Gore's Back from the Dead; Sufferin' Suffrage; How Sleazy Is Jesse Jackson?

This was a triumph pulled off in the face of long odds. It's not just that Gore had to appear gracious after five weeks of trying to connive his way into the presidency. It's that he had to appear gracious to two wholly irreconcilable constituencies: President-Elect George W. Bush and the Democratic Party foot soldiers who waged an assault on every institution in Florida to cobble together a victory for Gore. The first was an easier task. Democrats were describing the one-vote U.S. Supreme Court majority against recounts as a "disgrace" and a "sham" that had "handed George Bush the presidency on a platter." (No Democrats had been similarly bothered by the illegal and illogical 4-3 decision by the seven Democratic Party politicians on the Florida Supreme Court, which would have used unequally weighted recounts to hand the presidency to Al Gore on a platter.) In this climate, it was a simple matter to look statesmanlike.

Gore was as conciliatory as the occasion demanded?congratulating Bush, referring to him as the "president-elect"?and not a drop more. Then he spoke to his myrmidons. "Let there be no doubt," he said. "While I strongly disagree with the court's decision, I accept it." It was impossible to tell whether he wanted to stress the acceptance or the disagreement. Then he added, "I do have one regret: that I didn't get the chance to stay and fight for the American people over the next four years, especially for those who need burdens lifted and barriers removed, especially for those who feel their voices have not been heard. I heard you and I will not forget." Twice, he used the crypto-McCarthyite slogan that had become the rallying cry of his movement: "This is America."

Two weeks ago I would have said Al Gore's political career was over. Not now. The French novelist Andre Gide used to speak of the need to "become what you are"; the writer Midge Decter talks of the imperative to "join the side you're on." Until last Wednesday, Gore had always done the opposite, putting his trust in a bogus routine of planned spontaneity, feigned sincerity, and acting genuine. If Gore can reveal?or discover?the genuine self that showed up in that speech last Wednesday, he can be in the running for 2004. He's the rare politician who could benefit from a few years off to let his natural self emerge. More likely, though, he'll come to nourish his self-image as firebrand, vox populi, Young Spartacus?and turn into something even less natural than he is now.

But who knows? Maybe his new Battlin' Al image will help him. Throughout the five-week postelection, polls tended to run slightly against him, a bit worse than the 50-50 split you'd expect under the circumstances. A mild consensus seemed to be forming around the idea that it was he who was stealing the election, that he was Richard Nixon Without the Class. Toward the end of last week, though, signs began to emerge indicating history will be kind to Gore. The country may have been against him, but a highly polarized pundit class is solidly in his favor. For every Michael Kelly or Charles Krauthammer, there have been five E.J. Dionnes and Michael Kinsleys, driven out of their usual mild-mannered, What-Me-Worry wryness into a frenzy of foaming rage.

If recent events are any indication?Reagan's tax cuts, Iran-contra, the Anita Hill-Clarence Thomas hearings, the Newt Gingrich government shutdown, Clinton's impeachment?the roughly even split in public opinion during the controversy is an unstable one. The public's familiarity with the facts of the case evaporates, and it stews for months or years in a marinade of post-facto press coverage and books that is seasoned roughly 4-to-1 with the prejudices of the bien-pensants. The opinion of the "broad majority of Americans" gradually takes on the same pundit flavor.

The other night I heard a California professor explaining to public radio listeners the difference between Republican and Democratic ideologies on the recount matter. Republicans, he said, believed in finality, while Democrats believed in fairness. It was a declaration so absurd in its un-self-seeing bias that I shook my head through two traffic lights on Wisconsin Ave. But that doesn't mean I'll be surprised if I hear some apolitical accountant or carpenter spout the same line to me at a cocktail party five years from now.

