I’m ready to give George W. his due when he makes a good call. I don’t expect this to happen very often. But picking Colin Powell was a very solid decision.

But let’s get something straight. Great Guy, Lousy Doctrine. The Powell Doctrine essentially says: if you only fight fights you can win easily, then you’ll win every fight. That’s not a doctrine, it’s a tautology, a truism. It gives you no guidance for ascertaining or protecting national interests.

Like well-designed scientific experiments, good doctrines must be capable – in their nature – of failing. And Powell’s isn’t. Because you don’t know what you should have done, but didn’t.

Still with me?

Anyway, it’s a doctrine that might work for a Secretary of Defense, but not a Secretary of State. Approve Powell, not his doctrine.

Also, if there’s anyone Talking Points loves more than Al Gore, it’s Bill Clinton. But I must say it’s pretty disappointing to hear he’s considering a pardon for Indian-rights-activist- cum-convicted-murderer Leonard Peltier. I mean, isn’t this sort of like finding out that Clinton’s favorite musician is Kenny G.? Anyone who’s really hip knows that Peltier really did ice those two FBI agents back in the seventies. For God’s sake, they teach that in the second week of freshman orientation. Peltier’s the Mumia of the Me-generation. Who doesn’t know that?

If I find out that my man Bill has the cultural literacy and political acumen of a granola-fied sixteen year old, I’m gonna cry.

Here are a few thoughts on the Gore in Four question.

(First, take into account that Talking Points is something of a Gore booster. So keep that in mind when evaluating his credibility on this question.)

1. On the question of the quality of Gore’s campaign. Most of my friends say Gore ran a crummy campaign. More important, the one person whose political opinions I respect more than anyone else (I’ll him Mr. X) says Gore ran a crummy campaign. However, consider this question: How many losing candidates do you know who ran good campaigns? How many losing candidates do you know of, of whom it was said: “Man! He lost big. But damn did he run a great campaign!” Right. None.

This doesn’t mean Gore didn’t run a crummy campaign. Just that it’s very hard to evaluate a campaign through the prism of it’s own defeat. (Of course, I too often thought that Gore ran a crummy campaign and said so here and here among other places. So who knows.)

2. When you’re reading an article about whether Dems will support Gore for another run in 2004 don’t forget to use the Talking Points de-knife-in- the-back-spin formula. (Formula: count number of quotations from politicians who themselves want to run in 2004. Double this number. Now divide the number of paragraphs in the article by this doubled number. If the answer is less than one throw away the article; between one and two, take it with a grain of salt; over two, take it seriously.)

2b. Quotes by shameless stab-in-the-back self-promoters like Bob Torricelli who may be in denial and think they can run in 2004 count for THREE under the Talking Points de-knife-in -the-back formula.

3. It’s just too early to tell. Go back to what people were saying about Dick Nixon in early 1961. No one had any idea what 1964 would be like or 1968 would be like. All speculation right now makes no sense.

4. Dukakis is not a realistic analogy for Gore. Dukakis was utterly untested politically outside the provincial environs of Massachusetts. Gore’s been in national politics for a quarter century. Plus, Dukakis completely sucked as a candidate and Gore only kinda sucked. Not comparable.

5. Pundits are ignoring the real angle for a possible Gore comeback. With deft management (okay, not that likely) Gore could turn his primary disability this year into an advantage. That disability was that he had connections with almost every wing of the party but he wasn’t quite identified with or beloved by any of them. However, without the centripetal force of Clintonism Dems may well become more polarized between their labor-left and New Dem wings. Gore could turn out to be one of the only people to run with support in both these groups, who can bridge that gap. Gore has developed quite good relations with the labor wing of the party. And the folks at the DLC, once they get through shamelessly stabbing him in the back, will realize he’s still at heart basically one of them. (In some respects this bridging is what Nixon was able to do in 1968. Yes, back to Nixon.)

P.S. Email to my friends with gorenet.com email addresses is starting to get bounced back with “fatal errors.” Ouch! Okay, I’ve got to deal. This really must be over.

P.P.S. Al, don’t fret. Some of these points above must be true. Don’t fret. You want Talking Points to come work for you and play Boswell to your Dr. Johnson? Just say the word!

P.P.P.S. Alright, I’ve really got to get over this.

Talking Points is announcing a new contest!

Who can come up with the most brazen and dishonest (and/or moronic) Republican use of the ‘Hey, it wasn’t a 5-4 decision, it was a 7-2 decision’ line about the Supreme Court decision?

(Just so we’re all on the same page. Seven justices – all but Stevens and Ginsburg – said there were, or might be, equal protection problems raised by the Florida recount. But two of those (Breyer and Souter) raised real questions about whether this was actually the case – and, far more importantly, thought the problem could be resolved with a directed remand to the Florida court. Alright, do we understand each other? Send submissions here.)

