The Purloined Presidency

Thinking about how Democrats should treat the new Bush administration, let's consider what Bob Dole would do if he were in our shoes.

A scant eight years ago, after all, Bob Dole was in our shoes. As the Senate minority leader, he headed the opposition to a newly elected president. Bill Clinton chugged into Washington having dispatched a sitting president by a 7 percent margin--with hefty Democratic majorities in both houses of Congress--and claimed a mandate for universal health insurance and welfare reform.

Dole, however, would have none of it. The new president had not received 50 percent of the popular vote, he pointed out, and Republicans still had enough senators to filibuster anything that smelled of big government. And Clinton had won only because Ross Perot had split the conservative vote. Throughout Republican ranks, moreover, there was already ominous rumbling about Clinton's legitimacy. No one argued that he hadn't won the election, but the very thought of this over-age '60s kid who'd ducked the Vietnam War moving into the White House was on its face repugnant. So Dole set out systematically to thwart almost every initiative that the new president proposed.

Putting on our Bob Dole thinking caps, then, how should we Democrats respond to the election of George W. Bush? W.'s margin of victory, in popular votes, is roughly a negative 350,000. His party lost its majority in the Senate, saw its margin in the House scaled back to single digits, and gave up several state houses to the Democrats. Al Gore and Ralph Nader won a combined 52 percent of the popular vote, and the exit polling shows that the public preferred Gore's positions to Bush's on taxes, Social Security, health care, and education. Congressional Democrats today are far stronger numerically than Bob Dole's Republicans were in 1992; their claim to a mandate is clearly stronger than that of Republicans then--or, for that matter, Republicans now.

So the proper response for Democrats to the incoming W. is what? To find common ground with him? It is churlish, says the talking-headocracy, to point out he has neither mandate nor majority, and dangerous to point out he has no legitimacy. Precisely because his victory was so questionable, the national interest requires that the questioning cease.

Our inner Bob Dole would heartily disagree. Churlish isn't the end of the world. I was churlish; now I'm on Comedy Central, get lots of laughs. So forget this common-ground stuff. What common ground? Junior is still talking about privatizing Social Security and changing Medicare into a voucher plan. Him and whose army? He's gonna raise retirement age to keep Social Security going while we fund these private plans for yuppies? You don't want to oppose that? Did I miss something? And what's the problem going up against this guy on behalf of clean air, trade agreements with worker protections, and everything else you believe in that's actually popular? Besides, didn't Junior get his old man's judges to steal the election for him?

George W. Bush comes to power only by virtue of an astonishing assault on popular sovereignty in America and the laws that protect it, and it is this fact that properly delegitimizes his presidency-to-be. Simply to "move on," to treat his presidency as rightful, would be bad politics in the Bob Dole sense, but it would also be a disservice to democracy, which has been kicked around shamelessly in order to ensure W.'s victory.

The election of Bush required the Supreme Court to sink to a level of, well, lawlessness in order to stop the counting of votes. Before it heard George W. Bush et al. Petitioners v. Albert Gore, Jr., et al., no one could say that the Court had ignored and distorted the law solely to benefit one political party and its candidate. At its worst, the Court had codified our fears or routinely had done the bidding of business as a class. But at no time did it simply do the bidding of a candidate it preferred, and it most certainly never did the bidding of a candidate in order to make him president.

But that was before the Court's decision--breathtaking in its intellectual dishonesty--that bestowed the presidency on W. Now, the relationship of the U.S. Supreme Court (more precisely, of its five right-wingers) to W. is roughly analogous to the one that existed between the Yugoslav Supreme Court and Slobodan Milosevic. The justices go through the motions of deciding matters of law, but their only real goal is to keep--or in this case, put--their guy in power.

Consider, for instance, the shifting grounds on which the Court first stayed and later invalidated the recount that the Florida Supreme Court had ordered. In the initial order staying the count, Justice Antonin Scalia offered three reasons: First, he questioned the legality of the count as such, on the theory that the Florida Supremes were illegally altering the legislature's statutory handiwork. Second, he said, the varying standards for recounting were improper and perhaps unconstitutional. And third, the act of recounting could "produce a degradation of the ballots [that could] prevent an accurate recount from being conducted on a proper basis later."

Look at the Court's subsequent Tuesday-night decision, however, and you'll have a hard time recognizing Saturday's rationales. The argument that the Florida court overstepped its bounds and was making new law is not part of the majority opinion; it is relegated to a concurring opinion signed only by the Court's three hard-right members--Scalia, Justice Clarence Thomas, and Chief Justice William Rehnquist.

