George and JusticeOK, so you get to be president. Just stop yapping about how fair it is.
Posted Friday, Dec. 8, 2000, at 3:00 AM ETThe sharpest analysis of the 2000 presidential election is what Republican Sen. S.I. Hayakawa said in 1977 about the Panama Canal: "We stole it fair and square." The best you can say about what happened since Nov. 7 is that the Republicans managed to bob, weave, and spin their way to victory legally but in defiance of justice and common sense. The worst you can say is … a lot worse.
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StumbleUponYou cannot accurately say what George W. Bush told CBS News on Tuesday: that all the "counts, recounts, legal proceedings … will finally verify, once and for all, that the system does work" and that "people will say, 'This has been a fair election.' " No doubt people will say it. No doubt GOP spinners are out saying it at this very moment. But it won't be true. Bush's presumed victory is unfair to Al Gore and to Gore supporters for two reasons. These are reasons beyond the banal fact that more Americans voted for Gore, which has somehow become something you're not supposed to mention in polite company.
First, Gore deserved to win Florida in a specific sense. It's not just that more Florida voters intended to vote for Gore than for any other candidate. It's that more Florida voters left the voting booth thinking they actually had voted for Gore. (The formulation is from Slate's Jacob Weisberg, who also proves that it's true.) Needless to say—or perhaps not needless—these voters also thought their votes would count. Abstract intention may not matter much in voting, and even sincere attempts to record your intention can't always be honored. You're properly out of luck if you accidentally voted twice or for the wrong guy. And dimpled chad will be puzzling moral philosophers for centuries. But surely, if we're talking fairness, a good measure of fairness in counting ballots is how close the tally comes to reflecting who people honestly thought they'd voted for. By that standard, Florida flunks.
More important, the Bushies worked hard to make sure that Florida would flunk. It might have flunked without their fingerprints, thanks to the muddled voters of Palm Beach County, but the Bushies took no chances. They want the stamp of fairness in hindsight. And many of their efforts had a fairness angle (e.g., it's unfair to count some ballots by hand and not others). But their basic argument, to put it as flatteringly as possible, was one of procedural fairness: deadlines are deadlines, rules are rules. Substantive fairness—counting every ballot; counting them accurately—was quite openly dismissed as an inappropriate consideration.
In my view, the Bush arguments about deadlines and procedures were often wrong. But we won't rehash all that here (you'll be glad to learn). It certainly was one of their most brilliant spinning successes to push for the triumph of procedural rules over substantive fairness, meanwhile nailing the other side for dragging in the lawyers and the courts. If the Bush legal arguments were right, even though they led to a patently unfair substantive result, the least you can say is that the laws Bush took advantage of are flawed. Procedural fairness is supposed to produce substantive fairness, not override it. And the fact that Bush won the legal arguments, correctly or otherwise, certainly doesn't show that the outcome is fair. Quite the opposite.
Furthermore, even if the Bush side is right about every disputed legal issue, the law in its majesty did not compel this result. This is the second reason the Bushies are not entitled to hide behind the law and to claim the result is fair, even procedurally. The law did not say there could not be a statewide manual recount—the obvious fair procedural solution to anyone who had been asked on, say, Nov. 6. The law did not require asininely strict enforcement of deadlines that led ballots not to be counted. The law did not require the state legislature to hold a gun to the heads of the state's judges and justices. The law—if you buy the Bush argument—gives Florida's Republican politicians and political appointees the discretion to do these things. And so they did them.
Of course, in every case they also had the discretion to do the fair thing. You might suppose the realization that as a governing official you have the discretion to decide some matter ought to be the beginning of contemplation, not the end. But, in another brilliant (and ironic) bit of spin, the Bushies convinced the world that the law is a line where contemplation properly stops and unburdened calculation may begin. If the leading politicians of Florida were either Democrats or honest, the result would be the opposite. Even procedural fairness doesn't turn on accidents of party affiliation or moral backbone.
The Bush folk did not rely on the abstract beauty of their legal arguments to carry the day against Gore. They also quite cynically ran out the clock. Not just on time for a fair recount but also on the attention span of the citizenry and the patience of the media. Wednesday's Washington Post and New York Times op-ed pages ran a total of three virtually identical columns, all saying irritably: He's dead. Why won't he lie down?
How can anyone seriously believe that Al Gore is the one here who wants it too badly and will do anything to get it? George W. Bush clearly wants to become president in the worst way. You finish the joke.
