I haven't found Judge Richard Posner's article on the web yet.

-Buddy

http://www.washingtonpost.com/wp-dyn/articles/A32533-2001Feb20.html

Maybe the Court Got It Right

By Benjamin Wittes

Wednesday, February 21, 2001; Page A23

In the days since the Supreme Court ended the Florida election dispute, the debate over the court's action has been one-sided. An overpowering chorus of (mostly liberal) legal scholars has condemned the decision as a politically motivated disgrace to the court that will, and should, discredit it institutionally.

The criticism has gone largely unanswered by conservatives, who -- while privately pleased with the fruits of the court's adventure -- have not been eager to defend the decision aggressively. Now, however, in a forthcoming article in the Supreme Court Review, the battle has at last been joined. Richard Posner, a judge on the 7th Circuit Court of Appeals and one of the country's most important legal intellectuals, has written an article on the case that is significantly more persuasive -- and more honest -- than the court majority's own opinion.

Posner's argument ought to disquiet liberals and conservatives alike. For conservatives, from whose ranks Posner comes, there is the problem of Posner's cheerfully acknowledging, in his defense of the court, that its action "cannot avoid the label 'activist,' since it expands federal judicial power without clear warrant in constitutional text or precedent." Given conservatives' distaste for judicial activism, Posner's argument is an uncomfortable basis for the legitimacy of George W. Bush's presidency.

Posner's main challenge, however, is to the decision's liberal critics; he offers a powerful -- if qualified -- defense of the majority's action. First, Posner provides a statistical analysis of the voting patterns that, he argues, shows Al Gore was unlikely to win any recount conducted in accordance with both the law and with Gore's own requests. In fact, Posner contends, the Florida election statutes do not provide for full countywide hand recounts on the basis of voter error, and Katherine Harris's decision to exclude from the official count hand-tallied figures submitted after the statutory deadline was, therefore, both lawful and reasonable. Consequently the Florida Supreme Court was required to show deference to her decision, which it failed to do.

The combination of the state supreme court's decision and its later opinion -- which ordered an incoherent and standardless hand recount -- effectively rewrote the Florida election code, Posner argues. This, in turn, raised a legitimate federal question concerning whether the court had assumed powers that Article II of the Constitution gives to the state legislature.

Posner agrees with critics of the U.S. Supreme Court that its reliance on the doctrine of equal protection in reversing the Florida court was wrongheaded. But he contends that the concurring opinion by the three most conservative justices got the matter basically right -- although time constraints prevented the opinion from being as compelling as it might otherwise have been.

Posner does not argue that the court's holding was compelled by the Constitution. Rather, his contention, which is part and parcel of one of the major themes of his recent work, is that pragmatic, non-legal considerations -- in this case, the desire to head off a major crisis -- justified adopting a reading of the Constitution that, while supportable, was not "conclusive." And to those who resist the idea of the courts as self-appointed national saviors, he poses a simple question not unlike the logic liberal law professors elsewhere embrace: "What exactly is the Supreme Court good for if it refuses to examine a likely constitutional error that if uncorrected will engender a national crisis?"

Aspects of Posner's argument -- particularly his statistical analysis -- are less than persuasive. Those convinced that the justices' action has left an indelible institutional stain on the court will argue, with some merit, that by forthrightly admitting both the court's activism and the pragmatism behind it, Posner concedes that the decision cannot be defended on the basis of principles that predate the election. The national crisis he fears, moreover -- an election decided in Congress -- would simply have been the process the Constitution envisions for resolving election disputes.

Posner's insistence, however, that the Florida election statutes as written by the legislature were not respected by the Florida courts and that a change of rules by these judges presented a genuine federal question -- a position much derided by the court's critics -- is considerably more forceful than the court's own presentation of the same argument. If the Florida court had simply overridden the law entirely and appointed the state's electors on its own, he asks, would the critics then acknowledge a federal constitutional problem? "If so, the only question is whether what the Florida supreme court did is sufficiently close to [this] hypothetical example to have justified the U.S. Supreme Court in reversing."

Posner has not vanquished the court's critics, but he has succeeded in painting Bush v. Gore as a difficult case whose resolution, if troubling, is not the outrage of liberal opinion.

The writer is a member of the editorial page staff.

© 2001 The Washington Post Company

-- Buddy (buddydc@go.com), February 22, 2001

Answers

Herr Bush was illegally gifted the Presidency by 5 corrupt SC Justices and will be vigorously opposed by those of Progressive motivation.

-- (LeonTrotsky@yahoo.nation), February 22, 2001.

And the Florida Supreme Court was not corrupt in overruling the Secretary of State and the District Judges without any supporting reasoning??!!?? Admit it Trotsky, all judges are corrupt, and since most are libs I guess that makes you a lover of corruption.

Learn to live with it, Gore would have been just as bad. And just as stupid (seeing as he flunked out of his Master's program).

-- corrupt judges???? (moreinterpretation@ugly.com), February 22, 2001.

Bush isnt anyones first choice for prez, but I'm just so glad clinton dosnt get the stisfaction of seeing Gore in there CLINTON SUCKS!!! He thinks hes so smart and so do all those liberals.

-- billsux (totally@liberalidiots.com), February 22, 2001.

