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Supreme Court blows it in election ruling

Jim Porter, Sierra Sun

The one thing I had hoped during the Florida debacle was that regardless of who wins and despite the politics of the elections, the lawyers and courts would remain unscathed and non-political. Boy, did I miss the mark.

Differing from my partner Jim Simon, who is genuinely proud of the role lawyers have played in Florida – i.e. the legal system works – I am a bit embarrassed.

Too many lawyers for me. Only a bit more dignified than the O.J. Dream Team nightmare. In Florida the stakes were higher. Resolution through the legal system is better than fighting in the streets, but most things are.

I am one of those lawyers who believes, perhaps navely, that judges, although they have their beliefs and prejudices, remain largely non-political. Judges base their decisions on the law.

Having watched the legal system handle the Florida elections, my confidence in the judiciary, at least the U.S. Supreme Court, is shaken. The split of Supreme Court opinions according to Democrat versus Republican appointees is horrifying.

My criticism has nothing to do with the outcome. George W., or Bush Lite as he has been unfairly described, will do fine. He will surround himself with top-notch advisors. He will even overcome his tendency to look like Alfred E. Neuman in the headlights.

Vice President Al Gore is not the only loser in this election. The Supreme Court should have stayed out of the fray. Its dog should not have been in the fight.

Ironically, the conservative majority of the court, led by Chief Justice William Rehnquist and Justices Clarence Thomas and Anthony Scalia, strong states’ rights (as opposed to federal rights) advocates, would normally have deferred to the Florida court and legislature. Florida’s standard is to apply “the intent of the voter” or an “impossible to determine the elector’s choice.” It isn’t that difficult.

The Supreme Court just couldn’t help itself, after watching the Florida Supreme Court, itself almost entirely Democratic appointees, rule for selective recounts to the potential advantage of Gore. If there was ever a time for the conservative jurists to exercise judicial restraint, their usual mantra, Florida was it. I like to think that the shortness of time for the immense task of setting up a fair system for recounts, likely to be challenged in protracted court battles, played prominently in the majority opinion. The Court gave us the benefit of finality, but at such a price.

As Justice Stevens wrote in his dissent:

“Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential 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.”

Jim Porter is an attorney with Porter-Simon, with offices in Truckee and Reno. He may be reached at porter@portersimon. com or at the firm’s web site http://www.portersimon.com.


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