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Bush v. Gore and Conservative Law Professors:

Andy Koppleman writes over at Balkinization:

One of the more depressing results of the decision was the rush of conservative law professors, many of whom are self-styled originalists and advocates of restraint, to defend the decision. One can easily imagine what they would have said had the Court engaged in such contortions on behalf of Democrats. The dishonesty or self-deception of the Bush v. Gore majority is perhaps understandable: by reaching the result they did, they got something tangible that they badly wanted, a Republican president. But what, exactly, do scholars gain by mortifying their intellects in this way? They are worse than political hacks. They are public relations flacks for political hacks.

To which I respond, what on earth is Andy talking about? If conservative law professors were rushing to endorse Bush v. Gore, surely the Wall Street Journal's op-ed page would have found room to publish their views. A check of the Journal's archives showed that no such endorsement appeared. The Journal did, however, publish a critique of the opinion by then-Professor Michael McConnell, a piece that is said to have cost McConnell the solicitor general's job, and perhaps a supreme court appointment.

Meanwhile, I remember attending the Federalist Society's annual faculty conference just a few weeks after the decision. Not surprisingly, everyone was talking about Bush v. Gore, and to my recollection, no one endorsed the majority opinion on its merits, and quite a few attendees were openly hostile to the decision. Even Richard Epstein (a libertarian, not a conservative, fwiw), who defended the result in Bush v. Gore in 2001, described the majority opinion as a "confused nonstarter at best, which deserves much of the scorn that has been heaped upon it."

A few conservative legal scholars have defended the Supreme Court's resolution of Bush v. Gore from academic critics. But these are careful, scholarly works and were published well after the decision came out. No signs of rushes to judgment for political reasons here.

By contrast, even though the Court's basic equal protection argument received seven votes, I'm not sure that a single liberal law professor (a much larger group than conservative law professors) has argued that the Court was right, no matter how expansively such professors had previously argued the equal protection should be interpreted. Prominent liberal professors including Ronald Dworkin (NY Review of Books, Jan. 11, 2001), Bruce Ackerman (American Prospect, Feb. 12, 2001), Alan Dershowitz (Oxford University Press 2001), Michael Klarman (Calif. L. Rev. 2001), Jeffrey Rosen (New Republic, Dec. 25, 2000), and Laurence Tribe (Harvard L. Rev. 2001) wrote critiques of Bush v. Gore that appeared very quickly. And I also recall reading that one prominent (though unidentified) liberal law professor had an op-ed ready to be published the morning after the election arguing that the electoral college, not the popular vote, should determine the next president, only to pull the piece when it turned out that Bush, not Gore as expected, benefited from that line of reasoning.

Perhaps it's true that conservative law professors are more likely than liberal law professors to be "public relations flacks for political hacks." If so, the response to Bush v. Gore sure doesn't provide evidence.

UPDATE: And I as best I can recall, those few conservative law professors who did defend the Court's equal protection ruling argued that the decision was correct given existing precedent dating back to Warren Court decisions applauded by liberal scholars, not that the Court's opinion was correct on originalist grounds, or that it was a manifestation of judicial restraint.

Cornellian (mail):
If not a single conservative law professor was willing to defend the decision on its merits, what does that say about the judges in the court's 5-4 majority?
5.8.2008 2:22am
eric (mail):
The majority opinion was not very good. But what about the Rhenquist concurrence? That is the view defended by Nelson Lund in the articles linked to. I do not see the problem with it.

BTW, I think Cass Sunstein changed his view of the decision substantially by originally putting out a statement that was much less critical than his later analysis. I could be wrong here though.

BTW, I want to see liberals defend the Florida Supreme Court's decisions. I though Lund's critique was devastating. If nothing else, the Florida Supreme Court was bending the law hard and put the Supremes in a horrible position.
5.8.2008 2:35am
CrazyTrain (mail):
And I also recall reading that one prominent (though unidentified) liberal law professor had an op-ed ready to be published the morning after the election arguing that the electoral college, not the popular vote, should determine the next president, only to pull the piece when it turned out that Bush, not Gore as expected, benefited from that line of reasoning.

Huh? A law professor was going to write an op-ed that stated that the electoral college should determine the Presidency??? What a revolutionary idea? Crazy professors!!!
5.8.2008 3:04am
OrinKerr:
If not a single conservative law professor was willing to defend the decision on its merits, what does that say about the judges in the court's 5-4 majority

That they signed on to an unpersuasive opinion?
5.8.2008 3:33am
jabroni:
CrazyTrain, it is an important point if that same professor made a 180 degree turn on Wednesday morning and has spent a significant amount of time since that day arguing the opposite of his original position. It is worth noting if that professor took the anti-electoral college position a week later as a "legal expert" on MSNBC.
5.8.2008 3:34am
Mahan Atma (mail):
I seemed to recall that John Yoo was calling for the Supreme Court to intervene even before they handed down the opnion.
5.8.2008 3:39am
Roger Schlafly (www):
I would certainly expect "self-styled originalists and advocates of restraint" to defend the decision. The primary result of Bush v Gore was that the courts should not invent new recount procedures, and to allow the election to proceed as originally planned.
5.8.2008 4:04am
OrinKerr:
I would certainly expect "self-styled originalists and advocates of restraint" to defend the decision. The primary result of Bush v Gore was that the courts should not invent new recount procedures, and to allow the election to proceed as originally planned.

Can you remind me where the "primary result not to invent new recount procedures" clause is in the Constitution? Or, if you prefer, where the Framers expressed the view that the Constitution required federal court intervention in state processes to allow elections to proceed as originally planned?
5.8.2008 4:10am
Roger Schlafly (www):
It was a federal election for a federal office, and a lower court was threatening to throw the election with some recount procedure that had never been considered or used before. The federal court did not intervene in any state process, except to block a 4-3 Florida supreme court from intervening in the statutory election procedures.

