The_RANDy_Corporation
03-12-2001, 08:47 AM
AtomicLibSmasher
ezOP/TaskMaster
posts: 1301
(2/20/01 11:26:49 pm)
--------------------------------------------------------------------------------
A judge's defense of the Florida election decision.
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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
washingtonpost.com/wp-dyn...Feb20.html
``I tried to walk a line between acting lawfully and testifying falsely, but I now recognize that I did not fully accomplish this goal" - Slick Clinton
LawLass
Forum Host Flame Thrower
posts: 19
(2/25/01 12:26:33 pm)
Reply
Re: Floriduh Election: Maybe the Court Got It Right
--------------------------------------------------------------------------------
Interesting article AtomicLibSmasher. I have not read Justice Posner's actual article, so, in fairness to that well-respected justice, I am not sure if his comment regarding judicial activism and the implication that somehow the Supreme Court expanded the scope of federal judical powers without a basis in constitutional text and precedent was somehow taken out of context by the Washington Post Editorial Board. I suspect that may very well be the case, as the author of the Post article characterizes Posner's quote as having been "cheerfully acknowledg(ed)." However, I will respond to the implication raised in Posner's quote, even though it may simply be the product of the Post's spin.
The decision by the United States Supreme Court was not only rooted in the Constitution of the United States, but it was consistent with a conservative judicial perspective. That is, it was written with regard to the principles of federalism and judicial restraint. Indeed, the United States Supreme Court's decision would have been altogether unnecessary, had the Florida Supreme Court exercised some judicial restraint and adhered to the election code enacted by the legislature of the State of Florida. Judicial restraint does not mean that the United States Supreme Court is to sit idly by while a state high court engages in such a practice in the context of an election for the President of the United States. Indeed, it is absurd to believe that the principles of judicial restraint would force the United States Supreme Court to permit a rogue state court to disregard the laws as enacted by the representatives of the citizens of that State in the context of a national election. The ruling of the Florida State Supreme Court affected not only the citizens of the State of Florida, but also the citizens of all of the states. Thus, the United States Supreme Court had not only the authority under our Constitution, but the duty, to act in this case.
Article II of the United States Constitution provides that the STATE LEGISLATURE, (not the State high court) is charged with electing the manner for appointing electors. The United States Supreme Court, in a prior decision, had ruled that such legislative authority is plenary. Florida law, enacted by the elected representatives of the people of the State of Florida established a mandatory deadline for the certification of votes. Of course, it is the legislative branch which is charged with enacting laws. The executive branch, represented by the elected Secretary of State, Katherine Harris, followed the law. Of course, it is the executive branch which is charged with enforcing the law. Katherine Harris did just that. However, the Florida Supreme Court (which happen to be comprised of appointed, as opposed to elected justices in that State) essentially rewrote the law, thereby trumping the will of the people of the State of Florida, when it extended a mandatory deadline for the certification of votes. Of course, courts are not permitted to rewrite or extend legislation, but the Florida Supreme Court disregarded this basic principle of law, when it set an arbitrary new deadline in derogation to the mandatory deadline set by statute.
The problem with the Florida Supreme Court's judicial activism, when it, in effect rewrote and extended the legislation as had been enacted by the citizens of the State of Florida, is epitomized in its subsequent decision. On the second round of appeals, the Florida Supreme Court was forced to rewrite the "legislation" which it had "created/enacted/pulled out of a hat" and to discuss the "intent" behind its prior decision. Essentially, the Florida Supreme Court indicated that it really did not mean for the date that it had set to be contrued as a deadline, and indicated that the canvassing boards acted improperly when they ceased counting on the date which had been set by the court!
Courts should not legislate. This is at the core of conservative ideals. The Florida high court legislated in the context of a national election and in derogation of the laws of the People of the State of Florida and in derogation of our federal Constitution. Such a ruling could not and justly, was not, overlooked by the United States Supreme Court. I would add that if the same decision was reached in the context of a Florida gubernatorial election, I doubt that the United States Supreme Court, as currently comprised, would have granted certiorari. However, the Constitution of the United States vested them with both the authority and the duty to act in this case.
The Court recognized this when it stated:
"None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution's design to leave the selection of the President to the people, THROUGH THEIR LEGISLATURES, and to the political sphere. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront."
I conclude by saying that, contrary to Mr. Daley and his minions' beliefs as to what consitutes the "will of the people", that the will of the people is reflected in our legislative branch of government and not in our judicial branch.
"Always do more than is required of you." George S. Patton, Jr.
WarLady1
Owner/ezOP/Moderator
posts: 2253
(2/25/01 1:44:33 pm)
Reply
Re: Floriduh Election: Maybe the Court Got It Right
--------------------------------------------------------------------------------
Lawlass, your post is going in the Warlady's Hall of Fame with your permission.
**Don't forget to check out our other great forums!!
LawLass
Forum Host Flame Thrower
posts: 20
(2/25/01 4:03:21 pm)
Reply
Re: Floriduh Election: Maybe the Court Got It Right
--------------------------------------------------------------------------------
No need to ask my permission. You may certainly place it where you see fit. Thanks WarLady1.
"Always do more than is required of you." George S. Patton, Jr.
AtomicLibSmasher
TaskMaster
posts: 1440
(2/25/01 11:22:54 pm)
Reply
Re: Floriduh Election: Maybe the Court Got It Right
--------------------------------------------------------------------------------
LawLass... you pretty much summed it all up with "Courts shouldn't legislate". What could be more key than that statement? One need only revisit this last election cycle to witness said "legislating". By the Floriduh Supreme Court of course.
say... you got cute pink ears
``I tried to walk a line between acting lawfully and testifying falsely, but I now recognize that I did not fully accomplish this goal" - Slick Clinton
ezOP/TaskMaster
posts: 1301
(2/20/01 11:26:49 pm)
--------------------------------------------------------------------------------
A judge's defense of the Florida election decision.
