The left-liberal reflex reaction to Bush vs. Gore will not be challenged widely in the academy, though the decision is no more vulnerable to criticism than many of the cases that liberals cherish.... Surrounded by the like-minded, browsing comfortably in a herd, implicitly defining a narrow channel of left liberalism as the mainstream, many professors of constitutional law have become dogmatically complacent. Their conversational community is an echo chamber. They utter as truisms what a detached observer would recognize as prejudices.
—Judge Richard A. Posner, Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts.
A familiar feature of contemporary political debate is the eagerness of many academic intellectuals to volunteer their analyses and opinions to the nation's television talk shows and other media outlets whenever a major news event unfolds. The most recent and remarkable example was the cascade of commentary, much of it furious to the point of frenzy, castigating the December 12 Supreme Court decision that stopped the vote recounts in Florida as an exercise in unprincipled Republican partisanship—even "a coup d'état."
Expert scholarly commentary on complex public controversies can be of great value in fostering public understanding and perspective. But there is a problem with the commentary offered by many, perhaps most, of the professors who vie for airtime and op-ed space in these times.
The problem is not that the vast majority of them have political views well to the left of center of public opinion. Liberal views (which I share on some issues) can and sometimes do co-exist quite happily with scholarly perspective, candor about complexities, a sympathetic understanding of contrary views, and intellectual honesty. Besides, there are enough articulate conservatives around to provide ideological balance for news outlets that seek it.
The problem, rather, is that so many "analyses" by the most visible liberal academic commentators derive not from expertise but from political partisanship, exude not scholarly detachment or respect for facts, law, and logic but rather emotionalism, a smug sense of moral superiority, and thinly veiled indifference to principle.
This charge—lack of intellectual integrity—is, of course, a dominant theme in the attacks on the five conservative Justices who ended the Florida recount. They would have taken the opposite position, the standard punch line goes, had it been George W. Bush rather than Al Gore who was seeking recounts. (The same can be, but rarely is, said of the Court's liberals.) This critique is plausible: The conservatives' creativity in breaking new constitutional ground to rule—right or wrong—for Bush is not easily squared with their wooden deference to equally indefensible state court decisions upholding legally flawed death sentences, for example. But a more charitable interpretation is also plausible, for there were ample reasons other than Republican partisanship for putting a stop to the Florida Supreme Court's chaotic, transparently unreliable, and egregiously biased recount.
On the other hand, it is almost certain that had it been Bush who was seeking recounts, many of those who most harshly assailed the Justices—notably Bruce Ackerman of Yale Law School and Ronald Dworkin of New York University Law School—would instead have been praising their wisdom. The same is true, I suspect, of most of the 554 law professors who denounced Bush vs. Gore in a newspaper ad displaying all the expertise of a bumper sticker—"a gesture of solidarity masquerading as a statement of professional expertise," in the words of Judge Richard A. Posner of the federal appeals court in Chicago.
Posner's Breaking the Deadlock, which expands on a law review article and is to be published electronically through Amazon.com on June 19 and in hardcover this fall, dissects some of the inaccuracies, distortions, and surprisingly shallow understandings of the legal and factual raw material displayed by many other strident critics of Bush vs. Gore. Arguably the most accomplished legal scholar of the past half-century, the prolific Posner knows his academics well: He has taught at the University of Chicago Law School for decades and has made similar critiques in other writings, including An Affair of State, his 1999 book on the Clinton impeachment saga.
Is the Reagan-appointed Posner just a conservative playing the same partisan-advocacy game that he deplores? Well, he notes that he has no "sympathy for the approaches typically taken by conservatives to issues of constitutional interpretation," and that "I am not an 'originalist' or a 'textualist.' " To the contrary, he favors the "pragmatic" approach (which others might call the liberal approach) of stretching the text and original meaning of constitutional provisions to achieve "better consequences for society." He says that he "didn't have a strong feeling about the candidates" last year. He has split with conservative colleagues by striking down curbs on "partial-birth" abortions. His 1999 book disdained the "sexual Puritanism" of "moralistic conservatives."
Breaking the Deadlock points to numerous flaws in the opinions in Bush vs. Gore (while noting how hard it is to write a good judicial opinion in so little time). It dismisses as "tatterdemalion" the views of seven Justices—including moderate liberals Stephen G. Breyer and David H. Souter as well as the five conservatives—that the Florida court had violated equal protection (or perhaps due process) by mandating manual recounts skewed by inconsistent chad-counting standards. It punctures a Republican myth by asserting that a majority of Florida's voters "thought they had voted for Gore" and that Gore might have won if all Florida counties had used voting machines more accessible to "people of limited literacy."
Still, Posner argues, the result in Bush vs. Gore was on balance the best outcome for the nation. And it could persuasively have been based on the argument—sketched in the concurrence of Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas—that the Florida Supreme Court's recounts so clearly flouted the letter and intent of Florida's election laws as to violate the U.S. Constitution's previously obscure provision (ArticleII, Section 1) assigning to each state's "Legislature" (not courts) the power to determine the manner of choosing presidential electors.
Posner demonstrates quite irrefutably that the Florida Supreme Court "butchered" the election code in its two decisions by making no fewer than eight separate "grave legal errors," all of which could only help Gore, to engineer a rushed manual recount that was "tainted with partisanship" and was less reliable than the two machine counts that Bush had already won. By using sometimes "bizarre" reasoning to "chang[e] the election rules after the outcome of the election," Posner suggests, the Florida court behaved like "a banana republic."
Even so, he concedes, a case can be made that the Supreme Court should have deferred to the Florida court's "interpretation" of Florida law, or held that the dispute raised a "political question" committed by the Constitution to Congress, instead of wading in with a decision so "undoubtedly activist, in adopting a bold, novel, and expansionary interpretation of federal judicial authority over the electoral process" that some pro-Bush conservatives found it difficult to defend.
But Posner shows the Justices had good reason for concern. Ending the recount was the only sure way to avert a possible crisis that might leave it unclear until after Inauguration Day whether Bush or Gore would take office, and thereby cripple the eventual winner's presidency. "What exactly is the Supreme Court good for," Posner asks, "if it refuses to examine a likely constitutional error that if uncorrected may engender a national crisis?"
What Posner makes most compellingly clear is that this case was too difficult and too debatable as a matter of constitutional text and precedent for there to be any "one correct decision." This has so far eluded those professors who confine themselves to "an intellectual diet starved of fact," who are driven by abstract theorizing anchored in political and ideological dogma, and who have "become flabby [because] they have no attackers"—or few—"to put them on their mettle."
This book has flaws. Posner is too quick to dismiss the arguments by Justice Breyer and others (including me) that the Court should have thrown the dispute into Congress as a "political question." He is too facile in deriding the seven-Justice equal-protection ruling, which has been cogently defended by legal scholars such as Nelson Lund of George Mason University and even (privately) by a key Gore lawyer. And he could have used more editing.
Not all critics of Bush vs. Gore are as shallow and partisan as those eviscerated by Posner. But the serious critics have, unfortunately, been drowned out by the thundering of the partisan herd.