Late at night on December 12, just hours before the 124-year-old safe harbor dried up, this democracy looked to have gotten the president half of it wanted and the Supreme Court all of it deserved. The slenderest conservative majority of five declared the Florida game over, with a hard Scalia core shouting additional insults at the local referee. And the four liberals mourned that the fight for lost votes and elusive truth was called off cynically, with a few ticks still left on the clock.
George W. Bush got five votes for the presidency from five Justices who knew what it was to look at an electoral process and its officers, and wince. Al Gore got only his chance for a graceful exit and his bogeymen, from a Court split three and a half ways but plenty clear-cut in the dissent for Democrats to understand who was on their side. And the decision decisions, really were such a buzzing, conflicted horde that Gore didn't concede, and Bush didn't celebrate, because there was a lot of deciphering to do first. The nation will get its split-screen versions after the two candidates get one last fitful night's sleep.
This was Felix Frankfurter's "political thicket," of course, and Chief Justice Rehnquist, with the majority quill, will no doubt be accused of creating his own "safe harbor" for retirement. He got rid of this mess just the way Bush wanted him to, shrugging his shoulders and declaring that it wasn't going to get any better from here. He made life easy for the half-cocked Florida Republicans, patting them on the back and easing them back into their seats. He also came to the very reasonable conclusion that Florida's election apparatus would not bear up to any further scrutiny.
If this victory holds up, President Bush will now be a more ordinary freak of history, just one of three winners who lost the popular vote. Here's his mandate: Seven Justices could say confidently that the counting begun Saturday failed on "equal protection" grounds, no matter when it was supposed to finish. That which neither campaign had asked for a fair, sensible statewide undervote count lasting past Dec. 12 the Florida Supreme Court showed neither the right nor the skill to grant. Not with time running short. Bush's advantage, headed into a delicate presidency, is that most of America had suspected as much all along. This was not that kind of clean fight; these were not that kind of fighters.
Tuesday night, James Baker was out first, just in time to get his picture taken for the morning papers. He had talked to Bush and Cheney. "They are of course very pleased and gratified that seven Justices agreed there were constitutional problems with the recount ordered by the Florida Supreme Court," he said, and thanked the legal team. "This has been a long and arduous process for everyone involved on both sides. Thank you, and good evening." A coded victory speech, and a very short one. He was still calling Bush "governor," and Bush was still waiting for Gore.
Bill Daley sent out a written statement. "Al Gore and Joe Lieberman are now reviewing the 5-4 decision by the U.S. Supreme Court... we will address the decision in full detail at the appropriate time tomorrow." Even shorter. And in true Gore form, not quite code for a concession.
The Gore lawyers were poring over the Court's swirl of words with a reflexive eye for loopholes. Back to the Florida Supremes, maybe squeeze in a count by Dec. 18? If the Justices left Gore some wiggle room (and Ed Rendell got pounced on for suggesting he had none), the spinners made it known that Gore would consider wiggling. But Gore's lawyers will be hard-pressed to get him a stay of what the newspapers will call, with some gratefulness, a 5-4 political execution.
Then again, they may just be building the suspense for a big Gore exit, which the veep will script himself if he can force his hands to type it.
What he'll read off that TelePrompTer if he bows to Bush on Wednesday can set both men off on the right foot. He can nod ruefully at the machinery of our election and praise the resiliency of our democracy (and the wisdom of its high court), making special mention of the American ability to embrace the imperfect. A blessing for both these guys. And how Bush receives it will be everything for his first 100 days. Admitting there were vexing problems with his victory and promising to try vigorously to fix them for next time is a good preamble to any talk about mending the tone up on Capitol Hill.
The American people, by the way, seem to have done fine. Through 35 head-scratching days, their divisions never got more violent than the things they shouted at the TV. Now they'll be tuning in for the last press conferences of a political and legal fight that splashed read and blue paint all the way up the Supreme Court steps. They were cynical about politics before; now they know how far politics goes. But it wasn't the stuff of revolution then and it won't be now. Unless Jesse "this is Dred Scott" Jackson really catches on.
Or unless we wait through Wednesday to find that the media and George W. Bush have called this election prematurely once again, and Al Gore has found, somewhere in the high court's noninterventionist intervention, one more legal route around the Supremes and back from the dead.
It wouldn't be the first time.