Front Page















Bad Judgment Calls from Courtrooms to Newsrooms
Dec. 7, 2000

By James L. Hirsen, J.D., Ph.D.
contributor to

It is a colossal mess. The average citizen is rightfully disgusted with the judicial squabbling and legal acrobatics surrounding Gore's protracted pout session. Rather than providing clarification, the establishment media seem only to thrust us into a heightened state of disillusionment.

First, scores of legal specialists told us that there were no serious federal questions involved in the election disputes in Florida, and that the United States Supreme Court would never get involved in a matter that traditionally has been reserved for the states. Wrong.

Experts proclaimed that the United States Supreme Court would not make a decision that would interfere with the internal election affairs of a state. Wrong.

The pundits predicted that if the United States Supreme Court spoke at all, positions would be in line with political sentiments, resulting in a five-four decision. Wrong again.

The last sentence of the U.S. Supreme Court decision states, "The judgment of the Supreme Court of Florida is therefore vacated, and the case is remanded for further proceedings not inconsistent with this opinion." The U.S. Supreme Court was not compelled to vacate the Florida judgment. The fact that it did so speaks volumes.

Still, the conventional media accounts conveniently left out the fact that the judgment was vacated, and analysts consistently neglected to explain the meaning of the term itself. Vacate means vacate. It does not mean that the Florida Supreme Court's ruling was hunky-dory. It does not mean that the justices just needed a bit more information. It does not mean that a code word was used to convey a message to the legally sophisticated that the courts were really in agreement.

No, a vacate order means that the Florida Supreme Court was overruled, set aside, erased, made null and void. The remand placed the burden squarely on the Florida high court to come up with a legal justification for its extravagant change of law. The U.S. Supreme Court cited a case from 1940, which said, "There is considerable uncertainty as to the precise grounds for the decision."

The manner in which the media and so-called experts characterized the decision left the public with the impression that the ruling was merely a polite request from the nine justices in Washington for a little supplementary work. As Pete Williams of NBC explained: "Barely 72 hours after hearing the case, the justices announced their remarkably fast decision and, bridging the apparent differences among the court, apparently deep differences, they resist the urge to grade the Florida Supreme Court ruling as either pass or fail and instead label it incomplete."

But the truth is that the United States Supreme Court was addressing two objects. The first sought to preserve the integrity of the third branch of government by avoiding a less-than-unanimous decision. The second sent a clear message to the Florida justices that what they had rendered in their decision was improper on its face.

The effort by many in the media to distort was also apparent in the reporting and analysis of the trial that took place in Judge N. Sanders Sauls' courtroom in Tallahassee. As this trial progressed, many legal surveyors claimed that the initial proceedings were good for Bush and the subsequent proceedings were good for Gore, so it was essentially a draw. However, the astute lawyer is keenly aware that when it comes to a trial, a tie is a very bad omen for the side that carries the burden of proof.

This was precisely the gist of Sauls' ultimate decision - that Gore's lawyers did not meet that burden of proof, the preponderance of the evidence. A majority of the evidence had to be shown to favor Gore's case. In the end, it did not.

Then there is the 11th Circuit Court of Appeals. When the 11th Circuit released its decision,'s headline read this way: "Federal Court rejects Bush bid to throw out hand recounts." Brian Williams of MSNBC referred to the decision as "a big victory for Al Gore." The New York Times penned this headline: "Appeals Court gives Gore victory, rejecting Bush request to bar manual recounts."

In reality, the 11th Circuit had stated that there was currently no threat of irreparable harm and left open an invitation to the Bush lawyers to come back at a future date if they needed permanent relief. The denial of the Bush appeal by the 11th Circuit Court of Appeals was only a denial of a preliminary injunction. It was not a denial on the merits. Once again in the mainstream media, truth was supplanted by wishful thinking.

On the same day, in an attempt to fulfill its obligation under Article II of the United States Constitution, the Florida Legislature called for a special state legislative session to choose a slate of electors. The session was convened to preserve Florida's representation in the selection of the next president. The Associated Press referred to the body as "Florida's Republican-dominated Legislature." One is hard pressed to recall a time when the Florida Supreme Court was referred to as Democrat-dominated, Democrat-controlled or even Democrat-populated. Now the latest lawsuit seeks to stop the Florida Legislature from doing its constitutionally mandated duty.

We should have learned a lesson on election night when the networks called Gore states early but dallied when it came to calling Bush states. We should have learned a lesson when Katherine Harris was vilified while "vote counters" who engaged in improprieties evaded scrutiny. We should have learned a lesson when claims about votes never having been counted were reported as factual, when it is clear as the chads emblazoned on our brains, some people simply chose not to indicate a presidential preference.

The reporting from the mainstream networks has been misleading, erroneous, irresponsible and partisan. If they listen for even a brief moment, they are sure to hear the lament of a tired, angry and increasingly impatient public. It cries out with indignation, as in another notably regrettable episode in our history. To the culpable parties in the courtrooms and press rooms: Have you no decency?

Reproduced with the permission of . All rights reserved

Copyright © 2000
James L. Hirsen, J.D., Ph.D.
All Rights Reserved