The Florida Supremes: Political Hacks? Jude Wanniski December 11, 2000

Memo To: House Majority Whip Tom DeLay [R TX]
From: Jude Wanniski
Re: What did you expect?

There is absolutely no doubt in my mind, Tom, that the Florida Supremes last Friday decided on partisan grounds to bring Vice President Al Gore “back from the dead,” as one of the New York tabloids put it. And I can appreciate your own partisan frustration in seeing their 4-to-3 decision, with the Chief Justice dissenting, as the work of “political hacks.” Of course, if their judgment was the hackery you asserted, then the four members of the U.S. Supreme Court who chose not to intervene with the five in the majority on Saturday are also hacks. Then there are the journalists who AGREED with the “political hacks,” including the editorial board of the NYTimes, and all the Democratic members of Congress and the Democratic governors, who staunchly defended the decision of the “political hacks” to go back to the chads.

You are exactly correct in saying the four judges of the Florida Supremes are “hacks,” in the sense that they are come-day-go-day men and women, who by the fortunes of history suddenly are dragged into waters way, way over their heads. In this epic constitutional struggle, much larger than anything we have ever witnessed in our lifetimes, these are little people who owe their lives and careers to the Democratic Party. If it is hard for us to imagine a Democratic governor or member of Congress or newspaper announcing that the Florida Supremes were wrong in their 4-to-3 decision, how can we have expected the four judges to rule against the leader of their political party? It has been reported that Governor George Bush only was surprised that the decision was split. After observing the Florida court in action a few weeks ago, coming to a unanimous decision favoring Vice President Gore, I would have been shocked if they had acted judiciously in this second go-round. The Democratic Party is their family, for goodness sakes, just as Florida’s Governor is part of George W’s political family and flesh and blood. Can you imagine Jeb Bush deciding against his brother on an issue that could go both ways?

Does this mean there is no rule of law in the United States? No, it means a decision of this order of magnitude involving the Rule of Law has to be made by powerful men and women at the highest institutional level. This is why we have a federal Supreme Court. We expect it to rise above partisanship, which is why appointments are for life, as long as a sitting Judge can draw a breath. Did Justice Scalia act in partisan fashion by being part of the majority in the High Court’s Saturday 5-to-4 decision ordering the vote recount halted while awaiting arguments today on the merits? I’m a registered Republican, Tom, but as you know I am not a partisan, and openly support Democrats when I like them better than the GOP offering. I can imagine other Justices tilting this way or that, because they still feel a twinge of partisanship, but I can not imagine Justice Scalia ever putting partisanship before his constitutional responsibilities. He sees the bright lines that he knows must be defended in proceedings as colossal as this one -- and there is no judicial vantage point higher than his, and the other 8 members of the High Court.

You of all people understand partisanship. If I were asked to name a pure partisan, I would name Tom De Lay of Texas. And I would know you would be pleased to hear that. Put yourself in the shoes of the Florida judges whom you consider “political hacks,” and you would see they would not have been able to live with themselves in their community of friends and associates unless they did what they did. When there is a power struggle between the two principle wings of the national family -- the Daddy Party and the Mommy Party -- the partisan pull is always going to be strongest among the smallest of the children.