ought to be reversed, and additional recountsrnshould be taken.rnOnec again, the Denioeratic trialcourtrnjudge ruled against Al Gore. Sensibly,rnhe interpreted the “contest” statute tornapply only to situations in which gross irregularitiesrnwere suspected, not to closernelections. By now. Gore had lost thernoriginal count, the mandatory machinernrecount, the certification, and the attemptrnat a “contest.” He appealed, oncernmore, to the Florida Supreme Gourt,rnwhich once more reversed the trial courtrnand declared that “voter intent” was sornimportant that, given the closeness of thernelection, Gore should be granted hisrn”contest” and the certification should bernnullified pending the outcome ofrnstatewide recounts.rnThis time, the Florida Supreme Gourtrnjustices (all of whom were appointed bvrnDemoerafic governors, six of whom werernDemocrats, and one of whom was an independent)rnsplit four to three, with thernFlorida chief justice, in dissent, warningrnthat the Florida Gourt was changing thernrules in violation of the federal “safe harbor”rnlaw and stood to be slapped down byrnthe U.S. Supreme Gourt for ignoring thatrnGourt’s directives. It looked as if the fourpersonrnFlorida court majorit)’ simply favoredrnGore and had bent the law to accommodaternhis interests.rnAlmost immediately, the U.S. SupremernGourt issued a stay of the Florida SupremernGourt’s second decision, halfing the recounts.rnThis was because, as Justice Scaliarnexplained, Bush would be “irreparablyrnharmed” by allowing a recount to go forwardrnwhen some of the votes recountedrnmight be illegal ones, thus tainting the validit}’rnof his election. (This explanation isrnhooted at by Bugliosi and Dershowitz,rnthough defended by Posner.) Then thernU.S. Supreme Gourt issued its Decemberrn12 opinion, ending the dispute.rnBugliosi and Dershowitz seethe withrnanger over the U.S. Supreme Gourt’srnaction, not only because they, like thernFlorida Supreme Gomt, favored Gorern(Dershowitz, to his credit, acknowledgesrnhis preference) but because they believernthe justices should have deferred to thernFlorida court’s interpretation of Floridarnelection law. They have a point, givenrnthat, in most cases, the majority of thernRehnquist Gourt has taken the positionrnthat interpretation of state law is a job forrnthe state courts. Dershowitz, Bugliosi,rnand oriier commentators who defend thernP’lorida Supreme Gourt’s action claimrnthat the Florida Gourt’s interpretation ofrnthe election code was simply part of itsrntask of interpreting and resolving ambiguitiesrnand did not, therefore, justify interventionrnby a federal court. This argumentrnfails to explain, however, howrnDemocratic trial-court judges could sornclearly rule that the statute contained nornreal uncertainties and that Gore’s argumentsrnwere without merit, hideed, if thernFlorida Supreme Gourt had followedrnnormal court practice, they would havernupheld the Florida trial courts in theirrnrulings for Bush, since a higher courtrnshould not overrule a lower court that isrnnot in clear error. It is hard to concludernthat the Florida Supreme Gourt’s majorit}’rnwas not influenced by its preferencernfor Al Gore.rnAre Bugliosi and Dershowitz correctrnin claiming that the U.S. Supreme Gourtrnmajority’s preference for Bush determinedrnthe outcome of its December 12rndecision? The weakness of the equalprotectionrnrationale (which almost nornone, conservative or liberal, has seriouslyrnsought to defend) suggests as much. ButrnPosner, admittedly a Republican appointee,rnargues to the contrary. First, herndemonstrates that the Florida SupremernGourt went be}’ond the traditional task ofrninterpretation to rewrite Florida electionrnlaw in violation of the federal “safe harbor”rnprovisions. More importantly, perhaps,rnhe explains why, apart from legalrndoctrines, there were good reasons for thernU.S. Supreme Gourt to end the disputernon December 12.rnRichard Posner is the premier expounderrnof judicial “pragmatism,” the doctrinernthat what judges do is more importantrnthan what they say and that the proper judicialrnrole is not simply the neutral applicationrnof preexisting law but the craftingrnof intelligent and efficient legal solutionsrnto unanticipated dilemmas. Breaking thernDeadlock is a fine introduction to Posncr’srnjurisprudence, and even if you disagreernwith it (as I do), you may concedernthat, in this instance, pragmatism hasrnsome merit.rnHad the Gourt refused to step in, Posnerrnsays, the Florida legislature, exercisingrnits Article II constitutional power andrnconfronting a Florida Gourt bent onrnhelping Al Gore, would have appointed arnslate of Bush electors. This action wouldrnprobably have been ruled illegal by thernFlorida Supreme Gourt, which wouldrnthen have mandated a slate of Gore electors,rnthus plunging Florida into a constitutionalrncrisis that would have had tornhave been resolved by the U.S. Gongress,rnby the Florida governor (Bush’s brother),rnor—even more likely—by the U.S. SupremernGourt in further opinions to be issuedrnseveral weeks, or months, later.rnDuring all of this time, the United Statesrnwould have been without a legitimatelyrnelected chief executive, possibly precipitatingrna domestic and foreign catastrophe.rnIt was better, then-given the insubstantialify-rnof Gore’s legal case —to endrnthe matter on December 12. The factrnthat Gore conceded almost immediatelyrnafter the Supreme Court’s December 12rnopinion suggests that Posner may haverngotten the practical situation correctly.rnStill, did the Gourt really do the rightrnthing?rnNot according to Bugliosi and Dershowitz,rnwho ignore the possibilify of disaster,rnhad the justices failed to act, whilernpointing to Justice John Paid Stevens’ dissentingrnremarks in Bush v. Gore. Thernmajority’s decision, Stevens said, “canrnonly lend credence to the most cynicalrnappraisal of the work of judges throughoutrnthe land.” “One thing . . . is certain,”rnJustice Stevens continued.rnAlthough we may never know withrncomplete certainfy’ the identify ofrnthe winner of this year’s Presidentialrnelection, the identify of the loserrnis perfeetiy clear. It is the Nation’srnconfidence in the judge as anrnimpartial guardian of the rule ofrnlaw.rnBugliosi and Dershowitz, employing thern”cynical appraisal” Steverrs lamented,rnclaim Stevens’ remarks prove what damagernthe highest federal court wrought.rnBut if you actually read Stevens’ opinion,rnyou see that he is criticizing die majorifyrnnot for easting doidit on the impartialify’rnof federal judges, but for its opinion thatrnthe Florida justices ignored the law. It is,rnin fact, the partisanship of the Florida justicesrnthat the Supreme Gourt majorifyrnspotlighted, and that Stevens (and Dershowitzrnand Bugliosi) believe is betterrnswept under the rug.rnThe bloody shirt of Bush v. Gore willrndoubtless be waved for years to come byrnlaw professors, and Bugliosi’s and Dershowitz’srnscreeds will succor them. Still,rngiven Al Gore’s and the Florida SupremernGourt’s spectacular intransigence (thernreal cause of this imbroglio), the U.S.rnSupreme Gourt probably did the bestrnthing for the country, and Posner’s book,rnfinally, gets it right. ^rn28/CHRONICLESrnrnrn