-Caveat Lector-
http://www.nypostonline.com/postopinion/opedcolumnists/16934.htm
BUSH'S SUPREME ERROR
Sunday,November 26,2000
By BRUCE FEIN
THE U.S. Supreme Court has granted partial review of George W.
Bush's petitions. But he may come to regret getting what he asked
for: Bush could lose far more than he wins in this case.
The Supreme Court commands sacred reverence among citizens
generally. It is vastly more respected than legislative or
executive bodies or the media. Its nine justices are
institutionally above the political fray, enjoying lifetime
appointments and beholden only to their own constitutional
scruples.
Thus, if Bush is thwarted by the court, no matter what its
reasoning, many will believe that the final word has been spoken
from Mt. Sinai, and that to continue the mudfight with Gore would
be blasphemous. And since seven of the nine justices were
appointed by Republican presidents, Bush will be not able to
blame partisan bias.
The court has already handed Bush a non-trivial defeat. Yes, it
agreed to review the Florida Supreme Court's exotic
interpretation of the state electoral code. But the high court at
the same time rejected Bush's plea from the 11th Circuit U.S.
Court of Appeals.
That federal bench had declined to determine whether the
hyper-subjective manual recounting of dimpled, hanging and
swinging chads in selected Florida counties under a "voter
intent" standard violates the 14th Amendment's due process and
equal protection clauses.
Bush's case there carried emotional if not legal attraction.
Judge Charles W. Burton of the Palm Beach County canvassing board
conceded last Friday that court guidance in discerning voter
intent is worthless: "You have to feel it in your heart."
The Bush camp's two-pronged assault on the Florida Supreme Court,
meanwhile, seems thoroughly unconvincing.
The first prong of the attack takes on the Florida court's
extension of time for county canvassing boards to file returns
with Secretary of State Kathleen Harris from the statutory date
of Nov. 14 until Nov. 26.
This action, the Bush camp argues, was tantamount to a
legislative post-election re-writing of the state election code,
and thus a violation of the federal 1887 Electoral Count Act.
That law provides that in resolving presidential electoral
disputes, a state's laws enacted "prior to" Election Day "shall
be conclusive, and shall govern in the counting of electoral
votes . . . "
Now, Florida's Supreme Court certainly produced an imaginative
interpretation of the state election code. It insisted that the
law's unequivocal seven-day post-election deadline for filing
returns is unenforceable unless necessary for Florida's
participation in the presidential electoral count or for the
viability of post-certification ballot contests.
That logic was outlandish. But state and federal courts,
including the U.S. Supreme Court, have embraced such freestyle
interpretations as within the judicial (not legislative) function
for more than 50 years.
In Steelworkers v. Weber (1979), for instance, the high court
ignored unambiguous non-discrimination language and legislative
history of the 1964 Civil Rights Act in favor of an
interpretation authorizing racial discrimination against white
male employees. A 5-2 majority loftily admonished: "[A] thing may
be within the letter of the statute, and yet not within the
statute, because not within its spirit . . ."
The traditional remedy when courts misinterpret statues is for
legislatures to pass new, superseding legislation. The justices
will surely ask Florida's GOP-dominated legislature (which has
chosen to join with Bush in this case) why it has not corrected
the alleged state court mistake. Is it asking the nation's
highest tribunal to fiddle with the state's electoral code and
judicial system simply to rescue Florida legislators from
political awkwardness or possible unpopularity?
Moreover, if the Florida Supreme Court's interpretive artistry is
conceived as "legislation" as Bush contends, then mountains of
judicial precedents in every state of the union, and the U.S.
Supreme Court itself, would fall under a dark constitutional
cloud. That prospect should daunt justices of any stripe or
philosophy.
The second prong of the Bush attack on the Palm Beach decision is
a weak sister of the first. It claims that the Florida Supreme
Court, by misinterpreting the state electoral code, usurped the
plenary constitutional prerogative of the state Legislature to
"direct" the manner of appointing electors.
But errant judges are still judging, not legislating. Although
the state court clearly stumbled, it did so waving legitimate
canons of construction, and preached: "Legislative intent - as
always - is the polestar that guides a court's inquiry into
provisions of the Florida Election Code. Where the language of
the Code is clear and amenable to a reasonable and logical
interpretation, courts are without power to diverge from the
intent of the legislature as expressed in the plain language of
the Code."
My prediction: The U.S. Supreme Court will tell Bush to drop
dead.
Bruce Fein is a constitutional lawyer and was an associate deputy
attorney general in the Reagan administration.
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Kadosh, Kadosh, Kadosh, YHVH, TZEVAOT
FROM THE DESK OF:
*Michael Spitzer* <[EMAIL PROTECTED]>
~~~~~~~~~~~~~~~
The Best Way To Destroy Enemies Is To Change Them To Friends
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