E-Mail This Article
Printer-Friendly Version
Subscribe to The Post
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
washingtonpost.com/wp-dyn...Feb20.html
``I tried to walk a line between acting lawfully and testifying falsely, but I now recognize that I did not fully accomplish this goal" - Slick Clinton
LawLass
Forum Host Flame Thrower
posts: 19
(2/25/01 12:26:33 pm)
Reply
Re: Floriduh Election: Maybe the Court Got It Right
--------------------------------------------------------------------------------
Interesting article AtomicLibSmasher. I have not read Justice Posner's actual article, so, in fairness to that well-respected justice, I am not sure if his comment regarding judicial activism and the implication that somehow the Supreme Court expanded the scope of federal judical powers without a basis in constitutional text and precedent was somehow taken out of context by the Washington Post Editorial Board. I suspect that may very well be the case, as the author of the Post article characterizes Posner's quote as having been "cheerfully acknowledg(ed)." However, I will respond to the implication raised in Posner's quote, even though it may simply be the product of the Post's spin.
The decision by the United States Supreme Court was not only rooted in the Constitution of the United States, but it was consistent with a conservative judicial perspective. That is, it was written with regard to the principles of federalism and judicial restraint. Indeed, the United States Supreme Court's decision would have been altogether unnecessary, had the Florida Supreme Court exercised some judicial restraint and adhered to the election code enacted by the legislature of the State of Florida. Judicial restraint does not mean that the United States Supreme Court is to sit idly by while a state high court engages in such a practice in the context of an election for the President of the United States. Indeed, it is absurd to believe that the principles of judicial restraint would force the United States Supreme Court to permit a rogue state court to disregard the laws as enacted by the representatives of the citizens of that State in the context of a national election. The ruling of the Florida State Supreme Court affected not only the citizens of the State of Florida, but also the citizens of all of the states. Thus, the United States Supreme Court had not only the authority under our Constitution, but the duty, to act in this case.
Article II of the United States Constitution provides that the STATE LEGISLATURE, (not the State high court) is charged with electing the manner for appointing electors. The United States Supreme Court, in a prior decision, had ruled that such legislative authority is plenary. Florida law, enacted by the elected representatives of the people of the State of Florida established a mandatory deadline for the certification of votes. Of course, it is the legislative branch which is charged with enacting laws. The executive branch, represented by the elected Secretary of State, Katherine Harris, followed the law. Of course, it is the executive branch which is charged with enforcing the law. Katherine Harris did just that. However, the Florida Supreme Court (which happen to be comprised of appointed, as opposed to elected justices in that State) essentially rewrote the law, thereby trumping the will of the people of the State of Florida, when it extended a mandatory deadline for the certification of votes. Of course, courts are not permitted to rewrite or extend legislation, but the Florida Supreme Court disregarded this basic principle of law, when it set an arbitrary new deadline in derogation to the mandatory deadline set by statute.
The problem with the Florida Supreme Court's judicial activism, when it, in effect rewrote and extended the legislation as had been enacted by the citizens of the State of Florida, is epitomized in its subsequent decision. On the second round of appeals, the Florida Supreme Court was forced to rewrite the "legislation" which it had "created/enacted/pulled out of a hat" and to discuss the "intent" behind its prior decision. Essentially, the Florida Supreme Court indicated that it really did not mean for the date that it had set to be contrued as a deadline, and indicated that the canvassing boards acted improperly when they ceased counting on the date which had been set by the court!
Courts should not legislate. This is at the core of conservative ideals. The Florida high court legislated in the context of a national election and in derogation of the laws of the People of the State of Florida and in derogation of our federal Constitution. Such a ruling could not and justly, was not, overlooked by the United States Supreme Court. I would add that if the same decision was reached in the context of a Florida gubernatorial election, I doubt that the United States Supreme Court, as currently comprised, would have granted certiorari. However, the Constitution of the United States vested them with both the authority and the duty to act in this case.
The Court recognized this when it stated:
"None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution's design to leave the selection of the President to the people, THROUGH THEIR LEGISLATURES, and to the political sphere. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront."
I conclude by saying that, contrary to Mr. Daley and his minions' beliefs as to what consitutes the "will of the people", that the will of the people is reflected in our legislative branch of government and not in our judicial branch.
"Always do more than is required of you." George S. Patton, Jr.
WarLady1
Owner/ezOP/Moderator
posts: 2253
(2/25/01 1:44:33 pm)
Reply
Re: Floriduh Election: Maybe the Court Got It Right
--------------------------------------------------------------------------------
Lawlass, your post is going in the Warlady's Hall of Fame with your permission.
**Don't forget to check out our other great forums!!
LawLass
Forum Host Flame Thrower
posts: 20
(2/25/01 4:03:21 pm)
Reply
Re: Floriduh Election: Maybe the Court Got It Right
--------------------------------------------------------------------------------
No need to ask my permission. You may certainly place it where you see fit. Thanks WarLady1.
"Always do more than is required of you." George S. Patton, Jr.
AtomicLibSmasher
TaskMaster
posts: 1440
(2/25/01 11:22:54 pm)
Reply
Re: Floriduh Election: Maybe the Court Got It Right
--------------------------------------------------------------------------------
LawLass... you pretty much summed it all up with "Courts shouldn't legislate". What could be more key than that statement? One need only revisit this last election cycle to witness said "legislating". By the Floriduh Supreme Court of course.
say... you got cute pink ears
``I tried to walk a line between acting lawfully and testifying falsely, but I now recognize that I did not fully accomplish this goal" - Slick Clinton