George Will: Bush v. Gore, 10 years on

WASHINGTON -- The passions that swirled around Bush v. Gore, the Supreme Court case that ended 10 years ago Sunday, dissipated quickly. And remarkably little damage was done by the institutional collisions that resulted when control of the nation's supreme political office turned on 537 votes out of 5,963,110 cast in Florida.

Many controversies concerned whether particular votes could be said to have been cast properly. Chads are those bits of paper that, when a ballot is properly cast by puncturing spots next to candidates' names, are separated from the ballot. In Florida, there were "dimpled" chads that were merely dented, and "hanging" chads not separated from the ballots. Furthermore, there were undervotes (ballots with no vote for president) and overvotes (votes for two presidential candidates) and ill-designed (by a Democrat) butterfly ballots.

The post-election lunacy could have been substantially mitigated by adhering to a principle of personal responsibility: Voters who cast ballots incompetently are not entitled to have election officials toil to divine these voters' intentions. Al Gore got certain Democratic-dominated canvassing boards to turn their recounts into unfettered speculations and hunches about the intentions of voters who submitted inscrutable ballots. Before this, Palm Beach County had forbidden counting dimpled chads.

Once Gore initiated the intervention of courts, the U.S. Constitution was implicated. On Nov. 7, Gore finished second in Florida's Election Day vote count. A few days later, after the state's mandatory (in close elections) machine recount, he again finished second. Florida law required counties to certify their results in seven days, by Nov. 14.

But three of the four (of Florida's 67) counties -- each heavily Democratic -- where Gore was contesting the count were not finished deciphering voters' intentions. So Gore's lawyers persuaded the easily persuadable state Supreme Court -- with a majority of Democratic appointees -- to rewrite the law. It turned the seven-day period into 19 days.

Many liberals underwent instant conversions of convenience: They became champions of states' rights when the U.S. Supreme Court (seven of nine Republican appointees) unanimously overturned that extension. But the U.S. court reminded Florida's court to respect the real "states' rights" at issue -- the rights of state legislatures: The Constitution gives them plenary power to establish procedures for presidential elections.

Florida's Supreme Court felt emancipated from law. When rewriting the law to extend the deadline for certification of results by the four counties, the court said: "The will of the people, not a hyper-technical reliance upon statutory provisions, should be our guiding principle." But under representative government, the will of the people is expressed in statutes. Adherence to statutes -- even adherence stigmatized as "hyper-technical" -- is known as the rule of law.

In the end, seven of the nine U.S. Supreme Court justices (and three of the seven Florida justices) agreed on this: The standardless recount ordered by the Florida court -- different rules in different counties regarding different kinds of chads and different ways of discerning voter intent -- violated the U.S. Constitution's guarantee of equal protection of the laws.

Two of the seven U.S. justices favored ordering Florida's court to devise standards that could pass constitutional muster, and allowing the recount to continue for six more days. Five justices, believing that the recounting had become irredeemably lawless, ended it.

Once Gore summoned judicial intervention, and Florida's Supreme Court began to revise state election law, it probably was inevitable that possession of the nation's highest political office was going to be determined by a state's highest court, or the nation's. The U.S. Supreme Court was duty-bound not to defer to a state court that was patently misinterpreting -- disregarding, actually -- state law pertaining to a matter assigned by the U.S. Constitution to state legislatures.

Suppose that, after Nov. 7, Florida's Legislature had made by statute the sort of changes -- new deadlines for recounting and certifying votes, selective recounts, etc. -- that Florida's Supreme Court made by fiat. This would obviously have violated the federal law that requires presidential elections to be conducted by rules in place prior to Election Day.

Hard cases, it is said, make bad law. But this difficult case seems to have made little discernible law. That is good because it means no comparable electoral crisis has occurred. What the Supreme Court majority said on Dec. 12, 2000 -- "our consideration is limited to the present circumstances" -- has proved true. And may remain true, at least until the next time possession of the presidency turns on less than one ten-thousandths of a state's vote.
     
George Will's e-mail address is georgewill@washpost.com.

George Will: Treaty in a time warp

WASHINGTON -- The Framers of the Constitution, a nuisance regretted by most modern presidents, gave the legislative branch -- another indignity inflicted on presidents, as they see it -- an important role in making foreign policy. The Framers did so by, among other provisions, requiring the Senate's two-thirds (today, 67 votes) consent to treaties. The Framers' wisdom is confirmed by Barack Obama's impatience with senators reluctant to ratify, during Congress' lame-duck session, the New START treaty pertaining to Russia's nuclear weapons.

The administration's ardor for ratification is understandable, as is Russia's. The president needs a success somewhere; Russia needs psychotherapy. It longs to be treated as what it no longer is, a superpower, and it likes the treaty's asymmetries.

