20 November 2000
I watched the FL Supreme Court oral arguments today, and read the Bush brief while watching. Like the brief from Secretary Harris's counsel, it's an extraordinary brief, especially for a state-level trial. It largely repeats the arguments in the Secretary's brief. However, about the time I heard Mr. Carvin make the following point, I was reading along in the brief and found the one trump card that is going ultimately to prevent a far-reaching judicial remedy (which I think is forthcoming, judging by the questions and, if I may be so bold, seeming ignorance of and/or disregard for statutory law of many of the justices) and found reference to Title 3 of the US Code, Section 5. That provision of US statutes essentially mandates that state election laws may not be changed AFTER an election (which one would think is only common sense). If the FL Supreme Court crafts a far-reaching judicial remedy that effectively turns statutory law on its ear -- precisely what the Gore camp is asking it to do -- the Federal Courts will take this case in a heartbeat and overturn, for it is no longer an issue of hand recounts in selective counties constituting a 14th amendment equal protection infringement (a weak argument, frankly) but instead becomes an issue of the Supremacy Clause. It all hinges on whether the Court overreaches. It will be interesting to see what it tries to do.
No other legal analyst that I've heard or read has yet recognized this, and the Court today didn't really acknowledge Mr. Carvin when he made the point, but it's critical. And you read it here first.
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On a lighter note: I turned feminist tonight and decided perhaps we needed a more "nurturing" feminine approach to the problem. I've come to the conclusion that the Supreme Court should recuse itself from the matter, and name either Judge Judy or Dr. Laura as a special master in this case! I suspect either of those two could dispense with all of this in ten minutes or so, and we could all get back to more important things.
Copyright (c) 2000, Kevin L. Whited