A respite of reason in a sea of chaos

By David M. Shribman, Globe Staff, 12/2/2000

ASHINGTON - Nobody raised a voice. Nobody hid behind a predictable position. Nobody angled for partisan advantage. Nobody played for the camera - for once there was none - or microphone.

For weeks - while ballots were being counted, aspersions were being cast, motives were being questioned, dreams were being deferred - the debate over the political impasse has been conducted in raised voices at warp speed. Yesterday, behind the polished walls of the Supreme Court, there was a hushed discussion about what the law said, not what the politicians wanted.

But one sober thought screamed through the extraordinary experience provided by a global audio seminar in the workings of what is at once our most august and most secretive national institution:

Yesterday's involvement of the Supreme Court - a 90-minute interruption of reason in an otherwise chaotic drama - may have provided a brief respite in our national political nightmare. But it almost certainly will not provide a resolution of it.

Both sides are looking for political advantage from a potentially inconsequential legal decision. And no matter how the high court rules, its decision will probably embolden the winner.

Yet whatever the court decides, it probably will not provide an end to the political wrangling. It will not choose Governor George W. Bush or Vice President Al Gore and send one or the other of them packing for the White House. It may not even provide a road map for making that choice.

That is because, by temperament and tradition, the court takes broad questions and makes narrow rulings. That is because, unlike the other two branches of government, it almost always takes comfort in less rather than more. And that is because, in such a fevered atmosphere, the justices probably will be reluctant to play too prominent a role in the ultimate chore of democracy, the selection of a national leader.

Even so, yesterday's oral argument before the Supreme Court was an extraordinary marker, not only in the course of this contested election but also in the history of an institution that, until now, has resisted the intrusive eye (or ear) of the mass media.

It provided a contrast between candidates and justices, one group that in the last month has put personal interest ahead of public interest and another that yesterday tried to sort through the conflicting claims of the public interest.

It put on display lawyers with easy, complete command of the arguments and issues, showing unusual powers of linear reasoning and resisting the chance to let their responses to the justices' questions wander off on tangents.

It allowed Americans who have regarded the high court at a distance and with a sense of mystery to have a more vivid idea of how the court works, how its justices think, how its traditions guide its actions, even how its rulings affect the country.

It is that last factor that may be the least important element of this national civics lesson and this national political impasse.

For even if the court rules in favor of Bush, whose camp brought the case to the justices, it will not substantially change the position of the two candidates. In that case, it will merely reinforce the certification asserting that the Texas governor had more votes than the vice president. It will not end the controversy, nor will it directly affect the Democrats' chances to win the recounts they are seeking in Palm Beach and Miami-Dade counties.

Why? Because the justices, through their questioning, seemed to want to limit themselves to the issue of whether the recounts that took place before certification should be counted - without commenting on whether further recounts now demanded by Gore should proceed.

But even if the court rules in favor of the Gore camp, he would at best secure the few hundred votes he picked up in late November - the fruits of the recounts which the Florida secretary of state declined to certify. It would still be up to the Florida judiciary to give Gore his last, best chance through additional recounts. The trial on that central issue commences today in Tallahassee.

The other reason that yesterday is important is that Florida's judges will feel the breath of the Supreme Court on them. The court is such a prestigious institution that a nudge from it could be a shove to a lower court, even the Florida Supreme Court.

Yesterday, however, there was an air of unreality to the court's proceedings.

The case was brought to Washington as a desperate move by the Bush campaign, which feared at the time that it could be facing a situation in which the certification period ended with the vice president, not Bush as it turned out, ahead in the Florida vote count.

Even so, the court's action will not be without utility for the winning side. If the winner is Bush, the governor will argue that his rival has suffered yet another defeat and should deliver a concession speech. If it is Gore, he will argue that the court delivered an important victory for recounts that should be more broadly applied.

In either case, the winner will probably be making an argument of little legal consequence - and the election still won't be over.