24 November 2000


The Noose is Tightening

Mr. Gore had a very bad day today, as evidenced by the shrill, almost hysterical, line all of the Democrats on talk shows are taking.  

First -- Mr. Gore's bad day.  The Supreme Court agreed to take on Mr. Bush's case via the unusual route of granting emergency cert.  They will address two of the three questions the Bush team raised in their brief (whether post-election judicial limitations on the discretion granted to the executive by the legislature violate either the 14th amendment or 3 USC 5, and whether the state court decision, which is inconsistent with statutes enacted prior to election day, is inconsistent with Article II, Section 1 of the US Constitution).  They dismissed the third question raised by the Bush team (whether selective hand recounts themselves violate the 14th amendment) without prejudice, meaning that issue could still find its way to the Supreme Court.  Despite the Gore team's spin, they didn't expect this, and neither did most commentators.  For four justices to grant cert in such extraordinary circumstances signals there is definitely a federal question that has been raised by the Florida Supreme Court decision, and this hardly bodes well for the Gore people.  Of course, faithful readers here will hardly be surprised -- I wrote about 3 USC 5 being the very solid grounds for just such an appeal on 20 November (the day of oral arguments before the Florida Supreme Court) and on 21 November (the day of the Kangaroo Kourt's decision).  On top of that bad news, the count isn't going nearly as well as the Gore people had hoped, the PR battle is starting to swing against them (largely on the basis of the exclusion of legally cast military ballots), and even liberal elite journalists (such as Richard Cohen) are starting to abandon ship.  

Which brings me to my Second point:  the shrill, almost hysterical, line all of the Democrats are starting to take.  All day, I heard Democrats make the claim (actually that's being generous -- they lied.  More below) that a "Republican mob" scared Miami-Dade workers into abandoning their recount efforts!  Even the sanctimonious Democratic messenger from God, Jo[k]e Lieberman was wound up and trotted out to spew forth this charge.  Never mind that "Republican Mob" is, in general, an oxymoronic phrase, considering, as Paul Gigot wrote cleverly yesterday, that most Republicans' idea of a riot is filling out the complaint card at the Marriot.  No, we don't have to argue that way at all -- we just have to look at the video of Republican protestors when Miami-Dade officials attempted, illegally, to move their vote-counting to a secret room with no media access and no observers.  Those protestors did not hurt anyone, and they did not break anything, but they peacefully obstructed an act that Madeleine Not-At-Albright's State Department has condemned in any number of third-world dictatorships.  It was actually rather a remarkable act of civil disobedience that I wish I had been a part of.  But it was peaceful.  Nobody was hurt.  The video is too revealing in this regard.

So the Democrats do what they always do when they are desperate that they are about to be tossed out of power and have no facts on their side -- they lie, obfuscate, and generally scorch the earth (anybody remember those NAACP ads just before the election?  Do you think that sort of race-baiting partially energized the African-American base, despite the fact it was slanderous and probably illegal?).  They go on virtually all of the talk shows, and misquote public officials.  And the lying (because quoting out of context to the extent they have misquoted can only be called lying, at least in a world where "is" has a clear meaning) began with Jo[k]e Lieberman saying:  "Shortly afterwards, one of the commissioners said, and I quote, 'We would be up there now counting,' end quote, if it weren't for those objections."

Has any media member gone back to see what that commissioner ACTUALLY said?  Has anyone reading this journal done the same?  Because I have.  Here's what he actually said:  "If what I had envisioned worked out and there were no objections, we'd be up there now counting."  And here's the crucial missing context:  the "objections" to which he was referring were Bush attorney objections, during a meeting beforehand that the board had set for the purpose of hearing legal arguments, to the selective recount of JUST the undervoted ballots rather than ALL of the ballots in the county, an objection based on precedent in the state of Florida, 14th Amendment due process grounds, and 1965 Voting Rights Act grounds! The commission was NOT referring to a Republican "riot" that never was, a "riot" that, by the end of the day on talk shows, Democrats were describing as Republicans punching and kicking people, breaking glass in windows, kicking down doors, and the like!  Perhaps the Democrats were having a flashback to Mayor Daley's Chicago! 

Or perhaps they sense that they are about through holding America hostage, that their brazen effort to steal this election by any means necessary is starting to be seen for exactly what it is, and that they are starting to lose both the legal and the public-opinion (another sign of this is their insinuations that Bush was trying to cover up Cheney's quite mild heart attack, which would be laughable if it weren't such a sickening accusation) battles.  Perhaps they are upset by the fact that they are outnumbered and outyelled now on the streets in Florida despite having shipped in the usual AFL-CIO goons as well as Jesse Jackson to stir up their own crowds.  Perhaps they are upset that Republicans have been peaceful in their gatherings -- resorting to those very clever "Sore-Loserman 2000" signs instead of the actual violence Democrats have been lying about.  Perhaps they are upset that, while they had to ship in the usual AFL-CIO goons and people like Jesse Jackson to stir up crowds (and that it has failed, judging by their numbers yesterday), the Republicans have had volunteers for their effort to draw attention to a theft in progress and an attempt to disenfranchise the military illegally.  

Whatever the outcome -- and don't get me wrong by my tone, I don't think this is over because the Democrats still have a lot of advantages and AlGore shows no sign of letting up -- it has been heartening for me to see the Republicans finally respond in kind to an attempt by thugs to subvert the rule of law.  I wish I had been a part of it in Florida. 

* * * *

It has also been energizing because the FL Supreme Court decision is precisely the sort of jurisprudence one would expect from the progeny of a legal-intellectual movement inspired by the Progressives in the late 19th/early 20th century.  That is the broad theme of my dissertation, although I treat the Supreme Court and police power jurisprudence.  So reading these cases and following the legal side has been wonderfully stimulating as I get ready to take a week off from work to bang on the dissertation.

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