I’ll start the ball rolling with George Will today on This Week. I’ll post the actual quote when I get a hold of the transcript.

P.S. Know what the new “L” word is? “Legitimacy,” of course. On Meet the Press today Dick Gephardt wouldn’t use it about George W. Bush. That’s brass-knuckles.

Just finished reading Jeffrey Rosen’s indictment of the Supreme Court’s decision in Bush v. Gore in the new New Republic — a trenchant and devastating analysis of the court’s decision. I almost don’t recommend reading it. Because it’s hard to do so and not get even more outraged about what the Court conservatives did.

Rosen stops short of accusing the conservatives of purely political intent in deciding the case in the way that they did. He implies that they believed they were stepping in to end a galloping legitimacy crisis which was about to spin out of control. They were acting, he surmises, on a sort of subtextual ‘this has gone on long enough’ reasoning. So they abused their oath, but to serve what they believed to be a higher purpose.

I wonder if this is what Rosen really believes or whether he, perhaps rightly, stopped short of accusing them of narrowly political motives because of the impossibility of proving such an allegation, and the explosive nature of the charge. In any case, it’s a very good piece.

There is an interesting thread, or instance of crosstalk, running through the opinions which I haven’t seen noted elsewhere. In Rehnquist’s concurrence on page 4, in the course of justifying the Court’s obligation and power to overrule a state high court’s interpretation of state law, Rehnquist relies on two Civil Rights-era cases wherein the Court stepped in to shut down legal funny business perpetrated by segregationist state courts. Considering how many African-American voters had their votes thrown out in Florida and the … well, less than civil rights-friendly jurisprudence of Thomas, Scalia and Rehnquist, this is more than a cruel irony. It’s more like sick humor. (See this article on Rehnquist’s early work as a Republican political operative assigned to harass African-American voters.)

And it’s a vicious irony not lost on Justice Ginsburg, who seems to have taken particular offense. “[T]his case involves nothing close to the kind of recalcitrance by a state high court that warrants extraordinary action by this Court,” Ginsburg writes on page 6 of her dissent. “The Florida Supreme Court … surely should not be bracketed with state high courts of the Jim Crow South.”

Too true.

I wonder if this was behind her sharp “I dissent” which she used to conclude her opinion instead of the standard “I respectfully dissent.”

She might also have noted another ironic inversion: In the cases cited in the Rehnquist concurrence, a civil rights US Supreme Court was stepping in to block the plainly injudicial acts of rogue Southern state high courts. In this case a rogue US Supreme Court was committing an injudicial act to block the efforts of a civil rights Southern state high court.

Now that’s progress!

P.S. I guess pointing this out would be too much even for Ginsburg. After all, dropping a “respectfully” is already pretty much their way of saying “Hey, You Wanna Piece a me?!”

Three excellent articles Talking Points recommends for your reading.

This article by Jack Beatty in Atlantic Unbound gives an impassioned, angry, and absolutely first-rate run-down of all that went wrong in Florida. You’ll probably know the basic facts but he puts it all together in a way that only a first-rate writer really can. Read it and you’ll be glad you did.

A nice Salonish article in (you guessed it) Salon about why Bush’s speech to the Democratic Texas House of Reps was a bit of a sham. A lot of Dems weren’t allowed to come. Basically the one’s who got invites were pretty much those who either supported Bush’s candidacy or as much as did so. A nice metaphor for the reality behind Bush’s bipartisanship. Good piece by Jake Tapper. Not sure any of the prestige press caught this.

Finally, this article in Saturday’s New York Times is about the prison employees who administer executions in Texas. No Bush-bashing here. Just a very affecting and powerful description of an anguished job and the conflicted men who do it. Not light reading, but really good.

Wow, wow, wow!
I’ll say it again. Wow!

According to this article in the Philadelphia Inquirer Al Gore’s lead in the popular vote now stands at 540,435. Think of that. More than a half a million votes.

I don’t want to make too big a deal of this. But I think that at half a million votes Gore’s margin pushes past a certain psychological threshold. In the national vote this really wasn’t a ‘virtual tie.’ Bush lost. Narrowly, yes. But he lost (Historical perspective: Jimmy Carter beat Gerald Ford by 678,000 votes in 1976).

Make a note of it and have it on hand for future discussions about Bush’s mandate.

P.S. A special TPM shout-out to the Pointster who passed this info along.

Last week I wrote a column in the New York Post, which set out some ground-rules for George W. Bush’s appointments (yes, I knew it was all over even then).