The constitutional authority is in Art.III, Sec.2. Of course the federal supreme court has jurisdiction over challenges to a federal election.
5.8.2008 4:32am
q:
Whether or not the reasoning was bad, it does not seem to have had any effect on the rule of law and I bet it will be constrained to its facts (as the majority intended). On the other hand, any nominal harm from the poor reasoning was outweighed by the avoidance of a constitutional crisis. Note that for all the liberal hand-wringing, evidence suggests the Florida recount would have been in favor of Bush.
5.8.2008 4:37am
Kazinski:
Orin,
Sure here it is:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress...

It certainly is in the Florida Supreme Courts authority to interpret the laws as written by the legislature, but the US Constitution does not give them the power to fashion their own remedy.

And since the grant of power to the legislature was direct by the US Constitution, not by the Florida Constitution, then the proper venue for the controversy should have been the Federal courts not the State courts.
5.8.2008 4:46am
Roger Schlafly (www):
The evidence is that a recount probably would have favored Bush, but the outcome would have depended on closed-door decisions by Florida judges who would have had the power to manipulate the election. Be thankful that a higher court did not let them get away with it.
5.8.2008 4:51am
donaldk:
Wasn't the key question decided 7-2?
5.8.2008 5:58am
tvk:
David, not sure you are being fair to Andy here. You concede that almost every conservative law professor defended the result in Bush v. Gore. Andy said that every conservative law professor defended the "decision." There is no inconsistency: the decision of a case is the result, nothing more.

It is true enough that few defended the majority opinion's reasoning. But pray tell, honestly speaking, how many conservative law professors would even endorse the result if the case had been Gore v. Bush? I will preemptively concede that I have strong suspicions that liberal law professors would have quickly reverse their tune, too.
5.8.2008 7:27am
davod (mail):
I thought the main issue was that the Florida Supreme Court was changing the rules after the voting.
5.8.2008 7:29am
Simon (391563) (mail) (www):
The greatest failing of Bush v. Gore is the continued failure to recognize that the Supreme Court did not have to intervene in order to resolve the situation, contrary to Scalia's post-case arguments. Even assuming that the Florida Supreme Court's decisions were wrong, and the recounts it ordered violated the equal protection clause, there is a process laid out -- one even used before -- by which the Florida Legislature and ultimately the US Congress could have resolved these questions. The Court exceeded its institutional competence, in a way all the more striking because it was the conservative faction, which usually professes to be so concerned about deference and institutional competence, that drove the result.
5.8.2008 7:49am
longwalker (mail):
Davod : You are not supposed to mention that. Nor are you supposed to mention that the Florida Supreme Court is not the final authority on Florida elections. The two houses of the Florida Legislature, sitting together, has the final say. You also should not mention the first SCOTUS vote was 9-0 nor the fact that none of the Gore attorneys could show where the Florida Supreme Court's authority to act as they did resided. A public hearing, conducted by the Florida Legislature, would have had an adverse impact on our judicial system. Imagine the Florida Seven testifying, under oath, as to their original decision to steal the election for Al Gore.
5.8.2008 7:54am
common sense (www):
I only read the first part of Klarman's piece, but I'm not sure I would go so far as to call it a critique. Its focused more on the long term impact the perceived injustice will have on the credibility of the court, and concludes it will be minimal. If nothing else, it is in keeping with his scholarship to date.
5.8.2008 8:55am
Gaius Marius:
The alternative to Bush v Gore was paramilitary groups taking to the streets to determine who would be President.
5.8.2008 9:19am
davod (mail):
longwalker:

Now you have done it. At least I only mentioned the most glaringly obvious reason.
5.8.2008 9:28am
DavidBernstein (mail):
You concede that almost every conservative law professor defended the result in Bush v. Gore.
I certainly did not.
5.8.2008 9:28am
DavidBernstein (mail):
Let me put it more directly. The conservative professors I remember talking to all thought the Florida S.C. had acted improperly. Most seemed to agree with what Simon wrote, above, even if they agreed with the 3 justice concurrence on the merits.
5.8.2008 9:34am
Cato (mail):
I recall Richard Epstein's analysis being dead-on. He traced the bad decision by the SC to the atrocious decision by the Florida Supremes. Does anyone have the link?

At the time of the decision I was working with the daughter of one of the Florida Supreme Court justices. While polite, I told her I thought her dad's decision to be entirely political. She defended as well as she could, but I was unpersuaded.
5.8.2008 11:11am
C. R. Kazanowski (mail):
I recall taking a course at the University of Michigan on Election Law. My professor was a former attorney with the Clinton administration. Even with his left-wing bias, he found the rationale provided by the Court to be sound. Even when he didn't agree with the outcome. I'm disappointed by the partisanship and myopic perception of many scholars, judges, and attorneys.
5.8.2008 11:15am
longwalker (mail):
Gaius Marius : Fall on your spatha. The alternative would have been the Florida Legislature and, if necessary, the House of Represenatives. Of course, as there was no way for the Florida Supreme Court Justices to defend their first decision, the prospect of the concurrent impeachment of all seven Justices as well as the verification of Bush's election would have created quite a shock. besides where were these paramilitary groups going to come from?
David Bernstein : You think that the result in Bush v. Gore was wrong? Why? Was the decision of the Florida Supreme Court "good law" or a bare-faced attempt to steal an election?
5.8.2008 11:21am
James Lindgren (mail):
It was interesting that Andy's own writing at the time argued that the Senate should refuse to vote on any nominees for the Court during Bush's first term. Thus, as I told Andy to his face, he was urging that Congress refuse to do its duty under the Constitution.

That doesn't fit ANY interpretive constitutional theory that I know of. Andy was advocating that the Senate use its power politically to refuse to follow the law, all in service of some higher purpose.
5.8.2008 11:32am
James Lindgren (mail):
From day 1, Steve Calabresi argued that it was a political question that the Constitution gave to Congress to decide (much as Simon argues in his comment above).
5.8.2008 11:34am
Houston Lawyer:
Bad facts make bad law.

