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From: Alan Brinkley
To: Michael McConnellPosted Monday, Dec. 11, 2000, at 9:30 PM ET

Alan Brinkley is Allan Nevins Professor of History at Columbia University and the author most recently of Liberalism and Its Discontents (click here to buy it). Michael McConnell is the Presidential Professor of Law at the University of Utah. Slate asked them to keep a running commentary on the presidential endgame. Click here to read Michael McConnell's Saturday message on the court's logic in halting the recount.

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Dear Michael,

When last we corresponded, Gore was writing his concession speech and the media were preparing his political obituaries. Now they may all be doing so again. But what a remarkable few days in between. I appreciate your thoughtful analysis of the legal basis of the various court decisions of this weekend. You will not be surprised if I take a somewhat different view of their meaning.

Presidential campaigns are never pretty. There is too much pressure, too much scrutiny, too much raw ambition run amok. Candidates and their campaigns have seldom behaved well at any point in our history; the opprobrium we direct toward politicians today is not much different from the opprobrium that those who understood the process directed toward them in the past. "Presidents in general are not lovable," Walter Lippmann once wrote many years ago. "They have had to do too much to get where they are."

And so it is hardly surprising that every political figure who has been drawn into this post-election battle—in which the passion to win is not much leavened by the need to take into account the likely reaction of voters—has been diminished and discredited: the two candidates themselves; their principal aides; Florida's governor and secretary of state; Jim Baker, Bill Daley, Karen Hughes; the Democrats who have tried to suppress the military ballots and throw out the Seminole County absentee ballots; the Republican congressional staffers (and Republican members of Congress) who tried thuggishly to shut down a legal recount in Dade County; and on and on. One should expect that of politicians. The point of politics is to win elections, and this one can only be won ugly.

But if there is any institution that one might expect to rise above the cutthroat politics of the present moment, it would be the Supreme Court of the United States. And that is why it is so shocking to see the court plunging, apparently eagerly, down into the political muck with everyone else. You are almost certainly right that there are things in the Florida Supreme Court's decision last week that can form the basis of a reversal. Florida election law, from what I've seen of it, seems to have so many complicated and contradictory provisions that almost any decision based on it seems likely to be subject to reversal. I am equally certain, however, that there is nothing in the Florida court's decision that required the Supreme Court to intervene in this process. And certainly nothing that justifies doing so in the form of a stay that has the practical result of settling the contest even before briefs are filed and arguments are heard.

My own opinion is that the Florida Supreme Court's decision provided the first opportunity since Nov. 7 to produce a reasonably fair resolution of this dispute. Republicans had a point that it was unfair to have a recount only in Democratic counties (even though they themselves had refused to request recounts in their own counties). But Democrats also had a point that it was unfair to attempt to freeze the election at an artificial moment when thousands of ballots that might contain legal votes remained unexamined. Florida law clearly provided them with a recourse—hand counts—and the Republican strategy was a very simple one: stop any additional votes from being counted. By ordering an examination of all uncounted ballots in all of Florida, the court made it possible to come as close as we could plausibly come at this point to an accurate picture of how Floridians voted. As you noted, Bush may well have won such a recount. The recounts in Republican counties would probably have produced new votes for him; and I think everyone has overestimated the number of Gore votes that could be found in Dade County, which did not vote for him nearly as overwhelmingly as did Broward or Palm Beach. Had Bush won in that way, I think most Democrats would consider him to have won legitimately. Had Gore won in that way, I rather doubt the same could be said of the Republicans, so invested have they become in the idea that Bush has already won and that any step to challenge that victory is tantamount to theft. But even a Gore victory would have had more legitimacy under such a process than anyone's victory can have now.

The Florida court, like the U.S. Supreme Court, split in its decision. But the dissenters did not argue that the decision was illegal or unconstitutional as much as they argued that it was unwise, that it would create "chaos." Unlike the U.S. Supreme Court, the Florida court had virtually no choice but to hear these cases. That's their job. Whether they did it well or badly—and in some ways they did it both, I think—they were doing what they were expected to do.

