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Monday 25 October 2004

WP: Supremes Sent Bush ‘instead of’ Gore to White House

The Washington Post today writes on page A6 about Supreme Court Justice Stephen Breyer:

Breyer — named to the court 10 years ago by President Bill Clinton — cast one of the dissenting votes in the 5 to 4 decision that canceled a controversial recount in Florida, sending Republican George W. Bush to the White House instead of Democrat Al Gore.

But of course this isn’t what happened at all. The Supreme Court did stop further recounts in Florida, which — from my layman’s perspective, at least, it shouldn’t have — but it’s hardly a foregone conclusion that a failure to stop those recounts would have resulted in Al Gore winning the state and being elected president.

Post and the New York Times, both of which endorsed Gore in 2000 and Kerry in 2004, declined to print the results of their independent recount in September 2001, with the excuse that they did not want to undermine the legitimacy of the Bush presidency in the wake of September 11. The Miami Herald, however, did publicize the results of their recount, and they concluded that Bush would have won Florida anyway. Their story is hard to find in the original, but this BBC report from February 2001 gives the meat.

Plenty of people on the left have attacked the
Herald’s count, but no matter what you believe, the Supreme Court certainly did not ‘send’ Bush ‘instead of’ Gore to the White House. Does the Washington Post even employ editors any more?

Posted by tino at 16:30 25.10.04
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Eh, I think you are being overly sensitive to the language the WP chose to use in reference to Bush v. Gore. While it is true the Supreme Court did not “send” Bush to the White House, the decision, by its very existence, caused that result to happen. Because the Supreme Court accepted the case and decided to issue a decision, they effectively waived any right to quibble with the use of the term “send.”

Indeed, that is the fundamental problem with Bush v. Gore. The public generally assumes the Supremes had a choice of “sending” either Bush or Gore to the White House, the result of which either angers or delights. But there was a third choice—a much better choice—which the Supremes chose to ignore. They should have refused to get involve altogether in this inherently political question.

Bush v. Gore created an awkward situation where conservatives, long the adversaries of “judges making law,” had to defend the most aggregious example of judicial activism since the heyday of substantive due process. And liberals, long supporting activist judging in the context of abortion, environmental laws and criminal defendants, are arguing against partisanship on the bench. As you noted, the outcome of Bush v. Gore is not necessarily “wrong,” but it is certainly bad law.

Posted by: Shaye at October 25, 2004 01:44 PM