Damn liberal media!

LOS ANGELES — It was during the question-and-answer session on a panel of political literary heavyweights that Los Angeles Times Washington, D.C. bureau chief David Lauter flummoxed the liberal crowd.

The panel, on Day 2 of the annual Los Angeles Times Festival of Books, had gone well up until that point, exploring the passage of the 1964 Civil Rights Act (with Vanity Fair contributing editor Todd Purdham, author of An Idea Whose Time Has Come), the Supreme Court (with attorney, author and professor Erwin Chemerinsky) and the end of President Richard Nixon’s tenure (with former White House counsel John Dean).

In response to an audience member who’d asked a question that included a reference to the infamous Bush v. Gore (2000) Supreme Court decision that handed George W. Bush the presidency, Chemerinsky made the point that no issue was more important in the next presidential election than the court’s future, since the next occupant of the Oval Office would be able to appoint up to four justices, changing the face of the court for decades.

Things seemed ready to move on to the next question, until Lauter, serving as the moderator, broke in with a shocker: He’d like to express an unpopular opinion in support of Bush v. Gore.

The crowd grew silent. What manner of outrage was this?

Lauter went on to explain: The botched 2008 election of Al Franken to the U.S. Senate dragged on for months as ballots were recounted and legal issues argued, such that the November 2008 Senate election in Minnesota wasn’t finally resolved until the following June. The issues in that race were less complicated than the ones that bedeviled the Florida election of 2000 that was the subject of the litigation in Bush v. Gore, Lauter said.

He continued: If you can support the idea that America would have gone without a president for six months or more, then you can be a critic of Bush v. Gore. Otherwise, you should appreciate the fact that someone had to make a decision so the country could move forward, he added.

The audience hissed. Actually hissed, in the old-school way.

Since the panel was already winding down, Chemerinsky wasn’t able to fashion what surely would have been a devastating and comprehensive reply. Such a reply could have included a reference to the fact that the court itself limited the precedential value of the ruling (“Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities”). Or it could have held that the timing of the ruling necessarily undercut recount efforts that could have shown a different outcome of the close election. Or it could have even delved into some of the statements of justices that indicated bias in the case.

In fact, Lauter would do himself a favor by reading an excellent criticism of the court’s ruling by attorney Vincent Bugliosi, the former Los Angeles prosecutor who put the Manson family in prison, and who has established himself as an excellent true-crime writer in books ranging from Helter Skelter (about the Manson case) to And the Sea Will Tell (a literal desert-island murder mystery) and Outrage: The Five Reasons O.J. Simpson Got Away with Murder (about the unsuccessful prosecution of the former football star).

In a short monograph titled The Betrayal of America: How the Supreme Court Undermined Our Constitution and Chose Our President, Bugliosi slowly and painstakingly takes apart the Bush v. Gore ruling. The book is an expansion of an essay he wrote for The Nation magazine titled “None Dare Call It Treason,” which appeared in the Feb. 5, 2001.

In those works, Bugliosi notes:

• The Equal Protection Clause, upon which the five majority conservative justices hung their ruling, was not invoked by any person who claimed to have been disenfranchised by Florida’s varying methods of vote counting, and in fact had been rejected by the Supreme Court when Bush’s lawyers originally sought relief thereunder.

• The court’s concern for the counting of votes was obviously false, since by halting the counting of so-called undervotes, the court disenfranchised all undervoters, regardless of the candidate for whom they voted.

• States have used varying methods to count votes for decades; even within states, methods vary. To be consistent, should the Supreme Court not have tossed all votes for the 2008 election?

• Florida law invested the Florida Supreme Court with authority to provide “any” relief appropriate, and that court had ordered a recount of all 60,000 disputed ballots that was proceeding apace until the Supreme Court ordered a halt to the counting, only later to claim time for recounting had run out.

• Justice Antonin Scalia (actually) wrote in a decision prior to the court’s final ruling that continuing the recount “…would threaten irreparable harm to petitioner [Bush] … by casting a cloud upon what he claims to to be the legitimacy of his election,” which of course assumes Bush was rightfully elected before the election was actually decided.

• The ruling unbelievably says its application was “limited to the present circumstances,” although the Supreme Court is the final arbiter of laws and the Constitution; all its decisions are supposed to set precedents for subsequent cases. (Indeed, the basic premise of Bush v. Gore is simple: A single standard of vote-counting must be used in an election, lest an equal-protection violation occur.)

“This point … all alone and by itself, clearly and unequivocally shows that the Court knew its decision was not based on the merits or the law, and was solely a decision to appoint George Bush president,” Bugliosi wrote.

Now, if Lauter wants to argue — as he seemingly was — that a fast bad decision is better than a slow good decision, he’s more than free to do so, although that’s an awfully flawed way to look at government and law for a guy who’s spent decades covering both. But he’s not free to argue — as he did — that the virtue of Bush v. Gore was that someone finally made a decision. In fact, somebody had made a decision — the Florida Supreme Court had ordered a hand recount of the disputed ballots. By stopping that recount, the Supreme Court actually thwarted that decision, ran the clock and awarded Bush the presidency.

Simply, it was an awful ruling, and surely one unworthy of the support of a leader of one of America’s great newspapers.