Bush v. Media: The Big Game

A favorite game played by members of Washington’s chattering class is the following: 1) distort a conservative position beyond recognition, and 2) then take great glee in accusing conservatives of hypocrisy when they behave inconsistently with the distorted position.

Examples of this phenomenon are as plentiful as college football bowl games during the holiday season. But the big game in town right now involves liberal hysteria over the U.S. Supreme Court’s decision in Bush v. Gore.

The anger at the court is not just confined to the usual suspects. For instance, when Jesse Jackson compares Bush v. Gore to Dred Scott because both cases stand for “disenfranchisement,” it is easy to dismiss such overheated rhetoric with a roll of the eyes and click of the remote control. More startling, however, has been the ferocity with which many “responsible” liberals have gone after the court.

Two days after the Bush decision, for example, Georgetown University law professor Neal Katyal, a member of Gore’s legal team, wrote in a Washington Post op-ed that “the price of George W. Bush’s legal victory has been the immolation of America’s last great standing institution.” He further warned that the damage the court had inflicted upon itself was so great that lower court judges soon might begin to disregard U.S. Supreme Court precedent.

The New Republic’s view is best summarized by the cover of its December 25, 2000 issue, on which the word “DISGRACE” is plastered over a picture of the High Court. In its lead editorial, The New Republic goes so far as to imply that calm examination of the court’s opinion is not desirable (or perhaps not even possible), for the court’s opinion is so bad that “anger is a mark of analysis.” In a later piece filled with the requisite angry analysis and entitled “Disgrace” (do I detect a motif?), The New Republic’s normally temperate legal expert Jeffrey Rosen complains, “It will be impossible to look at O’Connor, Kennedy, Scalia, Rehnquist, and Thomas in the same light again, much as it was impossible to look at President Clinton in the same light after seeing him exposed in the Starr Report.” Ouch!

The majority’s greatest sin, according to Rosen, is hypocrisy: “Conservatives have lectured us for more than thirty years about the activism of the Warren and Burger Courts. Those tinny and hypocritical lectures are now, thankfully, over.” He goes on to paint Bush v. Gore as an act of judicial activism on par with Roe v. Wade.

This charge of hypocrisy has filled the airwaves and newspapers over the last three weeks and involves two related but somewhat distinct elements: 1) the court’s decision is not compatible with conservatives’ support for judicial restraint; and 2) the court’s decision cannot be reconciled with conservatives’ support for states’ rights.

Both accusations, however, depend upon gross distortions of most conservatives’ positions. As for the first, opposition to judicial activism is not at all the same thing as opposition to judicial review. Thus, it is not fair for liberals to scream “Hypocrisy!” anytime conservative judges strike down a law or government practice as unconstitutional.

Most conservatives I know recognize that the judiciary plays a vital role in preserving liberty and the integrity of our grand constitutional design. When the government acts inconsistently with a clear constitutional directive, it is the duty of judges, even those who believe in judicial restraint, to act to safeguard the Constitution.

The problem, of course, comes when judges abuse their power and strike down laws on the basis of little more than their own personal policy preferences and abstract notions of justice. This is the behavior to which conservatives are referring when they complain about judicial activism, often using Roe v. Wade as example #1.

So is Bush v. Gore another Roe v. Wade? With apologies to Rev. Jackson, no more than it is another Dred Scott. Whatever one thinks of abortion from a policy perspective, Roe was very loosely based on the U.S. Constitution. The connection to Roe’s trimester scheme was extremely tenuous and, unable to locate the right to abortion in any specific constitutional provision, the court instead referred infamously to the “penumbras” emanating from the Bill of Rights.

Bush v. Gore, by contrast, rests on a rather mundane application of the Fourteenth Amendment’s Equal Protection Clause. Before the angry reaction to the Bush decision, I would have thought it relatively uncontroversial to say that the Equal Protection Clause requires that the government have a rational basis for treating similarly situated individuals differently. Now, I’m not so sure.

Under the Florida vote counting scheme, it is undisputed that different standards were being utilized in different counties. Thus, for example, a particular indentation on a punch card in Broward County was counted as a vote while the exact same indentation on a Hillsborough County ballot was not counted as a vote.

Given that Florida was treating similar things differently, one had to ask whether there was a legitimate reason for doing so, and the obvious answer was no. As Justice Souter wrote, “I can conceive of no legitimate state interest served by these differing treatments of the expressions of voters’ fundamental rights. The differences appear wholly arbitrary.”

Now, at this point in a conversation with your friendly neighborhood liberal, he or she will typically object to this argument along these lines: How can the Constitution mandate that ballots be counted pursuant to a uniform standard when it allows people in different counties to cast votes using a variety of systems?

