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Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts: The 2000 Election, the Constitution and the Courts by [Posner, Richard A.]
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Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts: The 2000 Election, the Constitution and the Courts Kindle Edition


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Review

"Arguably the most accomplished legal scholar of the past half century, the prolific Posner . . . dissects some of the inaccuracies, distortions, and surprisingly shallow understandings of the legal and factual raw material displayed by many other strident critics of Bush vs. Gore."--Stuart Taylor, National Journal



"A major contribution to the debate about the case. . . . A pragmatic bottom line and some plain-spoken, even pungent language."--Frank Davies, Miami Herald



"A leading view on this controversial subject. Highly recommended for general readers with knowledge of American politics or constitutional law."--Library Journal



"Posner is the most mercilessly seditious legal theorist of his generation."--Larissa MacFarquhar, The New Yorker



"A book woven together by sharp and sometimes prickly opinions . . . An interesting, provocative book."--Monica Davey, Chicago Tribune



"For Poser . . . perhaps the country's widest-ranging and most prolific legal thinker . . it is not enough to demonstrate that the Florida court went badly astray. . . . As he argues, with characteristic verve and intelligence, there are still deeper justifications for the Supreme Court's intervention."--Gary Rosen, Commentary



"[An] elegant essay on presidential politics, constitutional law, and election reform. It is both cool and judicious and mostly fun to read."--Roger Fontaine, The Washington Times



"Richard Posner's Breaking the Deadlock is a contribution to the extensive literature that is emerging on this most unusual election and its aftermath. Posner's experience as a federal appeals court judge shines through the book, and gives it a different dimension from those many volumes by academics and journalists that form most of the literature of the 2000 election."--Phillip John Davies, Times Higher Education Supplement

About the Author

Richard A. Posner is a Judge of the United States Court of Appeals for the Seventh Circuit and a Senior Lecturer at the University of Chicago Law School. His many books include Economic Analysis of Law (now in its fifth edition), Sex and Reason, Overcoming Law. The Problematics of Maral and Legal Theory, and An Affair of State: The Investigation, Impeachment and Trial of President Clinton. Overcoming Law was one of the New York Times Book Review choices for best book of 1995, and An Affair of State was one of their choices for best book of 1999.

