vote seems pernianently lost to the Democrats.rnAs an immigration centrist (aboutrnthe only issne on which I’m centrist), I’mrnwilling to sit back and see if Bush—who gotrn30 percent of tlie fiispanic vote versus fivernpercent of the black vote —can do somerncoalition-building. I tliink he v ill trv’.rnSo bring on the Ivnch part)’. I think vernhave, in our new President, a prett’ goodrnguy who will be for us far more often thanrnhe will be against us. And won’t that be arnbracing change? As we sav in Texas,rnwhoooo-ccee!rn— William MurchisonrnTHE U.S. SUPREME COURT hasrnput an end to five weeks of uncertaintv’.rnhi the early das of December, in therntwilight between the certification ofrnGeorge W. Bush as the winner of Florida’srnelectoral votes and the decisionrnof the U.S. Supreme Court that the FloridarnSupreme Court was wrong to inter-rnene, ouK’ one thing was certain: No respectablernconsfitufional-law scholar hadrna clue what was likely to happen. Mostrnprofessed to be baffled that the U.S.rnSupreme Court would agree to involve itselfrnin a controversy oer Florida electionrnlaw, and .sonic argued that the Republicansrn(tliose alleged proponents of states’rnrights) were rank hypocrites to run to thernfederal courts for protection from thernFlorida courts.rnThe Bush forces claimed that thevrnwere not defending the superioritv of federalrnover state authority, but the rule ofrnlaw over both. For die governor of Texas,rnthe rule of law meant that federal andrnFlorida guidelines promulgated beforernthe election were the only ones thatrncould be used in deciding the election.rnThese guidelines included the deadlinernspecified by statute for recounts and therndiscretion of file Florida secrctan’ of staternto disallow the results of hand recountsrnturned in after the deadline, absent fraud,rnmachine fiiilurc, or acts of God—none ofrnwhich auNone claimed occurred in thernthree counties the Democrats wanted recounted.rnVice President Gore and diernFlorida Supreme Court (all of whosernmembers were appointed by DemocraticrnFlorida governors) also claimed to bernpromofiiig the rule of law; but in their vision,rnthe Florida constitution defers tornthe will of the people expressed in theirrnindividual votes. Holding up a ballot tornthe light to reveal a dimple or a minuternseparafion in the binding of a chad was arnbit like Harry Blackmuu finding penumbrasrnand emanations in the Bill of Rightsrnwhich guaranteed the right to an abortion.rnFor the Democrats, implementingrnthe rule of lav- meant unleashing trialrnlawyers to manipulate legal rules.rnThe U.S. Supreme Court, then, hadrnto choose between these two visions. Forrnthe first fime in history, an audiotape ofrnthe arguments before the Court was releasedrnwithin minutes of the conclusionrnof the argument and broadcast to the nation.rnThe passions of Democratic andrnRepublican partisans were high, but thernCourt was an intriguing island of civilih’,rnwith formal personal address and onlvrnmild jesting between the ju.stices and thernlawyers. The justices’ questions—not alwavsrna reliable indicator—made it clearrnthat four of them (Rehnquist, Scalia,rnO’Connor, and Kennedy) believed thatrnthe Florida Supreme Court was aboutrnthe business of making—rather than interpretingrn—law and had wrongly ignoredrnthe rules specified by die I’loridarnlegislature, the U.S. Constitution, and arnfederal statute. Four others (Stevens,rnSouter, Breyer, and Cin.sbnrg) seemed tornsuggest that this was a matter for Floridians,rnnot the federal courts. That thesernfour —anything but champions of staternsoxereigntv-were prepared to upholdrndie Florida judges against the Florida legislaturernand the federal courts was anrnirony lost on no one. To die puzzlementrnof all and the consternation of many. JusticernBrever even suggested to a Gorernlawyer that “we win” if “v’our side wins.”rnJustice Thomas said nothing —per usualrn—but his previous opinions castigatingrnjudicial overreaching led most to believernthat he would be part of a five-to-fonr majorih-rnupholding Bush’s position that thernFlorida Supreme Court went too far.rnThe opinion of the pundits was thatrndie Court took the ease to giv e a boost tornBush. Still, since the Florida secretarv ofrnstate’s declaration that Bush was die winnerrn(following die original v ote, machinernrecount, and hand recounts in threernheavily Democratic counties, one ofrnwhich was aborted when it could notrnmake the deadline) gave legitimacy tornthe governor’s quest for the presidency,rnthe Court had die option of declaring therncase moot and bowing out, hoping thatrndie Florida recounts would not changernthe result. The Court was in a pickle: Itsrnlegitimacy depends on being able tornclaim it is apolitical, and a split decisionrnfavoring Bush could be painted as anythingrnbut. The Court speaks wifti greatestrnforce when it is unanimous, but diernonlv way to achieve unanimity wouldrnhave been to dismiss Bush’s appeal asrnmoot, which could have been spun by diernGore forces as a great triumph for theirrnman, possibly defeating the purpose forrnwliich die Court agreed to hear the case inrnthe first place. If the Court punted, itrnwould be a blow to the rule of law; but ifrnthe Court did the right thing, upholdingrnBush’s challenge, would its ftitnrc abiliti’rnto preserve die law be imperiled?rnThe Court surprised everyone bv’rnunanimously vacating the state court’srndecision and sending Hie case back to thernFlorida Supreme Court for clarification.rnCould the Florida Supreme Court reallyrnhave meant that the Florida constitution’srncomments regarding voter intentrntrumped a federal law mandating a firmrndeadline for the selection of electors?rnWouldn’t diat be changing the rules inrnmid-game, in violation of federal law?rnI he U.S. Supreme Court was gendy suggesfingrndiat Florida’s highest court backrnoff. A Florida trial court, perhaps readingrnbetween die lines, held tiiat the recountsrnthe CjOre camp wanted w ere impermissiblernunder Florida law. Then, in thernpenultimate act, the Florida SupremernCourt, blithely ignoring the request forrnclarification from the U.S. SupremernCourt, reversed die Idorida trial court inrna four-to-three decision, ordered the recountsrnto continue, and created jubilationrnin the Gore camp. The chief justicernof die Florida Supreme Court predictedrnthat die U.S. Supreme Court would neverrnpermit the Florida decision to stand;rnthe next day, the U.S. Supreme Court, bvrna vote of five to four, stayed the FloridarnSupreme Court’s order, stopping die recount.rnTwo dav’s later, diere was anodierrnU.S. Supreme Court argument and anotherrnaudiotape. On die third day, in aiiotiierrnfive-to-fonr ruling—aldiough sevenrnjustices agreed that die manner in whichrndie recount had been conducted was uiiconsfitutionalrn—die Court issued a finalrnorder, pcniianendy .stopping the recount.rnThe opinion was a masterpiece of obftiscation;rnbut when the smoke cleared. VicernPresident Core understood that die iiiajorih’rnhad terminated his insurgency. Onrndie fourth day, in tiie best speech he everrndelivered. Gore conceded.rnNo one could have predicted it, butrnGeorge W. Bush owes his presidency tornfive justices on the U.S. Supreme Court.rnThis only happened, of course, becausernVice President Gore —for die first timernin meniorv—litigated a presidential election,rnand he who lives hv die sword diesrn8/CHRONICLESrnrnrn