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Trade of Restraint

By William SaletanPosted Tuesday, Dec. 12, 2000, at 3:00 AM ET

Illustration by Robert Neubecker 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."

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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.

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William Saletan is Slate's national correspondent and author of Bearing Right: How Conservatives Won the Abortion War.

COMMENTS

Reader Comments from The Fray:

[Note from the Fray Editor: Read Henry Reimer, here, for a fascinating hypothetical legal scenario. What did David Boies say? The point in Michael Burlingame's post, below, was subject to some argument.]

The author makes some telling points but fails to appreciate the dilemma that the U.S. Supreme Court finds itself in, thanks to the Florida Supreme bench. Even David Boies acknowledged Monday in court that if the Florida Legislature had done what the state's Supreme Court has done since November 7, it would have created new law in violation of the US Code. When a state court oversteps its bounds, violating the principles of judicial restraint and separation of powers, who is to correct its mistake? Paradoxically the U.S. Supreme Court must assume an activist posture and intervene in order to uphold the principle of judicial restraint by overruling their Florida counterparts. That elected branches of government (in this case, the legislature) must be deferred to by unelected courts in such political matters is clearly spelled out in article II of the U.S. Constitution, where the legislatures (not the courts) are empowered to set the rules for choosing presidential electors. It seems to me that the Bush team has been logically consistent in this dispute and that the only reason they feel compelled to ask for intervention by the U.S. Supreme Court is to prevent the Florida Supreme Court from making new law after the election, in violation of the U.S. Code and the U.S. Constitution.

--Michael Burlingame

(To reply, click here.)

The problem is that neither the responsible election officials in Florida, nor the Florida courts, nor the Supreme Court were prepared for the almost unimaginably complex set of issues placed before them by an evenly divided electorate. In particular, outdated electoral machinery in many parts of the state created a situation in which thousands of ballots were plausibly cast, but not counted.

The majority of the Florida Supreme Court sought to remedy this as best it could, by first ordering recounts in selected counties with one deadline, and later a statewide recount with another deadline. In so doing, it overreached. Deference to the political branches of government means deference to the people who get elected to enact laws. This doesn't only mean that courts should not make laws; it also means that if a law's faithful execution does not fully or adequately address a public issue, it is not up to a court to fix the problem.

A precedent acknowledging the right of a state court to modify laws enacted pursuant to a grant of authority to the states by the U.S. Constitution is not what the Rehnquist Court will want to be remembered for, nor should it. Laws, like their makers, are imperfect. They will not always address every contingency, and sometimes will be very far from doing so. In such cases, it is up to the elected representatives of the people to change them, and if injustice has been done in the past attempt to keep it from happening in the future.

--Joseph Britt

(To reply, click here.)

I suspect that one reason judicial involvement has become so inflammatory in the past two weeks is that no politician likes to be told that he cannot do something or that his office is threatened by the will of a court. To both Bush and Gore, a clear loss at the voting booth would be difficult to take, but to have a court step in and make the decision is probably more galling (and the same holds for their supporters). Judicial restraint means one thing to the loser and quite another to the winner, but the ideal of judicial restraint has a meaning which has nothing to do with this election. Mr Saletan's article fairly condemns the fire-breathers on both sides in this debate, but does nothing to uphold the principle that the three branches of government need to remain separate, except when joined by the Constitution. Nor does he elaborate on which side seems to be more consistent. One of them must be--they both cannot be right.

--James Hamlen

(To reply, click here.)

(12/13)

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