Product details

  • Format: Kindle Edition
  • File Size: 2691 KB
  • Print Length: 288 pages
  • Publisher: Princeton University Press (25 July 2001)
  • Sold by: Amazon Media EU S.à r.l.
  • Language: English
  • ASIN: B001LNNSKO
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Amazon.com: 3.5 out of 5 stars 23 reviews
12 of 14 people found the following review helpful
4.0 out of 5 stars Could be TOO thorough 5 July 2002
By Kevin Currie-Knight - Published on Amazon.com
Format: Hardcover
People have been quick to dismiss this book as right wing apologia written by a sneaky Bush supporter under the guise of analysis. However, those same people see Dershowitz's "Supreme Injustice" as an objective, non-partisan account? Dershowitz is a defense lawyer. What do they use? Rhetoric. Posner is a judge. What do they use? REASON.
As one who did not voter for Bush, Gore or Nader, I can say that this is the most intellegent, thorough and fair accounts given of the 2000 fiasco. The one thing it's NOT is the most readable. If you don't want numbers, textual explanations of obscure state clauses and discourses on democratic theory, this one will be a doozy. If you DO want a beach read, I direct you to Bugliosi. Also, if it's conservative apologia you're after, do yourself a favor and just watch Fox News.
Posner is not a pundit, he is a judge. He does not defend Katherine Harris's decision not to accept late recounts as a 'conservative,' he does so because the law gave her discretion. He refrains from bashing the supreme court decision, not as a conservative (he correctly disagrees with their 'equal protection' reasoning), he does so as a judge realizing they did the best they could in the time they had.
The key thing to take from this book is that he doesn't slam anyone (except for some overzeolous pundits). Second guessing motive is a slippery slope and he admirably refrains from left or right bashing. What we are left with is facts. As mentioned earlier, Dershowitz, as a defense lawyer, has proven one of the most effective rhetoricists on the planet. My guess is that a major reason this book didn't sell so well is because the rhetoric is absent.
The major flaw is that if Posner wnated to write a book for the lay person, he failed. This book, if you've no coffee around will make you dizzy. My reccomendation, read Bugliosi for a warm-up, Dershowitz for a light jog, and these will have worked you up to Posner. This is serious business!!
7 of 8 people found the following review helpful
5.0 out of 5 stars All the votes that are fit to count.... 29 July 2003
By Gary C. Marfin - Published on Amazon.com
Format: Hardcover Verified Purchase
We are a little over a year away from the 2004 Presidential election and you can bet that the 2000 election will cast its shadow over the electorate. For that reason, Breaking the Deadlock remains a very timely read. Going into 2004, it's worth bearing in mind the book's central point: that the question of who won the popular vote in Florida was not a question of fact, but of law. "If the recount was unlawful, the winner of the recount would not be the winner of the election even if he was in some sense the more popular candidate." At the same time,however, Judge Posner acknowledges that Courts, including the Supreme Court, that interpret the law, and were interpreting Florida election, and U.S. Constitutional law in 2000, are themselves exercising a level of discretion that invariably calls into play extra-legal factors. The "people" shall be judge, as the sagacious philosopher Mr. Locke asserted, but who then are the people? Who counts? This text confronts that question. Not all of the material covered in this book was new to me. Still, I learned a significant amount about the 2000 election, and about the electoral process in general. Teachers, students and voters in general will find in Breaking the Deadlock a superb survey of a critical facet of U.S. political life.
9 of 11 people found the following review helpful
5.0 out of 5 stars UNCOMFORTABLE TRUTHS 23 May 2002
By A Customer - Published on Amazon.com
Format: Hardcover
In a masterpiece of understatement, Richard A. Posner was described in a 2001 New Yorker profile as a thorn in the side of left and right alike. Well, I suspect his conclusion that the Supreme Court was right in stopping the hand counts, but it's reasoning wasn't will enrage the usual inside the Beltway talking heads.
Having trudged through a small mountain of incresingly hysterical, partisan 'analysis' of Bush v. Gore, I finished this book feeling like someone had opened a window and let out the hot gas.
Posner brings the same clear-eyed, unsentimental and carefully argued perspective as 'An Affair of State', his equally controversial analysis of the Clinton impeachment.
This book won't appeal to the usual partisan crowd, who only read to confirm their prejudices, and isn't designed to be an easy beach read -- so don't look for this at the top of the bestseller list. But this thoughtful and highly intelligent book should be. About the only book I've read on Bush v. Gore books that cast more light than partisan heat.
8 of 10 people found the following review helpful
5.0 out of 5 stars Every vote must count? What's a "vote" anyway? 26 Feb. 2008
By Hinkle Goldfarb - Published on Amazon.com
Format: Hardcover Verified Purchase
Judge Richard Posner performs an invaluable service by cutting through the Cherminsky and Sunstein left-wing legal clutter surrounding Florida Election 2000. Judge Posner delivers clear legal analysis that is still accessible to the educated layperson. His overall conclusions: the Florida vote was fair, the Florida supreme court was partisan, and the U.S. Supreme Court was as well, although it had practical reasons for being so. Specific points include:

* First and foremost, Posner correctly places most of the blame for the fiasco where it's most deserving, on the Florida supreme court. To those who complain of judicial politicization of the U.S. Supreme Court, just remember where it began: with seven Democratic Party hacks in robes in Tallahassee. Posner slams the Palm Beach County Canvassing Board v. Harris decision (both the original and on remand) several times. Highlights include:

>>> The Florida court used inexcusably poor reasoning and logic in saying that a voter's error in completing a punch card ballot is a form of "error in vote tabulation" (pp 95, 116, 122). This reasoning is a violation not just of the plain meaning of F.S. 102.166(5) (2000), but also a violation of common sense. As Posner notes, no allegation was ever made of an error in a punch card reader (pp 62, 86).