The blatant attempt to steal the election by the Florida Supreme Court put the US Supreme Court in a bind. The Florida Supremes disregarded the law as administered by both Democratic and Republican officials elsewhere in Florida. I don't think that originalism can adequately address the attempt by a state supreme court to steal a presidential election.
5.8.2008 11:39am
frankcross (mail):
1. I remember at the time, various conservative law profs criticized the decision. Some criticized the decision to take cert, others criticized the majority opinion.

2. Why does this blog attract so many paranoid psychotic posters. You have no idea what the Florida Supreme Court was doing, I'm pretty sure you haven't examined the opinions (or voting breakdowns) on those opinions or precedents or governing law.
5.8.2008 11:53am
davidbernstein (mail):
You think that the result in Bush v. Gore was wrong? Why? Was the decision of the Florida Supreme Court "good law" or a bare-faced attempt to steal an election?
I think the Constitution gives Congress, not the Supreme Court, the authority to decide election controversies such as this one. My recollection is a bit hazy, but I think at the time I thought that constitutionally, the proper result was for there to be three slates of electors brought before Congress: the slate the Florida Sec. of State had sent to DC in October, the slate the Florida legislature was poised to elect, and the slate the Flordia SC was set to approve.
5.8.2008 11:53am
davidbernstein (mail):
You think that the result in Bush v. Gore was wrong? Why? Was the decision of the Florida Supreme Court "good law" or a bare-faced attempt to steal an election?
I think the Constitution gives Congress, not the Supreme Court, the authority to decide election controversies such as this one. My recollection is a bit hazy, but I think at the time I thought that constitutionally, the proper result was for there to be three slates of electors brought before Congress: the slate the Florida Sec. of State had sent to DC in October, the slate the Florida legislature was poised to elect, and the slate the Flordia SC was set to approve.
5.8.2008 11:53am
Rick Pildes:
Among other articles, there is a major law-review article defending the equal protection analysis written by Dan Tokaji in the Michigan Law Review. Tokaji is a former ACLU lawyer and an expert on election-law issues.
5.8.2008 12:10pm
Elliot Reed (mail):
I find the degree of self-righteousness expressed in Koppleman's post extremely objectionable. His position, and the position of all those who agree with him, is based purely on an impartial reading of the law. The position of the conservatives who disagree is 100% results-oriented, and their defense of the results are self-delusion at best, or (more likely) actively mendacious. There's no humility, no concern that maybe he and the people on his side are being results-oriented too.

The same goes for the commenters here who are expressing the same opinion in reverse.
5.8.2008 12:13pm
DavidBernstein (mail):
Rick, my recollection of the the Tokaji was that the author uses Bush v. Gore to push his own theory of voting rights and its relationship to the First Amendment. It's hardly a rousing endorsement of Bush v. Gore's reasoning, and indeed overall my recollection, confirmed by a brief look at Westlaw, is that overall the author is critical of the Court, saying that the precedents it relies on don't justify the holding.
5.8.2008 12:27pm
DavidBernstein (mail):
But beyond that, I'm happy to amend my post to say that a few liberal law professors did indeed praise the Court's equal protection analysis, if that is in fact true.
5.8.2008 12:28pm
toxic (mail):
Both conservatives and liberal legal types will engage in willful ignorance to protect their own sacred cows.

How anyone can read the Supreme Courts Commerce Clause jurisprudence and take it seriously is beyond me, as one example.
5.8.2008 12:38pm
Gaius Marius:
Gaius Marius : Fall on your spatha. The alternative would have been the Florida Legislature and, if necessary, the House of Represenatives. Of course, as there was no way for the Florida Supreme Court Justices to defend their first decision, the prospect of the concurrent impeachment of all seven Justices as well as the verification of Bush's election would have created quite a shock. besides where were these paramilitary groups going to come from?

Longwalker, the Michigan Militia was preparing for the worst.
5.8.2008 1:20pm
Thales (mail) (www):
I thought it was unwise for the Court to intervene (more for its own credibility than any national "crisis" that it caused), and the majority opinion on equal protection grounds was (putting it charitably) unpersuasive. Not ridiculous, but unpersuasive. But I've actually never heard a decent argument against the Article II-based concurrence. In this I agree with Judge Posner, and think the election was a statistical tie and that some body of national scope needed to resolve it, that Congress would have been overtly political and unprincipled because of the Republican majority, and that few would have seen the Fla. Supreme Court's decision ending the affair as any more legitimate than the U.S. Supreme Court's. I think all the alternatives were bad from the standpoint of democratic legitimacy, but this may have been the least bad one. And I also think the better man lost and that the existence of the electoral college is indefensible in today's world.
5.8.2008 1:23pm
alan:
Why does this blog attract so many paranoid psychotic posters.

Because it's on the internet.
5.8.2008 1:32pm
Bruce:
Liberal here. I agree with Simon, above. It's worth remembering that the key vote in Bush v. Gore was 7-2 on the EP violation, which was the key issue. (It was 5-4 on the remedy.) Bush v. Gore was a matter of the court getting too full of itself, not of conservatives bending the law for ideological purposes.
5.8.2008 1:50pm
FWB (mail):
Lets see: the Framers specifically stated that neither Congress NOR the People should be involved in selecting the President.

Congress is too self-interested.

The People are too lacking in knowledge to choose a proper President and are all too often swayed by demagogues.

So the Framers decide each State legislature has the sole authority to pick its Electoral college member using a few predefined requirements. Thus the State legislature may of its own volition decide who will be the Electors by any manner the State legislature should choose. And NOTHING in that choice is limited to before, during, or even after the so-called Presidential election except as may be set by the legislature itself so long as the Electors meet and vote by the time and day set by Congress.

Nothing in that delegation of power says that the legislature can't change the method on a whim so long as the Electors are chosen and vote according to the limits found within delegated authority of Congress. So the legislature of the State can do what it wants restricted ONLY by the minor limitations allowed Congress by Article II, Section 1, paragraph 4 of the Constitution for the United States of America.