The basic gist of it was this: the Democrats would resist the temptation to indulge in a lot of confirmation funny business if Bush would come to grips with the dubious nature of his election and appoint a moderate cabinet. One passage read:

He is simply not in a position to appoint more than a few token conservatives to his cabinet. Certainly none to the marquee positions at State, Justice, Defense and Treasury. And none to Cabinet positions dear to the hearts of his Democratic opposition, i.e., no paycheck-protection activists for Labor Secretary, and no supporters of regulatory rollback at the EPA.

Well apparently W. didn’t heed my advice. According to several published reports Bush is considering James M. Talent as a possible Labor Secretary. (Talent retired from congress to run for governor of Missouri this year, and lost.) Democrats should and I believe will see this as an insult, a slap in the face. Dems really care about what the Labor Department does, for obvious reasons. For them it’s not just a place to fob off ideologues and hacks who are out of a job.

Why is Talent such an objectionable candidate? Well, he’s just very, very anti-labor. Consider his congressional ratings from the National Federation of Independent Business (a conservative business lobby) and AFSCME (the big public employees’ union). In 1998 NFIB gave Talent a 100% rating; AFSCME, a 0% rating. That doesn’t mean Talent’s a bad guy (well, okay … actually it does mean that.) But it does mean that he’s about as hostile to unions as you can get.

Senate Democrats should simply say, Jim Talent may be a decent guy. But he’s unacceptable for Labor Secretary, period. If Bush wants to go to war, fine. Go ahead. But they should try to make an example of Talent he if does.

The electoral college determines who is president (of course, even here Bush needed ‘help’.) But the popular vote determines who gets a mandate. And Bush’s 300,000-plus loss in the popular vote is so much less than a mandate that it’s not even funny.

So Senate Democrats should say to Bush: Listen, it’s cool you’re president and all. Someone’s got to be president. The Supreme Court says you’re president. So you’re president. But, between us, we don’t really even think you got elected legitimately. So appoint your dads buds. Put in some solid Republicans at State and Defense and Treasury. For Transportation, Commerce, Energy, have at it. Appoint whatever wackos you want. But try to push through someone like Jim Talent for Labor Secretary and we’ll eat you alive.

P.S. And in case you’re wondering. Yes, Tom Daschle reads Talking Points religiously.

I just came across this article by Deroy Murdock in National Review Online. It’s not an article exactly. More like a catalogue of all the major highlights of infantile, conservative self-pity. It even has bullet points! … We’re too nice. The Left is on the warpath. We’ve gotta learn to fight. Yada, yada, yada.

Headline:   The Right’s Too Nice

Deck:   Battle Stations!

Trust me, you’ll get a real kick out of it. I give it the Talking Points seal of approval!

Just about every major paper in the country ran an article this morning about Louisiana Democratic Senator John Breaux’s meeting today with George W. Bush. And the possibility that he’ll offer Breaux a cabinet post. This, of course, is part of the reconciliation-bipartisanship -be-nice-to-me-please agenda which Bush is now pursuing.

But why isn’t anyone pointing this out? There is probably nothing that Bush could do right now that would piss Democrats off more than appointing Breaux, and thus reducing their margin in the Senate to 51-49.

Breaux, of course, would be dead to Senate Dems for such an act of betrayal.

I guarantee you, if Breaux accepted an appointment, the day he walked out of the Senate, Tom Daschle would grab him and plant a big, hard kiss right on his forehead (obligatory Godfather reference).

But what about Bush? To Dems on the Hill this wouldn’t be reaching out. It would be war.

Is this intentional? Do they want to screw with the Dems? Or is this just a misunderstanding of how Washington politics differs from politics in Texas?

In a weird way I suspect it’s both.

P.S. If Talking Points is just brimming over with all these choice insights, you’re probably asking yourself, why doesn’t he write a column for some major metropolitan daily?

Good question!

Talking Points spent some time last night at a conclave of Democrats (well, mostly Democrats). And the consensus seemed to be … Bad News: our beloved candidate just lost to a hapless dork who may be less qualified to be president than any candidate in the last century. Good News: our opponent for the next four years is a hapless dork who may be less qualified to be president than any candidate in the last century.

Alright … alright … I can live with that. That works for me.

Speaking of being in the opposition, Democrats now seem intent on making one of the first priorities of the 107th congress.

Isn’t this just great politics?

As we’ve seen, this is a very important issue. Whether or not Palm Beach county threw out upwards of 20,000 ballots in 1996 as well as 2000, it’s just an unacceptably high number. So the issue is good on substance.

But think of the politics.