Sufferin' Suffrage Agree with it or not, the U.S. Supreme Court's 5-4 decision was all about fairness. The court didn't just rule that manual recounts couldn't be completed on time; it ruled that they couldn't be completed on time in a way that was fair. Florida's court had established wildly uneven standards, counting some votes more carefully than others in a brazen attempt?let's be plain about this?to throw the election to Gore. In all, seven justices felt the scheme under which the votes were to be recounted violated the Equal Protection clause of the 14th Amendment. Florida's justices accepted 168 votes from Miami-Dade that came from a partial recount of only heavily Democratic districts. (This could have led to a Voting Rights Act challenge for systematically excluding the votes of Cuban-Americans, but the court chose not to pursue it.) Then the Floridians accepted a Palm Beach tally that came too late for a deadline they themselves had set. It chose to count all ballots in the Democratic strongholds Gore himself had selected, but only "undervotes" in the others. In fact, much of Florida's election code?particularly the part that allows crafty lawyers to cherry-pick sympathetic counties and even precincts?would appear to be unconstitutional.

The Florida Supreme Court rewrote state law to be more hospitable to unpunched chads, substituting its own "intent of the voter" criterion for the statutory "clear intent of the voter." This, too, went unpursued by the U.S. Supreme Court, although I like the hard-line Rehnquist-Scalia-Thomas concurrence for the way it smoked out the lower court's intentional misreading of other areas of the law: "No reasonable person," they wrote, "would call [what happened] 'an error in the vote tabulation,' or a 'rejection of legal votes,' when electronic or electromechanical equipment performs precisely in the manner designed, and fails to count those ballots that are not marked in the manner that these voting instructions explicitly and prominently specify." The concurrence also describes the illogic by which the Floridians accidentally-on-purpose construed the state's protest period in a way that made certification a totally meaningless act.

(It was quite a vindication for Florida Secretary of State Katherine Harris. Harris had rejected those Palm Beach ballots, along with the Miami-Dade Greatest Democratic Hits. Had she done otherwise, she would have been guilty of a constitutional wrong. Harris turns out to have been a better constitutionalist than the Florida Supreme Court.)

The two hardest-line dissenters were Ruth Bader Ginsburg and John Paul Stevens. They were apoplectic at Rehnquist's contention that the right of suffrage is compromised by any debasement or dilution of one's vote, and not just an outright inability to vote. A good deal of the jurisprudence on this matter arose from the civil rights movement, and both Ginsburg and Stevens were tied in knots to see "their" litigation turned against the Gore side. Stevens, as faithful a champion of federal supremacy as the court now has, opened his dissent with a paean to states' rights that would have made Strom Thurmond blush. He went on to cite McPherson v. Blacker (1892) and Smiley v. Holm (1932) to say that, in electoral matters, "the state's legislative power is the supreme authority except as limited by the Constitution of the State." That is clearly a constitutional interpretation that took a heavy blow from the Civil Rights Act and the Voting Rights Act.

Ginsburg, meanwhile, cited states' rights in a number of cases that don't raise any federal-election (and hence constitutional) issues and avoided argument on ones that did?such as NAACP v. Alabama ex Rel. Patterson (1958) and Bouie v. City of Columbia (1964)?by resorting to ad hominem reasoning: "The [Florida Supreme] court surely should not be bracketed with state high courts of the Jim Crow South."

Austin Space In the end, there was no way to put an end to the scandal without infuriating half of the American public. It was his giving vent to this subtextual bitterness that, paradoxically, made Gore's speech seem so sincere. The absence of such bitterness in the speech George W. Bush gave an hour later made the whole performance sound insipid and unreal. As he emerged from the wings at the Texas House of Representatives he reminded me of one of those lines about being careful for what you wish for because you might get it. Bush was taking halting steps, his face aquiver with that Dan Quayle, I-don't-want-to-be-here look. Instead of moving forward into the presidency, Bush was moving backwards into the campaign, and he ran down his whole roster of midsummer pabulum: "so that no child is left behind," "access to the American dream," "bipartisan foreign policy," "a charge to keep," and "civil society" used in a way that makes it plain Bush doesn't know what civil society means. For now, Bush is gaining nothing from espousing a bipartisanship that Dems are in no mood for.

