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.
In order to accord Judge Posner’s analysis the fair hearing it is due, we must begin with a recapitulation of the underlying legal events. Two rounds of litigation are at the heart of the story. The first of these originated under the Florida elections code as a protest proceeding brought by the Gore camp to demand a manual recount in four counties after Katherine Harris, the Secretary of State, had certified a victory for Governor Bush. The basis of Harris’s administrative action was a statutorily mandated automated recount, triggered by the neck-and-neck tally upon the close of the polls, that showed Governor Bush in the lead by 327 votes out of the nearly 6 million cast in the state.
On November 21, 2000, in a judicial-review proceeding brought in the trial court in Tallahassee to challenge the secretary’s ruling, the Florida Supreme Court held unanimously that a discrepancy between the machine count and a subsequent hand count amounted to an error in vote tabulation warranting a full manual recount and that the controlling Florida election statutes were in internal conflict on two critical issues: (1) the open-ended date for completion of a manual recount requested by a candidate under Florida statute § 102.166 could not be reconciled with the seven days after the election mandated under §§ 102.111 and 102.112 for submission of the completed count to state officials; and (2) the mandate in § 102.111 that the state electoral officials shall ignore late-filed county returns could not be reconciled with the permission in § 102.112 that they may do so. The Florida court concluded that in order to give effect to the county boards’ authority to undertake properly demanded manual recounts, the secretary must accept returns filed before the close of business on November 26–in effect, a twelve-day extension of the statutory deadline.