What Now?

Dear Alan,

When we signed on to conduct this continuing conversation about the post-election, I had no idea we would still be going in the middle of December. Thanks for your warm words about the exchange; I feel that way, too. Let me close with a few miscellaneous comments.

First, thinking about Vice President Gore’s gracious and patriotic concession speech, and President-elect Bush’s conciliatory victory statement, I begin to question the tone (though not the substance) of my comments yesterday. I think you and I both underestimated the sense of relief that the Supreme Court decision would bring to the nation. Putting aside the legal issue, there was wisdom in the court’s decision not to prolong the controversy, when it was so unlikely that there could be any change in the outcome. All over the country, ordinary people are saying that they are glad—relieved is the better word—it is over. Even Mr. Gore seemed a bit relieved. I was critical of Justices Kennedy and O’Connor yesterday. But Justice O’Connor, particularly, often has the ability to craft solutions that—while analytically unsatisfying—capture the mixed-up mood and desires of the people.

Second, there has been a lot of talk about partisanship among judges, and we have seen a bit of it, too. But there has also been a lot of nonpartisanship. It is not fair to attack judges simply for deciding cases in a way that supports their party (after all, odds are about even that their party is correct). Special recognition, however, should go to judges whose decision went against the party line. In their case, we can be certain that the rule of law triumphed over politics. In this honor roll we should include Judge Lewis and Judge Clark of the circuit courts of Florida; Judge Burton of the Palm Beach canvassing board; Justices Wells, Harding, and Shaw of the Florida Supreme Court; and Justices Souter and especially Breyer of the U.S. Supreme Court. These are mostly Democrats, since every judge who played a role in the state court litigation in Florida was a Democrat. Two of them are liberal, African-American judges. All are tributes to the judiciary.

By contrast, have you been struck, as I have been, by the extreme, partisan, hyperbolic, and vitriolic flavor of much of the commentary by academics? Frankly, this makes me ashamed of the academy. One of the reasons historians, political scientists, law professors, and the like are asked to participate in public commentary is that we are expected to rise above petty partisanship and to provide objectivity and perspective. There was some of that (may I compliment your contributions?), but much more of the opposite.

Why might this be? I think one reason is that academia is so heavily one-sided in its ideological composition. In my line of work, surveys show that the overwhelming majority of law professors are liberal Democrats. There are more far-left law professors than there are conservatives. For example, even here in the conservative state of Utah, I doubt that more than two members of the law faculty voted for Bush. I suspect history departments are not much different. The effect of this ideological homogeneity is that academics lose perspective. Academia becomes an echo chamber, in which the same opinions become magnified through hearing nothing else. There are few better antidotes to extremism than frequent contact with intelligent people of other views.

Third, I wanted to pass on an interesting fact that I had not previously known about the election. The reason that Al Gore’s 330,000 vote lead in the popular vote did not shrink in the final days of counting is that in most states, absentee ballots are not counted if their number is too small to affect the margin of victory. Reportedly, there are 1 million absentee ballots for president in California that were not, and will not be, counted, since they could not possibly affect the outcome of the Electoral College vote in California. (After reading Chris Suellentrop’s “Explainer,” Professor McConnell realized that the report of 1 million uncounted ballots in California was mistaken.) The number is probably more than 1,500,000 votes nationwide. Since absentee ballots tend to be disproportionately Republican, counting these ballots could shrink—and conceivably even reverse—Mr. Gore’s popular vote lead. If there is any effort by news organizations after the election to recount the ballots in Florida (as there probably will be), it would be interesting to count these ballots as well. Historians presumably would like to know who really won the popular vote.

Finally, I must comment on your suggestions about bipartisan government. I entirely agree with the general spirit of your remarks and hope (and expect) that there will be bipartisan cooperation on a number of issues. But your choice of examples only goes to show that “bipartisanship” is often in the eye of the beholder. It seems to me that out of the universe of Republican political proposals, you singled out as “divisive” some of the best ideas on the merits.

A tax cut may or may not be a great idea in the abstract, but when the nation is on the verge of recession (as we are), that is the time for a tax cut. Perhaps you are right that it should be “scaled down,” but the Bush proposal was not very large to begin with. Social Security privatization is trickier. I am not sure, in the end, what I think about it. But prior to this election, many experts in the field were thinking along those lines, and it may well be the best way to improve the lot of future retirees without any harm to the current generation. Early on, President Clinton expressed interest in the idea. I think it became “divisive” only because Bush used it as a campaign platform, and Gore felt the need to oppose it.

Most of all, I am disappointed to learn that you think vouchers are unthinkable. Of all the current proposals for addressing serious national problems, I think vouchers are by far the most promising. (I am speaking of voucher programs for low-income students in failed public school districts.) I think vouchers have been politically problematic only because of a combination of the selfishness of suburban Republican voters, who already enjoy the benefits of school choice and don’t want to upset the apple cart, and teachers unions. Let’s put the interests of the children first. I can think of no more worthy objective of bipartisan cooperation than to enact a program of educational choice for the District of Columbia. Here’s the bipartisan part: Let’s confine the program, at first, to a few locations, and find out whether it works in practice. Let’s commit ourselves in advance (if such a thing is possible) only to expand the program if it really works. But if it really works, let’s go for it.

Bipartisanship should not be defined as a middle ground between the partisanship of both sides (let alone as Republican capitulation on all controversial points). If bipartisanship is to be constructive, it ought to be based on enacting constructive legislation—on doing things because they are right, because they will work, and not because they please the powerful interest groups of one party or the other.