Bush can’t run away from the issue, obviously. And yet what is the subtext of the whole debate? We need to reform our election machinery so that the loser in the race doesn’t slip through as the winner because a bunch of voting machines don’t work right. Isn’t that it? Even the Bush-friendly sub-text would be, we have to reform our election machinery so that the ‘winner’ isn’t hobbled and made illegitimate by faulty voting machines.

It’s win-win politics for the Democrats.

Finally, now that all the distraction is over, we can get down to the real business of the post-election period: bashing that lousy stab-in-the-back wretch Ralph Nader.

Watch for future posts.

If you’re interested in Talking Points’ take on Al Gore’s wonderful and heart-breaking concession speech you’ll have to hop on over to Feed Magazine where it was just published late this morning.

But your visit to Talking Points this morning isn’t totally in vain. Let’s go to the pictures.

Remember all that talk about the ‘rule of law’ from those election-grabbing conservative Justices on the Supreme Court?

Rule of law? Rule of law my #%$#!

Above you’ll see (in this picture from today’s New York Times) a seat-belted Justice Breyer and a seat-belted Justice Souter riding off into the evening in the gentle and protective embrace of the state.

And Scalia?

No seatbelt!

Now this raises an interesting question. Justice Scalia certainly has libertarian impulses which might give him anti-seat-beltist politics. But what happened to strict-construction? What about the rule of law? Doesn’t the law apply to everyone?

My read here is that Scalia is just putting his politics above his respect for the law.

But then we already knew that about him, didn’t we?

P.S. Talking Points would like to give a special TPM shout-out to the two eagle-eyed Pointsters who clued him in to the political import of this pic.

Please, please, please bring back the subjunctive mood!!! I can’t take it. No more ‘if Governor Bush becomes president.’ Or ‘should Bush become the president.’ No ‘were Bush to be the next president.’ Not even the semi-heart-breaking ‘assuming Bush becomes the next president.’ We’re down to ‘when Governor Bush is sworn in …’ Ahhh! The fatal ‘is.’ I guess it depends on what your definition of ‘is’ is. But clearly it doesn’t mean anything good.

(Uggh! Candy Crowley on CNN just said the ‘Bush Era’.)

Okay, let’s go to the Talking Points doomsday grab bag.

1. A Talking Points quote of the day. This one from Lois Frankel, the Democratic Minority Leader of the Florida House of Representatives (basically the Sunshine state Dick Gephardt).

“Let’s take our energy. We’re going to fix those machines, we’re going to register those voters, we are going to learn to vote right and come two years, we will leave no chad behind.”

Leave no chad behind! I like it. Even sounds a little like a southerner saying ‘leave no child behind.’ (Try it. You’ll see what I mean.)

2. And now to the decision. If you only read one paragraph in the whole bundle of Supreme Court concurrences and dissents, read Section A of Justice Souter’s Dissent. (Hey, don’t be so lazy. It’s only one paragraph. Trust me, it’s worth reading.)

And the most stunning part of the Per Curiam brief (the majority opinion):

“The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint member of the Electoral College.”
Section II, B

Perhaps true. But still stunning.

3. Got an email today from a friend sending me a link to a Bush parody based on The Grinch. I went and looked at it and for the first ten seconds it seemed totally moronic (and I started to wonder about my friend). But he’s right. It’s actually really funny. Take a peek.

4. And finally, inevitably, a picture. This picture comes from The Hindu, one of India’s national newspapers. I think many newspapers must have a machine called a goof-alizer. These are special machines that you run a photo through and a relatively normal-looking person comes out looking like a complete doofus. Apparently The Hindu has a damn good goofalizer. See for your self.

What did I tell ya?

P.S. I promise: after this I will get over my hurt about Gore, grow up a bit, and stop making fun of how people look.

Ugghh! I wanted to help the Gore folks see if there was any wiggle room in the Court’s 5-4 decision. Everyone is saying it certainly looks like a defeat. But equal protection, changing the law, not changing the law, standards, no standards. The decision is so complex. It takes a while to puzzle through every part.

But I think I’ve found the crucial passage. And I have to admit it looks like black letter law. In Rehnquist’s majority opinion, page 3, sub-section 4, footnote 2, it says “said recount plainly violates the George W. Bush protection clause of the United States constitution …”

Ouch! Hard to find a way around that.

Let me see if I understand this.

Florida wants to have a recount. But handling and interpreting different votes in slightly different ways is a violation of the constitutional rights of certain voters – presumably those voters who get their votes scrutinized more strictly than others. But how to come up with a standard? Ehh! Let’s just not count any of them.

Or, there’s another possibility. “Voter intent” is too imprecise a standard to insure fairness and basic equity. And every voter’s rights have to be upheld. But there’s just not enough time to work all this out. So, hey, let’s just not count any of them.

Am I missing something?