The entire system as it now plays must be based on state laws, since each state legislature is empowered to do as it pleases wrt the selection of the Presidental Electors.
5.8.2008 2:13pm
Soronel Haetir (mail):
In regard to the electoral college comment, I must say I feel that the EC is one of the few remaining protections for our federal republic.
5.8.2008 2:17pm
Crust (mail):
David Bernstein:
[O]ne prominent (though unidentified) liberal law professor had an op-ed ready to be published the morning after the election arguing that the electoral college, not the popular vote, should determine the next president, only to pull the piece when it turned out that Bush, not Gore as expected, benefited from that line of reasoning.


I don't understand your point. Shortly before the election, when it was thought that Bush might win the popular vote but lose the electoral college, Newt Gingrich went on national television and made the astounding claim that the election should be decided by the popular vote not the electoral college. This op-ed was undoubtedly a response to these claims. Since the day after the election no one of any prominence was pretending that we should throw away the procedures mandated in the constitution, what would have been the point of running this op-ed?
5.8.2008 2:18pm
DavidBernstein (mail):
As I recall the story, the pre-election polls showed that Gore might win the electoral college but lose the popular vote. The op-ed was a preemptive strike to avoid post-election claims like Gingrich's, but was pulled when it became apparent that the situation was potentially the reverse. And you must not have been around in 2000 if you don't remember people arguing that Gore was the legitimate victor given that he won the popular vote.
5.8.2008 2:47pm
MST (mail):


But I've actually never heard a decent argument against the Article II-based concurrence. In this I agree with Judge Posner, and think the election was a statistical tie and that some body of national scope needed to resolve it, ...


So Thales, what is the Mean and Standard Deviation of the Election? How big are the error bars? Is it a normal curve, or skewed? Sorry for the sarcasm, but an election is NOT a statiscal event, and this is a canard that is used to justify pulling the result out of election day process, as defined by the State of Florida, into a place letting the "Experts" decide what the result should be. 1,000,001 to 1,000,000 may look insignificant stastically, but in an election, it signifies a clear winner. Such was the case in Florida, whether the number is 536 or 5,000 or 5 vote margins.



...that Congress would have been overtly political and unprincipled because of the Republican majority,


Ipso Facto? So any Republican office holder cannot apply the law, simply because they are Republican? Which of course is the calumny that is used against SCOTUS, The Florida Legislature, The Florida Governor, The Florida Secretary of State, et al, but not the Florida Supreme Court, 'cause they are, ya know, not Republicans. Conservative arguments against SCOTUS' decision to take the case include the strong preference that Political bodies settle Political controversies, not courts. But the Florida Supremes ran roughshod over that idea.
5.8.2008 2:54pm
Crust (mail):
David, thank you for the reply. I followed the election very closely in real time and I don't remember prominent folks saying that Gore should be made President because he won the popular vote (what I do remember is a lot of talk about hanging chads, butterfly ballots and 15000 extra Buchanan voters, etc.). It is true of course that Democrats made a lot of noise about the fact that Gore won more votes nationwide that Bush (as did, somewhat strangely, Republicans about Bush winning more votes in 2000 than Clinton had in 1996). But I don't recall people making the argument that ispo facto Gore should be made President. To the extent I've forgotten and people did make that argument, I would guess it was premised on the fact that Florida was a mess, a statistical tie, and therefore the result of the electoral college (unlike the popular vote) was unclear.

BTW, apparently the Bush campaign itself was trying to push this argument before the election:
To stop Gore [should he win the electoral vote but not the popular vote], advisers to the Bush campaign weighed the possibility of challenging the legitimacy of a popular-vote loser gaining the White House.

"The one thing we don't do is roll over -- we fight," said a Bush aide, according to an article by Michael Kramer in the New York Daily News on Nov. 1, a week before the election.

The article reported that "the core of the emerging Bush strategy assumes a popular uprising, stoked by the Bushies themselves, of course. In league with the campaign -- which is preparing talking points about the Electoral College's essential unfairness -- a massive talk-radio operation would be encouraged."
And remember before the election no one was expecting the ambiguous result for the EC vote we in fact got.
5.8.2008 3:13pm
Crust (mail):
Another way to put it: There is no point in publishing an Op-Ed saying the Earth goes around the Sun unless there is someone of some prominence arguing the opposite.
5.8.2008 3:17pm
tvk:
You concede that almost every conservative law professor defended the result in Bush v. Gore.

I certainly did not.


I guess I misread your post. Then your fundamental disagreement is that you believe most conservative law professors did not think Bush v. Gore was correct in the result? That I find very hard to swallow. Perhaps my recollection is skewed by availability bias (e.g. Posner, Epstein, Lund); but it sure does seem that almost every conservative law professor endorsed the result in Bush v. Gore.
5.8.2008 3:21pm
Crust (mail):
tvk:
[I]t sure does seem that almost every conservative law professor endorsed the result in Bush v. Gore.

Maybe I'm quibbling, but surely most conservative law professors didn't publicly pronounce an opinion either way.
5.8.2008 3:33pm
Dilan Esper (mail) (www):
The majority opinion was not very good. But what about the Rhenquist concurrence? That is the view defended by Nelson Lund in the articles linked to. I do not see the problem with it.

Well, it is consistent with precedent, so I won't criticize it on that grounds.

But I do think that the interpretation that the use of the word "legislature" in the elections clause means that state courts cannot interpret state election statutes (or utilize the state constitution in doing so) is actually pretty silly and an overreading of the term.

State courts have expertise with respect to state laws. Their interpretations should be respected by federal courts, even if federal courts don't agree with them. So when the Constitution commits something to the state legislature, the correct reading is that state courts can interpret any ambiguities in whatever the state legislature does. The US Supreme Court is less competent than the Florida Supreme Court in figuring out what Florida legislators meant.

