Four months after the disputed election, Republican adherents could claim that had the Supreme Court not intervened in the post-election recount in Florida, Bush would have won anyway, based on a review of balloting conducted by the accounting firm BDO Seidman and commissioned by a consortium of newspapers.
More recently, the National Opinion Research Center, after examining every aspect of the Florida vote, arrived at a more tentative assessment: "It's too close to call," wrote senior vice president Kirk Wolter. "One could never know from this study alone who won the election."
In either case Republicans for Bush may feel vindicated, if for no other reason than the recount did not unambiguously prove that Al Gore was the real victor and was wrongfully denied the presidency.
However, as important as this election has turned out to be in terms of its effect on the future of civil liberties, the environment, arms control, the economy and the justice system, the actual outcome may be less important than the damage done to the rule of law and the prestige of the U.S. Supreme Court.
Americans now look back with anger and outrage on days of infamy in our recent history: Dec. 7, 1941, and Sept. 11, 2001, heinous acts perpetrated by external enemies. Who would have supposed that we have as much to fear from an enemy within? A day of infamy also occurred on Dec. 12, 2000, whose impact on our democracy has yet to be fathomed but whose importance appears not to have been absorbed by most citizens.
To be sure, newspaper editorials following the court's decision reflected some of the anger of the moment: The New York Times wrote that "... the decision to bar a recount in Florida comes at considerable cost to the public trust and the tradition of fair elections." The Boston Globe commented: "The greatest casualty of the Court's midnight decision may be the public's belief in the judiciary's ability to be an impartial judge of the law."
Vincent Bugliosi, former California prosecutor whose convictions sent Charles Manson and other murderers to prison, goes much further than those tepid editorialists. In Bugliosi's view, the conduct of the five conservative members of the court (Rehnquist, Scalia, Thomas, O'Connor and Kennedy) bordered on treason. In his article, published in The Nation, Feb. 5, he wrote, "It misses the point to argue that the five justices stole the election only if it turns out that Gore overcame Bush's lead in the undervote recount. We're talking about the moral and ethical culpability of these justices ... To judge these justices by the final result rather than their intentions at the time of their conduct would be like exonerating one who shoots to kill if the bullet misses the victim."
There is virtual unanimity among law professors and jurists, conservative as well as liberal, who have condemned this action by the Supreme Court's conservative majority. Justice Scalia's principal justification for issuing a stay on the Florida recount resumption, permitted by the Florida Supreme Court, was that the recount would "threaten irreparable harm to petitioner (Bush) ... by casting a cloud upon what he claims to be the legitimacy of his election." Scalia assumes here that Bush has won, but it is also clear that he feared that if the recount continued, the election could go to Gore. Taking issue with this hollow opinion, judicial conservative Terrance Sandlow stated, "The balance of harms so unmistakably were on the side of Gore," and further, the stay was "an unmistakable partisan decision without any foundation in law."
When the court was finally forced to conjure a point of law in its desperate search for a reason for the stay to save the Bush presidency, the justices (probably Scalia) hit upon the argument that the Florida Supreme Court violated the Fourteenth Amendment's equal protecion clause that Florida's voters were being treated unequally by the lack of a standard in counting ballots. The bitter irony of this decision, as Bugliosi points out, is that "the equal protection clause ... was tailor-made for blacks" after the Civil War, intended to ensure the civil rights of former slaves. In the present case, the black vote was the most likely to be negated by the court's decision to end the recount.
The reaction of most jurists to the hijacking of the Fourteenth Amendment can be encapsulated in the words of Yale law professor Akhil Reed Amar, who has said that the court "failed to cite a single case that, on its facts, comes close to supporting its analysis and result."
The problem with this polite response and others like it is that it marginalizes the enormity of the crime. Is it not a crime that for purely partisan reasons the conservative majority of the court sought to nullify the votes of 50 million Americans? At any other level we Americans would have demanded redress of so obvious a wrong. But when the miscreants are the highest court in the land, to whom does one appeal?
Are we prepared as a people to let this stand? Our apparent acquiescence to the present fait accompli suggests that we are. This situation poses an interesting question concerning our national character: Are we stronger as a nation or weaker as individuals because we are able to condone this most serious public crime in our history?
It should not be forgotten that four dissenting members of the Supreme Court were mindful that the cornerstone of democracy, enshrined in the Constitution, is the right of citizens to vote with the understanding that each vote be counted. The disgrace brought to the court by its conservative wing may be more keenly felt by the dissenting minority than any of us can ever know. After the final curtain descended on this debacle Justice Stevens wrote: "Although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in [this Court] as the impartial guardian of the rule of law."
Howard Garcia is a Boulder physicist.
Copyright 2001 The Daily Camera