Playing With Fire

By ANTHONY LEWIS

DALLAS -- However this presidential conflict ends in the Supreme Court of the United States, it has taken one dangerous turn: the excoriation of the Florida Supreme Court by George W. Bush and his lawyer, James A. Baker III.

When the court decided on the night of Nov. 21 that hand counting of ballots could continue in three Florida counties, Mr. Baker called the decision a "judicial fiat" that "invented a new system for counting the election results." He suggested that the State Legislature would act to overrule the court.

The next day Governor Bush said the court had "usurp[ed] the authority of Florida's election officials." The court "cloaked its ruling in legalistic language," he said. "But make no mistake, the court rewrote the law." Those menacing words — usurpation, judicial fiat — recalled a dark episode in our recent history. They were exactly the words used by George C. Wallace and other Southern governors in defying court orders to end racial segregation. Why do the words matter? Because willingness to abide by decisions of the courts has been an essential element in holding this great, diverse, disputatious country together. When a court speaks, presidents accept. Harry Truman was unhappy but unquestioningly obeyed when the Supreme Court said he had exceeded his powers in seizing the nation's steel mills to prevent a strike during the Korean War. Richard Nixon obeyed the order to turn over the incriminating Watergate tapes that drove him from the presidency. So it is dangerous business when a man who would be president tries to delegitimize a court. And it is despicable when a lawyer as senior and powerful as Jim Baker denounces a judicial decision against him and says it will be muscled in the Legislature. Would we prefer to have legal disputes settled by politicians rather than judges? Would it be more legitimate for this dispute to be decided by a Republican Legislature and a Republican governor who is the candidate's brother? Long ago this country decided that the third branch of government, the judiciary, was the right place to resolve questions about the law. In 1803, in Marbury v. Madison, Chief Justice John Marshall put it: "It is emphatically the province and duty of the judicial department to say what the law is." In this case the Florida Supreme Court followed well-established, traditional methods. There was a conflict between two sets of state statutes: one setting times for certifying election results, the other allowing manual recounts that could not be completed within those times. The court resolved the conflict by allowing a limited extension of time to complete the recounts. It was a minimalist decision, going no further than needed to make coherent sense of the statutory provisions. Even before the decision, the Bush camp and its supporters tried to delegitimize the Florida Supreme Court. Almost all its members, they noted, had been appointed by previous Democratic governors. But anyone who watched the argument or read the exchanges could see that the judges were struggling without partisanship to make sense of the law — as judges do. This country has all kinds of elections that are decided on hand recounts. Just now a seat in the Texas Legislature was decided after a recount that considered dimpled chads — under a state law, signed by Governor Bush, that says counters should determine the "intent of the voter." But Governor Bush and his people have acted as if hand counts in Florida were an affront to decency. There has been a sense of Bush entitlement: "Unless I win, it's improper." Al Gore has every reason to feel morally secure in pressing the recounts. He had more popular votes nationally than Mr. Bush. Probably at least 30,000 Floridians who voted preferred him but accidentally spoiled their ballots. Officials in Miami-Dade County called off their recount after they felt menaced by a crowd of angry Cuban-Americans and Republican operatives. The U.S. Supreme Court will now decide whether, and if so how, federal law affects the Florida situation. The end is not yet in sight. But however this does end, we shall be left with the dangerous legacy of a presidential candidate and his lawyer encouraging defiance of a court.

-- Cherri (sams@brigadoon.com), November 26, 2000

Yowza! Look at all the bold tags!!!

-- (hmm@hmm.hmm), November 26, 2000.

Bold off?

-- (clean@up.crew), November 26, 2000.

What? It's okay for Gore to go to the Floida Supreme Court but Bush can not go to the U.S. Supreme Court? Is this article a free speech issue? I mean is he mad because somebody said something that isn't "politicallt correct"? I don't get it?

-- Free Speech (where's@the .beef), November 26, 2000.