Monday, October 21, 2002

Kausfiles points out that controversial Bush nominee M. McConnell wrote an opinion of the Gore v. Bush SC decision that was not entirely favorable to Bush's side. Kaus quotes McConnell saying, "the Supreme Court held that there should be a recount, but there is not time enough to do it. That leaves Bush as president not so much by the will of the electorate, but by default." McConnell favored different reasoning, which would have also Bush the winner. (Actually, just about any reasoning would have been likely to make Bush the winner.)

I think McConnell's statement is factually incorrect. I'll have to recheck the opinions, but I don't think that any of the nine SC justices said that there should be another recount or gave any rationale for why another recount should take place. Stevens and Ginsburg wanted to permit the Florida to do what it wants, on the theory that there aren't sufficient federal issues for the SC to intervene. Souter and Breyer said that the proposed Florida recount was unconstitutional, but maybe it could be corrected by an alternate recount scheme. Scalia, Rehnquist, and Thomas said no additional recounts were lawful. O'Connor and Kennedy said that the Florida partial manual recount was unconstitutional, and no alternate scheme was practical. Even if an alternate scheme were practical, it might not be constitutional either.

Thus four justices would permit a recount, if they could agree on how it might be done (and they could not). But no one actually said that a recount should be done because the circumstances in Florida demanded it. No one on the US Supreme Court said that there was anything wrong with the count that was already done.

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