He's George W. Bush's favorite Supreme Court justice -- though W. calls him "Anthony Scalia," obligingly Anglicizing his foreign-sounding first name. On Saturday, Justice Antonin Scalia showed us why with his aggressive, unusual statement defending the court's 5-4 decision to halt the manual recount underway in Florida while the high court considered Bush's appeal.
Bush needed to prove he'd suffer "irreparable harm" if the court didn't act immediately to stop the hand counts, and against all predictions, a majority of the justices agreed that he would. Such decisions don't usually come with an opinion, but Scalia felt compelled to explain his reasoning anyway, in response to a strong dissent from Justice John Paul Stevens. "Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires," he intoned.
Of course, act first and listen to the legal arguments afterward is not exactly a recipe for producing a Supreme Court ruling the public will trust, either. It's clear there is no recipe for selecting a president out of this unprecedented mess that partisans on both sides will embrace. But public trust is most severely threatened by the court's foray into politics, this time on the side of Bush.
Twice in two days, two different Supreme Courts did exactly what the experts predicted they wouldn't. Friday, Florida's high court reversed Circuit Court Judge N. Sanders Sauls' decision rejecting Vice President Al Gore's election contest, and delivered up the innovative (not usually a compliment, in legal terms) solution of a statewide manual recount of so-called undervotes -- ballots that didn't show a vote for president, or at least not one that could be perceived by a machine count.
Then Saturday, the U.S. Supreme Court abruptly halted the recount, after an array of experts insisted that though the court might ultimately rule for Bush, a majority of justices would be hard put to find he'd suffer "irreparable harm" if the recount continued.
The two surprise verdicts prove the uncertainty of the legal terrain we're on in this election, of course, but they also show that the hotly disputed facts in the case can't be viewed with a lens utterly clear of politics. Clearly the "election results" Scalia is most worried about are manual recounts that could taint a Bush victory, and that's precisely what's still in dispute.
With our desire for Supreme Court salvation, we're a little like W. as parodied by "Saturday Night Live," frantically clamoring for the "grown-ups" to intervene. "Who's gonna play daddy?" Chris Matthews shouted on "Hardball" two weeks ago, before the first U.S. Supreme Court hearing. The sexism of the question bothered me less than the naive yearning for protection, for someone to come in and break up our childish and irrational national brawl. In fact, Scalia's tough statement should remind those seeking a "daddy" that while most daddies are wise, some are capricious bullies.
There can be no rescue from on high. The increasing partisanship of the past two decades has of course reached the high court.
Scalia, though a justice, is only human. Media reports have described him as "depressed" and anxious to retire, though he's only 64, because he's bitter that he has not been able to forge an impregnable conservative majority on the court. A Gore victory, of course, dooms him to an additional four years at least, since the Democrat would get to appoint his replacement if he retires.
Meanwhile, left-wing court watchers are apoplectic because Scalia's son Eugene is a partner in the same law firm as Theodore Olson, who is arguing Bush's case before Scalia's court. Olson has defended the Republican Party's most indefensible causes -- from Iran-Contra through impeachment. The observers demand that Scalia recuse himself from the case, almost unheard of on the court and not about to happen here.
But is Scalia's son working for Olson's firm any more worrisome than having a Bush family factotum, Florida Secretary of State Katherine Harris, certify his Florida election victory -- or having his brother ready to preside over the Florida Legislature's usurpation of power when it names a Bush slate of electors this week?
Maybe most disturbing about the Supreme Court's stay is that it delivered us into what one wag called "court-imposed ignorance." We were within 24 hours of knowing who won the hand count, which by all reports was proceeding rapidly. And ironically, it's possible the recount could have widened Bush's lead. But we were probably going to learn what we already know: that Bush and Gore finished almost dead even, in a statistical tie. Even if Gore moved ahead on the hand count, his lead was likely to be as slim as Bush's, well within the margin of error to be expected with any kind of a vote recount. Either man will assume office with a vocal minority declaring his election to be theft.
That's why the Supreme Court's action Saturday was so dangerous. As impossible as it may be to obtain, the country yearns for an election solution untainted by partisan prevaricating. We've already endured far too much logical inconsistency, intellectual dishonesty and outright lying. How many times does steely Bush fixer James Baker get to insist we can't let courts decide elections -- ignoring that the Bush camp was the first to go to court, after Gore demanded a recount he was legally entitled to -- and then praise the court decisions that favor his employer?
How can the Bush legal team declare that differences in the way counties counted ballots violate the Constitution's equal protection guarantee, when at least four Republican counties conducted their own manual recounts of the undervotes, awarding hundreds of new votes to Bush, during the state-mandated recount? And why doesn't it matter that the threat of a Republican lawsuit on the issue of disputed military absentee ballots forced hapless counties to accept disputed ballots that were faxed in and that had no postmarks and other problems -- ballots that were clearly not legal but gave Bush an additional 150 or so votes, which could well be his margin of victory?
In this environment, the sight of a Supreme Court majority that has consistently defended state sovereignty rebuking a state Supreme Court is hard to interpret as anything other than politics. Still, it's possible that upon hearing oral arguments in the case Monday, the court will find a way out of the partisan mess it embroiled itself in Saturday. In his statement, Scalia warned darkly that "the issuance of the stay suggests that a majority of the court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success." That sounds more like political hardball, or "Hardball," than judicial wisdom, an attempt to put a fat partisan finger on the scales of justice.
It's still possible the court can find a solution to the election stalemate that the nation can trust, even if the decision favors Bush. But Scalia made it harder, acting like a bullying daddy, not a wise one. Let's hope his colleagues ignored his not-so-subtle pressure and listened to the arguments. And when they do decide, let's hope the opinion has a constitutional girding we can have faith in, if not completely agree with.
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