The election contest as viewed from the other coast

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.


  1. 1

    headless lucy spews:

    It is not surprising to me that Rossi thinks that the courts are there merely to confirm and validate Rep. opinion. That’s the whole danger in believing that you are “right” no matter what and deserve to win. I see no compelling reason to consider these neo-cons to be fellow citizens. They are seditious traitors and usurpers.

  2. 2

    David spews:

    “It wasn’t about fairness or justice, it was about winning. And Rossi has proven himself to be a poor loser.”

    It wasn’t just about winning (it may not have been about winning this election at all), it was about posing as the winner in an extended PR stunt—a bid for public opinion that may have backfired. Rossi’s not just a poor loser, he’s a poseur.

  3. 3

    Tooth Fairy spews:

    You have to admire the Reps’ ability to focus on results and stay on message. Too bad it isn’t used for something constructive instead of criminal enterprise. They’re like the Mafia — leadership talent there, but sadly misused for evil ends.

  4. 4

    Felix Fermin spews:

    Rossi’s crass statement, which floated right over the heads of the MSM, was as loud as a church bell ringing to the extreme right wing. They’re coming after our democracy, and we’d better be ready to combat them!

  5. 7

    headless lucy spews:

    To these guys if you prevent them from imposing their will on others they interpret that as denying them their free speech. There is just no reasoning with them.

  6. 8

    Frank spews:

    I too think Rossi was ungracious and that Bridges did a fine job.

    But, to compare WA’s ELECTED courts to Federal Courts (as Oliphant does) is silly. WA judges are politicians, pure and simple. They run for office. They raise money. They campaign. Their views are well known to all who care. They are no different than the any other office holders in that regard.

  7. 9

    GBS spews:

    When an election outcome is as close as this one, I don’t blame Rossi or the Republicans because they fought hard for the governor’s office. A never-say-die attitude is a quality every successful leader must posses. That includes litigating the case before the courts if the losing side of an election believes there is reasonable legal grounds for the judge to set aside the election’s outcome. The only way to know for sure is to present your evidence in a court of law. The operative wording is: “reasonable legal grounds.”

    At the end of the day, Rossi and Republicans endured a verbal “legal-ease bitch-slapping” from Judge Bridges. When a judge uses terms like “dismissed without prejudice” and the “ultimate act of judicial egotism and judicial activism” you know your case lacked reasonable legal grounds. This is similar to the Fox vs. Franken case when the judge said that Fox’s claims were “wholly without merit.” **S-L-A-P**

    Rossi’s concession speech made him and the Republican party an EMBARRASSMENT to the whole notion of civil discourse. At least Al Gore conceded he said “While I strongly disagree with the decision I lay down my sword and shield.” Now that’s class. Unlike Rossi who practically needed his pampers changed on the podium.

    The way Rossi ended it is what made this smack of a negative PR campaign to undermine Governor Gregiore.

  8. 10

    dj spews:

    GBS @ 8

    I don’t blame Rossi or the Republicans because they fought hard for the governor’s office. A never-say-die attitude is a quality every successful leader must posses. That includes litigating the case before the courts if the losing side of an election believes there is reasonable legal grounds for the judge to set aside the election’s outcome.”

    Rossi’s bad judgement was in starting a lawsuit without any evidence whatsoever. I don’t have a problem with a candidate challenging an election if there is real evidence at hand that the wrong person won. The GOP case was a lot about wishful thinking. Fortunately, Bridges ruled throughout the case in ways that completely minimized the PR benefit to the GOP.

    I do wonder if there was ever a point where Goldy’s
    '>April Fool’s day post nearly came true?

  9. 11

    smoke spews:

    Rossi hasn’t said anything a Dem hasn’t.

    Calling names and having a spin on things is diferent when it comes from a Dem.

    Sore loser? Many more than just Dino lost this time around.

    This will be old news once 912 gets enough siggys.

    BTW: Hurray for the pay raises Queen Chrissy gave here staff…they truely deserved it. How many of them ever had a REAL job?

