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Court of Defiance
Judicial activism at its best.


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Jonah Goldberg

For the last week, some of us have found it troubling that the never-say-die Gore campaign was willing to place all of its eggs in the Florida supreme court’s basket. From very early on, Gore’s lawyers expressed a disturbing degree of confidence in a court that has shown a disturbing degree of willingness to rewrite election laws.

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This afternoon’s 4-3 decision in favor of a sweeping recount of all “undervotes” throughout Florida and the reinstatement of already recounted votes via different-and differently flawed standards-is a stunning confirmation that the Gore team knew something we didn’t. The fix may not have been in-no need to get overly conspiratorial-but clearly they had good reason to believe the Florida supreme court would be inclined to deliver them from historical oblivion. After all, the supreme court of Florida has just displayed the very picture of judicial activism. Neither the plaintiffs nor the defendants asked the court to do what has been ordered. Creating solutions not found in law or in the trial transcript is what kings do, not judges.

Still, the question now is where do we go from here? Actually, “we” aren’t going anywhere. The vast majority of the American people-including Floridians-will be stuck by their televisions watching all of this as observers. This is a battle for and by lawyers and in all likelihood the presidency will not be decided by votes, but by briefs. Which is a shame no matter what happens.

But the prospect of a recount may not be as gloomy as Bush supporters suppose or as wonderful as the Gore team hopes. Democrats believe that a hand count of Miami-Dade under-votes-or a recount of the whole county-would yield major gains for Gore. This is unlikely. The sample counts in Miami-Dade were of the most liberal minority precincts in the county. The Gore team projected that they could gain some 600 votes based upon those numbers. The reality is that Bush won many Miami-Dade precincts by sizable margins. It is possible, though unlikely, that if this count remains in the orbit of fairness, Bush could still win.

But the fact remains that this is very good news for Al Gore. The Florida supreme court threw out a gill net to troll for Democratic votes and it is entirely reasonable to expect a substantial haul. It is also reasonable to expect the likes of Jonathan Alter to maintain coprophagous grins for days to come.

Partisans, conservatives, and constitutionalists should prepare themselves to defend the notion that the next president will be chosen by legislatures. And that is well and good. The deification of America’s courts notwithstanding, if Gore collects enough votes that we have, in effect, two winners, then the rightful place for this decision is in the most representative branch of government: the legislature, specifically the U.S. Congress. If they choose wrongly or abuse their authority, they can be fired. They can be held accountable. For all the talk about the “will of the people,” judges-and justices-do not have much democratic legitimacy.

Edmund Burke, the father of conservatism, believed that the one true enemy was arbitrary power. It didn’t matter if it came from king or politician or priest. The idea that a bunch of judges should be able to whimsically decide who the next president is-in defiance of precedent and law-should have Burke spinning in his grave.



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