12/04/00 2:10 p.m.
Supreme Confusion
Cleaning up after the Florida justices.

By NR’s John J. Miller & Ramesh Ponnuru

id the U.S. Supreme Court overrule the Florida supreme court, or just send the case back to it for some reworking? The answer is both. In the interests of achieving unanimity — and thus guarding its mystique — the Supremes in Washington hedged. But if they simply threw the case back to Tallahassee, they did so with a strong suggestion that the Florida justices had screwed up royally. It can't be good news to be told that the highest court in the land can't even make enough sense of your opinion to overrule it.

A tone of exasperation also marks a few other remarks by the Court. It refers to the Florida court's decision "to reconcile what it spoke of as two conflicts in Florida's election laws," thus implying that this conflict may not really have existed. The Supreme Court isn't as tough on the Florida justices as they were on Katherine Harris, but then the Supremes are usually more subtle in their digs.

The Court notes that "[a]s a general rule" it "defers to a state court's interpretation of a state statute," before explaining why circumstances make it hard to do so in this case. This remark serves a defensive purpose, of course, but it also underscores how badly the Florida justices botched things. The Court is basically saying, Look, we don't want to get involved, but you guys have created such a mess…

The Court has not, however, resolved that mess. Several conservative commentators, not least on NRO, have suggested that they hoped that the Court would make a narrow ruling so as to avoid what would in effect be a judicial settlement of a disputed presidential election. (By the way, if conservative pundits have been marching in lockstep with Team Bush, as our critics say, shouldn't we have been expressing hope for a clean Bush win?) They have gotten their wish, and then some. The Supremes didn't even say that the knotted issues should be hashed out by the Florida legislature — that, presumably, would have broken their unanimity.

Left unanswered, for instance, is the status of Al Gore's contest to the certified election results. If the Florida justices were wrong to throw out the statutory deadline, then Gore also missed the deadline for initiating his contest, and Palm Beach's recount didn't start on time. If Judge Sauls were inclined to throw out Gore's contest case, this would be a moot point. But if he wants to continue, he appears to be in a sort of legal limbo. Ex post facto changes to the law tend to unsettle the legal landscape. That's why responsible courts avoid them.

What will the Florida justices do now? One would hope they would be chastened. If they attempt to ground their previous decision in federal law, the stage would be set for the U.S. Supreme Court to take the case again and slap them down. In that case, the Court's hesitation to second-guess a state court's interpretation of a state statute would not be a factor. If, on the other hand, they say they were just clearing their throats in their references to federal law and were simply interpreting a state statute, the Supreme Court might well have to make a decision about how much deference this hackwork court is due.

More Criminals for Gore
At least 445 felons voted illegally in Florida on November 7, reports the Miami Herald. These fine citizens — whose numbers include "62 robbers, 56 drug dealers, 45 killers, 16 rapists, and seven kidnappers" — almost certainly gave an overwhelming majority of their votes to Al Gore. Or so one might assume, given that 75 percent of them were registered Democrats. The Herald's review covered just 8 percent of the state's voting lists. If that sample is representative, it would mean more than 5,000 felons cast ballots in Florida.

We're not saying Al Gore is the preferred choice of criminals; we just think it's so.

Veil of Threats
Rep. John Lewis (D., Ga.) wants you to know riot police may be needed on Inauguration Day. "If George W. Bush makes it to the White House, there will be a new rallying cry in many part of America: never, ever again," he writes in the latest issue of Newsweek. "If there's a perception that this is not a legitimate presidency, the political climate will not be orderly and peaceful. I'm not making a threat; I just think it's so."

Forgive us for not being so sure. If Lewis really weren't making a threat in this odious essay that compares Al Gore's contest of the presidential election with Selma — is anybody else getting tired of this talking point? — he might go ahead and condemn a political transition that is anything but "orderly and peaceful." He doesn't, of course. He just says blacks "have overcome more dangerous obstacles than clever Republican lawyers. And be assured we will overcome again."

We're not saying John Lewis is obnoxious; we just think it's so.

Life on Mars
The lead editorial of the New York Times on Sunday asks what "the proverbial [not to say cliched] visitor from Mars would make of all this." It continued, "On first arriving, he or she might think that a tirelessly explanatory fellow named David Boies had been put in charge of arguing out some arcane tribal dispute." He or she? Perhaps this was done for the self-esteem of Martian girls, who need validation from the Times that they can become astronauts, too. (Take Your Daughter to Earth Day?) But it's awfully narrow-minded of the Times to assume that Martians are imprisoned by the same arbitrary and confining gender identites we've constructed here on Earth. What if they're all hermaphrodites? Maybe they have 15 sexes. The Times appears to be suffering from species-ism and planet-ism. The entire editorial board might benefit from some sensitivity training — preferably conducted in Alpha Centauri.