DECEMBER 25, 2000 • $3.95

COWBOYS

AND IN

DIANS,

GERMAN

-STYL

E

BEN NOVAK

WHAT THE COURT HAS WROUGHTJohn J. DiIulio Jr.•Michael S. GreveTod Lindberg•Nelson Lund•Robert F. NagelMichael W. Schwartz•David Tell

WHAT THE COURT HAS WROUGHTJohn J. DiIulio Jr.•Michael S. GreveTod Lindberg•Nelson Lund•Robert F. NagelMichael W. Schwartz•David Tell

FRED BARNES

ANDREW FERGUSON

MATTHEW REES

A Second Bush AdministrationA Second Bush Administration

FRED BARNES

ANDREW FERGUSON

MATTHEW REES

Mr.President

Mr.President

Bush.president upc REV 5/2/01 3:05 PM Page 1

THE WEEKLY STANDARD (ISSN 1083-3013) is published weekly (except the last week in April, the second week in July, the first week in September, and the second week in January) by News AmericaIncorporated, 1211 Avenue of the Americas, New York, NY 10036. Periodicals postage paid at New York, NY, and additional mailing offices. Postmaster: Send address changes to THE WEEKLY STANDARD,P.O. Box 96127, Washington, DC 20077-7767. For subscription customer service in the United States, call 1-800-274-7293. For new subscription orders, please call 1-800-283-2014. Subscribers:Please send new subscription orders to THE WEEKLY STANDARD, P.O. Box 96153, Washington, DC 20090-6153; changes of address to THE WEEKLY STANDARD, P.O. Box 96127, Washington,DC 20077-7767. Please include your latest magazine mailing label. Allow 3 to 5 weeks for arrival of first copy and address changes. Yearly subscriptions, $78.00. Canadian/foreign ordersrequire additional postage and must be paid in full prior to commencement of service. Canadian/foreign subscribers may call 1-850-682-7653 for subscription inquiries. Visa/MasterCard pay-

ment accepted. Cover price, $3.95. Back issues, $3.95 (includes postage and handling). Send manuscripts and letters to the editor to THE WEEKLY STANDARD, 1150 17th Street, N.W., Suite 505, Washington, DC 20036-4617. Unsolicitedmanuscripts must be accompanied by a stamped, self-addressed envelope. THE WEEKLY STANDARD Advertising Sales Office in Washington, DC, is 1-202-293-4900. Advertising Production: Call Ian Slatter 1-202-496-3354. Copyright2000, News America Incorporated. All rights reserved. No material in THE WEEKLY STANDARD may be reprinted without permission of the copyright owner. THE WEEKLY STANDARD is a trademark of News America Incorporated.

William Kristol, Editor and Publisher Fred Barnes, Executive EditorDavid Tell, Opinion Editor David Brooks, Andrew Ferguson, Senior Editors Richard Starr, Claudia Winkler, Managing Editors

J. Bottum, Books & Arts Editor Christopher Caldwell, Senior Writer Victorino Matus, David Skinner, Associate EditorsTucker Carlson, Matt Labash, Matthew Rees, Staff Writers Kent Bain, Design Director Katherine Rybak Torres, Art Director

Jonathan V. Last, Reporter Jennifer Kabbany, Edmund Walsh, Editorial Assistants Jan Forbes, Production ManagerJohn J. DiIulio Jr., Joseph Epstein, David Frum, David Gelernter, Brit Hume,

Robert Kagan, Charles Krauthammer, P. J. O’Rourke, John Podhoretz, Irwin M. Stelzer, Contributing EditorsDavid H. Bass, Deputy Publisher Polly Coreth, Business Manager

Nicholas H.B. Swezey, Advertising & Marketing Manager John L. Mackall, Advertising Sales Manager Lauren Trotta Husted, Circulation DirectorDoris Ridley, Carolyn Wimmer, Executive Assistants Tina Winston, AccountingIan Slatter, Special Projects Catherine Titus, Davida Weinberger, Staff Assistants

ContentsDecember 25, 2000 • Volume 6, Number 15

28 The Real Division in the Court The Court’s different views of federalism. . . . . . . . . . BY MICHAEL S. GREVE

32 After the Bursting of the Dot-Com Bubble Maybe not a depression. . . . . . . . BY IRWIN M. STELZER

Cov

er:

Dre

w F

riedm

an

2 Scrapbook . . . Hollywood emigrés, biased judges, and more.

4 Casual . . . . . . . . . . . . . . . . . . . Victorino Matus, cabin boy.

6 Correspondence . . . . . On judicial supremacy, Gore, etc.

9 Editorial . . . . . . . . . . . . . . . . . . . . . . . . . The Bush Victory

12 The Second Bush White HouseThe model is Gerald Ford’s “spokes of the wheel,” not Bush I. . . . . . . . . . . . . . . . . . BY FRED BARNES

