Prof. Althouse, on the Scalia whineathon this week about the cruel inconvenience a former Presidential candidate imposed on the Supreme Court:

Once the case had been set in motion, the Supreme Court had to take it, he said: "The issue was whether Florida's Supreme Court or the United States Supreme Court [would decide the election.] What did you expect us to do? Turn the case down because it wasn't important enough?"

I wonder if Scalia approves of the bracketed language! I should think he'd want something more like "The issue was whether Florida's Supreme Court or the United States Supreme Court [would resolve the legal questions raised by Gore's challenge]." He's right, isn't he? Once the Florida courts started interpreting their way toward upsetting the result, the Supreme Court couldn't sit by passively.

WTF?!? Why exactly couldn't the Supremes have "(sat) by passively"? Wasn't it the whole freaking point that the Scalians decided to intervene in a matter traditionally handled by state courts (that is, the tabulation of votes in a statewide election), and then did so in a way that would most intrusively prevent the completion of the vote count in Florida?

The federal courts refuse to intervene in matters traditionally left to the states all the time; in fact, it's pretty much their constitutional obligation under the doctrine of federalism. If Scalia doesn't believe that state courts should be involved in resolving election disputes, then why not say so. Why make their judicial handiwork such a blatant, authoritarian display of rank partisanship?

Scalia's complaint, that it was the Gore campaign that originally brought the dispute to the judiciary, so the Supreme Court just had to get in its ten cents, is not surprisingly disingenuous (as well as technically incorrect; it was the Bush campaign that first sought judicial intervention, only days after the election). Bush v. Gore wound its way to the Supreme Court because the Bush campaign, having been defeated on the merits in state court, and fearful of the possibility that after all the votes were finally counted, they would lose the state, twice appealed to the federal judiciary. It was the Bush campaign, not Gore's, that brought the issue to the Supreme Court. That Scalia even sat on the court during oral arguments is another sign of what a sleazy, corrupt whore he is; any judge with even a modiocum of ethical standards would have recused himself, since his son was a partner in the law firm that represented the Bush campaign. Recusal standards for federal judges are a joke, anyway, but I've always wondered what was so pressing about the Supreme Court having to intervene when they did.

Prof. Krugman (and most of the liberal blogosphere and punditocracy) aside, there is a decent chance that Bush would have won the recount anyway if only undervotes had been counted, and even if he hadn't won after the recount, in all likelihood the Florida state legislature, with its GOP-majority, would have overturned the result and sat the Bush electoral slate. Thereafter, Democrats would have had to focus their bile on the legislature, a democratically-accountable branch of government, and the voters of Florida could have made their voices heard in 2002 and 2004 about whether they approved that decision. The integrity and respect accorded the Supreme Court would have been preserved.

Instead, the Supreme Court, a non-democratic, unelected branch, made the decision. The election of 2000 will forever be known as the one in which the franchise of the American People was made less important in determining who shall be President than five Supreme Court justices. If anyone has any doubts as to how a Justice Alito would rule if Allen v. Clinton were to come before the high court in 2008, they should keep that in mind during his confirmation hearings.