Talking Points doesn’t go in for quick-hits or cheap-shots. No childish humor or graceless attacks at other people’s expense.

But let’s just make this one exception, okay?

Look at this picture, which recently appeared in the Washington Post, and tell me whether this is the real Tom DeLay or the wax replica of Tom DeLay in the Tom DeLay Heritage Museum in Sugar Land, Texas.

Hard to tell, isn’t it?

You can send your answers here.

(Come on … You know you see it too. You know it’s funny.)

P.S. Next post, back to incisive political analysis.

Is Joseph Klock the Rosencranz and Guildenstern of this tragic saga or what? I was trying to decide whether he was the Rosencranz or the Guildenstern but then I decided he was oafish and clumsy and ineffectually devious enough to be both. (Klock, of course, is the attorney for Florida Secretary of State Katherine Harris.)

In the first run through before the Florida Supremes Klock’s strategy seemed to be to get in the face of the Justices as much as possible and pepper his shaky legal arguments with throw-away lines from Hardball.

He did a bit more of that today. But apparently the Cosmic Director of this sorry little show wanted to add a pinch more comic relief and had Klock consecutively misnaming Justices Stevens and Souter (calling Justice Stevens Justice Brennan and Justice Souter Justice Breyer.) Even Scalia couldn’t resist whacking him around a bit. The Supremes momentarily broke out of their heated tones to have some fun ritually hazing this hapless rube.

(I saw Olson flub a name last week, addressing one Justice when he was being addressed by another. But addressing a dead man was a particularly canny move on Klock’s part.)

There wasn’t much fun to be had in the Court for Gore-ites today. But at least Klock gave everyone a good laugh.

P.S. Did you notice Rehnquist repeatedly asking Boies whether the Florida Supremes ordered the statewide recount in the interests of ‘fairness.’ I think that was a trap. But Boies seemed to fall into it. I suspect Rehnquist thinks that decision in the interest of ‘fairness’ would on its face constitute something more than the straight interpretation of statutes that is all the US Supremes say the law allows.

This is a classic bait-and-switch. If they try to make it fair they’re changing the rules. If they don’t it’s an equal protection violation.

A conservative friend of mine writes and asks why the US Supreme Court’s judicial activist decision to stop the Florida recount is any more troubling than the Florida Supreme Court’s judicial activist decision to start it.

Quite apart from the particulars of the law (on which I believe the Floridians are on much stronger ground) isn’t the answer to this question elementary? In a democracy, decisions to count votes are inherently more legitimate than decisions to ignore them.

P.S. Next post Talking Points drops the portentous tone and goes back to the signature snarky comments.

P.P.S. Looking for more portentous, but quite accurate, comments on today’s oral arguments before the Supreme Court? Take a peek at Edward Lazarus in The Washington Post, Bob Herbert (particularly biting and good) in The New York Times, Anthony Lewis in The New York Times, and even the lead editorial in The New York Times.

Talking Points can rant and rave about the transparent partisanship of the Supreme Court’s Saturday decision as much as he wants. But when the New York Times’ Supreme Court reporter says essentially the same thing, well … then you know it really must be true.

(Alas, conservative Talking Points readers may find fault with that analysis. But, hey, if you’re so conservative, what are you doing reading Talking Points in the first place? … Just kidding, just kidding. Talking Points loves his conservative readers too.)

Anyway, back to my story.

Here are three choice grafs from Linda Greenhouse’s article in Sunday’s New York Times:

Justice Scalia said it was “the counting of votes that are of questionable legality” that was “casting a cloud,” not on the process in general but specifically on what Mr. Bush “claims to be the legitimacy of his election.”

In other words, the majority’s justification for the stay was that if the vote counting proceeded and had appeared to make Vice President Al Gore the winner by the time the court could decide the merits of Mr. Bush’s appeal, the Bush position would be untenable as a political matter even if it prevailed as a matter of law.

That justification put the court in the position of seeming to protect Mr. Bush – who has endorsed Justices Scalia and Clarence Thomas, named to the court by his father, as his ideal justices – from whatever uncomfortable truth the uncounted ballots might reveal. The fact that the justices entered the stay at midafternoon Saturday, with the counting under way and most of it expected to conclude at 2 p.m. on Sunday, gave the court the appearance of racing to beat the clock before an unwelcome truth could come out.

That qualifier ‘seeming’ in the first sentence of the third graf must be the price which common sense must pay to the canons of reportorial objectivity.

Ahha! As long as we’re talking about complete irrelevancies which are nonetheless terribly fun to point out, it turns out that one of Bush attorney Ted Olson’s law partners is none other than Eugene Scalia. As in Justice Antonin Scalia’s son.