Here's the nub:

"Posner concedes that the decision cannot be defended on the basis of principles that predate the election. The national crisis he fears, moreover -- an election decided in Congress -- would simply have been the process the Constitution envisions for resolving election disputes."

Bingo!

To make this even plainer, there was a plain consitutionally-provided remedy already available. It required no decision or even interpretation by the court. But the court rejected the constitution and substituted their own made-up solution to the problem.

And this is the best the conservatives can do to justify a decision that effectively appointed a president in an extra-legal manner? And they wonder why people are still pissed off and can't "get over it"...

-- Little Nipper (canis@minor.net), February 22, 2001.

"Richard Posner, a judge on the 7th Circuit Court of Appeals"

That's all I need to know.

-- Hogwash (consider@the.source), February 22, 2001.

Point taken, Nip.

But the State of Florida's apparently totally legal remedy - having the electors appointed by a duly elected legislature - was not so warmly received, either.

RC

-- RC (randyxpher@aol.com), February 23, 2001.

Nipper:

When you speak of "the court", which court are you referring to? Your opinion sound suspiciously like a willingness to accept the Florida Supreme Court's efforts on the grounds that they made the "right" decision, and then to reject the USSC's efforts on the grounds that the court shouldn't have been deciding this case at all -- that the legislature should have done so as provided by the Constitution!

Now, you can't have it both ways. You write:

[It required no decision or even interpretation by the court. But the court rejected the constitution and substituted their own made-up solution to the problem.]

This is *precisely* what the Florida Supreme Court did. They overrode the 7-day law and substituted 19 days, then tried to overrule their own time limit and extend it further because Gore had not yet "won". They decided to override the Florida Secretary of State, despite the law, because they didn't like her decision. They did everything in their power to keep the decision out of the hands of the legislature, where it belonged under the constitution. So you have nailed the crime here.

I think the best the USSC could have done was to delare the case to be a non-justiciable political issue. Funny how Posner, a judge himself, takes it for granted that the courts should decide even whether the courts should be deciding!

You write:

[And this is the best the conservatives can do to justify a decision that effectively appointed a president in an extra-legal manner?]

But wait! The USSC was in the position of effectively appointing a president *NO MATTER WHAT* decision they made. Even declaring the issue non-justiciable and dumping it in the laps of the (overwhelmingly republican) Florida or US legislature would be effectively appointing a president.

But the USSC was placed in this position by the agressive activism of the FSC, which overruled everyone in sight, ignoring both the constitution and Florida law, trying to help their party representative (remember the FSC judges are all elected themselves). Conservatives have NOT been trying to "justify" the USSC decision (as this article makes clear). They know the USSC had no business making any decision, but the FSC forced their hand. *ANY* decision at that point is extra-legal, no matter what it might be.

So you have accurately identified the crime, but you are trying to convict the wrong party! Fundamentally, we had an initial count and a mandatory recount. No, the count wasn't perfect, NO count can EVER be perfect. But both counts produced the same winner, even if the election was very close. What triggered the whole mess was the FSC's determination to change that outcome. If they had followed the law as written, saying "7 days are up, the results are certified, the election is over", there would NEVER have been any problems.

-- Flint (flintc@mindspring.com), February 23, 2001.

"But the State of Florida's apparently totally legal remedy - having the electors appointed by a duly elected legislature - was not so warmly received, either."

No. But do I care if it was "warmly received?" No. The Florida Legislators could figure out whether they really wanted to absorb that body blow from the electorate in the next election. It was up to them.

Both the Congress and the Florida Legislature are political bodies. They are designed to take political heat directly from the people they serve. The US Supreme Court is designed differently. The very fact that they are appointed for life should set off warning bells when they start messing with the outcome of elections - especially.

If the Congress or the Florida Legislature had been forced to decide, then it would fullfill the design of the system by assigning the responsibility to politicians who were in easy reach of the voters wrath. The Founders thought that was a critical factor for keeping government honest in the political sphere, just as much as lifetime appointment was meant to keep judges honest in the judicial sphere.

What can the voters do to punish the USSC for its egregious and extra-legal judgment? Not a f***ing thing! That is a sin against the constitution.

-- Little Nipper (canis@minor.net), February 23, 2001.

One thing that I don't hear much from those who are so opposed to the USSC decision is the fact that despite their decision Al Gore still had legal avenues to pursue. He chose not to do so. He knew that any further legal challenges would have led to a vote in Congress, where he would have lost. This fact makes the whole argument moot I think.

-- Buddy (buddydc@go.com), February 23, 2001.

"If the Congress or the Florida Legislature had been forced to decide, then it would fullfill the design of the system by assigning the responsibility to politicians who were in easy reach of the voters wrath."

Exactly so, and well put.

I just wanted to point out that one cannot take the position that Congress should have been allowed to decide the election, while at the same time expressing horror that the Florida legislature would dare to involve itself, is contradictory.

Nipper, you have NOT taken that position, and I didn't intend to imply that you did. My apologies if wasn't clear on that.

-- RC (randyxpher@aol.com), February 23, 2001.

Please feel free to apply the laws of sentence stucture in the English language on my next to last paragraph there, as I failed to do.

-- RC (randyxpher@aol.com), February 23, 2001.