A divider, not a uniter

Thanks to his post-election power grab, George W. Bush becomes a president who lost the popular vote -- a man without a mandate.

By Bruce Shapiro
December 15, 2000 2:20AM (UTC)
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"Heal the wounds" became the media's mantra so quickly on Wednesday that somehow it was left to a Republican, Sen. Arlen Specter of Pennsylvania, to tell the plain truth on television that night: George W. Bush may have won the Electoral College, but he is a president-elect with "no mandate."

On Wednesday night Bush did his level best to convince the public otherwise, intoning some variation on the theme of "bipartisanship" more than a dozen times in his brief remarks. But as Specter understood, the very terms of Bush's victory cloud his presidency before he begins it, and no return to his pre-November "uniter, not divider" language is likely to expunge the Bush campaign's vote-suppression tactics of the past few weeks from the public's memory.


As for Al Gore, nothing became his campaign like his ending it. Gore's speech Wednesday night -- conceding the election but not the justice of an Electoral College defeat secured by Supreme Court intervention -- underscored a remarkable shift. Gore as post-election cheerleader for voting rights -- the kind of Great Society civil rights politics that Gore had always disdained -- roused far more passion and loyalty than Gore as hawker of centrist policy-wonking in the election proper.

Gore withdrew with good humor and made the appropriate bows to putting aside "what remains of partisan rancor." But he acknowledged the source of some of that rancor as just, invoking "those who feel their voices have not been heard" and comparing his defeat to other historic "challenges to popular will."

All the talk Wednesday night was about feelings: the feelings of the two candidates, the feelings of Gore or Bush partisans in the electorate. What makes certain that Bush has won a no-mandate presidency, though, are not feelings but inconvenient facts that will not go away. Some are obvious -- like the 9,000 inconvenient facts from Miami-Dade County packed in a Tallahassee judge's evidence locker, with reporters standing in line to count them under the state's far-reaching "sunshine" laws just as soon as the Florida Supreme Court's now-moot proceedings are formally concluded.


Some of the inconvenient facts, on the other hand, seem marginal just now but will grow in importance as Bush assumes power. Consider the connections, revealed in the run-up to the U.S. Supreme Court ruling, between conservative Justices Antonin Scalia and Clarence Thomas and the Republican operation: Scalia's son works in Bush lawyer Ted Olson's law firm, while Thomas' wife is coordinating the hiring of Heritage Foundation associates by the Bush transition team. Neither justice was required by law to recuse himself from the case. But these intimate relationships nonetheless are a window into just how small and inbred the Republican power circle is, and how closely tied that circle is to the most conservative elements of the party.

Those relationships might not matter -- except that the public is already keeping a right-wing conspiracy scorecard, which lists Florida Gov. Jeb Bush, Fox News election caller and Bush cousin John Ellis, thousands of mostly minority Florida voters wrongly disenfranchised as ex-felons by Florida Secretary of State Katherine Harris and a Republican-cozy consulting firm and a Supreme Court majority made up exclusively of the new president's ideological allies. After two years of Republicans jeering Gore for his confusion about the purpose of a single Buddhist temple fundraiser, this Republican habit of treading the ethical gray zone has laid political land mines for Bush before he even takes office.

These relationships are not just bad press for Bush; they are essential to understanding how Gore was blown out of the water. Over the course of a few weeks, the presidency went from being determined by the American electorate to resting on the state of Florida, from the state of Florida to a few counties, from counties to Florida's courts and Legislature and finally to five conservative justices of the Supreme Court.


As law, the Supreme Court's majority opinion in Bush vs. Gore -- declaring the clock had run out for a Florida vote count when it was the court majority itself that stopped the clock -- wasn't much. Stanford University scholar Pamela Karlan usefully deflated the ruling on public television's "Newshour" when she was asked if this case would stand with such notorious court misdeeds as the the infamous Dred Scott decision upholding slavery. Nonsense, said Karlan: The court's Catch-22 reasoning is more like a once-upon-a-time decision prohibiting debtors from filing for bankruptcy if they can't afford the filing fee. In the light of legal history, this court majority looks more like Keystone Kops than black knights.

But politically, the court's action plunged the country into a time warp, returning it to the first decades after the drafting of the Constitution when the presidency was thoroughly insulated from popular vote and the franchise itself was held only by a minority. Never has political power moved so far and so fast from the hands of the public as in the past few weeks.


That constitutional time warp is not an accidental byproduct of a close election; it lies at the heart of the Bush alliance. Federalist Society lawyers like Bush attorney Olson talk of "original intent jurisprudence," removing the power of courts to enforce civil rights that have evolved since 1789. Chief Justice William Rehnquist began his career as a clerk to Supreme Court Justice Robert Jackson arguing on behalf of all-white elections in Texas, and against Brown vs. Board of Education. A few years later he was working hard to suppress minority votes in Arizona. On the economic side, the Bush agenda is all about narrowing the circle of power: shifting wealth upward with a tax cut, further deregulating business.

If Gore could not accept his defeat until the last minute, it's because he appeared to scarcely understand what was really going on. This election of a president against the popular majority's preference -- in the face of what Justice John Paul Stevens, a Gerald Ford appointee, called the "disenfranchisement of an unknown number of voters" -- wasn't just smart legal maneuvering, and the nakedly self-interested intervention of the Supreme Court majority wasn't just bad judgment. Bush won because he drew on decades of Republican power shifting in all branches of government, and on a transformation of strategy and philosophy for which the suppression of votes is a perfect metaphor. Who needs a mandate when you have the Supreme Court?

This is the Republican freight train that ran down Al Gore, and he never really seemed to know what hit him.

Bruce Shapiro

Bruce Shapiro is national correspondent for Salon News.

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2000 Elections Al Gore George W. Bush