Where Have You Gone, King Solomon

"Although we may never know with complete certainty the identity of the winner of this year"s presidential election," wrote Justice John Paul Stevens in his dissent, "the identity of the loser is perfectly clear. It is the nation"s confidence in the judge as an impartial guardian of the law." As the hours passed on Tuesday without a decision, the hope grew that the Justices were struggling to offer the nation some Solomonic wisdom that would transcend partisanship. And then came the late-night judgment that made up in sophistry what it lacked in wisdom. The Supreme Court doesn"t look so supreme anymore.

In his Saturday statement in support of halting the recount, Justice Antonin Scalia wrote: "Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires." But Tuesday's verdict, which could be summed up as "Stay the recount first, and when time has run out, rule that the recount cannot proceed due to lack of time," is hardly a recipe for a healthy democracy. Kathleen Sullivan, dean of Stanford"s Law School, described the Court"s decision as the equivalent of "letting the clock run out while holding the ball."

So here we are. We long ago lost faith in the moral authority of our political leaders. Even churchmen and university presidents have become largely administrators and fund-raisers. And now here come the judges, missing an historic opportunity to rise above partisan interests and act as the guardians of the public good.

Now, I can understand why Scalia might have wanted to make Gore walk the judicial plank. After all, during the campaign he and Clarence Thomas had become the Gore camp's designated boogeymen. "When the names of Scalia and Thomas are used as benchmarks for who would be appointed," Gore warned during his first debate with Bush, "those are code words." And he didn"t just mean code words for overturning Roe vs. Wade; he also meant code words for right-wing zealotry.

Justice Felix Frankfurter warned in 1946 that public confidence in the Court's moral sanction "must be nourished by the court's complete detachment from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements." Scalia, however, didn't even try to maintain the appearance of rising above political entanglements. Even though his son, Eugene, is a partner of Ted Olson, the Bush lawyer who argued the case at the Supreme Court, Scalia did not hesitate to come to Olson"s aide from the bench. "I think there is no wrong when a machine does not count ballots that it's not supposed to count," Scalia offered, echoing the Bush team's contention that the only objective truth in the world, the only thing we can really know for sure, comes from ancient voting machines. After all, human judgment is fallible -- Votamatics are not. Thankful for the assist, Olson replied with a verbal smooch: "That's absolutely correct, Justice Scalia." How cozy. Because it was only on audio, we couldn"t tell if they blew kisses to each other.

Bush's lawyers had tried to get Judge Nikki Clark to recuse herself from the Seminole Country absentee ballot trial on the grounds that she had once been passed over by Gov. Jeb Bush for an appellate court position and might be holding a grudge. Well, what about the possibility that Scalia, after being demonized by Gore and his surrogates, might be holding a grudge, too? Continuing the recount, he said on Saturday, would cause "irreparable harm." No, not irreparable harm to the nation, our democracy or our faith in our government, but irreparable harm to George W. Bush.

Of course, Thomas (whose wife, Virginia, happens to be working for the Heritage Foundation, collecting resumes for a possible Bush administration) was also demonized. But since he doesn"t have a speaking part in this drama, it's harder to divine his intent. Remarkably, he did not ask a single question in either of the two Supreme Court hearings on the election. Apparently, he never does. If this is supposed to be a sign of deep judicial thoughtfulness, it makes him the perfect complement to George W.'s idea of deep executive thoughtfulness -- lying low at the ranch and letting Dick Cheney and Jim Baker do the talking.

In his dissent, joined by Justices Ginsburg and Breyer, Stevens wrote that "It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision."

So, the same Time that was used as the excuse for the partisan decision is now expected to heal partisan rifts. That's a lot to put in the lap of Time. I respectfully dissent.


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