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Sunday, Nov 22, 2009
With a single rash, partisan act, the high court has tainted the Bush presidency, besmirched its own reputation and soiled our nation's proudest legacy.
Dec 14, 2000 | Tuesday, Dec. 12, is a day that will live in American infamy long after the tainted election of George W. Bush has faded from memory. With their rash, divisive decision to dispense with the risky and inconvenient workings of democracy and simply award the presidency to their fellow Republican, five right-wing justices dragged the Supreme Court down to perhaps its most ignominious point since the Dred Scott decision.
The court was the last American civic institution to have preserved an aura of impartiality, to be regarded as above the gutter of partisanship and self-interest. The reality, of course, is that no court, no judge, no human being, is completely free of those entanglements. Yet the court has generally acted wisely in avoiding judgments that would inevitably and utterly besmirch it. With one reckless and partisan ruling, it squandered its most precious possession: its reputation. It may take years, even decades, to repair the damage done by the Scalia-Rehnquist court's decision to cancel the election and crown the winner.
It's hard not to conclude, now that this whole sorry saga is over, that the fix was in from the beginning. Not the crude, "vast right-wing conspiracy" fix of Hillary Clinton's imagination, but a de facto fix. Why shouldn't one think the game was rigged, when five Republican-appointed justices -- one of whose son works for the law firm of the lawyer representing Bush, another of whose wife is recruiting staff for the Bush admininstration and two of whom have made clear their desire to retire under a Republican administration -- trashed their entire judicial philosophy to ram through, with only the most cramped of legal justifications, a last-second victory for a Republican who lost the national popular vote and, when the votes in Florida are actually counted, is likely to have lost the Florida one as well?
Perfect justice does not exist. But this was judicial folly, politically explosive and judicially threadbare. This was the court stepping in and awarding victory to one side before the game was over. Even those of us who don't often agree with the court's conservative majority expected better.
As Justice Stevens wrote in his savage dissent, "The position by the majority of this court can only lend credence to the most cynical appraisal of the work of judges throughout the land ... Although we may never know with complete certainty the identity of the winner of this year's election, the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law."
As soon as the ruling was handed down, a nearly hysterical chorus of TV commentators, many of them cynical bear-baiters who wouldn't believe oaths sworn by their own mothers, suddenly pulled long faces and began urging the American people to accept the court's verdict, defer to its wisdom, venerate its grandeur, unite around Bush and generally go quietly back indoors to await further instructions. Television is never more nauseating than when it slips imperceptibly into its role as quasi-official national nanny, instructing the unruly masses in correct civic comportment. But if the dissenting justices can pour bile on the majority's opinions -- Stevens explicitly accuses his conservative brethren of impugning the integrity of their judicial colleagues -- why is it so frightening for the people to do the same thing? The American people's allegiance to democracy should be greater than our fealty to a court that has just spat in its face. In any case, we survived His Fraudulency I, the unduly elected Rutherford B. Hayes, and we will survive His Fraudulency II.
What the court ruled, when you get down to it, was that democracy shouldn't be allowed to get in the way of bureaucracy. One man, one vote? Overrated. Every vote counts? Too much trouble. None of those democratic pieties, the court in its infinite wisdom ruled, are as important as strict adherence to niggling rules and timetables -- rules and timetables that the court itself had the power to set aside.
