12/09/00 3:20 p.m.
What if Gore Wins
He can’t be allowed to pick judges.

By Ramesh Ponnuru, NR senior editor

he latest SCOFLA decision means that Al Gore has another chance to win this awful post-election race for the presidency. It might not work. But if Gore's vote total were ever to exceed Bush's, the legislature will find it very difficult to support Bush electors. This is why, incidentally, it was a mistake for the legislature to wait this long. The bad p.r. from "acting prematurely" would be bad, but the bad p.r. from "thwarting the will of the people" would be worse. The legislature might very well fold under those circumstances. The numbers, no matter how cobbled together, could be expected to affect both public and congressional opinion.

But Gore no longer has any chance at a legitimate presidency. The polls suggest that Democrats are more likely to regard Bush as a legitimate president than Republicans are to regard Gore that way — perhaps because Bush would, in fact, be a more legitimate president. The same pattern applies among political elites as well. Anyone who thinks that Tom DeLay's rhetoric has been too hot since the election will want to shut off the TV before they hear what he, and even some liberal Republicans, would say if Gore succeeds.

What a President Gore would have going for him is the public's instinct to rally around the president and distaste for partisanship. If Republicans boycott Gore's inaugural or do anything similar, Gore would be able to paint them as putting the needs of the country behind their desire to rehash old arguments. In other words, he would say that it was "time to move on."

The smarter course for Republicans running in 2002 would probably be to treat Gore's methods the way Bush treated the Lewinsky scandal this year: as the subtext, not the text. Redistricting and a Democratic White House would already favor them that year; conservative anger over what they are guaranteed to see as a stolen election could lead to even bigger gains.

But being coy will not be enough. If Republicans really regard Gore as an illegitimate president, that belief has to affect the way they behave before 2002. In particular, it means that they ought to block any nominations to the Supreme Court or to federal appeals courts that Gore might make. There was already a case for blocking his nominations, given Gore's more-or-less explicit litmus test for nominations. If that leaves vacancies on courts, so be it: The Supreme Court doesn't have to have nine justices, and the appeals courts can reasonably be asked to work harder.

The last month has been a lesson for Republicans about the dangers of treating the courts as though they were above partisanship. If Gore prevails and starts nominating more of the kind of judges who helped him prevail, not a single Republican should vote to confirm them.