What it ought to do is scare the hell out of them. Literally.
Gore's lead counsel, David Boies, confidently predicted, shortly after his win
in the Florida Supreme Court Tuesday night, that there was no way the U.S.
Supreme Court would review that win.
Friday afternoon, however, upon receiving word that the U.S. Supremes would
hear the case, Boies flat-out lied on camera, in response to an interview on
the run by Fox's Brett Baier. Boies told Baier he had never said that the
USSC would not grant a hearing on Bush's appeal, but rather that he had only
predicted Gore would win the appeal. Fox News had fun all afternoon playing
Boies' first statement, which he then said, in his second statement, he
didn't say.
It reminded this reporter of the time Howard Cosell on a Monday night
football game exclaimed, "Look at that little monkey run!" Cosell denied he
said it, despite the tapes of the broadcast proving otherwise.
The Boies spin reveals new panic in the Gore camp. For if this is purely a
state issue, then why has the highest court in the land agreed to hear the
case on federal constitutional grounds?
The Gore team has known all along about the 11th U.S. Circuit Court of
Appeals case of Roe v. Alabama, which overturned an Alabama Supreme Court
ruling that had changed the way votes were counted, after an election. Sound
familiar? And that was in a state election, not a federal one. How much
greater is the weight of the Bush argument for federal review of a federal
election and for the only office in which the candidates are elected by the
entire nation?
Gore is in deep trouble this moment. Whereas Florida's Supremes are an
activist court for partisan reasons, at least the U.S. Supreme Court has been
activist for the purpose, in their minds, of reining in states not compliant
with the U.S. Constitution.
The Bush argument that will be heard is that the Florida Supremes violated
equal protection, due process, and separation of powers provisions of the
federal Constitution. Sounds right to me. And here's a bet that it will
sound right to Rehnquist's robed brethren.
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