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Friday, October 23, 2009 08:40 PM

@Joan

Just another brief word on the litigation, for general edification. I watched it pretty closely and remember the details.

At the last go-round, Gore wanted a state wide count. It wasn't clear cut that he was entitled to it, and there was a lengthy trial at the lower court level resulting in a ruling in Bush's favor. That went on direct appeal to the state supreme court, which reversed by a vote of 4-3. Earlier, the state high court voted 7-0 to reverse a decision by the gal with the heavy make-up against an initial set of select county manual recounts.

Okay, even tedium. The drama in the last hearing came from the fact that the chief judge asked: in light of the fact that the Republican legislature, in its sole and incontestable authority, has just declared Bush to be the winner by a future date certain, and there is no possible way we can finish a final state count before that future date arrives, what's the point? And, don't you need to enjoin the legislature's deadline? And, if so, what authority do you have for doing that? It's tricky for courts to order legislatures around, on the substance of an issue like this.

Gore's legal team ducked, and said: just give us the count, and we'll sort it out. That's why the chief judge joined two colleagues in voting against Gore, and it was the point the U.S. Supreme Court adopted in shutting the process down.

* * *

And now, for the irony moment. The weekend of the final counting, Antonin Scalia wrote an opinion to actually freeze the recount pending issuance of the Court's ruling. Why? Because he conceded it would probably help Gore, and thus undermine the legitimacy of the ultimate winner, Bush. He was wrong about the hypothetical results.

Why ironic? Because Scalia severely criticized the Court in Casey in 1992 for imposing political judgments on the abortion question, comparing it to Justice Taney and his politicing over slavery in Dred Scott v. Sanford. Scalia should have let the counting go on through the weekend.

If it showed Bush doing well, that would have actually helped him, over time. And if it didn't, the public could have exorcised its anxities over the results then. Shutting it down only made things worse -- though it wouldn't have changed the outcome, for reasons noted earlier.

Friday, October 23, 2009 08:25 PM

@Uncle Fester

It wasn't going there. If the Supreme Court had not acted, the Florida legislature had pre-certified the "third" count winner (Bush) as the person entitled to the electors. It was over and done.

The biggest suspense came at the last Florida Supreme Court hearing when Gore's lawyers were asked if they sought an injunction against the legislature's deadline. They said no. The case ended at that moment.

The rest was an epilogue.

Friday, October 23, 2009 07:57 PM

The Supreme Court did not make Bush president

It voted 7-2 to require a uniform approach to the Florida re-count procedure.

Five justices observed unremarkably that under the time table established by the Florida legislature and courts for the certification of electors, there was no time left to complete a fourth count.

(The first three being the election day count, the machine recount, and the select county-by-county counts requested by Gore and completed before final litigation over a final state-wide count).

Every newspaper to subsequently review and count the ballots concluded that under any available 'chad' counting methodology, George Bush would have won.

There was a wrinkle, of course -- the butterfly ballot in West Palm Beach. But that wasn't part of the ultimate litigation. There was no way to remedy the bogus Buchanan vote. Gore lost that one early in court, and had no successful appeal.

In truth, Gore won. But you can only count ballots, not subjective intent. Every single ballot count -- actual and hypothetical -- supported Bush's win.

Friday, October 23, 2009 04:17 PM

@joedavola

I used the term "pied noir" to connote what I understand to be the most common definition: French ethics who returned to France after DeGaulle ended the Algerian war.

You mentioned Afghans. Will our loyal friends be evacuated, in the event of a retreat? It seems like an academic question, because I don't think a retreat will happen. The smart money seems to be that the president will escalate, but wait until after the November elections to do so -- it's fund raising season for him. War is bad for liberal fund raising. (And no, contra Cheney, I don't think that endangers the troops -- at least I hope not).

Speaking of elections, it must be nice for the president to be welcomed into two big races. My heroine was disinvited from both, and so went out and splashed into a different race instead. I certainly got my money's worth, re: an impactful PAC donation.

Friday, October 23, 2009 04:18 AM

@Uncle Fester

I was defending your man a little against Cheney, noting that the Philippine decision was just as wrenching for McKinley.

Our commitment there took forty years to pay off. Imagine if the Germans (the next closest naval rival in Manila) had taken the islands instead, and held them through the next two axis conflicts.

We need a similar long view on the Middle East. We're there now; we're heavily invested; and we have a decent prospect for success. I would say: let's try to finish the job as best we can.

This isn't DeGaulle in Algeria, where the pied noir can simply come home. The people we're affecting will stay, and the region will likely be significant for a long time to come.

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