Not over it

Posted: Friday, December 21, 2001

Like several other writers, I am unwilling to "get over" the U.S. Supreme Court's decision in Bush vs. Gore.

I have practiced law for over 25 years and, until Dec. 9, 2000, felt confident that the court would always uphold the rule of law. Of course its decisions might be influenced by the political and judicial philosophies of the individual justices, but it would not simply ignore settled law. The court's Dec. 9 order stopping the recount changed my opinion.

The law governing stays is centuries old and undisputed and in my opinion does not support the stay order. Over 500 law professors, of different political beliefs, have protested that, in stopping the recount, "the five justices were acting as political proponents for candidate Bush, not as judges." Michael Greve of the American Enterprise Institute wrote in the conservative Weekly Standard it "would be silly to deny that partisan considerations influenced the justices' rulings."

I have read a few defenses of the court's Dec. 12 equal protection decision (though usually not by judicial conservatives, who wince at the lack of deference the opinion gives to states' rights), but to my knowledge no one has been willing to risk his or her reputation by publicly defending the merits of the Dec. 9 order stopping the recount.

So what should judges and lawyers do when it is clear that five justices of the highest court of the land have abused their power? Certainly, the principles of the Dec. 12 equal protection decision will have to be applied to other cases involving elections because we have to assume (or at least pretend) that this was a principled decision, even if some suspect otherwise.

Unfortunately, we will also have to be cautious about appealing cases because we can no longer be confident that the court will issue principled opinions in other cases with possible political ramifications, e.g., President Bush's recent refusal to release the presidential papers of President Reagan. In any event, my respect for the American judicial system requires me to continue to maintain that what those five justices did was wrong. I won't "get over it."

Pamela Finley


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