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Reader Comments from The Fray:
[Notes from the Fray Editor: The best posts were mostly the ones saying 'the two sides are just as bad as each other'. And your Fray Editor's main recommendation is to read Dave's "10 reasons why Canadians should pick the winner" here. It will cheer you up.]
This was an election so close that its margin was narrower that the margin of error of our current election technology. Thus, for either candidate to say that he "really won" the election and failed to do so only because of the counting process is preposterous.
The closeness of the election insured that when Gore, the loser on election night, decided to fight the result, the winner was inevitably to be determined by which party held more of the levers of power. At the moment, that appears to be the Republicans, although anything is possible in this election.
Gore could have requested hand recounts in all of Florida's counties and Bush would have been hard pressed to resist. But no, Gore chose to limit his requests for recounts to three large, Democratically-controlled counties. Had he succeeded in having all of these votes hand counted in the way he wanted them counted, he would have won. Gore's selective recount gambit did not work out and the U.S. Supreme Court sent the Florida Supreme Court an unmistakable message that it must not change election rules after the fact to help Al Gore. Even if the Florida Court decides to once again try to help Al Gore, its decision to do so will not stand unless the U.S. Supreme Court, Florida Governor Jeb Bush, the Florida legislature, and the U.S. Congress all decide to let the Florida court do so.
The machinations of the various political bodies are neither fair nor unfair. They are politics. It is well that most elections provide results clear enough to avoid this sort of thing. Nevertheless, the results of the Gore-Bush election did not clearly show a winner. Thus, if Gore loses he should not complain that he lost because those with the power to determine the outcome of the election helped his opponent. Indeed, if it turns out that enough of those in power favor Gore to allow him to win, he will accept the presidency happily.
--Grey Satterfield
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Never mind that a real travesty of our entire system of fairness is a stake and should be done slowly, fairly and properly. The Republican spinners have flooded the Internet, the printed media, and public opinion polls with the message that Gore is the "sore loser."
Gore is anything but a loser and he had the decency to face the American public face to face while Bush hid behind his surrogates.
A high school government teacher proudly proclaimed that his students, who were overwhelmingly supportive of Gore before the election now believe Gore should withdraw. Why are they now looking for him to withdraw? "Well," the teacher replied, "they have a short attention span and want immediate results." The rest of us "grown ups" have taken up that same Republican mantra. We cannot be bothered to watch this being played out. The election process started so long ago, and it is still going on and on because there is a real problem that the wrong man was certified the winner of the election. But we don't care. We just want to get on with our lives. We expect that once Bush becomes president he will do the right thing. And other than Kinsley, and a handful of others, the "liberal" media wants to get on with some new scandals and cannot be bothered with all this legal stuff.
--TVH
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Has any pundit or political leader (Republican or Democrat) tried to convince Bush (or the public for that matter) that this isn't really the way one should want to win the Presidency? Has anyone told him that a loser of both the popular vote and the Electoral College shouldn't take office under our Constitution and that the attendant lack of legitimacy will make his 4 years (there certainly won't be 8) miserable?
For all of the Republican bloviating over the last 8 years about the ruthless, amoral, legal hair-splitting, just-barely-within-the-letter-of-the-law Clinton/Gore administration, we now have an incoming Republican administration taking office based on arguments that sound suspiciously like "no controlling legal authority" and "it depends on what the word 'is' means". The word hypocrisy doesn't even begin to describe last 4 weeks--Orwellian is more like it.
--Tom Speranza
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[This post produced a most interesting thread.]
Mr. Kinsley strolls through a mythical garden of virtue. He recoils in horror as he watches an imminent harvest of the election by the Bushies. He bids them take the election, but chastises them for his perception that they are trying to take the high ground.
There has been no high ground for this debate, no raised stage of reason and morality. Since election night there has only been the mesmerizing possibility of laying claim to the presidency to the two men, the two parties, the two partisan followings. If I hear the battle cries from the left of "a fair and full count" and from the right of "you can't change the rules after the election," I do believe I will lose my mind.
Doesn't the ironic setting in front of the U.S. Supreme Court capture the true spirit of what this contest is? Professor Tribe arguing states' rights! My, oh my.
So Mr. Kinsley wrap the Bush victory any way you will. Tarnish it. Undermine it. Protest it. Detest it. Don't pretend that the losers will walk away with greater honor than the victors. You will go away knowing, as we all do, that it has always been about winning. Ask Vice-President Gore. If anyone can tell you, he can.
--KSM
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(12/8)