>>> The court also created a false dilemma by saying that the statute allowing a protest for seven days after the election conflicted with the overall seven-day deadline to certify returns (p 105). Posner correctly points out that (a) if a candidate were so stupid as to wait for seven days before protesting that "the losing candidate has himself to blame for not acting faster," (b) in any event, such a delay in protest did not in fact occur with Gore so the court never should have addressed the issue in the first place and (c) a recount to review an error in the vote tabulation machines (as opposed to a review of the vote itself) could be completed within the time frame set forth in F.S. 102.166 (2000), so the court only found this dilemma by misinterpreting what an "error in the vote tabulation" was in the first place. See F.S. 102.166(3)(a) (2000).

>>> The court used a vague state constitutional declaration of "power is inherent to the people" (pp 100, 104-107) to ignore specific statutory language directing the Secretary of State to make determinations regarding election matters as set forth in F.S. 97.012 (2000), in order to give Gore more time than he was authorized under the Florida statute. By doing so, the court was not only usurping legislative power by changing the plain words of the statute, it was also probably violating Art. II Sec. 2 cl. 2 of the Constitution (pp 127, 153, 155).

>>> The court ignored elemental principles of statutory construction when examining F.S. 102.112 (2000) (the Department of State *may* ignore untimely returns) and F.S. 102.111 (2000) (the DOS *shall* ignore untimely returns). It is a common understanding in the legal field that when two statutes have only a potential conflict, a court is to interpret them so that they do not. In this case, the Secretary of State acted in a way that created no conflict (she ignored late returns) therefore there was no need to claim a contradiction, then leverage that supposed contradiction into giving Gore 12 more days.

>>> Recapping, Posner points out the obvious: "The U.S. Supreme Court was criticized for intervening when it knew what effect its intervention would have on the outcome of the election. But it would not have intervened had the same principle discouraged the Florida supreme court from intervening when it knew that the effect of its intervention could only be to increase the likelihood that Gore would become president" (p 160).

Other points Posner brings out include:

* The hypocrisy of Democrats proclaiming "every vote must count" while simultaneously (a) trying to disenfranchise Seminole and Martin County voters who did not have voter ID numbers due to a computer glitch (pp 98-99), (b) requesting a recount only in four counties (why not all? Shouldn't every vote count?) and (c) requesting a recount of only undervotes, not overvotes (does every vote count or not?).

* The standard to review voters' intent on punch cards that was employed by the Democrat-run Broward Canvassing Board was indefensible as a matter of law and common sense (pp 58-59, 124). The standard, which consisted of a dimpled chad, a mark or even an indentation next to the chad, supposedly was good enough to determine voter intent. Posner points out that indentations could arise from the card being passed through the machine or by being bent during handling, and that a dimpled chad could arise from voters starting to vote but changing their minds after realizing that they were voting for the wrong person. The statutory standard, even after the Florida supreme court butchered the statute, is whether there is "a clear indication of the intent of the voter." F.S. 101.5614(5) (2000). How can anyone with a straight face say a mark or indentation alongside a chad, or even a dimpled chad, is a "clear indication"? Let's not be silly. The sheer outrageousness of such a biased, subjective and manipulable standard is, in Posner's opinion, why David Boies never suggested it as a standard in his legal maneuvering (p 195).

On this point Posner alludes to something (p 131) but is too diplomatic to say it explicitly: the Broward Canvassing Board could very well have altered punch cards under its standard to make a card look like a Gore vote. For example, a Democrat operative handling the punch card could press his fingernail on the chad or alongside it to make it look like a stylus had marked it. This could be done very subtly and even someone nearby would not be able to observe the fraud. Would you put it past the Democratic operatives to do something like that? I wouldn't.

* Bush v. Gore should have been decided on Art. II Sec. 1 cl. 2 grounds (i.e., the specific grant of authority in the Constitution that directs state legislatures to appoint its electors), and not equal protection grounds that ultimately decided the case.