Reason number two, the disparity in the counting procedures, has been elevated to the main reason for overturning Tallahassee, since that court's decision amounts to a violation of the 14th Amendment's Equal Protection Clause. No longer excoriating the Florida Supremes for usurping too much power from the legislature, the Court's indictment against them abruptly shifts its focus onto their failure to do even more to clarify the legislature's muddled vote standards. "The formulation of uniform rules to determine intent based on these recurring circumstances is practicable and, we conclude, necessary," the decision reads. Conveniently, the Court concluded that this couldn't be done before the December 12 deadline, a date that loomed larger in the five justices' constitutional calculus than the right to have one's vote counted. (And a date to which no one else seemed to pay much heed: Only 29 states had actually sent their list of electors to the National Archive by then.)

Which brings us to Justice Scalia's third justification for Saturday's stay: that it would keep the ballots in better shape for a proper count. In Tuesday's ruling, of course, Scalia was one of the justices who rejected such a count because there wasn't time for it. From the intellectual leader of American judicial conservatism one expects duplicity of a higher order than this.

There are higher kinds of duplicity in the majority's Tuesday decision--arguments that contradict everything the justices normally stand for but that had to be made in order to stop the count. The Rehnquist-Scalia gang, for instance, has penned a succession of controversial five-to-four decisions over the past half-decade asserting the rights of states over the federal government. Confronted with a state court routinely implementing a state recount law, however, they suddenly found merit in federal pre-emption, since in this case a state's control of its own election could have led to a W. defeat. "Were the other members of this Court as mindful as they generally are of our system of dual [that is, federal-and-state] sovereignty," Justice Ruth Bader Ginsburg wrote in dissent, "they would affirm the judgment of the Florida Supreme Court."

The other about-face that Rehnquist and Company were compelled to make for W.'s sake was their sudden embrace of the Equal Protection Clause. Until Tuesday, they maintained their resolve not to invoke that clause to, say, protect the right of gays to serve in the Boy Scouts or the U.S. Army. But the threat that variances in vote counting posed to W.'s lead was something else again; it was an affront, Rehnquist movingly noted, to "the equal weight accorded to each vote and the equal dignity owed to each voter."

Rehnquist is something of an authority on the equal dignity owed to voters, since few living Americans have done more to attack it. During the 1986 Senate hearings on his nomination to the post of chief justice, a number of witnesses testified that Rehnquist had harassed black and Latino voters at Arizona polling places in 1962, demanding to know if they were "qualified to vote." Rehnquist acknowledged that he'd headed a Republican program that briefed the "challengers," but he disputed five eye-witnesses who insisted they'd seen him doing the challenging himself.

It's gratifying to see that Rehnquist has mellowed. Forty years ago, he actually tried to keep minorities from voting. Now, he merely keeps their votes from being counted.

Not just the reality but even the idea of suffrage came under fire during the conservatives' drive to make Bush president. During the first round of U.S. Supreme Court arguments over the Florida court's extension of the time for recounts, Scalia asserted that "there is no right to suffrage [in presidential elections] under Article II" of the Constitution--that is, state legislatures have given their citizens the right to vote in presidential elections and can take that right away. In the days that followed, right-wing constitutional scholars elaborated on Scalia's point in making the case that the Florida legislature had the right to appoint its own slate of Bush electors. But until Scalia raised the point, no attorney for W. had argued that the Florida Supremes had erred in assuming a constitutional bias toward suffrage. With the Gore folks constantly intoning, "Let every vote count," it hardly seemed politic for W.'s guys to respond, "Actually, there's no right to vote for president." That kind of argument, repeated often enough, just might dim the luster of W.'s appeal for votes during his next presidential campaign.

W. and his party are in deep political trouble already because of how they have clawed their way to power. "The popular perception is that Gore won the popular vote and that he would have won it in Florida if the legal system had let it be counted," says veteran Democratic consultant Bill Carrick. "As we get more perspective, as we can see this story whole--with minority voters disproportionately unable to have their votes counted--it will look worse and worse. The Democratic base will feel, rightly, its vote hasn't been tallied; this could be the national equivalent of what former Governor Pete Wilson accomplished in California by backing Proposition 187. It will energize the base and make it more Democratic, beginning two years from now--and an energized base is more important, more powerful, in a midterm election than a presidential one."

More precisely, it will energize the party base unless too many Democratic elected officials are taken in by the blather about the importance of putting aside principle and uniting behind our new president.

Even before it commences, the Bush presidency has undermined both the rule of the people and the rule of law--democracy's twin pillars. To read the opinions of the four dissenting justices in Bush v. Gore is to see how stunned, how shaken, they are by the duplicity in which their colleagues have engaged to subvert the workings of democracy. Each writes in a tone of furious, wounded disbelief, and none more so than the 80-year-old John Paul Stevens. "Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear... . It is the Nation's confidence in the judge as an impartial guardian of the rule of law."

Taken together, the four dissenting opinions from these politically moderate jurists make unmistakably clear their belief that the five justices in the majority twisted, flouted, and mocked the law to make George W. Bush president. Entering into even the loosest kind of bipartisan coalition with his administration would not only damage Democratic prospects but dishonor democratic principles. Stole it, croaks our inner Dole. Stay away. ¤

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