For those interested in, and able to listen to, the audio recording of the session today, following are some thoughts and background for assessing the action.
The key to assessing the inclination of individual justices lies not so much in the questioning of the
In such a high-profile, controversial case, questions from the bench are often intended for, and are directed to, one or more of the other justices, rather than to the parties.
Listen to the nature of the questions – especially when the phrasing tends to take on more of the character of a statement.
Most assessments of the justices place them in three camps:
The conservatives invariably include Chief Justice Rehnquist and Justices Scalia and Thomas.
The swing votes usually include Justices O’Connor and Kennedy.
The liberal wing most often includes Justices Ginsburg, Breyer (both Clinton appointees and the only Democrats), Souter and Stevens.
Many court observers believe the vote on the Bush petition for an emergency injunction, granting a stay of the vote counting in Florida, is a strong indication of how a vote on the merits of the case will break.
This is based on the understanding that granting such motions embodies a belief, on the part of the justices who favor it, that there is a substantial likelihood that the petitioner – in this case Bush – will prevail on the merits of the case when it is ultimately decided.
(Read the text of the
The five voting in favor of granting the stay were Rehnquist, Thomas, O’Connor, Kennedy and Scalia, who included a concurring opinion, the only one expressed by this majority.
Among the four voting against the stay were Ginsburg, Breyer, Souter and Stevens, who wrote the only dissenting opinion.
It is important to bear in mind that these votes do not
What distinguishes this case from most every other review of a state court decision is that conservatives often tend to give deference to the states – vis-à-vis the federal government – whereas as liberals lean toward favoring solutions crafted at the national level.
Here, however, the questions involved are
Conservatives believe in the rule of law, and in this case it is federal law that rules.
That is why the arguments by commentators on the left – that conservatives, both jurists and others, have "abandoned" their traditional doctrine of "states' rights" merely to ensure the election of Bush – are specious.
If consistency were a virtue, it is the left that has abandoned its so-called principles by suddenly touting the importance of deference to the judgments of the states, which they rarely, if ever, champion.
But now they do, and the reason is obvious: Their practice of applying situational standards (doing whatever is expedient at any given time to advance and justify their agenda) has resulted in their advancing the position that best supports the election of Gore.
Why else would Justice Ginsburg, especially, make such an issue of the importance of "giving great deference to the decisions of state courts" in her comments at the last session of the court on this issue, when her position on virtually every other such question since joining the court has been exactly the opposite? So, too, with Justice Breyer.
Today, then, it will be most helpful to analyze who asks what questions and to which other justices they may be directed.
For example, if Scalia feels O’Connor needs some reassuring to keep her with a potential majority, his statements may include justifications for reinforcing that position in terms of possible remedies.
If he speaks more to the issue of states rights versus federal considerations, it may indicate he believes he has a majority and is seeking to add another vote by addressing those concerns.
Also listen for questions from the four dissenters on the stay to make their inquiries in a way that appeals to O'Connor, in an attempt to bring her to their side.
Such analysis can be applied to other questions posed by other justices, from either ideological camp.
The attorneys are expected to be Theodore Olson for the Bush campaign, who argued last time, and David Boies, who replaces Laurence Tribe, the Harvard law professor who previously appeared for Gore.
Watch for a potentially explosive confrontation between Scalia and Boies, who is accustomed to lecturing judges and displaying what he believes is his superior knowledge of the law. Justice Scalia is a brilliant jurist who passionately advances his point of view, through both his writing and his questions at oral argument.
A decision should be handed down relatively quickly, given the pressing timetable for selection of presidential electors.
Dec. 12 is the date, established in Title III of the U.S. Code, by which electors must be finally and unquestionably selected if they are to avoid a challenge in the U.S. Congress in January when electoral votes must be accepted and approved.
The Electoral College meets in each of the 50 state capitals on Dec. 18 to cast their votes for president.
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Dan Frisa represented New York in the United States Congress and served four terms in the New York State Assembly.
• Dec. 11, 3:00 p.m. – WOND radio in Atlantic City, N.J.
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