* The U.S. Supreme Court voted 7-2, not 5-4, that the Florida supreme court's mandate for a standardless recount was unconstitutional (pp 127, 216). The Supreme Court only split 5-4 on whether enough time existed to have the Florida supreme court order a recount conforming to a constitutional standard (p 136).

* The U.S. Supreme Court did not command Congress to count Florida's electoral votes. Congress, had it wished, could have refused to count them (p 185). The Florida state legislature could have determined not to seat them. The U.S. Supreme Court did not select a president. Electors did and Congress let them.

* Posner calls out liberal law professors and constitutional scholars on their inconsistency on judicial activism. "There are respectable schools of jurisprudence according to which Bush v. Gore could be shown to be unprincipled, even usurpative. But can liberals enroll in any of these schools without repudiating much of the constitutional law forged by the Supreme Court in the Warren and Burger eras? I don't think so" (p 189).

Side note 1. To a certain extent this book, and the Bush v. Gore decision, have been buttressed and confirmed by later events. First, a consortium of mainstream media newspapers, hardly a group favorable to Bush, concluded after tabulating Florida ballots over a period of months that had Gore gotten his way legally in Palm Beach v. Harris, Bush would still have won (NYT, Study of Disputed Florida Ballots Finds Justices Did Not Cast the Deciding Vote, Nov. 12, 2001). Second, the disenfranchisement of Michigan and Florida voters by the Democratic National Committee in their 2008 primaries shows that the concern Democrats had in 2000 about disenfranchisement was, how to put it -- "tactical." (That and Nevada Democratic caucus rules that allow the candidate with fewer votes to actually receive more delegates -- now where have we heard about that problem before? Hmmm.) Third, and perhaps most importantly, Bush won reelection in 2004 with 51% of the popular vote -- a slim mandate but a mandate nonetheless. If the American voters had truly been as outraged at a "stolen" election as the left-wing talking heads proclaimed them to be, then we'd have a President Kerry right now.

Side note 2. Posner also puts forward a decent case for legal pragmatism in this book. I've read another of his books (An Affair of State) and a legal opinion (ethnicity of D.I.s at youth boot camps) where he flogs the pragmatic idea. I was suspicious of legal pragmatism. Here's an example why: if a Taliban says girls shouldn't go to school at all and a secular progressive says that they should go to school at least through the twelfth grade, then a pragmatist would say "let's split the difference and educate them through the six grade." Mr. Posner disabuses me of that notion of pragmatism by pointing out that it should only be employed when opposing merits are more or less equal. Well OK then.

Side note 3. I would like to point out one thing that Posner missed in all this, which goes with the butterfly ballot issue to a certain extent. That is that the MSM called Florida for Gore at 7:00 p.m. EST and didn't put it back into the "too close to call" category for close to an hour. When the MSM pulled out all the stops and called Florida for their boy, the heavily-Republican Florida Panhandle voters (6:00 p.m. CST) who heard this were dissuaded from voting, thinking that Bush had already lost. So while it's probably true that more people in Florida on Nov. 7, 2000 *attempted* to vote for Gore (because of the butterfly ballot), it's also probably true that more Floridians woke up that morning *intending* to vote for Bush.
97 of 139 people found the following review helpful
5.0 out of 5 stars Dispassionate Analysis 17 July 2001
By A Customer - Published on Amazon.com
Format: Hardcover
This is another Posnerian tour de force in which he carefully analyzes both Florida and US election laws and demonstrates that, far from being a lawless body that stole an election, the US Supreme Court decision was right -- and that in any event Bush was better positioned to win any fight that would have ensued in Florida, Congress and elsewhere had the Supreme Court decision gone the other way.
But, readers may find his review of the performance of the so-called "experts" the most entertaining feature of this book. After you read how he takes apart Alan Dershowitz and others, you'll be sure to put less stock in their outlandish "expert" commentary in the future.
I highly recommend this book for those looking for a non-partisan, dispassionate analysis of the events in Florida.
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