Much has been made of the fact that the Justices on the court are all Democrats (with one “independent”). What is more cause for a concern is their attitudes and conduct.
It is apparently widely acknowledged that this is an “activist” court, which is comfortable with rewriting legislation as they see fit. This gives even more of an opportunity for prejudicial mischief. Much of the discussion seemed to center around the idea of what would be a good idea to do, rather than what the law is. Of course, no Republican will fare well under a Democrat’s idea of what is a good idea to do.
It was pointed out by one legal analyst that I heard this morning that there is a legal process for challenging the results of an election even after it is certified. Thus, he said, there is no legal reason to bar the Sec. of State from certifying the results and allowing the Gore people to challenge them later. The problem with this is political - it looks bad for the Gore people. By issuing the injunction, it would appear that the court is looking at the issue in political terms. (He said that a Bush lawyer made this point in court). The fact that they issued this injunction without having been asked to do so by the Gore people (who were in fact surprised when it happened) says even more.
Furthermore, one Justice (Pariente) made a point of asking a Bush attorney about the law in Texas that allows for manual recounts (“You work for Governor Bush”?). This does not seem to have any bearing on Florida law, and is a question more appropriate for political spheres, rather than legal.
Of course, I may be surprised. Judge Terry Lewis also seemed to indicate some discomfort with the Florida election law, before ultimately ruling that it exists after all. (Though in this case the Justices seemed to be not so much hostile to the law as indifferent to it).
To make a final point, I will say that, in general, “Democratic” judges will be more likely to be biased in political matters than Republican ones. This is because, as noted in this instance, liberal judges are more likely to be judicial activists, who in general tend to give themselves more free reign to do as they please, whereas more conservative judges are more likely to stick to the letter of the law. (This is really a matter worthy of it’s own thread, but it’s basically the point I’m making here anyway).
), that manual recounts are inherently inaccurate, prone to ‘mischief’, etc. By asking the attorney for that same candidate about the law in the state of which he is Governor, law which he signed AS Governor, the Justice is asking the attorney to establish how the concept of a manual recount can be somehow accurate enough for the State of Texas, but not accurate in the State of Florida. If the Court is to agree with Governor Bush (as opposed to agreeing with Ms. Harris, who is arguing completely different reasons for not allowing the manual canvassing to be included in the certified state total), then it has a legitimate interest in determining WHY a party before them would say that a process he himself signed into law in a sister state should be disallowed. It is not a political argument; it is an attempt to get the litigant to distinguish the current situation from one in which the litigant is involved elsewhere (estoppel is not involved; that legal concept is not even remotely applicable to this case).
Don’t look at me – I voted for Nader. Gore seems to be the one trying to pull something off though. The law is the law. I doubt the Florida congress passed two conflicting laws at the exact same time and think it is a stretch to say allowing hand counts somehow contradicts counting ballots in a timely manner.