A Legal Recounting

Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit is an intellectual force to be reckoned with. The author, seemingly, of more books written while in active judicial service than many judges are of opinions, he can lay claim to the title of pre-eminent judicial theorist of our time. Nor are his opinions to be lightly dismissed as those of a right-leaning conservative in thrall to the Republican Party. His application of the precepts of the Chicago school of law and economics has led him, for instance, to endorse the right of gays to marry. More recently, he produced a review of the Lewinsky scandal in which he wisely found plenty of fault to go around for all the participants in the sorry spectacle--the President, the independent counsel, the leaders of the impeachment drive in Congress and, not least, the Supreme Court, for its naïve denial of executive privilege in Clinton v. Jones, which set the scene for much that followed. Judge Posner's wide-ranging intellectual curiosity has produced such treasures as an eviscerating look at Janet Malcolm's The Crime of Sheila McGough--a review for which Judge Posner read not only the book but also the transcript of the criminal trial that is the book's subject.

On the subject of Bush v. Gore, Judge Posner's efforts must be counted only partially successful. In the ten months since the Supreme Court settled the 2000 presidential election, the legal and academic community has weighed in with dozens of critical reviews. By and large, they haven't been favorable. The epithets include lawless, posturing, disgraceful, illegitimate, unprincipled, outrageous, partisan, incomprehensible. But Posner has come up with a qualified defense of the Supreme Court's actions in Breaking the Deadlock. Although he makes a fair case that the Florida Supreme Court manhandled the state's election statutes, his effort to justify the US Supreme Court's one-two punch--its December 9, 2000, stay of the Florida court's order directing manual recounts and its December 12 decision to overturn that order at the expiration of the "safe harbor" period, with no remand for further proceedings--fails to persuade.

Judge Posner's ultimate justification--that the Court saved us from ourselves or, more precisely, from the provisions for presidential elections prescribed by the Constitution and enabling acts of Congress--hints at an abandonment of the rule of law in the face of circumstances that were nowhere near as exigent as he suggests.

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