A reader tipped me off to a column by Thomas Oliphant in the Boston Globe, discussing Dino Rossi’s ungracious and telling mischaracterization of the Washington State Supreme Court. It was interesting to read an out-of-stater’s impressions of our election contest.
What Rossi said was not that the battle was over and that no matter how maddening the situation was, it was time to accept the judgment. What he said was that he was halting the legal battle ”because of the political makeup of the Washington State Supreme Court.”
Rossi’s implication was in one sense accurate in that Democrats nominally predominate there, but what struck my eye was the implication that there is a direct connection between ”makeup” and assumed result. In his eyes, judges were no more than robots, a source of votes in a case instead of reasoned opinions on the legal merits.
Indeed, after two recounts of the disputed result by machine and then an exhaustive tally of the state by hand that produced the Gregoire lead, the Republicans went judge shopping for their court case. That search, of course, assumed that ”conservative” county or ”conservative” judge implied an expected connection between the adjective and the anticipated result.
What was missing was the political argument first framed in 1968 by Richard Nixon and used ever since by Republicans in campaigns to encapsulate conservative legal philosophy as a presumed antidote to the presumed excesses of the late Chief Justice Earl Warren’s presumably activist US Supreme Court.
As Nixon first articulated it, the idea was that judges interpret law, they don’t ”make” it like legislators. They interpret law and the Constitution strictly, moreover. If the words aren’t in the founding document, they can’t be grafted onto it by judges. If the words don’t say Uncle Sam can do something, that something is reserved for the states and the people, as the Constitution says. The essence of judging is not the achievement of a desired policy result but the application of law. Agree or disagree with the philosophy, it is cogent and clear and deserves respect.
As Oliphant points out, Rossi went judge shopping, and Judge Bridges gave him every chance to win his case — according to the law. The Judge clearly laid out before trial the standard and burden Republicans would have to meet, and admitted nearly every piece of evidence the Republicans presented. In the end, Rossi simply failed to prove his case, and Judge Bridges held to his “conservative” principles… by holding to the statute.
Of the GOP invitation to theorize, he noted pointedly that ”to do so would constitute the ultimate of judicial egotism and activism.”
Contrast this classically conservative ruling with Antonin Scalia’s silly invention in 2000 of a 14th Amendment ”right” in stopping a statewide recount of Florida’s disputed presidential vote as belatedly ordered by that state’s supreme court.
And contrast Rossi’s crabby reference to the makeup of Washington’s supreme court with Al Gore’s gutsy, gracious acceptance of what was really an effort to keep the House of Representatives from having to elect George Bush.
Conservative legal philosophy lives on, but much more so in Washington State than in Washington, D.C.
Oliphant clearly saw this election contest for what it was. It wasn’t about fairness or justice, it was about winning. And Rossi has proven himself to be a poor loser.