chjohnson at MAIL.LAW.UTEXAS.EDU
Fri Dec 22 13:22:21 PST 2000
It is a law crisis.
I convidently predicted Sunday before the announcement that "Gore to move
and win in three." Bush had no line of authority under which he could
avoid checkmate under the normal rules of chess:
1. New Law? The major Bush push was that Florida Supreme Court was
making new law after the election. The Florida Supreme Court
interpretation was not new law, but just normal interpretation by a court
trying to get its work done undre a legislated mandate to determine the
will fo the voter and the Supreme Court, composed of judges, knew that.
2. New Right? This Supreme Court was not going to create a brand new
unprecedented EP right, in which the courts were going to enforce abstract
mathematical equality among precincts and take the decision out of the
hands of the states and local discretion. And if it did, it would release
the Florida Supreme Court from its prior injuctions not to make new law and
allow the court to create some uniform substandards, counting dimples.
Under those standards, Gore wins.
3. The oral argument showed Scalia wanted a Republican victory so bad he
could taste it, but he was sputtering and did not have a theory that held
What I did nto estimate was that the Supreme court woudl indeed violate
prediction 2, and create a whole brand new right, with liberal support.
Then they would apply the right without a remedy, -- denying by their own
stay the easiest remedy of finishing up the count. Without the right, Gore
wins and with the right, but simplest remedy allowed, the Court stopped the
count and declared Bush the victor. The right created was a tickect for
one day and one train only.
Those of us who take law seriously are appalled.
At 01:43 PM 12/22/2000 -0500, you wrote:
>I'm curious what the crisis is.
>1. The crisis from political theory. it may well be the case that the
candidate with 49.9 percent of the vote will take office rather than the
candidate with 50.1 of the vote (and one might note that a good many people
had lots of trouble distinguishing the two during the election--its
somewhat right of center versus a little more right of center). You have
to be a really big fan of one-person, one vote to think this is a major
crisis in political theory.
>2. The political crisis. A lot of people are made at the outcome.
Curiously, a lot of people are happy at the outcome and would have been mad
had the outcome been the other way. Doesn't seem to be any sign of
political instability now. Maybe the Senate will chew up a judicial
nominee or two. But to call this system "fragile" seems a serious
>3. The left isn;t going to win by going to the Supreme Court. Nor is it
going to win by trying to change the constitution. Right now we are losing
in American politics. The first thing the left has to do is figure out how
to win under these rules. As such, our attack should be on Gore, not Bush,
on the DLC, not the RNC. Once the left wins, then we can figure out how to
rearrange American politics. But if anyone rearranges American politics in
the near future, it's not going to be us.
>Mark A. Graber
>mgraber at gvpt.umd.edu
Calvin H. Johnson
Andrews & Kurth Centennial Professor of Law
The University of Texas School of Law
727 E. 26th St.
Austin, TX 78705
(512) 232-1306 (voice)
FAX: (512) 232-2399
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