This point sounds a lot more powerful that it really is. The key principle, remember, is that the government must have a legitimate reason for treating similarly situated people differently. And residents of different counties are obviously not similarly situated in one important respect: they live in different counties.

There are a plethora of legitimate reasons why different counties would want to use different voting systems. For instance, paper ballots, which are used in one Florida county, might make sense in a county with 10,000 voters but not in one with 450,000 voters. Similarly, the county’s budget conditions as well as the education level and age distribution of its voters could impact the choice of the best voting system for a particular locale.

But once a number of counties have chosen the same voting system, voters have cast ballots, and a court has ordered all counties to go through the trouble of conducting a manual recount, what is the rational reason for treating similarly marked ballots differently? The fact that these similar ballots happened to be cast in different counties is just not a sufficient answer.

The U.S. Supreme Court acted to halt a statewide manual recount being conducted in an utterly irrational manner, where a ballot that would be counted as a vote in one county would not be counted as a vote in another county. This is hardly judicial activism run amok; it’s just a straightforward application of the Equal Protection Clause, and one with which advocates of judicial restraint should be entirely comfortable.

The liberals’ second charge of hypocrisy has to do with conservatives’ usual embrace of “states’ rights” and goes something like this: While the right-leaning majority of the U.S. Supreme Court has steadfastly guarded against federal interference in state affairs, these same Justices in Bush v. Gore meddled without justification in a matter of purely state law.

Again, this argument is premised on distortion. Stereotypes notwithstanding, conservatives do not believe that state governments should have free rein to do whatever they want whenever they want free from interference by the big, bad federal government. Rather, most conservatives recognize that the U.S. Constitution constructed a system of dual sovereignty, with powers divided between the federal government and the states.

It is therefore the job of judiciary to police both the federal government and state governments to ensure that neither encroaches on the others’ turf. And if conservatives are generally perceived as marching under the banner of “states’ rights,” it is because it is the federal government that has had a rather difficult time over the past sixty-five years staying within the sphere of authority granted it under our constitutional system.

With respect to the recent election dispute, Article II, Section 1 of the Constitution could not be clearer: “Each State shall appoint, in such Manner as the Legislature thereof may direct” presidential electors. As a matter of federal constitutional law, the power to determine the rules for the selection of electors therefore lies not with the entire state government, but only with the state legislature.

The consequences of this provision are profound. When the legislature’s chosen method of selecting electors is not faithfully implemented, it is not merely a violation of state law; it is also a violation of the U.S. Constitution. Under different circumstances, it is difficult to believe that liberals would have objected very much to this conclusion.

In Bush v. Gore, the claim, accepted by Chief Justice Rehnquist and Justices Scalia and Thomas, was that the Florida Supreme Court under the guise of “interpreting” Florida law had departed from the scheme set forth by the Florida Legislature. Whether the Florida Supreme Court had in fact done so is a complicated question that is the subject for another article. (Better yet, read Chief Justice Rehnquist’s concurrence and the dissenting opinions and reach your own conclusion.)

The important point, however, is that if members of the U.S. Supreme Court determined in good faith that the Florida Supreme Court had in fact altered the manner chosen by the Legislature for selecting electors, they had little choice but to conclude such changes were a violation of the U.S. Constitution.

Because Article II specifies that state legislatures are empowered to set the rules for choosing presidential electors, what might only be questions of Florida election law in other cases easily become matters of federal constitutional law in the context of a presidential election. To the extent that anyone, whether it be Jeb Bush, Katherine Harris, Ms. Harris’ personal shopper at Sarasota’s Saks Fifth Avenue, or the members of the Florida Supreme Court, act to thwart the Florida Legislature’s chosen scheme, a matter of state concern becomes a matter of federal concern.

Far from conflicting with conservatives’ abiding belief in federalism and judicial restraint, the view expressed in Chief Justice Rehnquist’s concurrence is actually quite consistent with these principles. It seeks to preserve the ability of state legislatures to fulfill their constitutional responsibility to prescribe the manner of selecting presidential electors rather than to allow a legislature’s chosen scheme to be hijacked by activist state judges.

As is the case with most issues, reasonable men and women of good will surely can disagree about the wisdom of the U.S. Supreme Court’s decision in Bush v. Gore. But the cries of “hypocrisy” coming from the left are little more than standard fare and should not be taken seriously.

Too much of today’s political discourse can perhaps best be analyzed by a crucial scene from Jane Austen’s Pride and Prejudice. In the middle of the book, Elizabeth Bennett tells Fitzwilliam Darcy that his “defect is a propensity to hate every one”- a charge liberals often carelessly fling in one form or another at those on the right. Mr. Darcy’s response to this accusation is one with which many conservatives readily identify: “And yours is to willfully misunderstand them.”