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It’s all over but the whining. The brutal battle for the presidency has lurched to an unsatisfying end. Now we have a new president-elect and a new spin cycle, whose contours are just emerging. A lot of people are expressing great concern about the credibility of the U.S. Supreme Court, as if the current election crisis were of its own making. Before Al Gore, we never had a presidential candidate who asked the courts to hand him the presidency. In an inevitably partisan atmosphere, this puts pressure on everyone involved. Judicial restraint sometimes involves restraining state courts that won’t restrain themselves. In litigation there is an old saying: If the law and the facts are against you, abuse your opponent. Here, the corollary seems to be that, if the judgment is against you, abuse the justice. This abuse from both sides started even before the U.S. Supreme Court heard the first Bush case. First, some Democrats argued that Justice Scalia should recuse himself because his son worked for the same law firm as Bush lawyer Ted Olson. Others said that Justices Scalia and Thomas should recuse themselves because both Bush and Gore had made them an issue in the campaign. Then some Republicans said that Justice Breyer should recuse himself because of his close ties to Gore and his verbal slip during the first oral arguments, “Whether we win, … whether you win.” Then the three justices most frequently rumored to retire in the next four years — Justices Rehnquist, Ginsburg, and Stevens — were urged to recuse themselves because they might want a friendly president to choose their replacements. Others said that Justices Ginsburg, Breyer, Souter, and Thomas should recuse themselves because they were appointed to the Court by the Clinton/Gore administration or by Gov. Bush’s father. Last, Thomas was criticized because his wife works for the Heritage Foundation, a conservative think tank. After all these frivolous suggestions for recusal, the only two justices left to hear the case would have been Justices O’Connor and Kennedy. As it happened, those two decided it anyway. Another attack on the Court’s legitimacy started as soon as the stay was granted. Opinion leaders started shaking their heads mouthing fine words of public worry about the legitimacy and credibility of the U.S. Supreme Court. Of course, their real purpose was precisely the opposite — to undermine the legitimacy of the very court they profess to be so concerned about. One tack was to question the legitimacy of 5-4 decisions, as if such 5-4 decisions as Planned Parenthood v. Casey and Miranda v. Arizona were criticized by these same critics on this ground. Since when is winning by one vote not a legitimate win? (I guess we all get to ignore the Clinton-Gore tax increases that passed the Senate by one vote: Al Gore’s.) Another tack was to condemn the partisanship of the “Republican” or “conservative” justices, overlooking the fact that the supreme court of Florida, containing no Republicans, had split 4-3 in reversing the decision of Judge N. Sanders Sauls, himself a Democrat. Also overlooked was the earlier decision by Judge Lewis, a Democrat, in support of Katherine Harris’ exercise of discretion. In the end, seven justices on the U.S. Supreme Court agreed that the Florida supreme court had erred, including two “liberals,” one of whom was Justice Breyer, a Democratic nominee and friend of Al Gore’s. This reveling in discord has reached ludicrous proportions. Many pundits have ominously noted that Justice Ginsburg ended her opinion with, “I dissent,” not “I respectfully dissent.” It turns out that Ginsburg does this all the time. A quick Lexis review of the more than 40 dissenting opinions that Ginsburg has authored since she joined the Court reveals only two in which she “respectfully” dissented. She hasn’t used such language in years. Now come the law professors. A group supporting Gore has been circulating various drafts of a letter accusing the U.S. Supreme Court of partisanship. Unless the arguments contained in it are particularly powerful, we don’t see why a letter from partisan professors accusing judges of partisanship would have any special weight just because the signatories are law professors. The most unintentionally amusing aspect of the current law school turmoil is that professors who for years have trashed the idea of “the rule of law” and other types of “formalism” are now claiming to base their outrage on their respect for the rule of law. What’s next? — the left wing of the legal professoriate urging President Bush to appoint only judges who are “strict constructionists”? We will not be holding our breath. Lost in all this whining about the Supreme Court is the simple fact that, had the Democrats not first invoked the aid of the courts to protest and then contest the election results, the normal political actors would have certified George Bush the winner in Florida weeks ago. He put his political fate completely in the hands of the Florida supreme court and that was the only court whose rulings — the last by a vote of 4-3 — threatened to overturn the results. It was his misfortune that it was not the highest court to have jurisdiction over a federal election for president. With a controversy this close and this important, people will understandably engage in heated rhetoric — which may or may not be justified. And we were upset with the 5-4 decision of the Florida supreme court. Sometimes strong words and outrageous analogies are necessary to show the true nature of an outrageous act. And after suffering a bitter partisan defeat, it is only natural to lash out at the institution you think is responsible. But let’s not fool ourselves. These expressions of concern over the U.S. Supreme Court’s legitimacy are actually made to undermine that legitimacy. James Lindgren is a law professor at Northwestern University, and Randy E. Barnett is a law professor at Boston University. This commentary was first published on NationalReview.com and is republished by permission.

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