court intervened again, suspending the Florida Supreme Court's order.
So here's where we stand. Bush wants the U.S. Supreme Court to intervene against the Florida Supreme Court's intervention against Judge Sauls' refusal to intervene against the Dade County canvassing board's Nov. 22 intervention against its Nov. 17 intervention against its usual practice of certifying the machine-counted election results. Gore, on the other hand, wants the U.S. Supreme Court to wisely restrain itself from overruling the Florida Supreme Court's wise decision not to restrain itself from overruling Judge Sauls' deplorable decision to restrain himself from overruling the Dade County canvassing board's deplorable Nov. 22 decision to reverse its wise Nov. 17 decision.
Bush or Gore may be right about the merits of various decisions in this chain of events. But it's meaningless and specious for either side to frame its position as one of judicial restraint. It's dishonest of Bush's legal spinmeister, Jim Baker, to lament, as he did Saturday, that "it's sad that we seem to be deciding a national election for president … in lawsuits and in courthouses after the election outcome has been certified. … But our folks are ready to go. We have a fine … petition for a writ of certiorari before the [U.S. Supreme] Court." It's oxymoronic of former White House Chief of Staff John Sununu to complain, as he did on Late Edition, that 1) "the Florida Supreme Court overruled the trial judge" and "went into areas that were not appropriate for [their] review" based on "their interpretation of what the trial judge should have done"; but 2) all will end happily because "the [U.S.] Supreme Court is going to tell the activist Florida Supreme Court they're not going to pick the winner for president." It's preposterous of House Majority Leader Dick Armey to complain, as he did on Meet the Press, that "the Florida Supreme Court is carrying judicial activism to its logical extreme, and indeed, it is the U.S. Supreme Court that has said, 'We are going to impose judicial restraint where we find none.' " Impose judicial restraint? Hello?
Conversely, it's incoherent of Justice John Paul Stevens to accuse his colleagues of violating "venerable rules of judicial restraint" by not having "construed our own jurisdiction narrowly and exercised it cautiously" in the face of a Florida Supreme Court decision claiming broad jurisdiction and exercising it incautiously. It's amusing to watch former Gov. Mario Cuomo, D-N.Y., accuse Republicans of letting "five judges of the Supreme Court substitute themselves for 53 million people." It's laughable to hear Sen. Tom Harkin, D-Iowa, warn that the U.S. Supreme Court will "go down in history as the most activist, interventionist court … in our history." It's galling to see former Clinton flack Lanny Davis accuse a "Supreme Court known for its conservative judicial restraint" of rendering a "shockingly partisan decision." It's shameful of Gore attorney David Boies to declare, less than 24 hours after persuading the Florida Supreme Court to reverse Judge Sauls' rejection of Gore's legal complaint, "It is unfortunate that Gov. Bush's campaign has taken this to the courts. We believe that the right way for this to have been resolved was to have the votes counted in the political electoral process." And it's shameless of Boies to add, after weeks of beating canvassing boards over the head with court orders, that the U.S. Supreme Court has no business "substituting its judgment as to how votes ought to be counted for the judgment of the local election officials."
Each side pretends that some larger principle explains why it pleads for intervention in some cases and for restraint in others. Conservatives speak of accountability. "The fundamental premise of conservative jurisprudence isn't reverence for federalism," George Will argued on This Week. "It is deference to the political branches of government." But when the Palm Beach County canvassing board is battling Florida's secretary of state with the help of Florida's attorney general on behalf of ballots counted by a standard forced on the board by a county judge—and the county circuit court, state Supreme Court, and U.S. Supreme Court disagree about how to resolve the dispute—what answer does "deference to the political branches of government" prescribe?
Liberals, on the other hand, speak of fairness. "Every game needs a referee. And in this process, the referee is the Florida courts and, ultimately, the Florida Supreme Court," Gore strategist Ron Klain explained Saturday. But who will referee the referee? Restraining federal courts from second-guessing state courts—as liberals righteously acknowledge in every case other than Bush v. Gore—is as likely to jeopardize fairness as to protect it. Only one principle explains the behavior of each party at every stage of the recount war. I'll give you three hints. It isn't accountability, it isn't fairness, and it certainly isn't restraint.