  10. 13

    headless lucy spews:

    You have to believe in what you’re trying to accomplish in order to remain motivated enough to get all those signatures. What is your real motivation? You’ll wilt if hurting Gregoire is your only motivation. And how many will sign your petitions if you are truthfull about your motivations?
    On some level you must be aware that when the Fed cuts spending on infrastructure and social programs that taxes are going to go up—-especially if you’re giving away the farm to big corps. in the form of tax breaks that don’t pay off in more revenue for the state.

  11. 14

    Mark1 spews:

    What Rossi said in his quote was classy and truthful. I applaud him for going out with grace and dignity. If you think what he said was wrong, then you’re all dumber than you look. Its over, like it or not. NEW TOPICS! Thanks.

  12. 15

    Donnageddon spews:

    If you think what he said was wrong, then you’re all dumber than you look. Its over, like it or not. NEW TOPICS! Thanks.

    Comment by Mark1 — 6/13/05 @ 1:14 pm

    LOL, you sound like POuddlyuddly “I declare the discussion over! NUFF SAID!”

    Sorry Mark1, this ain your blog, or a right wing blog. Your declaration carries ne weight. So suck it up, big boy! Dino Rossi’s speech was hateful and disgraceful.

    He is just another crybaby neo-con caught wiping his shit all over the laws.

  13. 16

    jsa on beacon hill spews:

    Slapping the high court as a partisan vehicle is “classy and truthful”?

    Mark1, do you watch sports? I don’t as a rule, but I’m just asking. Do you EVER see players after a big game say “Well, we played our best, and we would have won, but the refs just didn’t see the calls our way”. You don’t. Even though pro sports have fallen to a pretty low level, the average pro athlete with an 8th-grade education has more sense than to say that in front of a live camera.

    Rossi is slapping the refs. Everyone has opinions on the refs. An unpopular call makes the barflies whine and bellyache.

    There was no class involved. It was the opposite of all that.

  14. 17

    jcricket spews:

    Actually, jsa, Rasheed Wallace (for one) is known for doing just that – of course he ends up getting fined by the NBA for doing so (it’s against the rules for the players or coaches to criticize the officials in the media). And Rasheed’s not one of the classier players in the NBA.

    The NBA requires that the coach or player type out their complaint and document it with video tape, where it is then internally reviewed. In fact, the NBA is watching every game to ensure the officiating is fair (would ruin their “product” if it wasn’t) and regularly sends out notices to officials to clarify rules, etc. They just don’t do it publicly.

    Just to be clear, I thought Rossi’s comment was both factually incorrect (Republicans and Democrats have won in front of the WA Supreme Court during this election contest) and petty. But that exactly meets my expectations for Dino.

  15. 18

    dj spews:

    Mark1 @ 14

    “What Rossi said in his quote was classy and truthful.”

    What the fuck are you smoking?

    Truthful???? Rossi said, “The one thing missing from the judge’s ruling was a clear decision as to who actually won the election and got the most legal votes.”

    OH???? What did Judge Bridges say?

    Indeed, the Court is more inclined to conclude that if this type of testimony is properly admissible, then Ms. Gregoire would have prevailed under a theory of proportional deduction based on the testimony of Drs. Adolph and Handcock.”

    In other words, if the proportional deduction method were to be allowed, Gregoire would have easily won. In fact, using the illegal votes identified by Bridges, Gregoire’s lead actually increases under proportional deduction.

    Rossi says: “So with today’s decision, and because of the political makeup of the Washington State Supreme Court, which makes it almost impossible to overturn this ruling, I am ending the election contest.”

    The political makeup of the court is irrelevant. Rossi quit because the decision is impossible to overturn, period. Rossi got his ass dropkicked from Wenatchee back to Bellevue by Judge Bridges, and rather than conceeding gracefully, Rossi blames the courts. In sports, Rossi would be seen as a poor sport. In politics he has demonstrated his inability to behave like a statesman.

  16. 19

    GBS spews:

    If anyone reads any posts from that dispicable, lying, piece of shit Pudster “Wounded Knee” tell him I’ve responded to his post on the Shiavo Autopsy thread @ 269.