jim baker and rhetoric

[Cornell Clayton]

I agree with both Michael and Barry.   Asking the state legislature to
reverse the state's supreme court and ignore the will of voters would be a
dangerous (and frankly, from a strategic/political standpoint, stupid) way
to begin a presidency.

Secondly, I am struck by the court-bashing rhetoric of Baker and Bush, but
even more so by those on this list and conservatives in my classes and
among my friends.  One may, of course, disagree with the court's decision
(I personally think the court needed to rationalize the conflicting
statutory demands but that it could have done so without substituting
deadlines --  by allowing certification and then permitting recounts to be
used in contesting the election afterwards).  But to characterize this
relatively moderate decision as a "usurpation of power," as "judicial
overreach," as "extraordinarily dishonest," as a "transgression of
authority," as "politically-motivated...tyranny"... well, this seems to me
to be nothing more than hyperbole and (when made by academics)
anti-intellectual emotivism.  Given Dade County's decision this morning to
stop the recount entirely because it can't complete the recount by the
court's deadline indicates that the decision may yet work to the advantage
of Bush!

What strikes me most , however, is that while both sides have resorted to
harsh language on occasion, the Pyrrhic rhetoric and sense of
self-righteous indignation and entitlement on the part of Republicans
during this election is extraordinary (and my own experience is that this
is not limited to the campaign officials or to elites on discussion lists
such as this but is wide-spread throughout the "conservative community"
even among those who are normally apolitical).  Talk of "liberal
conspiracies" and "stealing elections" is going on across the country in
living rooms and local pubs.  Am I the only one who senses that the
conservative paranoia and sense of outrage is entirely disproportionate?

Gore won the popular vote in this country.  He probably also was the
preference of the majority of voters in Florida (even if the legalities of
ballots and voting law eventually give the state's electors to Bush).
Moreover, Democrats won seats in both houses.   So, where does the GOP's
sense of outrage and entitlement come from?  I wonder if others think that
the conservative reaction to election events is part of a broader pathology
in the conservative mind, beginning with neo-conservative writers in the
late-1960s, that there is a "liberal elite" that has disenfranchised the
silent (conservative) majority" in America?

Cornell Clayton
Washington State University





At 12:53 PM 11/22/00 -0500, you wrote:
>i agree w/michael.  it would be rare to have the us sup ct reverse the
state sup ct on state law, but if that court is *so* out of line as some
claim, it is not unprecedented.
>
>and of course, it is a "republican" us supreme court
>
>which leaves me wondering, especially as i teach a course on the politics
of judicial review (with two political scientists, john ferejohn and anna
harvey):
>

>do those of you decrying the florida supreme court believe that this is
just partisanship and not plausibly law?  in other words, would you sign a
statement in a news paper condemning that court for abdicating its role of
deciding according to law?
>
>i ask this neither rhetorically nor naively.  i've now spent a semester
debating legal v. attitudinal models, and this is something i think about a
lot.  and, if there is anything about this entire matter that has disgusted
me and kept me silent till now it is that no one seems to be able to make
any observation not driven by naked partisanship.  for me, i'm a gore
voter, but i think there arelimits to what gore should pursue,and if bush
wins fine. but i'm surprised at the willingness of some to (a) assume
courts are no different than other partisans and (b) say so anyway.
>
>
>Barry Friedman
> Professor of Law
>NYU School of Law
>40 Washington Square South
>Room 317
>New York, NY  10012
>
>(212) 998-6293
>
>
>>>> masinter at NOVA.EDU 11/22/00 11:18AM >>>
>I hope that the Florida Legislature has the good sense to stay out of the
>controversy.  If the Florida Supreme Court has violated Article II, the
>Bush lawyers should file a cert. petition and seek emergency relief.  To
>turn to the Florida legislature rather than the U.S. Supreme Court to
>correct a federal constitutional error by the Florida Supreme Court
>invites chaos.  Reasonable people can disagree whether the Florida
>Supreme Court violated Article Two (I do not think it did), but we can
>agree that, at least since Marbury, the Supreme Court has exercised the
>power it exercised in City of Boerne to decide the meaning of the U.S.
>Constitution.  Unless the Supreme Court were to hold that the question is
>nonjusticiable because it is textually committed to state legislatures,
>the Florida Legislature should continue to enjoy its vacation.
>
>For what it's worth, the Florida Legislature cannot meet unless 1)
>Governor Jeb Bush calls it into special session, or 2) two thirds of
>the members of each chamber vote to meet.  There are insufficient votes
>among the members to call the legislature into special session; that
>leaves the ball in the court of Jeb Bush, who has recused himself from
>participating.
>
>Suppose VP Gore wins as a consequence of a recount, and the margin is
>sufficient to overcome the additional votes Gov. GW Bush obtains from a
>recount of improperly excluded overseas absentee ballots.  What legitimacy
>would attach to a slate of electors chosen by the Florida Legislature in a
>special session convened at the request of Governor Jeb Bush to reinstate
>the decision of his brother's campaign cochair disenfranchising Florida
>voters whose lawful votes were not counted within seven days of the
>election?  That scenario would make Milosevic blush.
>
>Michael R. Masinter                     3305 College Avenue
>Nova Southeastern University            Fort Lauderdale, Fl. 33314
>Shepard Broad Law Center                (954) 262-6151
>masinter at nova.edu                       Chair, ACLU of Florida Legal Panel
>