So I don't buy the Rehnquist concurrence. But I do admit, it is consistent with MacPherson v. Blacker and Bush v. Palm Beach County and is thus a better opinion than the majority.
5.8.2008 3:40pm
Dilan Esper (mail) (www):
And since the grant of power to the legislature was direct by the US Constitution, not by the Florida Constitution, then the proper venue for the controversy should have been the Federal courts not the State courts.

This doesn't follow. There is no clause of the Constitution committing to the exclusive jurisdiction of the federal courts the issue of interpreting the actions of the state legislature in determining the manner of federal elections.

Indeed, all state legislation is enacted pursuant to the Constitution (look at the "republican form of government" clause). But federal courts properly defer to state court interpretations of their own laws, because the state courts have more expertise in this area.
5.8.2008 3:43pm
Dilan Esper (mail) (www):
Simon's 6:49 a.m. post is correct too. The Constitution does indeed contain provisions for resolving disputed presidential elections, and they are textually committed to other branches of government. So Bush v. Gore should have been dismissed under the political question doctrine.
5.8.2008 3:45pm
davidbernstein (mail):
TVK, Koppelman alludes to "the rush of conservative law professors, many of whom are self-styled originalists and advocates of restraint, to defend the decision." No such thing happened.
5.8.2008 4:02pm
Waldensian (mail):

Longwalker, the Michigan Militia was preparing for the worst.

Heh. Michigan Militia. It is to laugh.
5.8.2008 4:25pm
frankcross (mail):
MST, of course an election is a statistical event. We treat it as if it were not, for pragmatic convenience, but you can't say it isn't one. That's like saying the laws of nature don't apply. There was no true "winner" in 2000, had the weather been different or it been held on a different day, results could have varied. But because we need a winner, we ignore those facts

And Posner didn't precisely defend the decision. He would have been happy if the Court had stepped in and declared Gore the winner. He just thought it best that it not go to Congress.
5.8.2008 4:35pm
Ed Weston:
I think you people have forgotten a lot. Bottom line as I see it: The Florida courts were performing a function that the Constitution says shall be performed only by the state legislature. It was unfortunate that five justices could not reach a correct result just by recognizing that. But they reached the right result. In my mind, there is no way that the actions of the Florida courts were in accordance with Article II or with Florida law. For one thing, the Floria statute provided for a manual count of ballots ONLY as a means of checking whether the machine count was grossly in error, not as a substitute for the machine count. If a manual count varied materially from a machine count, the statute plainly required that the error in the machine be corrected, and that the legally operative recount be done by the corrected machines. There was no authority whatsoever for a recount by hand as "overruling" the machine count, which is infinitely more accurate. The state court just flat rewrote the legislature's enactments in an effort to produce a result that allowed for influence by fraud.
5.8.2008 5:22pm
Dilan Esper (mail) (www):
The Florida courts were performing a function that the Constitution says shall be performed only by the state legislature.

I answered that above. This view is consistent with prior precedent, so my disagreement with it is not severe.

But I do think that some folks have a fundamental misunderstanding of how statutes produce legally enforceable norms. Statutes are not self-executing. Someone has to bring them to court and seek their enforcement. And then the Court has to figure out what the statute means. And in many cases, statutes are subject to multiple reasonable interpretations.

A person who says "they have to follow the direction of the legislature, not the state courts" is appealing to a nonexistent world where statutes don't have to be interpreted by courts.

In the real world, however, when a power is given to the legislature, implicit in that is that the courts of the jurisdiction will have the opportunity to interpret what the legislature did and figure out what it means. The problem with the Rehnquist approach is that it ignored that reality and pretended that there was some independent meaning to the Florida legislature's acts other than whatever construction is placed on them by the Florida courts.
5.8.2008 6:02pm
mark l. (mail):
This decision wasn't made in a vacuum.

The implications were very clear.

Stop counting immediately, use you existing state rules:
Bush wins. (It is gauling to have a federal court advise a state that they must follow their own rules, but, so be it.)

Had the SC court offered any room for re-tabulation as the fl-sc, the door would have been open to any and all arguments that team gore could offer, that would have provided him the presidency. The later 5-4 decison said that there was no method that could be produced that would have been fair and equitable.

I think only two justices offered a method to have a recount, but neither agreed with the other, and the other two justices who vote with the minority failed to support either method, merely positing that it might be workable.

Bush v Gore was about a rush decision to delay a long protracted unanswerable situation. Has anybody provided an alternative that 'just made sense'?
5.8.2008 6:16pm
mark l. (mail):
The two justices who voted to stop the vote, but refused to endorse the current method of vote certification were the real pragmatists.

Their move to the minority in the second piece was a pragmatic choice. I think they forsaw the possibility that laws could prove imperfect, and to provide a blanket-"rules are rules", where potentially Katherine Harris could have certifed incorrect results, and would be supporting an imperfect outcome with their 7-2 decision.

Had one of the majority justices in the 5-4 decision dropped off into a coma, either of the two would have joined the majority.
5.8.2008 6:33pm
LM (mail):
Bush v Gore was to the credibility of a conservative SC what Roe v Wade was to the credibility of a more liberal one. IIRC, even the few, narrow, qualified, conservative criticisms of Bush v Gore, like McConnell's, were more than I saw from liberal law professors when Roe was decided. So, for whatever it's worth, I think liberal law profs covered themselves in even less glory in 1973 than conservatives did in 2000.

And yet I'm still a liberal. I suppose that must have something to do with ideas, rather than score keeping the intellectual honesty of the people who hold them.
5.8.2008 6:59pm
Dilan Esper (mail) (www):
It is gauling to have a federal court advise a state that they must follow their own rules, but, so be it.

Not quite.

