So it has come down to this: The chief executive of the most powerful nation
in the world will be determined by nine Supreme Court Justices' interpretation of the Electoral Count Act of 1887. As I write, it is hard to tell how the Court will decide, but one thing is clear -- the injection of the Supreme Court into this process is the final absurdity in the nation's fruitless attempt to solve an essentially political conflict by legal means. There is no reason to assume that the Supreme Court will succeed where lower courts have, as yet, failed.
The candidates should have done a deal -- and would have if the United States' political system were different. Joe Lieberman could have become vice president, bi-partisan mechanisms could have been set up for the selection of Supreme Court nominees, and the parties could have negotiated a bi-partisan cabinet. In the end, with all of these bargaining chips on the table, it would have been much easier for either party to give way on control of the presidency. Politicians, when they are allowed to do what they do best -- haggle, negotiate, bargain -- can often surprise us with their flexibility and creativeness in arriving at decisions that serve the interests of both sides.
This more authentically political approach is not -- for those just getting back from a long submarine journey or a trek through the Himalayas -- the way things have turned out. Why? Increasingly often, actors in American politics evade authentically political approaches to the resolution of conflict, which involve compromise, when they can resolve matters in the courts; the courts hold out the promise of a less ambiguous victory. This general trend has finally reached the heights of presidential politics.
The possibility of litigation inherently erodes the willingness of actors to commit themselves to negotiation, for two reasons: First, one's most virulent supporters will always resist making deals in back rooms, worrying that they'll be "sold out." Better not to compromise at all and roll the dice with a judge. Second, the knowledge that recourse to courts is available corrodes politicians' willingness to seriously commit themselves to negotiation, since they know that if they don't get what they want, they can always try again in court. As a result, both sides recognize the futility of negotiation and fail to sit down at the table. The longer they persist with court challenges, the deeper the animus between the two sides becomes, and the harder it is for them to switch to negotiation or arbitration (or a combination of both).
That is why Bush and Gore have not met in person (or through surrogates) to try to resolve this situation, and why, I predict, they never will. It is also the reason that the candidates have not set up an institution to arbitrate the conflict (as the parties did in 1876). Until all litigation avenues have been exhausted (i.e. never), this will continue to be a process dominated by lawyers rather than politicians.
The problem, unfortunately, is that the 2000 election endgame is a kind of creeping bacteria that infects everyone who comes into contact with it, including the judges who have been asked to make all of the crucial decisions. Because the partisan consequences of every decision are immediately obvious, almost every court decision has been followed by accusations of partisan bias. As a result of the deepening politicization
of the courts over the last 40 years, these attacks have a certain plausibility. But this means that the courts are unable to be seen as neutral arbiters, leading to the worst of all possible consequences -- a politicized process that does not lead to any stable resolution.
I have resisted the idea that America is facing a constitutional crisis, but I am increasingly persuaded that it is. There is every reason to believe that Florida will send two sets of electors to the Electoral College, and Congress will have to decide between the two. This will set off a partisan battle royal that will make the process heretofore look like a sunlit stroll. Anyone who tries to guess how it will end up from there is engaging in less-than-educated guesswork. What can be said with certainty is that, at that point, the two parties will have one last chance to engage in an authentically political bargaining process that could resolve this conflict while providing both sides with some satisfaction in its outcome. But, for the reasons I laid out earlier, such a resolution will be much harder than it would have been two weeks ago. As a result, the odds now point toward a
deeply wounded president, and elections in 2002 and 2004 of unparalleled ugliness.