It is more reasonable to worry about the security of Russia's weapons than about their numbers. New START, however, pertains primarily to the numbers. It requires the reduction of strategic weapons and launchers. Concerning the former, Russia's economic anemia is already forcing it into arms reductions. Concerning the latter, Russia already is below the levels the treaty would impose on America.

Deeply informed and rationally skeptical, Sen. Jon Kyl, R-Ariz., is arguing from the position of increased strength created on Nov. 2: Come January, there will be six more Republican senators. He implicitly -- and lucidly -- treats Russia itself as of secondary importance in the treaty. He is using his enhanced leverage primarily to increase the administration's commitment to modernization of the U.S. nuclear arsenal: All nuclear weapons decay, and no U.S. weapon has been tested since 1992.

"All the lab folks will tell you" modernization is imperative, Kyl said in a telephone interview Monday. Which may be why, he said, "for significant periods of time" Republican senators were "denied meaningful contact" with weapons laboratory scientists.

The administration contends that even delaying ratification will reduce Russia's helpfulness regarding Iran's nuclear weapons program. This suggests, strangely, that Russia has been significantly helpful. And it assumes, implausibly, that Russia's interest in preventing neighboring Iran from having nuclear weapons is less than its interest in modifying the strategic arms balance with an America that is no longer a strategic adversary. Defense Secretary Robert Gates says Russia is no military threat to America or America's allies.

The administration says ratification is urgent to reinstall verification. But when the previous treaty expired last December, Obama and Russia's President Dmitry Medvedev said they would continue "in the spirit of" the expired treaty. If verification is suddenly increasingly important, is Russia decreasingly trustworthy?

When nations are enemies, they use arms negotiations less to mutually limit arms than to channel arms competition in strategically advantageous directions. So real arms control is impossible until it is unimportant. Until, that is, dangers disappear. So, ratification of New START is possible. But to call it urgent is silly; to call it advisable would be premature, pending completion of the Senate's advise-and-consent role, which should include clarifying stipulations in any ratifying resolution.

At Russia's insistence, the treaty contains language that some Republicans think does -- and the Obama administration insists does not --couple limits of offensive and defensive systems. If it does, Republicans should oppose New START; if the language is, as the administration says, without force, it should be deleted. The Senate made ratification of the Jay Treaty (1795) and the Panama Canal Treaty (1978) contingent on modifying some language.

The impertinence of mere senators modifying their handiwork will scandalize the Cold War arms control clerisy, who are still with us. These custodians of humanity's salvation, these speakers of an argot (SLBMs, ICBMs, MIRVs, etc.) more arcane to the laity than Latin was to 14th-century peasants, are marvelously unimpressed by the events of 1991. If, when the Soviet Union disappeared, Russia had disintegrated until only the Moscow metropolitan area remained, the clerisy would be earnestly negotiating arms agreements with that city's police force.

In this era of astonishing emerging markets such as China, India and Brazil, Russia is a perverse miracle of arrested development. It is receding because it still has an essentially hunter-gatherer economy, based on extraction industries (oil, gas, minerals). Aside from vodka, what Russian-manufactured export matters? Don't say caviar; it is extracted from sturgeon.

America's domestic policy is bedeviled by reactionary liberalism, whose adherents resist any diminution of any entitlement. Barack Obama's tumble into a time warp -- his overinvestment in an arms agreement with the emaciated Russian bear -- proves that reactionary liberalism does not end at the water's edge.

George Will's e-mail address is georgewill@washpost.com.

(c) 2010, Washington Post Writers Group

George Will and Public Employee Pensions: Trickle-Down Misery in L.A. - Mayor Villaraigosa's nightmare numbers

"Nationwide, government employees are most of what remains of 'defined benefit' America. More than 80 percent of government workers have defined benefits—as opposed to defined-contribution—pension plans. Only about 20 percent of private-sector workers have defined-benefit plans. California's parlous condition owes much to burdensome health-care and pension promises negotiated with public employees' unions, promises that are suffocating the state's economic growth."


Read the entire column at http://www.newsweek.com/id/237640.

The pension noose is around our neck as we wait for the baby boomers to retire from their public employment and cash in their unfunded pension plan.  Can we get the noose off before they cash in?  I doubt it...

George Will: A law Arizona can live with

"WASHINGTON "Misguided and irresponsible" is how Arizona's new law pertaining to illegal immigration is characterized by Speaker Nancy Pelosi. She represents San Francisco, which calls itself a "sanctuary city," an exercise in exhibitionism that means it will be essentially uncooperative regarding enforcement of immigration laws. Yet as many states go to court to challenge the constitutionality of the federal mandate to buy health insurance, scandalized liberals invoke 19th-century specters of "nullification" and "interposition," anarchy and disunion. Strange. Read more.


I can't say I ever agreed with George Will before reading this, probably because I never paid much attention to him.  However, after reading his articulate view of the situation, I will read his future editorials.