Rather:

"It is improper to have a federal court reverse a state court on the ground that the federal court disagreed with the state court's construction of its own state's rules."
5.8.2008 7:27pm
Le Messurier (mail):

Dilan Esper

State courts have expertise with respect to state laws. Their interpretations should be respected by federal courts, even if federal courts don't agree with them. So when the Constitution commits something to the state legislature, the correct reading is that state courts can interpret any ambiguities in whatever the state legislature does. The US Supreme Court is less competent than the Florida Supreme Court in figuring out what Florida legislators meant.
(Emphasis added)

Competency was not at play. The Florida SC decision was so obviously political that there was no attempt to figure out what the FL legislators meant. All one has to do is to recall the televised oral arguments to the court. The questions by the court were so obviously hostile to the Bush lawyers and equally softball to the Gore team that even I, as a non-lawyer and having no knowledge of the Florida Supreme Court was astounded by their performance and obvious bias. There was not even a pretense of evenhandedness. Their tone of voice was full of venom, and full of accusatory inflection.

SCOTUS might have been a little more receptive to the Gore arguments if the Florida SC had been more "responsive" and not so arrogant in ignoring a "request" by SCOTUS. I felt at the time that they had cooked their own goose with that behavior. Argue with the final SCOTUS decision all you want, but the granting of cert was a foregone conclusion after Florida SC's performance.
5.8.2008 7:40pm
Dilan Esper (mail) (www):
Competency was not at play. The Florida SC decision was so obviously political that there was no attempt to figure out what the FL legislators meant.

Now we are deep in the weeds. In fact, the Florida Supreme Court interpreted their laws consistently with legislative intent and the Florida State Constitution. It was a close case.

But I will make a broader claim. Neither you nor me nor the US Supreme Court has any business telling the Florida Supreme Court how it should interpret its own state's laws. You see, they are experts at it. They have developed interpretive methodologies and over 100 years of precedents to consult.

Except where statutes are absolutely clear, statutory interpretation is not about choosing the "right" answer, but about choosing the "best" answer among many reasonable ones. The Florida Supreme Court, applying their state's precedents interpreting their states' election laws, came to one of many reasonable answer. And the Constitution does not give the US Supreme Court any power to overrule a Florida state court on an issue of Florida state law. In other words, even if they are wrong, their decision is final.

Indeed, our federalist system requires that we allow state supreme courts to go off and do their own thing. Perhaps New Hampshire would like to be an original intent state, while California might want to be a policy-driven-interpretation state. The conservatives on the US Supreme Court have no power whatsoever under the US Constitution to tell a state court how to interpret its statutes. Otherwise, we do not have any federalism at all, but one theory of interpretation, dictated by conservative federal judges and imposed on the states against their voters' and policymakers' will.

even I, as a non-lawyer and having no knowledge of the Florida Supreme Court was astounded by their performance and obvious bias

So you are admitting you have no idea whether the precedents cited by the Florida Supreme Court supported its result. You have no idea what interpretative techniques that court has approved and used when interpreting statutes.

But I will say something more shocking. The US Supreme Court didn't know either. That's right, they didn't grow up in Florida's legal culture. The average Florida litigation attorney knows more about what techniques Florida has traditionally used to interpret its statutes than the US Supreme Court does.

They were stepping into an area that they not only had no constitutional warrant to step into, but as to which they were completely incompetent to render an opinion.
5.8.2008 9:28pm
The General:
the main lesson from Bush v. Gore is that when liberals can't get what they want through legitimate elections, they turn to the courts to give it to them and then try to paint conservatives as racists for objecting to their blatant power grab.
5.8.2008 9:53pm
David Schwartz (mail):
It is improper to have a federal court reverse a state court on the ground that the federal court disagreed with the state court's construction of its own state's rules.
Surely there has to be an exception for things explicitly stated in the Constitution. For example, a Federal court hearing a Habeas claim would not be impressed by a State Court finding that where the State law said "killing a person" it actually meant killing anything.

Just as due process requires the State to follow a reasonable interpretation of its own laws in the criminal realm, the Constitutional grant of election power to the State legislatures specifically compels a reasonable interpretation of election laws.

Ordering that an impossible process be carried out that neither side advocated or briefed, with no support in any grant of power from the Legislature, is simply unreasonable.
5.8.2008 10:46pm
Lucius Cornelius:
Gaius Marius: The Michigan Militia? What a joke.

I am a member of the Ohio Military Reserve which was once known as "The Ohio Militia." Except that we are a State Defense Force that reports to the Ohio Adjutant General.

Dilan: The US Supreme Court had ever right to step in when it did because the case involved issues of state law and federal law. The Florida Supreme Court ignored its own precedents regarding state administrative law (they created a brand new way to get around Florida's version of the Chevron rule). The Florida court was making up new law. I am not as well versed in the case as I was in November of 2000, but I researched the issue then and, as a Florida attorney, I was shocked at what the Florida court did. I knew that the US Supreme Court would overturn the Florida high court's decisions.
5.8.2008 10:51pm
Dilan Esper (mail) (www):
Surely there has to be an exception for things explicitly stated in the Constitution. For example, a Federal court hearing a Habeas claim would not be impressed by a State Court finding that where the State law said "killing a person" it actually meant killing anything.

Well, there is such a limitation. It is the Due Process Clause, which requires that a criminal statute give fair notice to offenders as to what is prohibited.

But that standard is quite minimal, and state courts have substantial authority to interpret their own statutes including even to override the "plain" meaning of a statute. It happens all the time and is part of our doctrine here in California.

the Constitutional grant of election power to the State legislatures specifically compels a reasonable interpretation of election laws

Well, first of all, ALL state legislation is passed pursuant to constitutional authority, under the Guarantee clause. So the fact that there is a reference to this in the Constitution doesn't create federal power.

Second, most of these election laws we are talking about are generally applicable laws that also apply to state elections, not special laws passed pursuant to the constitutional provisions on presidential elections. So what your interpretation would mean is that the state courts would have to change their interpretations of the same laws in state election contests, or adopt two separate interpretations of the same statutory language for the two contexts. That makes no sense.

Third, there's no language in the Constitution compelling state courts to interpret their election laws in a reasonable fashion.

