BREAKING THE DEADLOCK: The 2000 Election, the Constitution, and the Courts

In this dense and detailed study, Posner, a U.S. Court of Appeals judge and University of Chicago law professor, departs from many recent analyses of the 2000 presidential election in finding both the election and the Supreme Court decision that ended it fair and defensible. Posner begins by arguing that U.S. democracy should be seen as a practical, structured procedure for picking leaders. He next moves to a quite confusing, statistical analysis of whether or not Gore could have won the Florida vote in a hand recount. His answer is maybe, depending on what ballots were counted—hanging chads, pregnant chads, what have you. But he then argues this is moot, since the Florida Supreme Court was wrong to order hand counts in the first place, a decision properly belonging to the Florida legislature, in accordance with Article II of the U.S. Constitution. It then follows that the U.S. Supreme Court decision in Bush v. Gore to end the hand count was correct, although its reasoning was not. The Court found the recount violated the equal protection afforded by the Constitution, but should have just referred to Article II. Posner sees this decision as an exercise in judicial "pragmatism," in which judges consider the practical implications of their rulings. By acting as it did, the Supreme Court avoided the chaos of throwing the election to the U.S. House of Representatives and thus preserved election procedure. Posner's endless references to legal arcana and statistical minutiae, make his arguments oblique and extremely difficult to follow. (Sept. 5)

Forecast:Posner is a highly visible and respected jurist, and his book will receive media attention, but it won't compete sales-wise with the election postmortems of his liberal opponents Alan Dershowitz and Vince Bugliosi.