Supremes Getting Back Together?

A summary of what's in the major U.S. newspapers.
Dec. 12 2000 7:20 AM

Supremes Getting Back Together?

Everybody leads with yesterday's Supreme Court oral arguments in the case of George W. Bush v. Al Gore. The Washington Post, New York Times, and Los Angeles Times headlines all refer to a split court. USA Today's headline says that a decision is expected today.

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According to the coverage, the justices' questions worked over the principal issues of the case, nicely laid out by USAT as whether or not the Florida Supreme Court had: 1) violated the U.S. Constitution's article reserving for state legislatures the right to direct how presidential electors are determined, 2) rewritten the rules after Election Day for certifying election results, and 3) endorsed a recount plan that in its arbitrariness and capriciousness violated constitutional provisions guaranteeing equal protection and due process.

All the papers look at the discussion in light of Saturday's 5-4 ruling granting yesterday's hearing and a stay in the Florida recounts. The WP and NYT go high with the apparent attempt of several of the four stay dissenters to nudge each side's lawyer towards a nonarbitrary and noncapricious standard for recounting disputed ballots, but neither paper sees any evidence that this tack or anything else in the arguments changes the 5-4 alignment of votes against continued ballot counting in Florida. If anything, the LAT is even more positive about this, saying that the justices "gave every indication that they remain sharply divided." In particular the papers report the seeming intransigence of potential swing Justices Sandra Day O'Connor and Anthony Kennedy. It's noted that she complained that as of yesterday morning, the Florida Supreme Court still hadn't responded to the U.S. Supreme Court's previous request to clarify its legal grounds for extending the recount. (Later yesterday, the Florida court did respond, report the papers, answering that its basis was state election law--normal judgey stuff--not the state constitution, which is the state legislature's bailiwick.) The papers also report that Kennedy wondered why the Florida Supreme Court's opinions didn't constitute making new laws when if the Florida Legislature had issued the same new deadlines, the result would have been precisely that. And for those looking for extra-legal clues, the NYT reports that Kennedy "scowled through much of the argument."

The leads are very good on the discussion of possible uniform recount standards. At one point Justice David Souter asked Gore lawyer David Boies to propose such a standard, and Boies seemed uneager to answer but then finally said it would be to count every vote. The WP offers a law professor's gloss on the exchange: "Souter reached out. Boies let him down." The papers note that the lawyer representing Bush, Theodore Olson, and the lawyer representing the Florida secretary of state likewise demurred on a recount standard but that when pressed, they responded that a necessary condition would be a full perforation. The NYT notes that at one point, when Olson appeared willing to concede that a statewide standard was possible, Justice Antonin Scalia "jumped into the argument almost as if to make sure that Mr. Olson did not make any unnecessary concessions on the Bush side." The Times explains that Scalia reminded Olson that the Bush position is that undervotes caused by voter error, rather than mechanical malfunction, didn't qualify under any standard. The paper then mentions that Scalia's son is a partner of Olson's and that Scalia has been "the most outspoken advocate on the court for Mr. Bush's position."

The LAT lead buttresses its somewhat harder line on whether the 5-4 pro-Bush vote is in place with some acute observations. Conspicuously absent from Monday's oral arguments, says the paper, were any comments from the bench indicating that justices did not want to decide who becomes the next president. The LAT also says that none of the stay majority tried to pursue construction of a statewide recount standard. (The Wall Street Journalsays that O'Connor did.) The LAT lead is also the only one to supply this important historical context: In recent years the Supreme Court has knocked down part of the gun control measure known as the Brady Bill, struck down the Violence Against Women Act, stripped 5 million state employees of their federal protections against age discrimination, and nullified the Clinton administration's cigarette regulations, all by the same 5-4 lineup that voted for the stay last Saturday.

The NYT goes inside with a report that Justice Clarence Thomas' wife is working at a conservative research group, the Heritage Foundation, gathering résumés of applicants to positions in a possible Bush administration, but that she saw no conflict between her job and her husband's deliberations, and that therefore he shouldn't recuse himself from Bush v. Gore. The WSJ also has this, deep in its front-pager court profile (along with the item about Justice Scalia's son). The NYT quotes a federal judge who has a long association with the Gore family as saying that Thomas should remove himself to prevent any violation of federal law. The judge then quotes the law, which requires court officers to excuse themselves if a spouse has "an interest that could be substantially affected by the outcome of the proceeding." The Supreme Court, the Times adds, has not commented on either the Thomas or the Scalia situations. The story has Mrs. Thomas saying her recruitment efforts are bipartisan and quotes Bush campaign spokesperson Ari Fleischer saying that he did not know if the Heritage Foundation was coordinating its efforts with the Bush camp.

A WP front-pager drives home the burgeoning sense of political division under the headline: "BUSH LOST 9 TO 1 AMONG BLACKS." The paper calls the ratio "one of the worst records for a Republican presidential candidate in the history of polling." And a little ways into the story, it's revealed that Bush did even worse in Texas, where he lost 20 to 1 among blacks.

You might want to check the fine print, Bob. The NYT op-ed page runs a plea for President Clinton to sign the treaty creating a permanent international criminal court. (For technical reasons, if Clinton doesn't sign it before the end of the year, opposition from Sen. Jesse Helms will make it much harder for the U.S. to support the court.) The piece explains that the treaty is a "last chance to safeguard humankind from genocide, crimes against humanity and the ravages of war itself." One of the piece's co-authors is a former Nuremberg prosecutor and the other is ... Robert S. McNamara.

USAT and the LAT front and the WP and NYT reefer word that the Texas Rangers have signed Alex Rodriguez to a 10-year, quarter-billion dollar contract, the richest in sports history, double the previous high. For those who remember the $100,000 per year barrier broken by the likes of Willie Mays and Mickey Mantle, the LAT front-page caption notes that under the new contract, Rodriguez will make $170,000 per game.