11/22/00 2:10 p.m.
The Court Speaks
And Bush talks back.

By NR’s John J. Miller & Ramesh Ponnuru

e have discovered another case of election fraud: A few people were able to cast two votes for Al Gore in this election. They are the justices of the Florida Supreme Court, who were able to vote for Gore on Nov. 7 and again last night.

The last footnote of its decision reads, in its entirety: "At oral argument, we inquired as to whether the presidential candidates were interested in our consideration of a reopening of the opportunity to request recounts in any additional counties. Neither candidate requested such an opportunity." The sentence to which this footnote is attached refers piously to "our reluctance to rewrite the Florida Election Code," even as the footnote itself advertises the Court's willingness to do just that.

The court's decision has already had one salutary effect. It has done what the U.S. Supreme Court could not do in its decision effectively creating a constitutional right to partial-birth abortion: Get George W. Bush to denounce judicial usurpation.

When conservatives have denounced judicial usurpation before, insisting that it put the basic character of the regime at stake, they have been themselves denounced, even by some other conservatives, as alarmist. Perhaps, now that judicial usurpation is being committed in the service of Al Gore's campaign to usurp the presidency, more conservatives will begin to see the importance of taming the judiciary.

Taming the judiciary means, in the first instance, challenging the idea that the courts always have the last word — an idea that is logically reducible to the idea that the courts never interpret the law wrongly; that the law is, ultimately, whatever judges do.

Another pernicious idea has seized the political class over the last two weeks: that anything Gore does is unobjectionable because he is simply exploiting the rules of the game. But when one of the tools at his disposal is a judiciary that arrogates to itself the right to change those rules, accepting this situation amounts to a blank check for the higher lawlessness.

Talking Back
Bush's statement today was strong not only because he forthrightly condemned "usurpation." He also made a few smart moves. First, he said with confidence that he will prevail in Florida. Some polls have suggested that Americans tend to think he will become the next president. To the extent that he can affirm this sense of inevitability — which will benefit him more as time passes — he improves his odds, albeit at the price of some carping by pundits about his "arrogance." (Speaking of which, Bush's statement is a far cry from Bill Daley's infamous remark about a Gore victory being the will of the people, not least because Gore has never been ahead of Bush in any count of Florida ballots.)

Second, Bush directly challenged Vice President Gore on the issue of military ballots. This is a subject Gore himself has avoided. Now, it will be difficult for him to do something other than communicate a message telling his henchmen in Florida to back off. Third, Bush has started laying the groundwork for an uncomfortable but potentially necessary option: Action from lawmakers in Tallahassee.

Bush did make one mistake: He took questions. His prepared statement was sufficient, and the Q&A session added nothing to it. In fact, it may have taken something away. When a reporter asked whether Bush would appeal yesterday's ruling, Bush told him to check with his lawyers in Florida. He seemed to know more about Dick Cheney's medical condition than his own legal one. Delegation is a powerful tool in the hands of a skillful leader — but people still want to believe they know who's in charge.

Liberal Wisdom
When Newsweek's debuted its "Conventional Wisdom" feature, the point was to make sport of the media's herd instinct. These days, the feature is less likely to satirize the conventional wisdom than to express it, in a style that attempts wit. This week's edition has double the size and double the bias. Katherine Harris is compared, for the umpteenth time, to Cruella De Vil. But here's the entry on the Florida Supremes: "Credible jurists waste no time [!]. Finally some straight talk. Bonus: No camera hogging (yet)."

More Florida Coverage
There's tons of good stuff on the site, including Richard Lowry's brief, but pointed, response to the Florida supremes…. Who's really being "irresponsible" in Florida? Ramesh Ponnuru takes on E. J. Dionne Jr. and Thomas L. Friedman…. and Jim Boulet Jr. argues that there's no silver lining for Republicans if Gore wins.