Fourth, even if there is such a constitutional obligation, who gave the federal courts the power to enforce it, rather than, e.g., the House of Representatives under the provisions governing contested presidential elections?

The Florida Supreme Court ignored its own precedents regarding state administrative law (they created a brand new way to get around Florida's version of the Chevron rule). The Florida court was making up new law.

Lucius, when courts apply statutes in new circumstances and distinguish prior authority, they are not "making up new law". That's a political argument-- it is meaningless as a claim of jurisprudence. If you walked into a convention of jurisprudential scholars and started talking about a court making up new law because it distinguished prior authority, you would get laughed at.

The Florida court was doing exactly what courts do-- looking at the precedents and figuring out whether the facts were similar and they applied. And they were doing that with the benefit of being a court that was expert on Florida law and the intention of the Florida legislature. 9 people who knew no more about Florida legislative intent than 9 folks picked at random out of the Kansas City telephone directory had the gall to tell that court that it didn't know what its own legislature intended.

That's as antithetical to the principles of federalism that this nation was founded on as any decision that has ever been made.
5.8.2008 11:02pm
Lucius Cornelius:
Dilan, I can agree with some of what you write. But the Florida law was intersecting with federal law and with the terms of the US Constitution that delegated powers to the other branches of government (including the power to choose presidential electors, which was delegated to the state legislature).

You are correct when you state that the Florida Supreme Court is the best court to make decisions regarding Florida law. Indeed, it has the final word in interpreting Florida law. But if there is a question of federal law mixed in, then the US Supreme Court is obligated to make certain that the federal law is properly interpreted. This is what I believe the US Supreme Court did in this case.
5.8.2008 11:07pm
stan (mail):
Suppose the Florida Supreme Court had said that all ballots for Gore counted double and therefore Gore was the winner of the state. The idea that the US Supremes have no jurisdiction to overturn such a result is laughable.

The Florida Supremes' issued a decision that was patently unfair in an effort to sway the election. Counties favorable to Gore were to be counted one way. Counties favorable to Bush were to be counted another way. Are you kidding me?!

The US Supremes obviously were in a tough spot. They had to reverse a blatant effort to steal an election without calling it what it really was. Get your heads out of the clouds folks. The court has to be practical. Having set itself as the arbiter of last resort on every issue raised in society, it had no choice but to make the call. The country expected it. The prestige and power of the US Supremes would have taken an enormous hit, if the Court had punted. Not gonna happen. Wouldn't have been prudent.
5.8.2008 11:57pm
fishbane (mail):
The court has to be practical. Having set itself as the arbiter of last resort on every issue raised in society, it had no choice but to make the call. The country expected it. The prestige and power of the US Supremes would have taken an enormous hit, if the Court had punted. Not gonna happen. Wouldn't have been prudent.

Um. The court punted. I don't know what planet you live on, but this thread is an interesting demonstration that folks from all sorts of political persuasions find the decision bad. They has to make a call when they decided they had to make a call. There are interesting narratives about the arm wrestling that went on out there.
5.9.2008 1:11am
David Schwartz (mail):
If the Florida Supreme Court had decided that the election was too tricky to figure out and that the winner would be decided by a coin toss, with no support of any kind in any law passed by the Legislature, what would you have the Supreme Court do?

And if there's no authority for the Supreme Court to intercede in that case, there's no authority for them to intercede to prohibit poll taxes or double-counting votes from white people.

I think you don't fully appreciate how really bad the FSC's ruling was. The procedure they commanded was literally physically impossible to follow, and was not argued for or briefed on by either side.

The margin of victory was smaller than the margin of error.
5.9.2008 2:50am
MST (mail):
"The margin of victory was smaller than the margin of error."

David S.: First you have to tell us who defined the "margin of error" for the Florida ballot counting. Now I'm not denying that a "perfect" count is well-nigh impossible, but a recount will give you another number, then another recount will yield yet another number. However, one expects those counts to stabilize some place close to the "real" number, and to remain on one side or the other of the question. And the final recount, according to law, IS the final count. The one that will be abided by. (Indeed, based on the recounts the consortium of news organizations did, that number remains in the hundreds and is in Bush's favor under the likely recount scenarios.) So the legal solution to a very close election is to (legally) recount.

Now we're back into the Gore camp's voodoo. Florida law has provisions and procedures for recounts, which take place state-wide. Gore's lawyers did not ask for the legally-provided-for recount within the legally-provided-for timeframe. They insisted on cherry-picking the counties that had the most chance of putting them over the top, and they found the "right" judges to back them up. If the Florida Supreme Court had stopped the cherry-picked recount and implemented the legally standard State-Wide recount, I would have no problem with the FSC. That would have been proper and fitting. But Noooo...

My brother used to buy board games when we were kids and not let me see the rules unless he needed one to make things go his way. The Gore team and the FSC took this a step further and threw out the existing rules after the fact, made up their own, and skewed them to get a specific result. Like starting off playing baseball and getting your guy to win because he threw a touch-down pass. Huh? So SCOTUS intervened to reset things back to the Florida statute-defined timeline. And you have to admit that if the decision were given to the US House (Republican), the Florida Legis. (Republican), or the Florida Sec. of State (Republican) and they found for Bush (as they inevitably would, given he had the votes), the screams from the Gorists about a "stolen election" would have been just as loud and long. In that rewrite they would probably be arguing that the decision should have been given to SCOTUS as they might've squeaked out a 5/4 for Gore.

"The Constitution is not a suicide pact."

Imagine the scenario if SCOTUS hadn't stepped in to vacate the FSC, and the decision isn't "Federalized" through the House of Reps: the count goes up to Electoral College deadlines, the Florida State House votes a Bush victory, even though the recount isn't done (and never would be), the FSC vacates that decision... then what? Who enforces which decision? Does Jeb call out the National Guard to escort the Sec. of State to the Post Office to deliver the Legislative EC results in favor of his brother? Does the FSC issue a court order prohibiting said action? Or do we wait until June on the impossible, unprecedented and unsupportable FSC recount process to seat a President?

