12/07/00 3:10 p.m.
Darling Nikki?
How not to make a conservative argument against overreaching judges.

Robert A. George is an editorial page writer
for the New York Post------------------------------------RAGGEDmail@aol.com

ith the whirlwind legal battles in Florida, it's almost impossible to keep track. As this is written, shortly after the Florida supreme court has heard oral arguments on Al Gore's recount appeal, it seems like the Sunshine State Supremes have been somewhat chastened by the U.S. Supreme Court's vacating their earlier decision.

Conservatives have every right to be wary of judicial overreach — as they have been for decades. Of course, Florida's high-court ruling preventing Katherine Harris's November 14 certification of election results seemed to confirm everything conservatives have been saying. However, conservative talk-show host Lowell Ponte, writing for David Horowitz's Frontpage.com, presents possibly the worst way to articulate the case against judicial overreach.

Ponte, rightly appalled at Al Gore's tactics, in his Wednesday column trains his rhetorical guns firmly on Judge Nikki Ann Clark. He fairly accurately describes Clark as Gore's "Doomsday Weapon," in that she has the power to toss the election to the vice president if she decides to throw out 15,000 absentee ballots in Seminole County. Obviously, Gore isn't going to reject that gift if it comes his way. Unfortunately, Ponte seems most hung up on Clark's race (and, in certain ways, her gender). Ponte calls Clark Gore's "Great Black Hope" and an "arrogant African-American Democrat judge." He seems to stop just short of calling her "uppity." All this is before she has actually ruled on anything.

Like many critics, he notes that Clark was passed over for an appellate judgeship by Jeb Bush and that this likely gives her a desire for "revenge" against the Bush family. Ponte says that Clark's unwillingness to recuse herself is demonstrative of her partisanship. Well, perhaps. But, then again, Clark had been previously passed over by the late Governor Lawton Chiles, a Democrat. But more importantly, Clark's older sister, Kristin Clark Taylor, was President George H. W. Bush's Director of Media Relations — the first black woman in that position. Such a connection might actually cause Judge Clark to have somewhat neutral sentiments toward Bushes in general.

Now, Ponte does note that other Florida Democratic judges have managed to rule in a non-partisan manner — including Terry Lewis, who is hearing the Martin County absentee ballot case. However, the venom seeping out of him in relation to Clark makes it appear as if he almost wishes Clark would toss out the ballots — the better to fulfill Ponte's preconceived view.

No one's arguing that Clark isn't a liberal. She is a former Legal Aid lawyer, so one can draw appropriate conclusions. But even given that, it's not a precise indicator of how she might rule in this case. The aforementioned Judge Lewis once overturned a Florida law requiring parental notification for a minor getting an abortion — about what one might expect from a Democrat. Yet, he also found that Katherine Harris acted within her discretion in rejecting late county returns. Indeed, the Wall Street Journal's John Fund called Lewis an "honest Democrat" (really, it's not an oxymoron).

Ponte asserts, "Judge Clark's behavior will have huge implications for race relations and racial attitudes…" Well, sure, if conservatives join with liberals and see only race rather than reasoning (regardless of how misguided the logic might be). Clark might indeed throw out the ballots. That could reflect her liberalism or her Democratic partisanship. That would be a reasonable assessment — just as conservatives raised with the Florida supreme court.

However, it is rather disturbing to see a conservative make the presumptive argument that the way a judge might possibly view a case is pretty much just a reflection of her blackness. Ponte buttresses his argument by throwing in Gore's black campaign manager Donna Brazile's comments from last year about not letting "the white boys win." Ponte seems willing to buy into Brazile's statement by suggesting that "black girls" shouldn't win either.

Brazile was wrong in her insinuation that all politics must be viewed through the prism of race and gender. Ponte is wrong to suggest that all judicial motives should be viewed similarly.

A Special Note
Al Gore and Granny Goodness contest fans, check out next Monday's Thots for "amended returns"!!