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Western Press Review: Opinion Divided On Supreme Court Role

  • Don Hill

Prague, 1 December 2000 (RFE/RL) -- The New York Times warns today editorially that the U.S. Supreme Court is in grave danger of damaging its reputation for integrity for years to come. If the court issues a ruling on the U.S. presidential election in which the justices appear to divide along partisan lines, the damage will be severe and long-lasting, the newspaper says.

A review today of U.S. press commentary on the troubled U.S. election process displays sharp divisions among commentators along partisan lines, not only about the electoral process but also about what the judicial responses should be.


The New York Times editorial, adopting essentially the position of partisans of Democrat Al Gore, puts it this way: "It is a moment that holds some promise for untangling the election and determining who becomes president. But surely the nine justices must also realize that if they rule in a way that even remotely reflects partisan divisions in the court or a partisan purpose by its majority, the court's reputation for integrity could be damaged for many years."

The newspaper says: "We believe that as a matter of law the United States Supreme Court need not have accepted Mr. Bush's request for intervention in Florida. We also believe that having done so, the justices have an opportunity -- and a civic obligation -- to clarify the law and perhaps speed things toward a conclusion."

The editorial goes on: "The justices should recognize that Florida is becoming more and more caught up in litigation chaos, and they can bring stability with a sound decision. Such a decision would uphold the right of Florida's Supreme Court to rule on state election laws. The United States Supreme Court could also offer direction on how to proceed with the vote count in the disputed counties. Such a ruling would move the election along and also discourage the Florida legislature from its destructive plans to choose the Florida electors."

The New York Times concludes, "As the Florida Supreme Court said, those who are analyzing the contradictions in the law ought to be guided by the deepest principles at stake. In Florida, the overriding principles are the right to vote and the need for votes to be counted."


The Washington Post, which often leans toward the Democrats' view, is more cautious. Its editorial says: "Three weeks ago -- it ... seems like three months -- it was already clear that the post-election battle might end up damaging the presidency and further dividing the nation. It was up to the politicians, the candidates in particular, to press their claims responsibly, with a sense of how much was at stake beyond their own success or failure. For the most part, both parties have disappointed."

The editorial says: "In one sense, the Republicans lately are the more brazen. A select committee of the Florida legislature voted yesterday to call a special session in order to consider naming a slate of pro-Bush electors. This is an astounding usurpation when you think about it. By Florida law, as in every other state, voters expressed a preference."

The editorial concludes: "Mr. Gore argues that a ruling unfavorable to him will represent a defeat for democracy. It's a lofty argument, but this is not a lofty battle. Mr. Gore may say he is fighting for the constitutional right of all voters to be heard, but he is also fighting for enough of his own votes to be counted to nudge him into the win column. The courts have more business in this than the legislature, but they too need to move cautiously."


The often more-conservative Washington Times says editorially: "This morning, for the first time in American history, the U.S. Supreme Court will hold a hearing that will very likely play a pivotal role in resolving a bitterly contested presidential election. The conventional wisdom in much of the legal community was that the nation's highest court was unlikely to intervene in a dispute ostensibly involving the Florida Supreme Court's interpretation of state law."

The paper says: "In effect, the Florida Supreme Court took it upon itself to rewrite Florida's election law after the election. It did so by extending for 12 days an unambiguous, legislatively determined, seven-day deadline for counties to submit their voting results for certification by the secretary of state of Florida's executive branch."

The editorial says: "The U.S. Supreme Court has ample reason to overrule the extra-constitutional decision of the rogue Florida Supreme Court. In the process, the nation's highest court would re-establish the rule of law that was both envisioned by the Founding Fathers and appropriately incorporated into federal statutes more than 100 years ago by Congress."


The Washington Times also publishes today a series of essays from like-minded commentators -- both staff and external contributors.

Linda Chavez writes, "When the Supreme Court meets today, it faces one of the most daunting challenges in its history: how best to preserve American democracy as we have known it for the last 200 years. Make no mistake, what we are now witnessing on the part of the Gore-Lieberman campaign is a direct assault on the democratic process. It is an attempt to overturn an election and undermine the rule of law."

Legal scholar James L. Huffman, dean and professor at Lewis and Clark Law School in the northwestern U.S. state of Oregon, writes: "By what line of reasoning is it either nuclear (that is, extreme) or threatening to the rule of law to suggest that the Florida legislature do what is explicitly provided for in the federal statute that implements the presidential election provisions of the United States Constitution? Since when is the rule of law imperiled by democratic action pursuant to express authorization under the Constitution and laws of the United States?" Huffman goes on: "If the choice is between resolution by unelected judges or by the popularly elected representatives of the people, there seems little question the will of the people of Florida will be better served by legislative appointment of the electors."


In a second editorial, the Washington Times adapts a line from a famous debating ploy once used by former president Ronald Reagan: "There you go again!" The editorial says: "There he goes again. A week after the fact came out to the contrary, Gore campaign attorney David Boies is still arguing that a 10-year-old Illinois court case supports his contention that Florida canvassers must count dimpled or indented chads -- the paper squares next to candidates' names that voters punch out to register their choices. It takes hard work to mis-characterize a case so completely, but Mr. Boies seems more than up to the job."


The London-based Financial Times offers a slightly more distant perspective on the U.S. quandary. The U.S. problem -- the Financial Times editorial calls it "America's failure" -- isn't constitutional, legal, or juridical at all, says the British newspaper. It's political. The paper evens condescends that it could happen in Britain.

As the editorial puts it: "That the election has finally spilled over into the court of last resort will vindicate the opinions of pundits worldwide who believe the U.S. Constitution has finally stripped a gear like a rickety Florida ballot-counting machine choking on chads. But the failure in this election has not been constitutional or mechanical, it has been political: and it could happen in Britain as easily as in America."

The editorial says: "In this election, voters could not tell the difference between the program [the Democrats and the Republicans] presented, and the result was a dead heat. Now the inconvenient voting stage of the election has safely passed, the campaigns may resume their struggle for power without consulting their constituents, who have returned to their place as plaintive percentages in opinion polls."


All of the above adds up to a political dilemma for the brother of Republican candidate George W. Bush. A news analysis by Los Angeles Times political writer Ronald Brownstein says of Florida Governor Jeb Bush: "In his most extensive public comments yet on the controversy, Jeb Bush on Wednesday endorsed the arguments of Republican legislative leaders who say they have a constitutional right to directly appoint the electors if it appears the legal disputes over the Florida results won't be completed in time to assure that the state participates in the electoral college."

Brownstein writes, "In private, however, sources close to Bush say that he recognizes the political cost could be high if he signs legislation to deliver the state and the presidency to his brother--especially if the state courts authorize further recounts that give Al Gore the lead."

The writer says: "But those around him say Bush is prepared to support the legislature--and ultimately sign the legislation--if that is what it would take to ensure the state provides his brother the winning margin for the White House." And concludes: "Yet those around him believe both Bush brothers, cognizant of the political dangers, would prefer almost any other alternative to direct legislative intervention. Sources say Jeb Bush is particularly aware of the risks of signing a bill that seems to overturn the popular will, if Gore somehow takes the lead. [And so], if future recounts gave Gore the lead, and Bush still signed legislation giving the state's electors to his brother, the Florida governor's political exposure would be just beginning."