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Judicial Legitimacy May Be the Next Hue and Cry


Within hours of the judicial ruling upholding the validity of manual recounts, Republicans launched a full-scale attack on Florida's Supreme Court.

As a result, the already heated debate over who actually won the 2000 presidential election may now take on another deeply divisive coloration--a debate over judicial legitimacy.

In their unanimous opinion, the court's seven justices, six of whom are Democrats, had seemed to go out of their way to protect themselves against precisely that issue. Their decision was grounded on two related bedrock legal principles: that "the will of the people is the paramount consideration" and that Florida's "ambiguous" election laws must be interpreted in a way that does not frustrate that will.

As if they were anticipating the accusation that they were departing from a normal judicial role, the justices stressed that they had "used traditional rules of statutory construction to resolve these ambiguities."

And they carefully avoided the most controversial questions put before them, particularly the hard-fought issue of exactly which ballots Florida's county election boards must count. Instead, they stuck to the most basic issue--that Florida's Secretary of State, Katherine Harris, had abused her power by refusing to accept any recounted ballots after last Tuesday's 5 p.m. deadline.

Harris' position amounted to an attempt to "summarily disenfranchise innocent electors in an effort to punish dilatory [election] board members," the justices wrote. "The constitution eschews punishment by proxy."

But former Secretary of State James A. Baker III, speaking for Texas Gov. George W. Bush, made clear that the Republicans had no intention of granting the justices the moral high ground.

In a late-night news conference in Tallahassee, Fla., Baker accused the court of having "pretty well rewritten the Florida electoral code."

The court, he said, had violated the separation of powers and had "usurped" both the rights of the state's Legislature and its executive branch. Bush and his advisors, Baker strongly suggested, would seek to have the Florida Legislature, which is dominated by Republicans, convene a special session in which they could attempt to pass new laws to reverse the court's opinion.

The justices had "invented a new system for counting the election results," Baker said. "One should not be surprised if the Florida Legislature seeks to affirm the original rules."

While Baker's statement appeared to threaten a broad attack on the court's work, it was also, in one sense, a compliment. Because the justices carefully grounded their decision in Florida's laws and constitution, they left very little room for Bush's lawyers to appeal further.

Baker's strident approach was a distinct contrast to the approach he took Friday morning after Leon County Circuit Court Judge Terry P. Lewis held that Harris had not abused her discretion. "The rule of law has prevailed," a jubilant Baker proclaimed at the time.

The U.S. Supreme Court repeatedly has held that neither it nor other federal courts have the power to alter a state Supreme Court's interpretations of its own state's laws.

Democrats quickly took cheerful note of that. "There is no basis to appeal this to the [U.S.] Supreme Court," said Gore's lead attorney, David Boies. "I would never underestimate the willingness of someone else to file an appeal," he said. But he expressed confidence that "any appeal to the U.S. Supreme Court would be denied."

Asked about that, Baker did little to dispute Boies' interpretation.

With the avenues for further judicial appeal heavily restricted, the Republicans now may have little choice but to try to challenge the court in the political realm.

Whether that apparent Republican strategy succeeds will largely depend on how the broader public perceives the court--as a restrained and judicious body interpreting the law or as a partisan panel trying to rewrite it.

In that debate, reaction to the court's opinion from legal scholars could be an important force in molding public opinion.

Some were quick to praise the justices. "The court is taking charge," said New York University law professor Stephen Gillers, who is a liberal Democrat. "That was the important thing. It was the only Florida institution capable of bringing order to this mess."

"There was no other way we could get as close to accuracy than for the Florida Supreme Court to take control and lay down the procedures," Gillers added. "To say that it doesn't have power, as the Republicans did, is to say that this is a lawless enterprise."

Pamela Karlan, a Stanford University law professor and another liberal voice, took a similar stand. "Baker is so wrong," she said. "What the Republicans are doing is acting as if the statutes contemplate that the Legislature can decide who the electors are. If Baker were right, in theory the majority in a Legislature could decide every election. That can't be the rule."

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