Lessons Of Bush v. Gore

May 1 2013 @ 12:51pm

Sandra Day O’Connor recently told the Chicago Tribune that “maybe the court should have said, ‘We’re not going to take it, goodbye,” referring to the case that decided the 2000 presidential election. Doug Mataconis argues that the Supreme Court refusing to take the case “would have hardly been the end of the chaos that surrounded the 2000 election”:

No matter how that process in Florida ended, there would have been a question of legitimacy hanging over whoever it was that ended up assuming the Presidency on January 20, 2001. By accepting the case, the Supreme Court brought some degree of certainty into the process and lent an air of legal legitimacy to the outcome of the election that was sorely lacking during the long period after Election Day. For that reason alone, I’d suggest that, in the end, history will judge that the Supreme Court did the right thing even if it did take a hit to its reputation in the short term.

My guess is that Doug is right in the long run. Megan McArdle agrees:

The original sin, in my view, was Gore’s attempt to recount just the votes in a few heavily Democratic counties.

I’m not saying that Bush would have done any different, had the positions been reversed. But once that had happened–and Democrats on local election boards and the Florida Supreme Court had decided to go along–there was no longer even a pretense that this was about anything other than naked post-facto power grabs, using whatever political levers your party controlled. “Count all the votes”, which most progressives now remember as the rallying cry, actually came very late in the process, and only after the Supreme Court of the United States told the Florida Supreme Court that no, it couldn’t just let Al Gore add in some new votes from Democratic Counties his team had personally selected.

Yes, Gore’s strategy was so clever it ended up being stupid. A full recount would have been better – but not as sure a thing from his point of view as a partial recount. It would also have added real legitimacy to the winner. And the further we get from that brutally polarizing few months, it’s worth recalling that this was the back-drop to 9/11 and what followed. I sometimes wonder if history would have been different if the president on 9/11 had been seen as clearly legitimate by all the country. It didn’t help that George W. Bush did not seem in any way sensitive to the precariousness of his presidency and instead of seeking a middle ground with polarized Democrats, acted as if he had won in a landslide. Compare his attitude with his successor’s who did have two clear victories, and followed through with moderation and compromise. Ian Millhiser, meanwhile, thinks the case reveals an important truth about the Court:

If nothing else, Bush v. Gore demonstrates how justices who are determined to reach a certain result are capable of bending both the law and their own prior jurisprudence in order to achieve it. In Bush, the five conservative justices held, in the words of Harvard’s Larry Tribe, that “equal protection of the laws required giving no protection of the laws to the thousands of still uncounted ballots.”