Of course the real reason there is any argument is that those who wish the election had gone the other way wanted to leave the decision with the FSC, as it is the ONLY body involved that was willing to push the decision (or else delay the result past the EC deadline so Florida wouldn't be counted at all!) to get the result they wanted, and law, procedure, precedent, and actual state-wide vote count all be damned.

MST
5.9.2008 12:32pm
betsybounds:
I'm not a lawyer so I don't know if the decision was a good one or not. I tend to think the SC was in an untenable position, as others have pointed out, and believed they had do do something. The argument over the decision's rightness is not useful, in that it won't change anything. The thing that occurs to me, though, and I've been mentioning it to friends and acquaintances who are lawyers for some years now is this: Gore was the one who brought the case in the first place. An election should never be decided in the courts at all, yet he brought the case. Once he did that, he (and, by extension, his supporters) were bound to accept the result, and that included the possibility of appeals all the way to the top. So, if you're unhappy with the result, blame that fool who allowed himself to be persuaded that pursuing that route was such a brilliant idea.

But then, I think that, based on the entirety of his career up to and including this very day, Al Gore could benefit from a very thorough psych evaluation.
5.9.2008 2:01pm
Dilan Esper (mail) (www):
Suppose the Florida Supreme Court had said that all ballots for Gore counted double and therefore Gore was the winner of the state. The idea that the US Supremes have no jurisdiction to overturn such a result is laughable.

Of course they would. But that's because in that situation, you would have actual equal protection and first amendment violations.

The issue with Rehnquist's opinion in Bush v. Gore is whether in the absence of an equal protection violation (as found in the majority opinion), the US Supreme Court can reverse a state court's construction of its own election laws. And the answer should have been "no".
5.9.2008 2:16pm
Dilan Esper (mail) (www):
Of course the real reason there is any argument is that those who wish the election had gone the other way wanted to leave the decision with the FSC, as it is the ONLY body involved that was willing to push the decision (or else delay the result past the EC deadline so Florida wouldn't be counted at all!) to get the result they wanted, and law, procedure, precedent, and actual state-wide vote count all be damned.

That's not true. If competing state delegations were certified, the election could have gone to the House of Representatives. That's what the Constitution provides.

Here's the thing, though. Those decisionmakers (as well as the Floida legislators who certified an alternative set of ballots) could have been voted out of office if they voted for Bush in the wake of a recount that favored Gore. (I realize the recount did not ultimately favor Gore, but you see my point.) The Supreme Court, in contrast, sits for life tenure. So they can pick whoever they want and then tell the rest of us to get over it.

One decision is consistent with democratic values, even if Bush ultimately wins. The other is not.
5.9.2008 2:20pm
Dilan Esper (mail) (www):
The thing that occurs to me, though, and I've been mentioning it to friends and acquaintances who are lawyers for some years now is this: Gore was the one who brought the case in the first place. An election should never be decided in the courts at all, yet he brought the case.

Under Florida law, he had to get a court order to get his recounts. So unless you are just saying that Gore should have conceded and not sought a recount at all, this position makes no sense.
5.9.2008 2:21pm
T. Paine (mail):
Florida law has provisions and procedures for recounts, which take place state-wide.

This is an astonishing claim. Florida law commits vote counting and recounting to individual counties. Florida law also provides for manual recounts on a county-by-county basis.

So I'm curious which Florida law you're referring to that requires a "state-wide recount." Thanks in advance for helping me with my confusion.
5.9.2008 6:26pm
Lucius Cornelius:
If I remember correctly, there is a "safe harbor" provision which allows states to appoint their electors without interference from Congress if done by a specified deadline. In 2000, the deadline was December 12th. If a state missed that deadline, that state's delegation to the electoral college could have been challenged.

As it is, members of the House and Senate were prepared to challenge the Florida delegation. If the selection of that delegation had been delayed because of a continued recount, then the Florida delegation could have been challenged and possibly even disqualified. In which case, neither Bush nor Gore would have received the necessary 270 electoral votes and it would have been left to Congress to elect the President and Vice President.

This is where it would have been interesting. The elections would have been conducted by the new Congress. The Republicans had a small majority in the House, but I believe that the Senate was tied 50/50. The 12th amendment appears to require an actual majority vote for the winner; the Vice-President (which would have been Al Gore) would not get to cast a tie breaking vote. So, there would have been a deadlock.

For all I know, we could have ended up with President Bush and Vice-President Lieberman. And with all the hatefull crazies out there, I would have feared for the President's safety. As it is, much as the crazies hate Bush, he was safe because they feared the idea of a President Cheney even more.
5.9.2008 8:23pm
David Schwartz (mail):
First you have to tell us who defined the "margin of error" for the Florida ballot counting.
The election was extensively studied. The equipment used has a margin of error. Sometimes it misses a punch. Sometimes a second punch is made accidentally in handling the ballots to counts them. Sometimes people misread the ballots. All indications are that the margin or error exceeded the margin of victory by a factor of three or so. There is simply no way to know whether more people walked into the polls in Florida intending to vote for Bush or more walked in intending to vote for Gore.

Now I'm not denying that a "perfect" count is well-nigh impossible, but a recount will give you another number, then another recount will yield yet another number. However, one expects those counts to stabilize some place close to the "real" number, and to remain on one side or the other of the question.
Unfortunately, that is not the case. The ballots degrade with each handling. Chad that was hanging open flips closed. Squares that were never punched break free.

You are dealing with an analog system. Some squares are just dented. Do you count that or not? If you do, do you reject a ballot when one square is punched and the other dented? What if they're both dented but one is dented much more than the other? What if one is heavily dented, the other lightly dented but also partially torn? What if one is heavily dented and the other is hanging?

The simple fact is that the margin of victory vastly exceeded the margin of error. From just the ballots, it is impossible to determine who was intended more votes. The ballots are just not of sufficient quality.
5.10.2008 3:25am