Given the failure of most previous predictions about how various courts were likely to rule in the Florida recount, I’m not hazarding any guesses about what the U.S. Supreme Court will do in the case of Bush v. Gore. But if, as most people expect, the court draws a final curtain on the 2000 election, I think it will be a depressing conclusion to the crisis. A couple of weeks ago, I argued that the best possible outcome of the postelection struggle would be a Bush win based on a statewide hand recount since that would leave the country with the most legitimate presidency still available. (I also think a narrow Bush victory would have been the most likely outcome of a hand recount with fair standards.) Conversely, though, the worst, most exasperating finale to this mess will be a Bush win based on the Supreme Court pulling the plug on the recounts. Bush taking office in this way would be truly unfortunate for all concerned. Here’s why:
For Al Gore and his supporters, a cutoff in the recount means suspecting they were cheated out of the White House without knowing for sure. Obviously, losing is worse than winning, however you lose. But you could argue that losing inconclusively is worse, politically and psychically, than either losing fair-and-square or being obviously ripped off. If they knew they had lost fairly, Democrats could treat Bush as a legitimate, if flukish president. They could concede and move on. If Gore supporters knew they were robbed, thanks to politicized decisions that kept their winning votes from being counted, they could treat Bush as illegitimate. They could nurse a grudge and contemplate revenge. What may happen instead leaves Gore supporters in limbo. The way Democrats see it, they went to the courts to ask for fairness, nearly gave up hope of receiving it, were offered it at the 11th hour, and then had it taken away again at five minutes to midnight. Their appetite for justice was whetted, then starved. Journalists and scholars will pore over the Florida ballots. But because of various ambiguities, there may never be a clear answer to the question of who really won. Was Gore a victim or loser? Frustratingly, he and his partisans may never really know.
For Bush and his supporters, a cutoff in the recount denies them a legitimacy that could have been theirs. Of course, it will be Bush’s own fault that he lacks a full sense of legitimacy as president. A wiser man would have rolled the dice on a statewide recount, risking defeat in exchange for a solid shot at a valid victory. Instead, Bush deployed teams of lawyers and partisans to delay, obstruct, and prevent the statewide hand recount that even many nonideological conservatives acknowledged as the fairest way to settle the election. The latest hypocrisy on the Bush side is arguing that the Florida Supreme Court must not “make law” in interpreting while criticizing the court for ordering a recount with no clear standards. Justice Souter underscored this point today in his questioning of Bush lawyer Ted Olson. Had the Florida court delineated standards for what counts as a legal vote, Republican lawyers would have excoriated them for going beyond the Florida statutes. A Supreme Court-derived victory might be more credible from Bush’s point of view than a victory awarded by the Florida Legislature and the U.S. Congress. But it hardly puts him in a position to unify the country or forge a bipartisan agenda. Having tripped his opponent as they both crossed the finish line and gotten away with it, Bush will now extend a hand. To the guy sprawling in the dust, however, the winner’s tactics undercut his display of graciousness. After winning in this way, Bush will take office as half a president, or as president to half the country.
For the U.S. Supreme Court, the decision to stay the recount pending today’s hearing looked transparently political. As others have noted, for Justice Scalia to write that counting the ballots threatens “irreparable harm” to Bush assumes that Bush is the winner, something Scalia has no place to assume. Few people are eager to treat the Supreme Court as a purely political institution. But if the same five conservative votes that granted Bush a stay on Saturday end the recount, it will be hard to color the decision any other way. As Alan Brinkley suggests in his most recent “Dialogue” entry, such a ruling could do irreparable harm to the court’s own sense of legitimacy. The worst part of such a verdict would be the evident straining to avoid simple justice. In voting 4-3 to order a statewide hand recount, the Florida Supreme Court was calling for a result that would be broadly fair, whatever the flaws in its legal reasoning. In overturning that order, the U.S. Supreme Court will be doing just the opposite, drawing on valid legal reasons to prevent an equitable result. The court’s concern for the rights of legislatures under Article II will have trumped its concern for the rights of voters under the 14th Amendment. A procedural right will have vanquished a civil right, to the court’s discredit.
For the country, a president delivered by a Supreme Court embargo on vote counting would be the least conclusive of conclusions. The looming postelection question won’t be the forward-looking, “What will Bush do as president?” It will be the backward-looking, “Who really won?” There have already been suggestions from the right that the state of Florida should destroy the ballots, lest we find out the truth. My own bet is that given the closeness of the contest, the uncounted ballots won’t yield an unambiguous answer to the question of who won. So we’ll be faced with the problem of how to treat a guy who bullied and blustered his way into the White House but who might have won fairly if he’d had more integrity and guts. Contrary to Justice Scalia, stopping the recount doesn’t protect Bush’s mantle of legitimacy. It prevents it. We may never know with any degree of certainty that Bush didn’t really win. But we’ll also never know for sure that he did.