Judicial Activism Run Amok

California's Supreme Court Justice Rose Bird became a national symbol in the 1970s and '80s as the quintessential outrageous liberal activist judge, putting aside all legal precedents in the service of ideology. The Florida Supreme Court is making Rose Bird look like Big Bird.

On the night of November 21, the seven justices sent out an incredibly harsh unanimous decision excoriating Florida's duly elected Secretary of State, who they claimed attempted "to summarily disenfranchise innocent electors in an effort to punish dilatory board members" filing late recounts," and the right to endless recounts supersedes "a hypertechnical reliance upon statutory provision."

But the same media which never found Rose Bird outrageous presented the Florida Supreme Court rant as a "momentous" victory for Al Gore, and barred the door to conservative outrage. On NBC, legal reporter Dan Abrams noted the court's "very harsh" language about Katherine Harris, but no one questioned the bald-faced judicial activism. Tim Russert took out his tote board and started doing the math for a Gore victory. On ABC, Diane Sawyer was applying a flashlight to a dimpled ballot, and since she couldn't see a vote, pronounced the Florida hand recounters were "phenomenal" since they could find a dimple.

Media figures prefaced the decision by noting how these Supremes weren't really liberal. On ABC, Peter Jennings proclaimed: "There are seven justices. Six were appointed by Democratic Governors. Our legal analyst in Florida tells us that only one of the judges is considered to be a liberal. The rest are regarded as moderate to conservative." Think again, Peter. Of the Big Three networks, only NBC noted that two justices (including the Chief Justice) have been "active contributors" to the Democratic Party.

Time explained the individual justices in a caption. Trial-lawyer sweetheart Barbara Pariente (the other Democratic contributor) "has been unexpectedly moderate," and Peggy Quince was "a moderate who leans right." Not every Democratic judge would be moderately characterized by Time. Circuit Court Judge Terry Lewis, a Democrat who ruled that Harris had the discretion to certify George W. Bush as the winner, was named a "Loser" in the magazine's "Winners & Losers" feature: "Low-key judge almost decides future of the country. Curse those meddling supremes!" This clearly came before the Supreme Court decision. Can these "news" people be any more brazen in their party-line pandering?

When the Supreme Court acted unilaterally on Friday, with no Gore complaint even filed yet, that the Secretary of State was forbidden from certifying the election, no liberal media outlet found anything shocking in a politicized judicial dictate to prevent the momentum of public opinion from seeing Bush as the winner.

The elephant in the network living room that no one wants to talk about is that Bush won the initial count, and Bush won after the mandatory recount, even though four Democratic counties reduced Bush's margin by 1,400 votes, half of those with some human assistance in Palm Beach County. Buried deep in the news accounts is the media's knowledge that Gore is the clear numerical loser until he finds a legal avenue to find a more favorable ruling.

But the media present black as white, and white as black. Those who insist on following the letter of the law are presented as arbitrary and partisan abusers of the public trust. Those who insist on changing the rules arbitrarily every 24 hours to press their advantage are presented as the forces of fairness and deliberation.

Gore's team of certification-suppressing lawyers has been boosted as the heroes of this democratic uprising. Tom Brokaw broke out the hosannas for Gore lawyer David Boies: "He's a legend in his own time." Newsweek was impressed that "Ever since the election, the Bush forces had seemed outgunned and outsmarted by the Gore campaign." Al's legal team was described as "the vice president's flying squad of superlawyers - including Microsoft slayer David Boies and media-friendly constitutionalist Laurence Tribe." They were "crafty," yet down-to-earth as they tried to manipulate every dimple: "Breakfasting on Krispy Kreme donuts and doing their own typing and Xeroxing, these expert hired guns were trying to extract a Gore victory from the bewildering chaos of Florida's anarchic election system."

Those who create "chaos" and benefit from "anarchic" conditions are presented as charming heroes. Those who create new legal precedents out of thin air are the guardians of the principle that "every vote matters." No legislature or elected official in Florida must stand in the way of a judicial branch run amok, so Bush can be lovably "outgunned and outsmarted" back to Austin by whatever means necessary. The coverage is truly sick, and so is America if this media-puffed power trip prevails.