Florida Refought. - 'Bush v. Gore: The Question of Legitimacy' - book review

National Review, Sept 2, 2002 by Mark Miller

Bush v. Gore: The Question of Legitimacy, edited by Bruce Ackerman (Yale, 256 pp., $26.95)

A year and a half ago, a close presidential election was the biggest political story anyone could imagine. Bush's victory in the Supreme Court sent legal academia into hysterics: The Court got it stunningly wrong, the constitutional order was in jeopardy, and the Bush presidency would be illegitimate. When the truly unimaginable occurred the following September, former political antagonists suddenly found themselves united behind the leadership of the Bush administration -- and all questions of legitimacy suddenly vanished. In an instant, the controversy over hanging chads came to seem remote and inconsequential. The warnings about the stability of the American constitutional order were rendered utterly beside the point as the country absorbed far greater blows and survived with its constitutional integrity intact.

The essays collected in Bush v. Gore thus have the somewhat quaint air of a debate that occurred in a long-ago era whose passions and controversies are now mainly of historical interest. Edited by Yale law professor Bruce Ackerman, this slim volume brings together some of the leading lights of the academic Left (Laurence Tribe, Jack Balkin, Mark Tushnet, Margaret Jane Radin) and some more mainstream liberals (Jeffrey Rosen, Guido Calabresi), along with a token pair of pro-Bush conservatives (Charles Fried, Steven Calabresi), to comment on the issues surrounding the Florida election controversy.

The book's subtitle, "The Question of Legitimacy," refers to two separate questions. The first is the legitimacy of the Bush presidency and its entitlement to exercise the privileges of office -- having won that office, so the theory goes, as the result of a questionable judicial action. Although the administration has not yet reached the halfway mark, any doubts about its legitimacy have fairly well been put to rest. It is unlikely that history will look with disfavor upon the president's foreign-policy leadership since September 11, and the apparent closeness of the election has hardly rendered his administration unable to govern. (The one exception may turn out to be a failure to obtain confirmation of judicial nominees.) The second question -- the legitimacy of the Supreme Court's majority opinion -- is more complicated, but it, too, has been the subject of considerable exaggeration.

The fact that many of the contributors here indulge in just that kind of exaggeration is not surprising. In fact, some of them appear to believe that it is enough simply to compose self-dramatizing expressions of "outrage." Here, for example, is UC-Berkeley's Robert Post: "Until Bush v. Gore, I had never been embarrassed to teach a decision of the United States Supreme Court. Never. . . . This chapter is about the distress I suffered. . . . [The decision] conspired to inflict a searing and disorienting vision of a world without law, a nation subject to courts who command without accountability. [It] exposed the molten core of constitutional lawmaking, where law and will wrestle in perpetual indeterminacy." And here is Stanford's Margaret Jane Radin: "With Bush v. Gore something extraordinary happened within the ranks of legal academics. . . . The impetus was a message from . . . a veteran of the anti-war and civil rights struggles of the 60s, asking whether anyone was willing to speak truth to power. . . . I wanted to protest in the streets."

What is surprising, though, is the tepid defense of the opinion offered by the conservatives. Although this volume was never intended to provide a point-counterpoint match-up of Bush and Gore supporters, the conservatives who weigh in here do not attempt to tackle the most difficult arguments posed by the pro-Gore camp. For example, Fried, a former solicitor general under Reagan, argues that Bush v. Gore is not the extraordinary exercise of conservative judicial will that some in the pro-Gore camp have asserted. It is simply one of the "large number of important Supreme Court decisions on which reasonable minds might differ." Fried's argument is correct as far as it goes, and elegantly stated, but it only cuts through the rhetoric of the pro-Gore side, not the legal arguments, and only succeeds in getting us back as far as the starting point.

Calabresi, the other conservative commentator here, does not address the decision itself at any length. Perhaps surprisingly, Calabresi, who served in the White House and Justice Department under Reagan and Bush I, believes that the Supreme Court was without jurisdiction to decide what was fundamentally a political question. The Florida vote was a statistical tie, and there were several politically accountable persons and entities -- from Florida secretary of state Katherine Harris to the U.S. Congress -- that were statutorily or constitutionally empowered to resolve that tie. In Calabresi's view, Bush v. Gore demonstrates the price we pay for being a nation of court-worshipers -- comfortable with thinking of courts, rather than legislatures, as referees of the political process itself.