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HOW HE SEES IT Make Bush v. Gore the litmus test



Published: Sat, July 23, 2005 @ 12:00 a.m.



By SIDNEY ZION

NEW YORK DAILY NEWS

Don't bother John Roberts about Roe v. Wade. Make him tell us what he thinks about Bush v. Gore.

That's the key question, and the answer will advise the Senate and the country as to his bona fides, advertised as a jurist who will read the Constitution as written and never legislate from the bench.

It should interest both sides of the Senate, and conservatives and liberals everywhere. In a pure sense, conservatives more, for they have promoted judicial self-restraint and states' rights forever.

And what decision in our history was more contemptuous of both than Bush v. Gore? That 5-to-4 ruling, which ran against everything the Rehnquist Five stood for, put George W. Bush in the White House. It was nothing less than a judicial coup d'etat, and it embarrassed principled conservatives as it outraged liberals.

Al Gore might have been president if the court had ordered a statewide recount of all the ballots that had been rejected, a total of 175,010.

The Supreme Court's holding was based on the equal protection clause of the Fourteenth Amendment. This by a majority that could care less about equal protection.

"A bolt out of the blue," said Professor Cass Sunstein of the University of Chicago Law School, a supporter of the Rehnquist Court. "There is no precedent for it ... a real embarrassment, the worst moment for the court ..."

Equal protection? The majority found that Florida's rules violated the clause because the state had different rules regarding manual recounts. The trouble was that 33 states, including Bush's Texas, had the same rules.

O'Connor's vote

The crucial vote that put Bush in the White House was provided by Associate Justice Sandra Day O'Connor, whose seat will be filled by John Roberts.

Would he vote the same way?

The Wall Street Journal, which presumably loves him, reported that he gave $1,000 to Dubya's recount legal fight in the 2000 election.

If that doesn't give the Senate Judiciary Committee a jump to question him, what would?

On the other hand, the Democrats, led by Ted Kennedy and Chuck Schumer, practically sainted O'Connor upon her retirement. It seems that these liberal Dems have turned Cole Porter around. They sing "So hard to remember, so easy to forget."

Which brings us full circle to George W. Bush, who introduced John Roberts as a jurist who would never "legislate from the bench." Was this chutzpah or is Dubya an ingrate? If he hadn't been the beneficiary of a Supreme Court that did that very thing, Al Gore might have been picking the new justice the other day on prime time.

X Sidney Zion is a columnist for the New York Daily News. Distributed by Knight Ridder/Tribune Information Services.




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