Historians are fond of quoting Lionel Trilling's famous observation that the United States lacks a conservative intellectual tradition and that this vacuum has weakened liberalism, encouraging intellectual smugness and flaccidity for want of a worthy challenge. If Trilling was right, then liberals are in for some lean years indeed. Never has the moral and intellectual bankruptcy of conservative intellectuals been on more prominent display than in the wake of the decision by five Supreme Court Justices to end the 2000 election in favor of their man. So muddled were the Justices' arguments, historian Alan Brinkley noted, that not one of them "command[ed] a majority even of the Court itself."
In embarking on this course in the dead of our political night, Rehnquist, Scalia and their fellow ideologues managed to sever one of the few nonpartisan links between the governed and the governing in our democracy. Witness the rare combination of outrage and sense of personal betrayal on the part of so many of the independent judiciary's most eloquent and devoted defenders–not only Alan Brinkley but writers like E.J. Dionne of the Washington Post, author/attorney Scott Turow, Jeffrey Rosen of The New Republic, Terrance Sandalow, the conservative former dean of the University of Michigan Law School, and Linda Greenhouse and Anthony Lewis of the New York Times, among others. The language of each of those writers, who variously termed the majority decision "grotesque" (Dionne), "judicial lawlessness" (Turow), a "disgrace" (Rosen), "incomprehensible" and "without any foundation in law" (Sandalow), "baffling" (Greenhouse) and a "rush to judgment [with] no credible explanation" (Lewis), serves as a warning that the Court's damage to itself and to our political system may very well outlast any damage "W" might be capable of inflicting on the Republic.
Now, even to discuss the merit of the Court's decision rationally, one must first grant its historic significance: A narrow 5-to-4 majority agreed to prevent a count of all potentially legal ballots in order to insure its man's ability to run out the clock on an arbitrarily imposed deadline. Yet in the world of conservative punditry, the Court's historic election-ending sleight-of-hand was somehow beside the point. 7-2, it's over, was the deliberately misleading headline above a dishonest Wall Street Journal editorial the next morning. The Court, it reported, had allegedly "decided 7 to 2 that the Florida Supreme Court's intervention violated the Constitution of the United States. The High Court ruled that the varying standards of assigning ballot wins, on view to the entire nation for a month, could not pass Constitutional muster." Even with a full day to sort matters out, William Safire could do no better. Writing beneath a Washington dateline but filing as if on Mars, the Times pundit somehow reported that "the whole Court did itself proud"; its alleged "7-to-2 agreement" represented "the product of fine legal minds thinking fast, unafraid of complexity, unsullied by rancor." Washington Post hatchet man Michael Kelly joined in this macarena of meretricious mendacity. Forget the 5-to-4 split ending the election, he advised. "The heart of the court's decision is not found in the fact that five conservative justices ruled to reverse the split decision rendered by four liberal justices on the Florida Supreme Court. The heart is found in two sentences from the majority decision: 'Seven justices of the court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court…. The only disagreement is as to the remedy.'" Thus did the renegade Justices "rescue democracy" in Mr. Kelly's universe.
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The intellectual dishonesty of these statements is so transparent that, pace Lionel Trilling, it embarrasses this liberal to have to point it out. To a man, these pundits attempt to attribute to the dissenters beliefs each one specifically rejected in some of the most unvarnished language ever to emanate from the bench. Could Steven Breyer possibly have been any clearer than to write of the Court's decision, "What it does today the Court should have left undone"? And should David Souter, the seventh member of the conservatives' alleged majority, have used smaller words when writing, "There is no justification for denying the state the opportunity to try to count all disputed ballots now"? Should the Justices have published their dissents in Braille? Broadcast them on Rush Limbaugh or the Drudge Report?
Well, never mind. If there is one sure bet in American politics, it's historical amnesia. Soon the machinations of James Baker, Jeb Bush, Katherine Harris, Tom DeLay and their allies inside the violent mobs of Miami and the velvet robes of the nation's capital will evaporate into the endangered ozone layer. Al Gore has already brilliantly played his assigned role in the new chapter, moving Chris Matthews almost to tears by giving, "beautifully," what the hysterical MSNBC pundit celebrated as "the most prostrate concession speech I've ever heard."
"The vast majority of the people in America," Tim Russert advised, want to wake up and say, "You know, we went through something extraordinary and yet we saw last night the peaceful transfer of power–no troops in the street, no tanks rolling down Pennsylvania Avenue…." Well, if the absence of soldiers seizing cable networks is the ultimate standard of meaningful democratic empowerment, then Russert is right, we're not doing half bad; not up to the standards of, say, the Grecians, but we sure beat the heck out of the Kosovars.
In closing, I leave you with the wise words of Weekly Standard editor William Kristol, who was turned into an accidental prophet by virtue of his magazine's inopportune deadline. Our next President, Kristol wrote, "gained office through an act of judicial usurpation. We will not 'move on.' Indeed, some of us will work for the next four years to correct this affront to our constitutional order…. The best that can be hoped for under such circumstances is that this illegitimately gained presidency will give rise to a determination on the part of the people to resume the burden and the privileges of self-government."
