2000 Election and the Smearing of the Florida Courts
By Like Kevin Drum, I’m going to skip the meta-issues in Jon Chait’s article and instead highlight this important point about the 2000 election:
The 2000 recount is an apt birthing ground for the netroots. It perfectly fits their view of U.S. politics as an atavistic clash of partisan willpower. And their analysis of that episode, while somewhat crude, has a certain truth. The liberal intelligentsia, and much of the Democratic establishment, tried to hold itself above the fray. During the recount, liberal pundits were concerned above all with maintaining civility and consensus, and they flayed Democrats for any hint of partisanship or anger…Elite liberal opinion-makers insisted that their side play fair. Gore, they declared, must allow for the possibility that his opponent could win a fair recount, must renounce street demonstrations, must be intellectually consistent–permitting, say, military ballots that did not fulfill the letter of the law to be counted. Members of the Gore recount team like William Daley and Warren Christopher, seeking to uphold their reputations as statesmen, nervously complied.
The contrast with the Republican side could not have been more stark. The only complaint conservative pundits had with the George W. Bush operation was that it was too soft. (George Will wrote that there was a “ferocity gap”–but, in a classic case of projection, he insisted that Democrats were more ferocious.) Bush never conceded the possibility that he could lose. Nor did he feel any obligation to maintain intellectual consistency. His campaign demanded the letter of the law be carried out in those instances when it suited his side, and it flouted the letter of the law in those (military ballots, illegally submitted absentee ballots in Seminole County) when it did not. It whipped up a mob to halt a recount in Miami-Dade County that at the time appeared potentially decisive. Conservatives celebrated these developments without a hint of dissent. While Democrats in Washington constantly undermined the Gore campaign by telling reporters that Gore should concede, Washington Republicans maintained ranks. Through their greater resolve and partisan discipline, the Republicans triumphed.
One of the most remarkable things about 2000 election is not only that the Bush campaign advanced ludicrously contradictory interpretations of Florida’s election statutes, but that the Florida Courts were relentlessly smeared as partisan although it advanced a perfectly consistent interpretation irrespective of which party it favored. Indeed, Rehnquist’s concurrence in Bush v. Gore–favored by most of the decision’s defenders–literally rested on the premise that that Florida Supreme Court was not engaged in jurisprudence at all. But those (including, to put his opposition of the “judicial activism” of Roe v. Wade into perspective, Ben Wittes) who agree with Rehnquist’s analogy of the FSC to openly lawless opinions of the courts of the Jim Crow South fail to explain why a court determined to nullify Florida’s election statutes advanced a consistent interpretation of the law that favored Bush in 3 out of 5 cases. Were the Florida courts also “writing new law” when they (correctly, in my view) accepted technically deficient absentee ballots? Defenders of Bush v. Gore somehow never say.
For example, let’s turn to the comedy stylings of Harvey C. Mansfield:
The two parties were very much themselves throughout. The Republicans stand for the rule of law, and the Democrats for the rule of the people. And the Democrats, because they stand for the rule of the people, believe that rule should be paramount, and that technicalities are subordinate to that will. Whereas the Republicans believe in doing things properly or legally. It really was a contest of principle between two parties.
Yes, nothing reflects standing for “the rule of law” than 1)purging people from the voting rolls in violation of the Voting Rights Act, 2)creating bourgeois riots to stop vote recounts, 3)arguing that technically illegal ballots should be counted while simultaneously arguing that the Florida courts were undermining the “rule of law,” and then having your claims upheld by 4)a flagrantly lawless and partisan opinion by a bare majority of the Supreme Court. That’s rich! The fact that the Democrats allowed themselves to get rolled by people like this shows that something was deeply, deeply wrong with the party.