On the Supreme Court's decision in Bush v. Gore: it's not that I don't appreciate ____'s generosity in attempting to set us all straight; it's just that he doesn't quite get it right. The uncontroverted fact is that the machines that tabulate punchcard ballots fail to read a certain number of ballot markings that a manual recount will show to be intended votes. Both the people who designed the punchcard systems and the machines that read them testified to that. The idea, which Republicans, cable TV screaming heads, and other liars or fools repeated until it was a mantra, that "subjective" standards are inherently inferior to "objective" ones, is silly. The law requires fact-finders to make "subjective" judgments all the time, including, as here, from physical evidence. A mechanical rule that says that NO unperforated chads should be counted would be as untenable as one that required that they ALL be counted. Some may look like the Matterhorn, others will have indentations that are barely noticeable. Of course, at the margin, there may be some small number of votes that reasonable people could judge in opposite ways. Those problems could be determined by a single official in every county, or any one of a number of other common-sense arrangements.
However, the idea that any of this even approaches the magnitude of a violation of the Equal Protection Clause is almost foolish. The dissents by Stevens and Ginsburg deal with this, though not as expansively as they might. Ginsburg cites Lee v. Williamson Optical, which is highly relevant (pardon my BLT – boring lawyer talk). Equal Protection doesn't prevent all government acts that result in instances of treatment that are arguably non-identical. In a sense, discrimination – in the sense of identifying problems and addressing them in particular ways and particular places – is the essence of legislation. The views of Breyer and Souter on this are unrequited concessions, I would guess. These men know better. Their dissenting opinions, at least, are intellectually serious works. For another discussion, see the amicus brief submitte in this case at www.brennancenter.org at pages 18-21.
The Gore campaign was willing to go along with a statewide recount to which Bush would agree, but, it is true, Gore didn't demand it. It wasn't legally required. It might have been a better legal strategy, though there were political and self-serving arguments against it too. Was Gore just interested in winning? Did Gore have any commitment to a principle here? Let's just say that, under these circumstances, those two coincided. Would Bush have won a statewide recount? I have no idea. Judging from events, perhaps he didn't think so. Bush clearly feared what was in those four counties' undervotes, and did all he could to prevent their being counted, on which score the Supreme Court rescued him.
Which brings us to the real point. Although I've come to generally dislike hyperbole (three guesses why), I wouldn't refrain from saying that the Supreme Court's decision here is an abomination – thin, intellectually dishonest, inconsistent with precedent and with the views of the five who backed it, incapable of acting as a guide to future decisions (as they openly admit). The only thing I can say for it is that the concurrence signed by Rehnquist and the two others was even worse. The decision to grant a stay, which halted the recount, was, as Stevens said in dissent, simply off the charts.
Obviously, many people raised the future of the Supreme Court as an argument against Nader's candidacy. For me, there was sufficient other reason to oppose Nader – though until he went off the deep end in some of his rhetoric, I would have considered it a fairly close call. But this kind of travesty by the Court makes the standard argument against Nader's candidacy seem more weighty than ever. Senate Democrats will probably cut Bush very little slack in the consent process, as well they should.