Olson, of course, will be arguing for Governor Bush in tomorrow’s oral arguments before the US Supreme Court. This, presumably, because he has wrapped up work on the Arkansas Project, the multi-million dollar effort to dig up dirt on Bill Clinton funded by Richard Mellon-Scaife and run through The American Spectator Magazine.

Ahhh … but I digress. Does Scalia have a conflict of interest? Has Scalia Jr. done any work on the Bush case? Should Scalia, Sr. step aside?

Of course, none of this matters (Supreme Court Justices don’t recuse themselves); but isn’t fun to point out as long as Scalia completely tipped his hand in his utterly transparent concurring opinion to the stay order?

But perhaps we’re not being thorough enough on this whole recusal question. Souter and Thomas were appointed by George W.’s dad. Surely they have a conflict and should step aside, right? And in all fairness Breyer and Ginsburg were appointed by Bill Clinton and Al Gore is Clinton’s vice-president. So they should step aside too. And if you’re going to go by that standard Rehnquist, Scalia, O’Connor and Kennedy were appointed by Ronald Reagan. And George W.’s father was his vice-president. So they should step aside.

That just leaves Ford-appointee John Paul Stevens…

I can live with that.

Okay, forget about Joe Lieberman. Let’s make it Gore-Boies (it even has a nice, good ole boy sound to it.) I know we’re supposed to reflexively despise all lawyers and all their shenanigans. But I have to confess: I’m really starting to like this guy.

Boies was on Meet the Press this morning with Tim Russert and it was really a tour de force. If you’re on the West Coast and can still watch it, do so. Or if you have Nexis be sure to look at the transcript.

I’m currently writing an unrelated article in which I have to praise (painful as it is) Russert. But this was a sterling example of how thoroughly a well-versed and articulate advocate can bulldoze through an often-factually-challenged interviewer, even one with Russert’s Rock-em, Sock-em, Robots style.

Russert: How do you respond to charges ‘x’, ‘y’, and ‘z’?

Boies: Well, actually, Tim, ‘x’ is ‘p’ and ‘y’ is ‘q’ and you don’t really seem to have understood ‘z.’

Russert: Oh.

Let’s just say that’s my paraphrase. But look at the transcript and tell me if you disagree.

P.S. My sources tell me that Boies will be arguing for Gore before the Supreme Court. Not Larry Tribe. Why not? Lead with your clutch hitter.

Yet another quotation from over the wires that requires little explanation:

“It’s remarkable that the same justices who have argued against judicial activism have intervened here with extreme judicial activism by telling a state’s highest court that it cannot decide a matter of state law … This is very bad for the Supreme Court because their credibility is so diminished, and their moral posture is so diminished, that it could take years to pull back from that.”

Senator Patrick Leahy D-VT, Ranking Member, Senate Judiciary Committee

‘Nuff said.

A few sentences into John Paul Stevens’ dissent you find the key sentence – right on the law and on democratic principles …

“Counting every legally cast vote cannot constitute irreparable harm.”

— John Paul Stevens, writing in dissent, George W. Bush et. al. v. Albert Gore, Jr. et. al. on Application for Stay, December 9, 2000

George W. Bush spent most of the campaign telling voters and journalists that Antonin Scalia was his favorite Justice on the Supreme Court.

Apparently Scalia feels the same way about George W.!

Talking Points has been bellowing on for several days now about the impropriety of questioning the integrity of the rulings of judges.

Well … that was this morning’s post. Things change!

Let’s look at Antonin Scalia’s highly unusual concurring opinion to the court’s order to suspend vote counting in Florida. After arguing, improbably, that George W. Bush would be irreparably harmed by having undervotes counted, Scalia wrote the following:

Another issue in the case, moreover, is the propriety, indeed the constitutionality, of letting the standard for determination of voters’ intent – dimpled chads, hanging chads, etc. – vary from county to county, as the Florida Supreme Court opinion, as interpreted by the Circuit Court, permits.

How can this be anything but an astonishingly inconsistent (not to say hypocritical) statement? The Florida Supremes explicitly adopted the statutory standard put in place by the Florida legislature (see this earlier post for more details). The whole basis of the US Supreme Court’s earlier ruling was that the state legislature had plenary power to determine the method of the election. Not just the state broadly speaking, but the legislature.

Can they have it both ways? The standard Scalia finds so suspect is the one the legislature put in place. And the court is on record as holding that the legislature has the power to set the standard. Am I missing something here? Or is Scalia?

P.S. Scalia’s argument is bogus on a more mundane factual level. His reasoning would also mean that using different voting technology from county to county is also problematic or, perhaps to his lights, unconstitutional. (Special Talking Points’ shout-out to TPM reader Stephen Schwartz for pointing this out.)

