A profile In Courage

[Rick Duncan]

Admidst all the court-bashing and judge-bashing (and
whining) that we have been reading on the list the
last few days, please allow me to dissent.

I believe the Supreme Court's decision yesterday was a
true profile in courage. The Court put aside its own
short-term best interests (knowing full well that it
would be trashed by the law professor class and other
powerful interests), and made a courageous decision to
place fundamental fairness and the best interests of
the country and the electoral system in a position of
primacy.

I am very proud of the Suprem Court today. The rule of
law is the real winner.

--Rick Duncan

--- Paul Finkelman <Paul-Finkelman at UTULSA.EDU> wrote:
> Please Eugene, let's not get over emotional about
> this.   No one is
> suggesting that Scalia is a great murder (although
> his death penalty
> opinions might make him at least partially
> responsible to the death
> "actually innocent" person) or that he is advocating
> a Gulag.  My piont
> is simply that Stalin understood the nature of
> "counting" or "not
> counting votes," that the Scalia and company have
> learned that lesson
> quite well.  The  Court managed to delay the count
> in Bush v Gore (I),
> prevent the count from going forward in the stay,
> and now in II, turn
> around and say, "well, a count might go forward, but
> you are out of
> time."  Had the court been at all interested in
> getting a count, the
> court could have told the Fl. Sup. Ct. what to do in
> B v. G (I) or
> simply let the count continue and then say whether
> it had to be redone.
> But, it is quite clear the court had no interest in
> getting a fair
> count.  Thousands of votes in Florida were not
> counted.  The majority
> prevented that Count from taking place in order to
> guarantee the victory
> of the candidate of choice for the Court majority.
>
> We can now all write law review articles trying to
> understand the theory
> or logic of the result, and try to teach it, but the
> reality is, the
> theory is quite simple:  the court understood that
> if you don't let your
> opponent's votes count, then your guy wins.  That is
> pure Stalin.  That
> does not imply that Scalia and the majority are
> murderers, only that
> they are anti-democratic (with a SMALL "d") and
> thoroughly cynical in
> their role as jurists.
>
> --
> Paul Finkelman
> Chapman Distinguished Professor
> University of Tulsa College of Law
> 3120 East Fourth Place
> Tulsa, OK  74104
>
> 918-631-3706
> Fax 918-631-2194
>
> E-mail:  paul-finkelman at utulsa.edu
>
>
> Volokh, Eugene" wrote:
>
> >
> >
> >                 While I wasn't entirely persuaded
> by Howard Gillman's
> > critique of the Court's analogy to NAACP v.
> Alabama, I do agree that
> > one ought to be cautious in drawing analogies like
> that.  Even if the
> > cases are similar in some formal respects, when
> the background
> > circumstances underlying the cases are different
> enough, the analogy
> > does risk appearing "tone-deaf" to the reader.
> >
> >                 I wonder, then, what people who
> sympathize with
> > Howard's criticism think of the analogy of Justice
> Scalia to . . .
> > Joseph Stalin.  Shouldn't analogies to one of the
> three great mass
> > murderers of the century be just a *bit* more
> hesitantly drawn?
> >
> >                 Eugene
> >
> >
> > Paul Finkelman writes:
> >
> >      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.
> >
> >
>
>
>
>


=====
Rick Duncan (conlawprof at yahoo.com)

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