Sunday, October 06, 2002

A postscript to my previous posting: According to the New York Times, the New Jersey court system had already granted Toricelli's (and now Lautenberg's) Republican opponent, Douglas Forrester, an exemption a few months ago from the same law that the Supreme Court ignored in allowing Lautenberg to replace Torricelli. Partisan Democrats like Mark Kleiman and Joshua Micah Marshall are waving this discovery as a victory banner, and it's certainly highly likely that the matter is now closed as a political issue. But as an actual defense of the court's behavior, the comparison is a pure "tu quoque" argument of no exculpatory value; interfering with the electoral process to grant injunctions in flagrant violation of state law is more--not less--outrageous if the court has actually done so twice rather than once.

The argument does, however, neatly illustrate the crucial interplay between ruthless partisanship and the erosion of democracy. The first time the New Jersey court rewrote the election statute, there was no significant outcry, presumably because the Republicans involved preferred to downplay an intraparty squabble rather than stand firm on a matter of principle. (Or perhaps, like so many Americans, they had simply been too inured by decades of judicial overreaching even to notice the shame of it anymore.) And the second time, when interests in the outcome split along party lines, most of those on the "victorious" side thought nothing of accepting (even glorying in) a partisan victory at the expense of repect for duly enacted legislation. Just as war results when at least one side of a conflict values victory over peace, democracy flounders when at least one powerful partisan faction values victory over the preservation of the democratic process.

One of the few silver linings of Bush v. Gore was seeing some of my good progressive friends, raised from birth on liberal torturings of the Constitution and steeped in the belief that the judiciary is morally superior to the elected branches of government, suddenly feel a twinge of doubt creep into their blind faith in the Supreme Court. Sadly, that feeling vanished just about as quickly as it arose. In fact, the greater long-term effect seems to have been to further whet the appetites of conservatives; having long cultivated a bitter disdain for the activist judiciary as a decadent redoubt of rigid liberalism, they've now had a glimpse of what a few arrogant, dictatorial justices can do for them, and--wouldn't you know--they rather like it.

The result can be seen in a Washington Post "man in the street" piece which, says Joshua Micah Marshall, proves that "everyone but hardcore Republicans seems fine with" the New Jersey Supreme Court's ruling. In fact, the article portrays intensely cynical voters playing their appointed parts in the partisan charade: among Republicans, the article reports, "outrage was extreme", while "Democrats said overwhelmingly that they're so relieved to be rid of Torricelli that it cancels out their reservations on how it occurred." Is there any reason to believe that my scenario of a Supreme Court exploiting partisan divisions in the elected branches to seize control of its own succession would play out any differently?

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