Richard,
I think you're correctly persuaded that the holdings of the slim majority
(5/4)  was "formed by fitting the law to the desired result".   Justice
Stevens was particularly scathing in his dissent on this very point.   The
5/4 alignment was pretty much according to political leaning, with the
fervent states rights advocates (Rehnquist, Scalia, Thomas, and O'Connor)
curiosly abandoning federalist legal tenets to interfere in a state matter.

These 5 had to fabricate some basis for this interference, for under the US
Constitution, the President of the United States is elected not by the
people directly but by a group of electors (the so-called Electoral College)
and the manner in which these electors are to be chosen by the individual
states is put into the hands of the individual state legistlatures The US
Constitution puts it in their hands. In other words, the citizens of the
country have no explicit right to vote for the President; they have the
right to vote for electors only to the extent that the individual state
legislatures have determined that the electors will be chosen by popular
vote.  The right of citizens to vote for President, indirectly by voting for
electors, is a state-granted privilege, not a right.

Each state has a varying number of electors. Densely populated states have
considerably more electors than do sparsely populated states, but the ratio
is not perfectly according to population, so that less populous states have
more electoral clout than they would otherwise get if the formula simply
followed the population numbers.  Some states yield all of their electors to
the presidential candidate who wins the majority or a plurality of the
popular vote, while others divide their electors among Presidential
candidates on a pro-rata basis.  The state legislatures are empowered by the
US Constitution to decide how to go about this apportioning. Voting is a
state affair.

But in attempting to fabricate a reason to get involved, it was vaguely
asserted by these justices, most notably by O'Connor in her questioning
during the oral argument, that the election of the President of the United
States is not really a state affair.  It has some sort of special federal
status that sets it apart from other elections within the state.  She
referred to this status in rather fuzzy terms. You may recall her "red flag
waving" remarks. The second leg of the argument for their getting involved
was the diverse manner in which the manually examined ballots were being
evaluated; this lack of uniformity constituted a violation of the right of
equal protection under the US Constitution.  Even two of the liberal judges
joined with the 5 on this issue, but those two felt that there was indeed
time in which to remedy that particular problem, whereas the 5 majority said
that time had run out and there was no opportunity for remedy.  Had not
Scalia et al granted the stay, which halted the manual counting, there would
indeed have been time to remedy the lack of uniformit, and we could probably
have reached a point where the disputed ballots were so few in number that
no matter how they were evaluated, who they went for, it would have made no
difference to the outcome, which would have been decided by a vote count and
not by judicial fiat.

Finally, the deadline of December 12th is not clearly a deadline.  The
Constitution instructs the US Congress to accept the electors sent by the
state if the state has determined who the electors will be by December 12th.
There is nothing in the US Constitution which prevents the Congress from
accepting those electors if their identity is not determined until after
that date.  Neither is there a clear guarantee to the states that they have
a right to this so-called Safe Harbor.   Many constitutional scholars regard
the safe harbor provision as an instruction to Congress, not an explicit
granting of rights to the states.

In insinuating itself into this election in this manner, the US Supreme
Court actually found itself taking an ACTIVIST role, something those 5
"strict constructionists" normally excoriate.  The law of the land, the US
Constitution, already has in place a path for such a dispute to take: the
matter could have gone to Congress if there had remained a dispute as to who
won the election in Florida after the manual count had been completed.  The
Supreme Court should not have issued the stay. The Court should have simply
focused on the ballot assessment standards. And the Florida Supreme Court's
first ruling should not have been reversed. It was indeed a "garden variety"
attempt to reconcile conflict in state law. The 5 members of the US Supreme
Court who pushed this decision through contravened their own principles of
jurisprudence.

Tim Romano



----- Original Message -----
From: "Richard Edwards" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Friday, December 15, 2000 2:42 PM
Subject: Re: USA elections


> Tim,
>
> My question was probably a bit too rhetorical (and not terribly
> well-informed, as I was unaware of the system of ratifying appointments in
> the Senate; I thought seats on the court were in the president's gift).
>
> I read somewhere that O'Connor is reported to have told friends that the
> only reason she hasn't retired is that she doesn't want to be replaced by
a
> Democrat nomination. Is this to be believed?
>
> I guess my point is that I find it odd that judges whose party political
> sympathies are not only known but were generally the reason why they were
> appointed should find themselves able to sit on a case with party
political
> ramifications.
>
> Although I'm not learned in the law of the US I'm persuaded by Ginsburg's
> opinion that the majority view was formed by fitting the law to the
desired
> result rather than the other way around.
>
> Richard Edwards
>
>
> >From: Tim Romano <[log in to unmask]>
> >Reply-To: - Ezra Pound discussion list of the University of Maine
> >    <[log in to unmask]>
> >To: [log in to unmask]
> >Subject: Re: USA elections
> >Date: Fri, 15 Dec 2000 09:35:30 -0500
> >
> >I don't think there's cause for all 9 of the justices to have recused
> >themselves. But Scalia, whose son works for the law firm representing the
> >Republicans in the election cause, and Thomas, whose wife would have
rather
> >direct ties with an incoming Republican administration, had compelling
> >basis
> >on which to recuse themselves.  On what grounds would you expect Kennedy,
> >O'Connor, Rehnquist, Stevens, Breyer, Ginsburg, and Souter to have bowed
> >out? Their nominations to the court were all ratified by the Senate.
> >
> >Tim Romano
> >
> >
> >----- Original Message -----
> >From: "Richard Edwards" <[log in to unmask]>
> >To: <[log in to unmask]>
> >Sent: Friday, December 15, 2000 9:08 AM
> >Subject: Re: USA elections
> >
> >
> > > Remember the fiasco in the UK when a Lord of Appeal hearing the
Pinochet
> > > case omitted to declare his association with a charity connected with
> > > Amnesty International, which had been permitted to intervene in the
> > > proceedings to make representations in favour of extradition? The
House
> >of
> > > Lords ruling, to which Lord Hoffmann was a party, had to be rescinded
> >and
> > > the whole thing gone through again with a differently constituted
House.
> > > (The second time around they again ruled in favour of extradition but
on
> > > narrower grounds).
> > >
> > > Surely on this principle all nine members of the Supreme Court in Gore
v
> > > Bush should have recused themselves?
> > >
> > > Richard Edwards
> > >
> >_________________________________________________________________________
> > > Get Your Private, Free E-mail from MSN Hotmail at
> >http://www.hotmail.com.
> > >
> > >
>
> _________________________________________________________________________
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>
>