Thanks, Justice Scalia!

With news that the very recount he stopped would have confirmed a Bush victory, the president's closest ally on the U.S. Supreme Court turns out to have been his worst enemy.

By Joan Walsh
Published April 4, 2001 5:50PM (EDT)

If George W. Bush is the winner in at least one version of the Miami Herald's complex Florida recount, there's also a clear loser: Supreme Court Justice Antonin Scalia. When the Supreme Court stopped the statewide manual recount Dec. 9, a day after it had been ordered by the Florida Supreme Court, Scalia reasoned that the ballot count could cause Bush "irreparable harm ... by casting a cloud upon what he claims to be the legitimacy of his election.''

Now the Herald reports that the narrow recount ordered by Florida's high court almost certainly would have confirmed Bush's victory. So it was the Scalia-led decision to stop the count -- which drew a sharp, sorrowful dissent from Justice John Paul Stevens, and howls from legal scholars throughout the country -- that cast the darkest "cloud" over Bush's legitimacy, while also tarnishing the image of the Supreme Court.

Whether or not you favored Bush in November, after the Herald's audit, it has to be hard to think Scalia's reasons for stopping the recount were correct, and didn't ultimately ensure that the outcome of the election would forever be in partisan dispute. With the Supreme Court's final 5-4 decision Dec. 12, many Americans had their worst cynicism confirmed, seeing persuasive evidence that the only votes that mattered in Election 2000 were the five cast by Scalia and his Republican colleagues on the court.

The Bush presidency has suffered too. Insecurity about his lack of a mandate -- his anti-mandate, some might say, since he lost the popular vote by more than half a million -- has led the new president to jump out of the gate aggressively, even recklessly, hoping he could gain some quick legislative and policy victories that would give him the political momentum his contested election did not. (Of course, that good old Bush sense of entitlement also means arrogance comes naturally.)

His XFL approach to Democrats in Congress might be defensible, but he's been just as obstreperous toward Republican rivals like Sen. John McCain, and even international allies, who are puzzled by his hard-line, go-it-alone approach to the Kyoto climate change protocols, national missile defense, now-dead negotiations with North Korea and the Russian spy case.

Finally, Bush's opponents are fighting back, getting the campaign finance bill he opposed through the Senate on Monday, for instance. And it may turn out that the most important vote count in the news on Tuesday was the Senate's 51-50 vote to move Bush's $1.6 trillion tax cut along, and block the Democrats' attempt to trim it to pay for a prescription Medicare benefit. The good news for Bush is that it passed, thanks to Vice President Dick Cheney's tie-breaking vote. The bad news for the president is that Senate Democrats are finally learning from their opponents, voting together as a caucus for the very first time to block Bush's right-wing agenda.

Despite the Herald's efforts -- and those of the media consortium set to release an even more exhaustive recount "audit" later this spring -- we may never conclusively know who won the Florida vote. But from the Herald's work, and that of other newspapers and individual journalists, including Salon's Jake Tapper, we know who won the recount battle -- and it was the GOP, in a landslide. Republicans were disciplined and fanatical. They stayed ruthlessly on message, until it was time to change message -- arguing, for instance, that recounts had to obey the strict letter of the law when it came to counting dimpled chads or interpreting the results of Palm Beach's benighted butterfly ballot; then swerving course to say only voter intent should matter when it came to military absentee ballots. They marshaled their forces all across Florida to make sure, in every potential contest, Gore was never allowed to gain even a temporary edge over Bush during any of the recounts.

And in the end they had the votes that counted, the five on the Supreme Court. Of course there's irony in the fact that Bush's handlers zealously fought manual recounts around the state, seeming to believe their man lost the popular vote, when in fact the Florida Supreme Court-ordered recount likely would have confirmed his victory. Maybe they too "misunderestimated" their candidate.

Now the GOP's disciplined fanaticism continues, through the early days of the Bush administration. They're barreling their titanic tax cut through Congress, despite warnings from Democrats and even a few Republicans that it could return us to old-fashioned Reagan-Bush deficits. Tuesday's vote to advance the Bush tax plan is another step in that direction.

But the Democrats' united vote against it suggests they're learning from their opponents, and we can expect more effective opposition to the Bush juggernaut in the months to come. Since January, Cheney has never had to use his power to break a tie in the 50-50 Senate. GOP leaders have always been able to induce some wavering Democrats to join them. The New York Times predicts Tuesday's vote portends Cheney will have to come to the Senate to break ties "time and again." That's bad news for the new administration, given the vice president's many crucial duties in the Bush White House, where naps and regular exercise are a high priority for the delegator in chief.

In the end the Herald's recount results won't matter much politically. Both sides will find ammunition for their partisan agenda: According to the Herald, a broader examination of undervotes than the one ordered by the Florida Supreme Court could have given the edge to Gore. And from newspaper audits in individual counties, we know that a rigorous recount of the so-called overvotes -- ballots that were marked for more than one presidential candidate -- would have overwhelmingly favored Gore.

Democrats will continue to have ammunition to say that more Florida voters went to the polls intending to vote for Gore -- but legally, that didn't matter. The bungling of Florida election officials from Theresa LePore to Katherine Harris, the battling of the nation's best and worst legal minds, the intervention by the Florida Supreme Court and finally the Scalia-led high court -- it all added up to a Bush victory, and that's what the nation has to live with, no matter what media recounts uncover.

Still, the Supreme Court's radical move to block the recount last December has to go down in history as the most shameful moment of the Florida debacle. Almost a third of Americans polled after the decision said it weakened their trust in the Supreme Court; certainly it worsened relations among its nine members. Even Scalia's ideological allies had to acknowledge the thin legal undergirding for the decision, but in their heart of hearts they could defend it as doing the right thing for the wrong reason, perhaps, a good decision justified badly.

Now it seems Scalia argued for the wrong thing for the wrong reason, tarnishing the Supreme Court and the presidency with one rash move. The president gets another shot at electoral redemption every four years, but it's not clear what it will take to redeem the court.

Joan Walsh

Joan Walsh is the author of "What's the Matter With White People: Finding Our Way in the Next America."

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