Still room for play?
Paul-Finkelman at UTULSA.EDU
Wed Dec 13 02:29:39 PST 2000
I appreciate the spins of all my con law colleagues, but isn't the reality this.
This is no room for play, and in fact there never was. The current court was
never going to allow a recount to go forward for the following reasons.
1) it might lead to Gore being elected, which is something that some of the
justices seem unable to cope with. Whether because they want to retire and have a
republican appoint someone to replace them, or because they want allies. Or,
because they simply don't want Gore. I think we can analyze the decision till the
cows come home (and they never do you know) but this is pure politics.
2) a recount might undermine Bush by showing he was not the legitimate victor,
even though he might "win" the election. This is not acceptable to the majority.
If the majority of the court had actually been interested in getting a recount, it
would have created a Miranda-like rule for counting last time, in Bush v. Gore-I.
But, the Court was uninterested in getting a recount. A few years ago Justice
Scalia (I believe, but it might have been the Chief J.) stated in a death penalty
case (coming out of Texas, where else?) that the court was uninterested in a
"actual innocence"; here the court is uninterested in an actual count.
This will be like Dred Scott, in the long run, not because the outcome is so
horrible, but because the reasoning is so terrible and the self-inflicted wound so
obviously political. But, like Dred Scott, it will only help those the Court
wishes to hurt. The interesting question will be what Democratic politician will
be the "Lincoln" of 2004, and gain the presidency that year, after the Democrats
carry the House and Senate in 2002. Fortunately, President Bush will not face
the kind of crisis Taney helped create for Buchanan; but it is likely to be about
as effective as John Quincy Adams or Benjamin Harrison, who also lost the popular
vote but became president.
The only hard thing for us is that some of us will have to teach this stuff with a
straight face, and try to figure out a "rule" or a "reason." I am just thankful
that the semester is over, and I will not teach con law this spring, so I do not
have to try to convince students that we do have a rule of law and even a rule of
reason. This case reminds me of what Uncle Joe Stalin said about elections: it
doesn't matter who gets to vote, it only matters who gets to count the votes;
this is something that Uncle Nino and Cousin Clarence clearly understand.
Chapman Distinguished Professor
University of Tulsa College of Law
3120 East Fourth Place
Tulsa, OK 74104
E-mail: paul-finkelman at utulsa.edu
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