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A way to mollify political suspicions

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© St. Petersburg Times, published December 17, 2000

TALLAHASSEE -- As we Americans kiss and make up, it is entertaining to wonder how all this looks overseas and how Jimmy Carter might try to explain it the next time he has to coach some other nation through its first democratic election.

Here's a clue. A French academician who's spending a year in the United States was chatting with my wife just before Al Gore conceded. Speaking of the Supreme Court decision, she said:

"On les a payes." (They were paid off.)

"No," Ivy replied, "c'est une question de politique." (They went in the tank for free.)

The French are more worldly about such affairs than Americans are. It may take a while longer for them to accept, as we do, the perfect legality of judges who owe their jobs to the Reagan-Bush regime giving the presidency to a younger Bush on the basis of disputed votes in the state his brother governs, and in face of the fact that the other guy actually got more votes everywhere else.

We are all obliged, of course, to respect the Supreme Court's decision as the law of the land, which I do. We are free, however, to say what we really think of it.

So in exercise of that freedom, I say, this one reeks.

First, the conflict of interest: To the almost certain dismay of its editorial page, the Wall Street Journal reported that on election night, Justice Sandra Day O'Connor's husband said at a party that she wanted Bush to win so that she could retire without fearing that Gore would appoint her successor. If true, that gave her not only a personal bias, but a very case-specific one. (As for Justices Scalia and Thomas having been Gore campaign fodder, that's no conflict; Gore picked that fight.)

Second, the intellectual dishonesty. This is apparent, in retrospect, in Scalia's rationale for stopping the recount two days before oral arguments on the Bush appeal. Was he anticipating the pretext on which the majority would refuse to let the Florida Supreme Court try for a better recount standard? The pretext was, of course, that time had run out -- but on a minor deadline that no longer worried even the pro-Bush Legislature.

Scalia's stated purpose in staying the recount before argument was to prevent stigmatizing Bush's potential presidency -- the "irreparable harm" -- with a vote count showing Gore to be the winner on the basis of counting standards the court would probably find unconstitutional.

("Sentence first," said Lewis Carroll's Queen of Hearts, "verdict afterwards.")

But Scalia had to know that a Bush presidency would be stigmatized by any decision to abort the recount. He also had to know that those ballots eventually will be counted. Ballots are public records in Florida. The question is which newspapers or interest groups will do it first. If it turns out that Gore really did have more votes, the court will be stigmatized no less than the administration.

Picking up on the dissents sounded by Justices Breyer and Ginsburg, the New York Times editorialized on the irony of a "struggle between the nation's highest federal court and a Southern state supreme court, that in a reversal of the old states' rights routine, showed the greater sensitivity to protecting the franchise."

At least it will be a long while before any Republican can complain with a straight face about "activists" at the U.S. Supreme Court.

"The problem is that the U.S. Supreme Court rapping the knuckles of the Florida Supreme Court for being activist is like the pot calling the kettle black," said Ken Connor, the Florida attorney who is the new president of the Family Research Council.

This also must be said: As bad decisions go, there have been worse. Much worse.

In 1857, Scott vs. Sandford declared Congress powerless to stop the spread of slavery. It brought on the Civil War.

In 1896, Plessy vs. Ferguson pronounced the "separate but equal" fiction that restored slavery as segregation, poisoning America even to this day.

In 1944, Korematsu vs. United States upheld the internment of Japanese-Americans for no reason but their race.

In 1976 Buckley vs. Valeo struck down reasonable limits on campaign spending, spawning political corruption so pervasive that even those cynical Europeans are amazed.

Besides those, Bush vs. Gore pales -- even if it was the most overtly political. The presidency is resilient; we refresh it every four years. In the longer run, it is only the reputation of the court that suffers. That too, wise presidents can refresh.

The most immediate consequence will be to make Senate confirmation much more difficult for any new justice. In that regard, Bush should consider establishing a bipartisan nominating commission to send him candidates they can vouch for. The final choice would be still his, and the Senate's, but it would do wonders to mollify the usual political suspicions.

Presidents should have done this years ago, but there's never been a better time than now.

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