But over the long haul, Bush may benefit from being trapped in his uniter-not-a-divider campaign rhetoric, since Democrats are powerful enough in both houses that he'll have to do business with them. It's funny how presidential agendas elude presidential control. Bill Clinton came to power vilifying Reaganomics, and wound up the most conservative president?economically, at least?since Calvin Coolidge. And next month, a Texas Republican with no ear for policy minutiae could stumble into the most activist First Hundred Days since FDR. Bush wants to start with a bipartisan education proposal. But watch out! Gore and Lieberman were promising almost $200 billion (over 10 years) in new education spending last summer, and Bush's own plan was rising toward $50 billion by the end of the campaign. The only thing that could now stop a new nine-figure federal intrusion into education would be if Congress wanted to do other stuff first. The now-inevitable electoral reform, for instance, which seems sure to involve matching funds to improve voting machines, and a new bulletproof variant on McCain-Feingold that Democrats and moderate Republicans are planning to tack onto it. Then there's the Medicare prescription-drug benefit, which Bush campaigned so hard for that he'll have to have it written into law by springtime, and once that floodgate is open, a patient's bill of rights can't be far behind. Legislation is going to be flying in the president's face as if in a video game.

Float Like a Butterfly Even after the election was over and done with, Jesse Jackson couldn't break his brand-new obsession with the Holocaust. His original casus belli was the (Democrat-designed) Palm Beach "butterfly ballot" that reportedly led Gore supporters there?many of them, presumably, Jews?to vote unwittingly for Pat Buchanan. It was only natural, he seemed to be saying, that Hitler's victims should now be George W. Bush's. Others took up this call. David Bonior, not heretofore known to be terribly exercised about the plight of European Jewry, claimed that the people who were being "disenfranchised" were the very ones who had "made this country," generously crediting that achievement not just to Holocaust survivors but also to "Haitian-Americans who take care of our mothers and fathers in nursing homes." Blowhard filmmaker Michael Moore sent out an e-mail reading, "I will not allow those who survived the Holocaust to come here to this 'land of the free' to be abused again." But Jackson was the most intemperate. "Do you think that the Holocaust survivors in Boca Raton?are ready for a deal today?" Jackson asked on the Today show the day of Gore's concession. "Do you think that 80 percent of African-Americans whose vote was taken away are ready for a deal?"

Eighty percent? attentive viewers may have asked. Where'd that come from? Probably from the same repertory of grievance theater that his Holocaust survivors did. For at an AFL-CIO rally the same day, Jackson shouted: "The standard in West Palm was different than the other standards in the state. And yet in that state with the different legal standards, 4,000 Holocaust survivors said to us they punched 2 for Gore and it was Buchanan."

"Said to us..."? Either Jackson takes the AFL-CIO for a particularly credulous audience, or he's the most formidable journalistic investigator the country has ever seen. When the Miami Herald sent a reporter to find such unfortunates, they found only the daughter of a Holocaust survivor who claimed to have done so. Some papers found Jews who were understandably angered at the reports, and others even managed to find Holocaust survivors who had unfavorable things to say about Buchanan. But as far as actual Holocaust survivors who had cast their votes for Buchanan, the only ones who went public were Mr. and Mrs. Alex Zoltowsky of Boynton Beach, who joined a Gore-allied lawsuit against Palm Beach County. So that makes two. Jackson, in the 20 or so minutes a day when he wasn't jawing into a television camera, managed to find 3998 more. Buchanan only got 3407 votes in all of Palm Beach County.

It's odd to hear Jackson, who, like Bonior, had until quite recently a reputation for unusual insensitivity to the Holocaust, mounting the podium as the Diaspora's tribune. But it's not surprising. If someone can't be bothered to tell whether two people or 4000 are being harmed by an injustice, if someone claims to be speaking in the name of thousands of whom he has never actually spoken to, chances are they're little more than an abstraction for him, an ideological fashion accouterment, and that the "Holocaust" trope has more to do with Jesse Jackson than it does with the Holocaust itself. In the heat of electoral battle, Jackson simply saw a great big pile of moral currency lying in front of him, and couldn't keep his greedy hands off it. The victims?imaginary and otherwise?were useful only as stepping-stones to Jackson's statement last week that "the election was essentially taken and stolen." It's hard to say which would make him more of a scoundrel: if he actually believes that or if he actually doesn't.

Merry Christmas to all, and to Al a good night.