Appearances matter, on the U.S. Supreme Court as much as
anywhere else in public life. Appearances matter still more when the nation’s
highest court assumes the responsibility of determining the outcome of a
bitterly tied election for the Presidency. Whatever the Court’s ultimate
decision may turn out to be-and that remains an open question as this is being
written-the conduct of the Court’s leading conservative, Justice Antonin
Scalia, has created an appearance of partiality and bias that undermines
confidence not only in its momentous decision to stay the counting of ballots
in Florida, but in the Court itself.
Justice Scalia is known almost as well for his belligerence
as for his brilliance. Adhering to that profile, his first misstep was his
failure to restrain himself when Justice John Paul Stevens filed a sharp
dissent from the stay granted to George W. Bush. Worse, in his brief concurring
opinion, Justice Scalia managed to give the impression that he had decided the
case in Mr. Bush’s favor before it had been heard; that he feared Mr. Bush
might lose if all the disputed votes were counted; and that he felt
considerably greater concern about the resulting effect of that circumstance on
Mr. Bush’s Presidential “legitimacy” than about the possibility that some
Americans might have forfeited their franchise to a malfunctioning system.
Aside from his initial outburst, there are circumstances in
this case that leave a mild whiff of cronyism emanating from Justice Scalia’s
chambers. Two of the justice’s nine children are connected with law firms that
represent Mr. Bush. His son Eugene is a partner at Gibson, Dunn & Crutcher,
the very same firm that houses Theodore B. Olson, who argued the Bush case
before Justice Scalia and his eight colleagues. Another son, John, has just
joined Greenberg, Traurig, the firm of Bush attorney Barry Richard, who
represented the Bush camp in the Florida Supreme Court.
It isn’t difficult to imagine how greatly the partnership
interests of two Scalia offspring would be promoted by a victory for Mr. Olson
and Mr. Richard (and their firms) in one of the most important legal cases in
history. And without casting any aspersion on Justice Scalia’s ethics, it is
easy to understand why that dual coincidence disturbs many Democrats. The
Republican chorus has been howling for weeks about the supposed partisan “corruption”
of the Florida courts, despite the absence of any hint of conflicts of
If one of Al Gore’s attorneys had just hired the son or
daughter of one of the moderate justices, the Republican crazies would be
demanding his indictment. If two relatives of a justice were partners of David
Boies, that would be regarded as just cause for an insurrection.
Yet the ties that bind Justice Scalia and Mr. Olson
represent the affinity of a like-minded, very powerful clique rather than any
old-fashioned, county-courthouse back-scratching. Both men are stalwarts of the
Federalist Society, a nationwide association of conservative lawyers that grew
into a virtual hiring hall for federal jurists during the Reagan and Bush
administrations. Both have an ideological interest in maintaining Republican
control of the judiciary. No doubt Justice Scalia-who reportedly grumbled last
spring about quitting the bench in frustration if Mr. Gore becomes
President-would be delighted to see Mr. Olson don the black robe himself someday
under another Bush Presidency.
None of the above, however, is nearly as troubling as the
shared eagerness of these Federalist brethren to prevent the counting of any
votes that might threaten their political aims. That impulse apparently trumps
even their own hallowed principle of state’s rights.
How ludicrous it is now to hear them appeal to federal
authority in defense of “equal protection” for Florida voters, when so much
conservative jurisprudence over the past 40 years was designed to deny that
same kind of protection to black voters in the South. If the Republicans truly
had any commitment to equality for all citizens, they might utter a word or two
against the dilapidated voting machines that are concentrated in counties where
minorities and Democrats live, while Republicans enjoy the comparative accuracy
of optical scanning equipment.
When a few Democrats proposed to disqualify absentee ballots
from certain counties because of illegalities in the application process,
Republicans replied indignantly that those errors were not the fault of the
innocent voters. (And a black, female Democratic judge agreed with them, as did
the maligned Democratic appointees on the Florida Supreme Court.) When
Democratic voters are victimized by faulty equipment, without violating any
law, the same Republicans smirk that it’s just tough luck. The implication that
all voters are equal, but some are more equal than others, is impossible to
And that is the appearance which will really matter, long
after all the little links between Justice Scalia and the conservatives
litigating for Mr. Bush are forgotten.
Follow Joe Conason via RSS.