Speaking of States' Rights and Judge McConnell

I wrote recently that

I favor States' rights -- as long as States' rights advance liberty. The Left (Stevens-Souter-Ginsburg-Breyer) wing of the Supreme Court has no such agenda. The Court's Left wing has as its main agenda the advancement of governmental power. Anyone who applauds the Left wing's accidental embrace of States' rights (as in Kelo) might as well applaud the Dixiecrat wing of the Democrat Party for its cynical embrace of States' rights in the defense of state-enforced segregation and denial of voting rights.

I'm reminded of the Stevens-Souter-Ginsburg-Breyer wing's cynical appeal to States' rights in Bush v. Gore. In Part I of Justice Ginsburg's dissent (joined by Justices Stevens, Souter, and Breyer), she wrote "Rarely has this Court rejected outright an interpretation of state law by a state high court." As if it were as simple as that.

Judge Michael McConnell, now considered a front-runner to replace Justice O'Connor, showed a much finer understanding of constitutional law when he wrote for OpinionJournal on Novemeber 24, 2000, about the then-unsettled case of Bush v. Gore:

One sentence of the Florida Supreme Court's decision on hand recounts tells it all: "The will of the people, not a hyper-technical reliance upon statutory provisions, should be our guiding principle."

That is like saying, of a disputed umpire call in the World Series: "Athletic superiority, not a hyper-technical reliance upon the rules of baseball, should be our guiding principle." In our system, the will of the people is manifested through procedures specified in advance. When those rules are changed in mid-stream, something has gone terribly wrong.

Article II of the U.S. Constitution provides: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors..." The Florida legislature has enacted a detailed election code, including an unambiguous deadline of seven days after the election for counties to report their results. No party to the litigation has argued that this statutory scheme is unconstitutional under either the federal or the state constitution.

As Judge McConnell pointed out on December 14, 2000, the majority in Bush v. Gore came to the right result but for the wrong reason:

[O]nly three justices--William Rehnquist, Antonin Scalia, and Clarence Thomas--were ultimately persuaded by the Article II argument. The majority rested entirely on the theory that the recount, as ordered by the Florida court, would violate the equal protection of the laws by failing to provide a uniform standard for vote counting, by counting some overvotes and not others, and by failing to recount the challenged results in Broward and Miami-Dade. That rationale was sufficiently uncontroversial to command widespread assent among the justices--even those presumably favorable to Mr. Gore. . . .

The court did not have the resolution to declare that no recount was necessary, or the patience to declare that a proper recount should proceed. That means, unfortunately, that Mr. Bush will take office under conditions of continued uncertainty. I do not think that part of the decision did him, or the nation, a favor.

Amen to that.