13 Nice Guys Finish as Chief of StaffThe amiable Andrew Card is competent—but above all, a Bush loyalist. . . . . BY ANDREW FERGUSON

17 The Long Arm of Colin PowellWill the next secretary of state also run the Pentagon?.. . . . . . . . . . . . . . . . . . . . . BY MATTHEW REES

19 An Act of CourageUnder Rehnquist’s courage, the Court did the right thing. . . . . . . . . . . . . . . . . . . . BY NELSON LUND

20 From U.S. v. Nixon to Bush v. GorePolitical problems deserve political solutions.. . . . . . . . . . . . . . . . . . . . . . . . . . . BY ROBERT F. NAGEL

23 Al Gore’s Legal Doomsday MachineAll those lawyers on Team Gore ended up litigating their way to defeat. . . . . . . . . BY TOD LINDBERG

25 Equal Protection Run AmokConservatives will come to regret the Court’s rationale for Bush v. Gore. . . . BY JOHN J. DIIULIO JR.

26 The Secret of Footnote 17The Florida Supreme Court finally responded, but no one noticed. . . . . . BY MICHAEL W. SCHWARTZ

Books & Arts

Articles

35 Cowboys und Indians Karl May’s Teutonic American West. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BY BEN NOVAK

38 Disappearing Genius The strange life of Leon Theremin—inventor, musician, spy. . . . . . . . . . BY RICHARD KOSTELANETZ

40 Stalin’s Agents None dare call it spying.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . BY ROBERT D. NOVAK

42 Liberal Arts Lynne Munson on the decline and fall of the National Endowment for the Arts.. . . BY MARGARET HILDEBRAND

44 Not a Parody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Laurence Tribe’s personal website.

Features

www.weeklystandard.com

Iss15/Dec25 TOC 5/2/01 3:07 PM Page 1

THE WEEKLY STANDARD / 19DECEMBER 25, 2000

GENERATIONS of law studentshave learned that the U.S.Supreme Court should avoid

entanglement in “political” cases inorder to preserve its reputation forimpartiality. Unless, of course, suchcases involve certain selectively cho-sen constitutional principles, whichinvariably call for the uninhibitedexpenditure of this carefully husband-ed political capital.

Some of the more conservative jus-tices have bought into this excessiveand asymmetrical concern with pro-tecting the Court’s reputa-tion. The decision in Bushv. Gore, however, suggeststhat a majority are nowwilling to enforce the lawmore evenhandedly, evenwhen that very evenhand-edness will subject theCourt to strident politicalattacks.

The High Court’s deci-sion at first glance looksimportant primarily forits effect on this one presi-dential contest. The hold-ing is deliberately narrow,and seems unlikely tohave significant effects onfuture elections. The broader signifi-cance lies in a passage near the end ofthe majority opinion, where the jus-tices stress their sensitivity to the lim-its of judicial authority and the wis-dom of leaving the selection of thepresident to the political sphere.Despite these considerations, theysay, it sometimes “becomes ourunsought responsibility to resolve thefederal and constitutional issues thejudicial system has been forced toconfront.”

The Court could easily have avoid-

ed this responsibility, and that is whatmany observers expected. Theseexpectations had a real foundation. In1992, for example, the Court reaf-firmed the judicially created right toabortion, even while strongly hintingthat some of those who voted to do sohad serious misgivings. One impor-tant reason they gave for their deci-sion was a fear that overruling Roe v.Wade would be perceived as a capitula-tion to political pressure.

Bush v. Gore rejects this beguilinglogic. The majority, including two

justices who had joined the 1992abortion opinion, recognized thattheir decision would subject them tomerciless, politically motivatedattacks. But rather than take the easyway out, they courageously acceptedtheir “unsought responsibility” torequire that the Florida court complywith the Constitution.

The significance of this act ofcourage comes into focus when weconsider the strongest argumentoffered by the dissenters. JusticeBreyer, who admitted that the Floridacourt’s decision was arbitrary andunconstitutional, suggested that theTwelfth Amendment assigns Con-

gress (rather than the federal courts)the responsibility for correcting suchproblems. This is a plausible interpre-tation of the Constitution, especiallyif one also concludes (as Justice Brey-er did not) that the Constitutionauthorized the Florida legislature tooverride the Florida court’s attemptedretroactive rewrite of the state elec-tion statute.

But Justice Breyer’s position doesnot rest on a disinterested interpreta-tion of the Constitution. Rather, it isbased on the tired theory that “theappearance of a split decision runs therisk of undermining the public’s con-fidence in the Court itself.” JusticeBreyer thought the risk not worthrunning because the majority’s deci-sion does not “vindicate a fundamen-tal constitutional principle.”

