In her seventy-seventh year, Sandra Day O’Connor has finally found her calling. After a quarter century of failing to grasp the essentials of the judicial function in our constitutional law, she has immediately grasped the essentials of “government by blue-ribbon commission”—namely, the absolute imperative of detecting what the conventional Beltway wisdom is, parroting that, and saying as little of sense or substance as possible. If you doubt O’Connor’s mastery of her new craft, listen to the interview she and Leon Panetta (another member of the Baker-Hamilton Iraq Study Group) gave today to the public radio show On Point (click for RealPlayer or for Windows Media Player—starting around the 27-minute mark). She utters sonorous banalities with great facility, promising a bright future on extra-constitutional special commissions of the future, whatever the subject. After all, ignorance is no barrier to service!
For readers of this page, the best part comes when “Rachel from Wellesley” calls in (around the 44:30 mark) to declare her astonishment that two of the members of the ISG, Baker and O’Connor, were “very instrumental in George Bush becoming our president,” and wonders aloud whether he isn’t being “protected yet again” by them. Given this chance to defend the legal reasoning in Bush v. Gore, Justice O’Connor . . . doesn’t. Instead she cites the media recounts in the aftermath of the Court’s decision as establishing the rightness of the ruling. Okay, now here’s your final exam question for this December. Reread Bush v. Gore and explain how any eventual determination of the votes actually cast in Florida, however accurate, could have any bearing on whether the justices were correct to rule as they did. If you can show the relationship, you will have done more than the Court did at the time.
Don’t get me wrong. Bush v. Gore was indubitably correct (though not on the grounds preferred by Kennedy and O’Connor) as a matter of law. But it was just damned dumb luck that the legal conclusion was lent additional factual force by subsequent media recounts—and had those recounts shown that Gore got more votes, that would have done no damage to the rectitude of the ruling.