P.P.S. Am I wrong to fear that the five members of the Supreme Court majority have knowingly just prejudged, even settled, the matter by running down the clock?

Two quick points. First: As I said in this earlier post, the courts are determinative and their hearings and rulings will proceed. But Democrats should be focusing on this political argument:

The question isn’t whether the Bushies have the legal power to stop, slow-roll, or stymie the Florida Supreme Court’s order. The question is why they want to.

The answer is obvious, isn’t it?

Second: During and since the contest trial under Judge N. Sanders Sauls it has become clear that Judge Sauls has fairly conservative political and judicial leanings. He is certainly as strict-constructionist and conservative as the Florida Supremes are interpretivist and liberal. But you heard very little of this argument from Dems after his ruling. Certainly nothing like the bloody talk from Republicans attacking the Florida Supreme Court after their 4-3 ruling in favor of Al Gore.

Now the US Supreme Court has stayed the recount on a narrow 5-4 decision with all the conservative justices ruling for suspending the recount. Sound familiar? I think we’re about to see one of the many differences between Republicans and Democrats.

Wait a second. Aren’t the Republicans hoisting themselves on their own petard?

One of the key Republican arguments currently before the 11th Circuit Court of Appeals and the US Supreme Court is that the current recount is ‘standardless’ and thus a violation of both the equal protection and due process guarantees of the 14th Amendment. The argument here is that the Florida Supreme Court set no guidelines for what constitutes voter intent. And thus each county can arrive at rules at their own discretion.

The Court’s order stated:

In tabulating the ballots and in making a determination of what is a “legal” vote, the standards to be employed is that established by the Legislature in our election code which is that the vote shall be counted as a “legal” vote if there is “clear indication of the intent of the voter.”

On the face of it, the Republican argument seems to have at least an arguable merit. This is a very ambiguous standard.

But the whole weight of the Republican claim across the board is that the state legislature has a basically absolute and unreviewable power to make the rules for the election. So how can the federal courts gainsay the (admittedly problematic) standard promulgated explicitly by the state legislature?

So what will we find in those piles of undervotes? The Washington Post leads with its analysis that says Gore stands to come out ahead even in counties that Bush won in the overall vote. An analysis by Knight-Ridder (reported here in the Detroit Free Press), however, comes to the opposite conclusion: that Bush stands to gain.

But the KR analysis is “based on the assumption that undervotes split in the same proportion that each county’s vote for president did” – an assumption almost everyone else disagrees with. There is a broad consensus that undervotes are disproportionately located in poorer and/or more heavily African-American precincts. (The result of some vile conspiracy? No, poorer areas have more of the rickety old ballot machines that churn out more undervotes and the surge in African-American voters brought in many new or occasional voters who had less experience using the voting machines. Thus, apparently, more undervotes.) This AP article argues that this was the case in Duvall county. Congresswoman Corrine Brown told the AP that “Of the county’s 4,967 Duval County undervotes, 1,413 were cast in predominantly black districts that carried Al Gore by more than 90 percent.”

This article in the Philly Inquirer gives a run-down of the contending ‘whose votes are they?’ theories.

P.S. We have a winner in the (admittedly as yet unannounced) One-Time-Respectable- Republican-Turned-Incendiary-Hack contest. The prize goes to Jack Kemp. The following graf from Rick Berke’s article in today’s NYT:

To further that point, the Republican Party hurriedly issued a statement by Jack Kemp, the vice presidential nominee four years ago. “Today, America has witnessed a judicial coup d’etat by the Florida Supreme Court unprecedented in modern history,” he said.

That’s the hack, Jack.

P.P.S. We’ve already seen and noted in earlier posts that the John McCain-Chuck Hagel crew in the Senate has been among the most temperate, and least Bush-shilling, groups of Republicans in their statements about the Florida fracas. Hagel seems to be keeping it up.

Again from Berke’s article in the NYT.

Senator Hagel said he was worried about the tenor of the oratory from his colleagues and advised them not to let it get out of hand. “I think we should be very very careful of what we say and very measured,” he said. But Mr. Hagel said he did not see the matter being resolved soon. “I don’t know what you do to stop it,” he said. “The only thing you could do is one of these guys steps up and says, `I’m not going to put the country through that,’ because Constitutionally both men have every right to go on with this.”

P.P.P.S. Want more info on the doings of Senator McCain? This article of mine in The American Prospect details McCain’s successful efforts on behalf of Republican congressional candidates during the last election, and says what it might mean for McCain in the next congress.

Talking Points isn’t sure he really grasped the full meaning of the word ‘Schadenfreude’ until this moment.

(‘Schadenfreude’? Websters defines it as “enjoyment obtained from the troubles of others.” Doesn’t it figure you’d have to go to German to find a word that describes such an ugly sentiment?)

