I don't want to make too big a deal of this. But I think that at half a million votes, Gore's margin pushes past a certain psychological threshold. In the national vote this really wasn't a "virtual tie." Bush lost. Narrowly, yes. But he lost (Historical perspective: Jimmy Carter beat Gerald Ford by 678,000 votes in 1976).
Make a note of it and have it on hand for future discussions about Bush's mandate.
The basic gist of it was this: the Democrats would resist the temptation to indulge in a lot of confirmation funny business if Bush would come to grips with the dubious nature of his election and appoint a moderate cabinet. One passage read:
He is simply not in a position to appoint more than a few token conservatives to his cabinet. Certainly none to the marquee positions at State, Justice, Defense and Treasury. And none to Cabinet positions dear to the hearts of his Democratic opposition, i.e., no paycheck-protection activists for Labor Secretary, and no supporters of regulatory rollback at the EPA.
Well, apparently W. didn't heed my advice. According to several published reports Bush is considering James M. Talent as a possible Labor Secretary. (Talent retired from Congress to run for governor of Missouri this year, and lost.) Democrats should, and I believe will, see this as an insult, a slap in the face. Dems really care about what the Labor Department does, for obvious reasons. For them, it's not just a place to fob off ideologues and hacks who are out of a job.
Why is Talent such an objectionable candidate? Well, he's just very, very anti-labor. Consider his congressional ratings from the National Federation of Independent Business (NFIB) a conservative business lobby, and American Federation of State County and Municipal Employees (AFSCME), the big public employees' union. In 1998 NFIB gave Talent a 100 percent rating; AFSCME, a 0 percent rating. That doesn't mean Talent's a bad guy (well, okay . . . actually it does mean that.) But it does mean that he's about as hostile to unions as you can get.
Senate Democrats should simply say, Jim Talent may be a decent guy. But he's unacceptable for Labor Secretary, period. If Bush wants to go to war, fine. Go ahead. But they should try to make an example of Talent he if does.
The Electoral College determines who is president (of course, even here Bush needed "help.") But the popular vote determines who gets a mandate. And Bush's 300,000-plus loss in the popular vote is so much less than a mandate that it's not even funny.
So Senate Democrats should say to Bush: Listen, it's cool you're president and all. Someone's got to be president. The Supreme Court says you're president. So you're president. But, between us, we don't really even think you got elected legitimately. So appoint your dads buds. Put in some solid Republicans at State and Defense and Treasury. For Transportation, Commerce, Energy, have at it. Appoint whatever wackos you want. But try to push through someone like Jim Talent for Labor Secretary and we'll eat you alive.
Rosen stops short of accusing the conservatives of purely political intent in deciding the case in the way that they did. He implies that they believed they were stepping in to end a galloping legitimacy crisis, which was about to spin out of control. They were acting, he surmises, on a sort of subtextual "this has gone on long enough" reasoning. So they abused their oath, but to serve what they believed to be a higher purpose.
I wonder if this is what Rosen really believes or whether he, perhaps rightly, stopped short of accusing them of narrowly political motives because of the impossibility of proving such an allegation, and the explosive nature of the charge. In any case, it's a very good piece.
There is an interesting thread, or instance of crosstalk, running through the opinions that I haven't seen noted elsewhere. In William Rehnquist's concurrence on page four, in the course of justifying the Court's obligation and power to overrule a state high court's interpretation of state law, Rehnquist relies on two Civil Rights-era cases wherein the Court stepped in to shut down legal funny business perpetrated by segregationist state courts. Considering how many African-American voters had their votes thrown out in Florida and the . . . well, less than civil rights-friendly jurisprudence of Clarence Thomas, Antonin Scalia and Rehnquist, this is more than a cruel irony. It's more like sick humor.
And it's a vicious irony not lost on Justice Ruth Bader Ginsburg, who seems to have taken particular offense. "[T]his case involves nothing close to the kind of recalcitrance by a state high court that warrants extraordinary action by this Court," Ginsburg writes on page six of her dissent. "The Florida Supreme Court . . . surely should not be bracketed with state high courts of the Jim Crow South."
Too true.
I wonder if this was behind her sharp "I dissent," which she used to conclude her opinion instead of the standard "I respectfully dissent."
She might also have noted another ironic inversion: In the cases cited in the Rehnquist concurrence, a civil rights U.S. Supreme Court was stepping in to block the plainly illegal acts of rogue Southern state high courts. In this case a rogue U.S. Supreme Court was committing an illegal act to block the efforts of a pro-civil rights Southern state high court.
Now that's progress!
P.S. I guess pointing this out would be too much even for Ginsburg. After all, dropping a "respectfully" is already pretty much their way of saying "Hey, you wanna piece a me?!"
This Washington Memo adapted from Joshua Micah Marshall's Talking Points