>On Tue, 21 Nov 2000, Scarberry, Mark wrote:
>
>>  List members who have followed the Florida Legislative Supremacy thread
>> will know that there is an argument (and I think a very strong one) that
the
>> Florida Supreme Court usurped the Florida Legislature's role, as the US
>> Constitution defines that role. Art II section 1 gives the Florida
>> legislature--not its executive and most certainly not its courts--the power
>> to determine the manner of "chusing" presidential electors. The Florida
>> Supreme Court took a statute which provided in one section that the Sec. of
>> State "must" disregard late certifications, and in another section provides
>> that she "may" disregard them, and turned the resulting ambiguity into a
>> judge-made rule that she almost never may disregard them. Further, the
>> Florida S. Ct. went out of its way to say the the legislature's making of
>> election laws was subject to the Fla. constitution--which of course means
>> subject to the Fla. Supreme Court as expositor of that constitution.
That is
>> a direct slap at the legislature and diminishes the power the legislature
>> has under the US Constitution (which of course trumps the Fla. const.) to
>> determine the manner of selection of electors. Whether the US Supreme Court
>> will consider this to be justiciable--or on the other hand a nonreviewable
>> political question--for the Fla. legislature to act on subject to final
>> review by the US Congress in its vote-counting role--is, I suppose, in
>> doubt. But I don't think there can be much doubt that the Fla. S. Ct. has
>> thrown down the gauntlet, challenging the Fla. Legislature (and, as I will
>> state in an op ed piece that I am writing, also challenging the US
>> Constitution.) I don't see any way that the Florida legislature can allow
>> the Fla. S. Ct. to declare itself to be the final arbiter of the
>> legislature's power under US Const. Art II section 1.
>>
>> It's like RFRA ten times stronger--the US S. Ct. in City of Boerne decided
>> it could not let Congress usurp its authority to determine the meaning of
>> the 1st and 14th Amendments, and here the Fla. legislature cannot allow the
>> Fla. S. Ct. to usurp its authority.
>>
>>
>> Mark S. Scarberry
>> Pepperdine Univ. School of Law
>>
>> -----Original Message-----
>> From: Barry Friedman
>> To: CONLAWPROF at listserv.ucla.edu
>> Sent: 11/21/00 8:58 PM
>> Subject: jim baker
>>
>> i'm listening to jim baker trash the florida supreme court.  that
>> strikes me as remarkable.  if he thinks the courts so much in error,
>> there are appeals to be taken, arguments to be made to other courts.
>> they may not get anywhere.  it could be the florida supreme court is
>> supreme for now.  but we generally try to avoid such blatant trashing of
>> courts.
>>
>> agree?  disagree?
>>
>>
>> Barry Friedman
>>  Professor of Law
>> NYU School of Law
>> 40 Washington Square South
>> Room 317
>> New York, NY  10012
>>
>> (212) 998-6293
>>
>>
>