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The conservative brain trust is back in the spotlight — and it owes some of its newfound strength to the Florida Supreme Court. During the eight years of the Clinton administration, the attorneys who worked the legal and judicial issues for Presidents Ronald Reagan and George Bush found themselves out of power and on the sidelines. This group of conservative litigators and thinkers includes people like Richard Thornburgh and William Barr, who served as GOP attorneys general; Charles Cooper, Theodore Olson, and Timothy Flanigan, who headed the Justice Department’s Office of Legal Counsel; and Richard Willard, who led the DOJ’s Civil Division. They toiled in the law firm and corporate worlds — making good money but not much policy. Now, many conservatives say, the Florida Supreme Court’s Nov. 21 decision extending the deadline for manual ballot recounts has become a surprising and effective rallying cry for their mounting attacks on what they see as judicial overreaching. Judicial activism is now on the table as never before, and conservatives appear ready to run with it. “This case has attracted more attention and public consideration of this issue than any other case ever, even more than the Warren Court’s celebrated examples,” says Cooper of Washington, D.C.’s Cooper, Carvin & Rosenthal. “This may become a kind of signal event in the public consciousness of the proper role of the different branches of government.” Editor William Kristol and Jeffrey Bell wrote in the Dec. 4 issue of The Weekly Standard, “A Bush administration, or a Republican Congressional opposition, could use this moment of judicial usurpation in November 2000 to lay the groundwork finally to mount a serious challenge to the doctrine and practice of judicial supremacy that in the past few decades has done so much damage to our Constitution.” ACTIVATED IN FLORIDA For many conservatives, the decision now under review by the U.S. Supreme Court has all the earmarks of an activist court run amok. First, the Florida court overturned the administrative action of a high-ranking member of the state’s executive branch. In this case, that was Secretary of State Katherine Harris’ decision to accept no more election returns after Nov. 14. Second, the court found a contradiction in state law and chose to resolve it in light of a broad governmental principle — the importance of implementing the will of Florida’s voters. The court said this principle “supersedes any technical statutory requirements.” This reasoning held sway in the face of what the ruling’s opponents saw as a clearly enunciated seven-day deadline imposed by an elected state legislature. Finally, conservatives see the ruling as political in the most blatant sense — as a thinly disguised effort by Democratic-appointed jurists to overrule Harris, a Republican, and to help Gore become president. For some conservatives, the ruling feeds directly into their longstanding wariness about judicial activism in several state supreme courts. Florida, in fact, has been on their watch list for a while because of rulings in capital punishment and tort cases. “There has been for some time a concern about the integrity of the legal system in the United States, especially at the state level,” says Willard, now senior vice president and general counsel of the Gillette Co. in Boston. “We are concerned on the state level about the election of judges, the influence of plaintiffs lawyers, and judges’ willingness to engage in convoluted legal theories to reach the result they desire.” Willard says the high courts of other major states like Texas and Michigan were dominated by judicial activists fairly recently until Republican governors, including Bush, stemmed the tide with new appointments. Says Cooper: “Many states still have high courts with reputations for judicial legislating. This affects dramatically, in those states, the ability of the people to govern themselves.” BUSH, PART II Cooper and Willard are just two of the GOP legal heavyweights and former government officials keeping up the public drumbeat against the Florida court and judicial activism in general. Former Attorney General Thornburgh wrote an op-ed in The Wall Street Journal Nov. 30, arguing that the Supreme Court should restore “a balance between the powers of state legislatures and state courts to determine the conduct of elections.” And plenty of other lawyers who held key legal policy jobs under Presidents Reagan or Bush have been on the front lines against judicial activism as members of Gov. George W. Bush’s Florida legal team. Among the most prominent are Gibson, Dunn & Crutcher’s Olson; White & Case’s Flanigan and George Terwilliger III; and Cooper’s partner Michael Carvin. If Bush emerges as the next president, as now appears likely, many of these conservatives will return to power and influence. Some observers think they will find help in the highest places for their assault on judicial activism. Says Daniel Troy, a partner in D.C.’s Wiley, Rein & Fielding who was an attorney in the Reagan Justice Department: “George W. Bush used words like ‘usurpation’ [in describing the decision]. He’s coming to recognize in a very profound way the costs involved with a judiciary that doesn’t respect democratic boundaries.” John Yoo, a professor at The University of California, Berkeley’s Boalt Hall School of Law, says, “One could easily understand if a future President George W. Bush is not too excited about the use of judicial power.” But there are both practical and ideological limits, Troy and Yoo caution. Troy points out that the most obvious thing that a President Bush could do to curb judicial activism — appoint strong judicial conservatives to the federal bench — will be checked by the apparent 50-50 partisan split in the U.S. Senate. Yoo says that if Bush wanted to use the power of the presidency to speak out against activism in state courts, he’d fly squarely in the face of his party’s traditional belief in federalism and states’ rights. “Republicans are generally more respectful of state governments than are Democrats,” says Yoo. “This would put them in a quandary.” Not surprisingly, leading Democrats and liberals disagree both with the criticisms of the Florida decision as excessively activist and with the notion that it will become a successful rallying point for judicial conservatives. Sheldon Goldman, a political science professor at the University of Massachusetts at Amherst and an authority on the judiciary, says judicial activism “has been shown to be a phony issue.” “The conservatives are very selective in their condemnation,” Goldman says. “Activism is not confined to liberals or conservatives. These same conservatives don’t complain about United States v. Lopez,” a divided U.S. Supreme Court decision striking down a federal law on commerce clause grounds. “They are as result-oriented as liberals,” he adds. Goldman says that the American people, except for partisans on both sides, are unlikely to view the Florida dispute in the light of the scholarly debate over judicial activism. Instead, he says, people will decide on a common-sense basis whether they prefer Bush’s essential argument that “you don’t change the rules after the game is played,” or Gore’s basic point that “you have to count all the votes.” “The impact of the impeachment [of President Clinton] is practically forgotten,” says Goldman, “and I expect it will be the same with this never-ending election, as far as the general public goes.” Dale Bumpers, a moderate four-term U.S. senator from Arkansas and now of counsel at Washington, D.C.’s Arent Fox Kintner Plotkin & Kahn, dismisses as mere political rhetoric the conservatives’ criticism of the Florida ruling . “People are very resourceful in discussing decisions with which they simply disagree,” says Bumpers. “The Right tends to go berserk, whether the judges were actually legislating or not.” Elliot Mincberg, legal director of the liberal People for the American Way, agrees that the real issue isn’t judicial activism. “In some ways, this is a challenge to Marbury v. Madison,” Mincberg says. “This is an attempt to show that the judiciary doesn’t have any business deciding what the law is. This [criticism] has been happening all along. It’s just at a more prominent level because of the election.” Willard, the former DOJ official, says the staying power of the activism issue for conservatives will depend on how it plays out in the next week or so. “The Florida court didn’t change the outcome of the election, at least so far,” Willard says. “My hope is that the courts will behave responsibly and that these protests will be set aside. If the courts do overturn the election, that will provoke quite a furor.” And one can be sure that the old guard legal conservatives will be leading the way.

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