What would it mean to “vindicatea fundamental constitu-tional principle”? As ithappens, we know whatJustice Breyer means. Justa few months ago, hewrote the majority opin-ion in a 5-4 case that splitthe Court much more bit-terly than this one. In thatcase, moreover, JusticeBreyer adopted a far-fetched interpretation of astate statute that contra-dicted the state’s interpre-tation of its own law. Theresult was the invalidationof a state statute that hadbeen drafted specifically to

conform with Supreme Court prece-dent. And what fundamental consti-tutional principle was vindicated?The right to what is euphemisticallycalled “partial-birth abortion.” Nowthere’s something worth fighting for.

If the Twelfth Amendment argu-ment is the best that the Bush v. Goredissenters had to offer, the worst wasJustice Stevens’s claim that GovernorBush irresponsibly impugned theimpartiality of the Florida judges byappealing their ruling. Justice Stevensalso noted that the real loser in thisyear’s election will be the nation’s“confidence in the judge as an impar-tial guardian of the rule of law.” It is

An Act of CourageUnder Rehnquist’s leadership, the Court did theright thing. BY NELSON LUND

Nelson Lund is professor of law at GeorgeMason University in Arlington, Virginia.

The majority recognizedthat their decision

would subject them tomerciless, politicallymotivated attacks.

The majority recognizedthat their decision

would subject them tomerciless, politicallymotivated attacks.

Iss15/Dec25 log 5/2/01 3:07 PM Page 9

20 / THE WEEKLY STANDARD DECEMBER 25, 2000

certainly true that almost no one willbelieve that all the judges who ruledin the election cases were impartial, ordevoted to the rule of law. JusticeStevens, however, was entirely wrongto place the blame for that fact on hiscolleagues and on Governor Bush.

The blame rests squarely on Flori-da’s supreme court, which violatedthe Constitution, and on the HighCourt dissenters, who would have letthe Florida judges get away with it.“Impartial guardians of the rule oflaw” are willing to enforce the laweven when they know they will beexcoriated for doing so. Which is whythe majority decision in Bush v. Goredeserves a spirited defense. ♦

NOW THAT THE U.S. SupremeCourt has effectively stoppedthe Florida recount, it is nat-

ural to believe that the justices haveonce again saved us from political andlegal disaster. There is no doubt thatthe Florida Supreme Court’s stunningdecision to order manual recountsacross Florida created the specter, asChief Justice Wells said in dissent, ofchaos. What the Florida decision didwas demonstrate how legal argumen-tation in America has metastasized.When even the plainest meaning issubject to the relentless pressure exert-ed by all those urgent words streamingfrom the mouths of lawyers, our insti-tutions are exposed to something closeto intellectual anarchy.

To get a clear view of the nature ofthat chaos, recall one detail from theFlorida court’s work. In its first deci-sion, the court said that Florida secre-tary of state Katherine Harris hadabused her discretion by enforcing theseven-day statutory deadline for certi-fying the vote, and it instructed her toobserve a twelve-day deadline. In itssecond decision, a four-justice majori-ty of the same court concluded thatthe secretary had subsequently abusedher discretion by enforcing the court’sown twelve-day deadline.

If words like “seven” and “twelve”cannot hold, nothing can hold, anduncertainty stretches away to the hori-zon. Touchingly oblivious to the anar-chical implications of its own opinion,the Florida court simply assumed thatthe manual recount could proceed in

an orderly and timely fashion. In fact,of course, everything was thrown upin the air. Before the U.S. SupremeCourt stayed the recount, lawyers werearguing before a trial judge about theprocedures for conducting therecounts. Those determinations mighthave been appealed. The recountedvote itself might have been chal-lenged, and that determination mighthave been appealed. The Florida legis-lature could have nullified the recountby statute, but that statute could haveled to a lawsuit and an appeal. Incounting the electoral votes, Congresseventually would have resolved theuncertainty, but if words do not hold,the congressional count could be ques-tioned in court and any decisionappealed, and so on until it is time foranother presidential election.

It is understandable, then, thatmany now feel relief that the U.S.Supreme Court has reestablishedorder by permanently halting therecount. But there is irony, and even-tually perhaps futility, in using thelawyers who sit on the Supreme Courtto stabilize what lawyers and lowercourts have destabilized. After all, inrecent decades the Court itself hasdone much to establish the very judi-cial role that the four Florida justicesembraced so heedlessly. It announceda constitutional right to abortionwhen not a word can be found in theConstitution on that subject. It con-verted into an authorization for racialpreferences a federal statute whoseplain words and ascertainable purposeprohibited racial discrimination.Through “interpretation,” it grafted acomplicated sexual harassment codeonto a federal law that was silent onthat specific subject. Indeed, the mod-

From U.S. v. Nixonto Bush v. GorePolitical problems deserve political solutions.BY ROBERT F. NAGEL

Robert F. Nagel is a professor of law at theUniversity of Colorado and the author of TheCollapse of American Federalism, forth-coming from Oxford.

Iss15/Dec25 log 5/2/01 3:07 PM Page 10