The same cannot be said for the U.S. Supreme Court, which most people expected to stay out of this and which four of the nine justices believe should have stayed out of this. So why did they intervene? There is no compelling constitutional question at stake here. The temptation of most of those who disagree with their decision will be to say that naked partisanship was at work. I suspect it's not that simple. I feel certain that the majority who voted for the stay believed that they were acting to avert a travesty of justice. But I also believe that this was as much an emotional as a legal decision. Like everyone else, the justices appear to have absorbed the impassioned mindset of the antagonists in this contest—and to accept the apocalyptic image of what a challenge to the Florida result entails. How else can we explain Justice Scalia's extraordinary—and as far as I can tell unprecedented—press release on Saturday, refuting his colleagues' dissent on the stay. To Stevens' entirely reasonable argument that a stay was not justified because the Bush campaign had not made a persuasive case that a recount threatened them with irreparable harm, Scalia (who seems to be playing the role of the Tom DeLay of the court this week) responded that a recount would indeed produce such harm by "casting a cloud upon what [Bush] claims to be the legitimacy of his election." Weighed against the irreparable harm this stay does to Gore—rob him of any reasonable prospect of winning an election that he still might have won—that seems an absurdly feeble argument. Protecting a candidate's controversial claim of legitimacy does not seem to me to be something the Supreme Court should be exerting itself to protect.

Scalia also argued that there was a constitutional question about the varying standards different counties were using for counting votes. I agree that these varying standards raise questions of fairness. But of law? The Florida election law—which is the basis of Scalia's strange claim that the disputed ballots may not be "legally cast votes"—clearly leaves the decision on standards to county election boards. The Florida Supreme Court, which many hoped would establish a consistent standard itself, seems to have refrained from doing so because to do so would go beyond what the law established as a standard: "the clear intent of the voter."

But what was most shocking about the court's decision (or at least about Scalia's window into that decision, the only window we have at the moment) is his statement—before briefs are filed, before oral arguments, before any deliberation—that "the petitioner has a substantial probability of success." I believe you are right, Michael, that the court would never have granted a stay had it not already decided to overturn the Florida decision. But one would think they would at least go through the motions of deliberating honestly.

The legitimacy of the Supreme Court is one of its most precious assets, and through most of its recent history the court has gone out of its way to protect that legitimacy—with some success. Despite numerous highly controversial and highly ideological decisions in the last few years, the Rehnquist Court has retained an image among most Americans of reasonable impartiality. One way the court has done that is to stay out of explosive cases that it didn't have to adjudicate. Another way it has done so is to be careful—when it does take on an explosive case, and particularly when it takes on an explosive case involving the presidency—to rule unanimously. The court was unanimous in the Nixon tapes case in 1974. It was unanimous in the Paula Jones case in 1996. (And it was, of course, unanimous as well in perhaps its most important decision of the last half century—the Brown decision in 1954.) But here, the court has plunged heedlessly into the miasma of this battle, exposing its own bitter internal divisions to the world and ensuring that its decision will be reviled and repudiated by about half the American public. Rehnquist's tenure as chief justice is probably nearing its end. He will be remembered primarily for this.

In the most notorious decision in the Supreme Court's history—the Dred Scott case of 1857, in which the court ruled that slaves had none of the rights of citizens because they were "private property" and that (according to Chief Justice Roger Taney) no African-American could ever be a citizen—the court was so divided that every justice wrote a separate opinion. The decision was hailed as a great act of statesmanship in the white South. In the North, it was widely and violently denounced as deserving the same respect as a pronouncement by political hacks "in any Washington bar room." The court's reputation did not recover for many years. Taney, a great Jacksonian Democrat in earlier years, is remembered now for almost nothing but his infamous opinion in this case.

What we are seeing today is not, of course, the Dred Scott case. The moral issues at stake here are far less compelling, the likely practical consequences much less important. But by intervening gratuitously in a political battle that did not require their intervention, by doing it so bitterly and openly divided, and by failing to transcend the polarization of opinion that has made an adequate settlement of this election virtually impossible, the court has done itself—and the nation, which needs a final tribunal capable of attracting the respect of the public—a much greater "irreparable harm" than it has prevented in Florida.

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From: Alan Brinkley
To: Michael McConnellPosted Monday, Dec. 11, 2000, at 9:30 PM ET

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Alan Brinkley is Allan Nevins Professor of History at Columbia University and the author most recently of Liberalism and its Discontents (click here to buy it). Michael McConnell is the Presidential Professor of law at the University of Utah. This week, Slate has asked them to keep a running commentary on the presidential endgame.

COMMENTS

Reader Comments from The Fray:

Michael McConnell argues that even a state-wide hand count might give Gore an unfair advantage, because the questionable punch card ballots were used predominantly in counties that heavily supported Gore. But his logic is flawed; he forgets that the argument for a hand recount--widespread undervoting that a human eye might correct--has already taken this very discrepancy into account. Though the hand recount would most likely discover a larger number of new votes for Gore than Bush because of the problems with punch cards, the inverse is true for the current machine count: Bush has been unfairly over-represented by his support in counties with more technologically advanced voting systems. It is not necessarily improper to concentrate energy on hand recounts in punch card counties, since they are the ones in which problems with unread votes are more likely. While I can't think of any serious argument against a state-wide hand count (except for the question about hand count subjectivity which might be dealt with by simple guidelines), the problem now is simply that the Republicans have argued for too long against hand counting at all, and are thus unable to concede this clear, proper compromise.