But boy is he feeling it now.

Right now he’s really enjoying watching the dread and rage on the face of Bush attorney Phil Beck as he tries, rather obviously, to tell Judge Terry Lewis that he basically needs to undo or ignore what the Florida Supremes just told Lewis to do.

Nice try, Phil.

At one point Beck argued that determining a rule or standard for judging undervotes (dimples, pregnant, etc.) would mean ‘changing the rules after the election.’ But then Judge Lewis shot back: don’t the Republicans also argue that there is no standard? How can you change the standard when there is no standard determined, he asked.

Good point, judge!

And now Beck is serving up the bogus argument about undervotes and discrimination against Cuban-Americans in Miami-Dade. (Here’s the doctrine about why counting only undervotes is fair.)

Ahhhh …

“enjoyment obtained from the troubles of others …”

You got that right.

First, read this excellent column by Mike Kinsley. It’s worth your while.

Now down to business. Isn’t it time for the Democrats to MASSIVELY raise the volume against Republican attempts to prevent the hand recounts just ordered by the state Supreme Court? The Florida Supreme Court ordered hand recounts of undervotes not just in those three or four Democratic counties, but in every county in the state where ballots are in dispute. What is their argument on the merits against doing so? What reasons can there be aside from a fear that such a count will show that their candidate didn’t win?

(Think only counting undervotes is unfair? Here’s the Talking Points doctrine on that issue.)

Shift the argument. Let the courts go their way. What the Democrats have been lacking in the last couple weeks are well-argued political arguments. The question isn’t whether the Bushies have the legal power to stop, slow-roll, or stymie the Florida Supreme Court’s order. The question is why they want to.

And of course there’s only one answer. They want to win whether they got the most votes or not.

Simple as that.

Where to begin? I heard a few days ago on a chat show that the Florida Supreme Court had had some dealings with Judge N. Sanders Sauls and that they had disciplined him for misbehavior. I looked like crazy on Nexis to find a transcript of the statement, which I believe was from some Florida lawyer, but to no avail. So, fair or not, the New York Times scooped me.

Just think. This could have been the big scoop that put Talking Points on the map! But no dice.

Anyway, we’re obviously going to be hearing a lot about the Sauls-FLA Supremes feud in the coming days.

So what’s next:

1. The Bush team will have to reel in the warm-and-fuzzy nicey-nice card it’s been playing for the last few days with Gore. Back to James Baker and his trademark shiv in the gut.

2. What does all this really matter if the Florida state legislature can assign the electors anyway? It matters a lot. Because if nothing else it forces the Republicans to win ugly, very ugly. And that changes everything. Even possibly the dynamics in the Congress.

3. Republicans in the House go even more insane than they were before. Even before this happened Tom DeLay was threatening Clinton with shutting down the government unless the president caves on the budget.

4. Once Gore moves ahead in the recount, if he does (yes, a big if), then everything changes.

5. Okay, #4 was pretty damned obvious. Sorry.

P.S. Emerging spin watch:

All this time I thought the hand recount in Miami-Dade stopped because there wasn’t enough time to finish or because that Republican mau-mau intimidated the Board of Canvassers into stopping. But apparently I was wrong. According to Johnnie Byrd, Florida Republican state representative and co-chair of the select joint committee to appoint presidential electors, they did it to help Al Gore. Who woulda thunk it?. Here’s Byrd last night on Larry King Live:

Well, I think you can count these votes forever. The real question is, why did the recount stop in Miami-Dade and I think the reason that it stopped is that the vote trend was going toward Bush. So, we can count and count forever and litigate forever but to make sure that Floridians are represented in the Electoral College, we need to put some finality to it.

So that’s what happened.

P.P.S. Wait a second! If Gore wins, then Lieberman has to resign from the Senate to become Veep. Then Trent Lott is actually the Majority Leader again. Then what will I do? No more Parity Leader! (Don’t understand the reference? See this earlier post.)

You’ll no doubt remember that in this earlier post Talking Points coined the derisive title “Parity Leader” to describe (okay, make fun of) Trent Lott’s new status as pseudo-Majority Leader of the now evenly divided Senate.

Well now Talking Points’ catchy phrase is catching on!

An OpEd column in today’s New York Post picks it up and runs with it. “Maybe Democrats should call him Parity Leader Lott?” the column snidely, and only half-rhetorically, asks.

Okay, okay! Fine, fine! … I admit it: I wrote the column in the Post. But I don’t see where that changes anything. It’s still catching on. By the end of next week you’ll be hearing it from snide Dems on Crossfire and Hardball. Trust me. It’s gonna happen.

Why else would it be called the Talking Points Memo?