Dear Alan,
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StumbleUponWhen we signed on to conduct this continuing conversation about the post-election, I had no idea we would still be going in the middle of December. Thanks for your warm words about the exchange; I feel that way, too. Let me close with a few miscellaneous comments.
First, thinking about Vice President Gore's gracious and patriotic concession speech, and President-elect Bush's conciliatory victory statement, I begin to question the tone (though not the substance) of my comments yesterday. I think you and I both underestimated the sense of relief that the Supreme Court decision would bring to the nation. Putting aside the legal issue, there was wisdom in the court's decision not to prolong the controversy, when it was so unlikely that there could be any change in the outcome. All over the country, ordinary people are saying that they are glad—relieved is the better word—it is over. Even Mr. Gore seemed a bit relieved. I was critical of Justices Kennedy and O'Connor yesterday. But Justice O'Connor, particularly, often has the ability to craft solutions that—while analytically unsatisfying—capture the mixed-up mood and desires of the people.
Second, there has been a lot of talk about partisanship among judges, and we have seen a bit of it, too. But there has also been a lot of nonpartisanship. It is not fair to attack judges simply for deciding cases in a way that supports their party (after all, odds are about even that their party is correct). Special recognition, however, should go to judges whose decision went against the party line. In their case, we can be certain that the rule of law triumphed over politics. In this honor roll we should include Judge Lewis and Judge Clark of the circuit courts of Florida; Judge Burton of the Palm Beach canvassing board; Justices Wells, Harding, and Shaw of the Florida Supreme Court; and Justices Souter and especially Breyer of the U.S. Supreme Court. These are mostly Democrats, since every judge who played a role in the state court litigation in Florida was a Democrat. Two of them are liberal, African-American judges. All are tributes to the judiciary.
By contrast, have you been struck, as I have been, by the extreme, partisan, hyperbolic, and vitriolic flavor of much of the commentary by academics? Frankly, this makes me ashamed of the academy. One of the reasons historians, political scientists, law professors, and the like are asked to participate in public commentary is that we are expected to rise above petty partisanship and to provide objectivity and perspective. There was some of that (may I compliment your contributions?), but much more of the opposite.
Why might this be? I think one reason is that academia is so heavily one-sided in its ideological composition. In my line of work, surveys show that the overwhelming majority of law professors are liberal Democrats. There are more far-left law professors than there are conservatives. For example, even here in the conservative state of Utah, I doubt that more than two members of the law faculty voted for Bush. I suspect history departments are not much different. The effect of this ideological homogeneity is that academics lose perspective. Academia becomes an echo chamber, in which the same opinions become magnified through hearing nothing else. There are few better antidotes to extremism than frequent contact with intelligent people of other views.
Third, I wanted to pass on an interesting fact that I had not previously known about the election. The reason that Al Gore's 330,000 vote lead in the popular vote did not shrink in the final days of counting is that in most states, absentee ballots are not counted if their number is too small to affect the margin of victory. Reportedly, there are 1 million absentee ballots for president in California that were not, and will not be, counted, since they could not possibly affect the outcome of the Electoral College vote in California. (After reading Chris Suellentrop's "Explainer," Professor McConnell realized that the report of 1 million uncounted ballots in California was mistaken.) The number is probably more than 1,500,000 votes nationwide. Since absentee ballots tend to be disproportionately Republican, counting these ballots could shrink—and conceivably even reverse—Mr. Gore's popular vote lead. If there is any effort by news organizations after the election to recount the ballots in Florida (as there probably will be), it would be interesting to count these ballots as well. Historians presumably would like to know who really won the popular vote.
Finally, I must comment on your suggestions about bipartisan government. I entirely agree with the general spirit of your remarks and hope (and expect) that there will be bipartisan cooperation on a number of issues. But your choice of examples only goes to show that "bipartisanship" is often in the eye of the beholder. It seems to me that out of the universe of Republican political proposals, you singled out as "divisive" some of the best ideas on the merits.
A tax cut may or may not be a great idea in the abstract, but when the nation is on the verge of recession (as we are), that is the time for a tax cut. Perhaps you are right that it should be "scaled down," but the Bush proposal was not very large to begin with. Social Security privatization is trickier. I am not sure, in the end, what I think about it. But prior to this election, many experts in the field were thinking along those lines, and it may well be the best way to improve the lot of future retirees without any harm to the current generation. Early on, President Clinton expressed interest in the idea. I think it became "divisive" only because Bush used it as a campaign platform, and Gore felt the need to oppose it.
Most of all, I am disappointed to learn that you think vouchers are unthinkable. Of all the current proposals for addressing serious national problems, I think vouchers are by far the most promising. (I am speaking of voucher programs for low-income students in failed public school districts.) I think vouchers have been politically problematic only because of a combination of the selfishness of suburban Republican voters, who already enjoy the benefits of school choice and don't want to upset the apple cart, and teachers unions. Let's put the interests of the children first. I can think of no more worthy objective of bipartisan cooperation than to enact a program of educational choice for the District of Columbia. Here's the bipartisan part: Let's confine the program, at first, to a few locations, and find out whether it works in practice. Let's commit ourselves in advance (if such a thing is possible) only to expand the program if it really works. But if it really works, let's go for it.
Bipartisanship should not be defined as a middle ground between the partisanship of both sides (let alone as Republican capitulation on all controversial points). If bipartisanship is to be constructive, it ought to be based on enacting constructive legislation—on doing things because they are right, because they will work, and not because they please the powerful interest groups of one party or the other.
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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
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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
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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
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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
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(12/11)