--Jared White

(To reply, click here.)

I believe that the hand recount is conducted, ballot by ballot, with a representative of both political parties, both of whom must agree on the party for whom each vote was cast. Any ballot that the two person team does not agree on is then reviewed by a three member panel of non-partisans. My point is simply that the recount is not a subjective as one might think. Since one of the candidates campaigned on the slogan that he "trusts the people" and the other has indicated a willingness to trust the people on this issue, I am surprised there is a problem.

--Carrie McLain

(To reply, click here.)

A way out: the Burr-Hamilton solution.

--APM

(To reply, click here.)

(11/15)

Reader Comments from The Fray:

I find it amusing that the Democrats are telling President-elect Bush that the only way he can succeed is to adopt their agenda.

The popular vote, as close as it was, could have swung Bush's way if it was recounted as Florida was. If California and all the voter irregularity in the excessively liberal and populous states were taken out of the picture, the popular vote across the nation was significantly more for Bush. It presents a more accurate picture of America as a whole to view the popular vote minus California. That's the reason for the Electoral College.

Democrats should be looking and asking themselves why they blew this election rather than deluding themselves that it was stolen. Look within. The liberal lies and scare-mongering, and class warfare language and willingness to depart from the law in order to win at any costs is not going to serve America or the Democratic party well. When America has more time to reflect on the days since the election, the Democrats will not fare so well. That is why the Democrats are trying still to deflect attention from their failures.

Vice-President Gore gave a noble speech last night. For the first time in this election process I gained respect for him. He was finally speaking honestly. Liberals should try honesty instead of distortion and manipulation more often.

--Mark Sherman

(To reply, click here.)

Sorry, but I don't see true bipartisanship happening. The division you see has been growing for decades. It isn't between skinheads or klansmen and 'good honest Americans,' it is between those who are willing to be responsible for themselves, and those who've been inculcated with the idea that they have a god-given right to the fruits of someone else's labor. The Dems have done the indoctrinating, and those of us who flocked to the personal freedom stances of 60's Democratic candidates are appalled at how the current flock of Democrat candidates have taken full advantage of the 'buy a vote with welfare' techniques they've developed over the years. I have predicted class warfare by 2010 since 1975. I may be off a couple years, but dramatic changes are in order

--Dennis Jacques

(To reply, click here.)
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Reader Comments from The Fray:

I disagree that what the Supreme Court faces is less compelling than Dred Scott. It's time to get past all this rhetoric and look at what we, as citizens, are being dealt. First of all, forget all the pious cant about the wisdom of the founding fathers. The Constitution was never a document that guaranteed democracy in this country, since the founding fathers' didn't want democracy. They didn't want people to be able to vote for the president, that was the job for politicians. Jefferson himself wrote "the people is an ass." While they may have been against British rule, they were in no shape or form democrats in light of the term today. And the Republicans are not such great believers in democracy today. If they were, they would have worked to get an accurate count in Florida. The Supremes are either going to yank us into the present, for those "asses" like myself, of haul us back into the past. That is the Constitutional issue at stake.

--George Grella

(To reply, click here.)

As we await the Supreme Court's decision, I stand astonished. Not that the Supreme Court delved into the 'miasma' of this election dispute--it is not such a bad idea for the last word of the land to have the last word; what astonished me was Scalia's stated reason for the stay granted. The stay itself was not such a bad idea (I voted for Gore, by the way). The decision needed to be made before there were facts on the ground so that no one felt any more robbed than they already do. However, Scalia's unprecedented indication that he has already made up his mind before even receiving a brief must have ruffled some of his colleague's feathers and perhaps created an environment that may well send the 'swing justices'--Kennedy and O'Connor--into the arms of the solid opposition. Scalia's statement may well turn out to be a self-fulfilling anti-prophecy.

It would be most astonishing if any decision were 5 to 4. I think it is more likely that there will be a more solid majority behind some sort of solomonic solution. One hopes that the court will be very, very cautious not to create law itself.

--Rabbi Jason

(To reply, click here.)

In our world of constant disorder, why is it so surprising that the old technology-based society is colliding with the new tech order? We are transforming our entire society to the new tech order. Many systems have not made the transition. Voting processes and systems are at the top of the list right now. This collision must take place and the new tech order take its proper place in this function of our society. Laws must change to support the new order. For now, the courts must decide the outcome based on our current technology and laws. We must invest the next four years and make our voting systems capable of supporting our transforming society, and build new law in this process.

--Steve R

(To reply, click here.)

(12/11)

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