Bush's Mandate Disputed

Although Texas Gov. George W. Bush must now properly be referred to as president-elect, many Harvard political scientists and legal experts agree that Bush will face a tough task in convincing doubtful Democratic voters of the legitimacy of his new title.

Professor of Government Michael J. Sandel said he does not believe the U.S. Supreme Court should have reversed the Florida Supreme Court's decision to order a statewide manual recount.

"Their decision sullies the legitimacy of the court and of the Bush presidency," he wrote in an e-mail message. "The 5-4 decision was based less on principle than on partisanship. In effect, the five justices in the majority simply voted for the president twice--once in November, and again in December."

Frankfurter Professor of Law Alan M. Dershowitz, an adviser to Gore's recount team, criticized the ruling in stronger language.

In an interview, Dershowitz said that the court's decision was "absolutely not justified" and "purely partisan."

"The outcome of this case was determined by the name of the litigant," Dershowitz said. "The Supreme Court wanted Bush to be president and concocted a legal theory to produce that result."

"If Gore had been in the lead, [William] Rehnquist, [Antonin] Scalia and [Clarence] Thomas would have come up on the other side of the equal protection argument," he said.

The court's majority opinion held that the equal protection standard required by the 14th Amendment was violated by the varying recount procedures and ballot-counting standards.

Frederick Schauer, Stanton professor of the First Amendment at the Kennedy School of Government, said that a confluence of contingencies, rather than partisanship, shaped the ruling.

"There is no indication that partisan politics played a role in this decision," he said.

Schauer said that ideology is a strong predictor of Supreme Court decisions and influenced the case by determining which side the justices listened to more closely. Yet he stressed that "ideology is different from partisan politics."

Schauer thought that practical concerns about the problems in the Florida recount played a large role in the minds of the justices who composed the majority.

The justices realized that "the whole recount process is so flawed that there is no time to fix it," he said. "This is a case of finality for finality's sake."

Sharon R. Krause, an assistant professor of government who teaches Government 10, "Introduction to Political Thought," agreed that a conclusion to this drawn-out process was important.

"It is a good thing the process has come to an end, though it is unfortunate that all of the votes did not get counted," she said.

"It is not at all clear that Gore lost," she added.

Krause said she hopes that the prominent role of the judicial branch in this election will not make Americans cynical about the courts.

"The nation cannot afford to be cynical about an institution that is as vital to our democracy as the court," she said.

Krause sees a difficult road ahead for the president-elect.

"Bush does not have a mandate," she said. "This is a political problem for the Republican Party as well."

Schauer said he does not believe that the Florida controversy will have a significant effect on the legitimacy of the Bush presidency. He said that Americans tend to focus on concrete issues, not on abstract notions of legitimacy.

"By Valentine's Day, the question of Bush's legitimacy will be based on how he deals with the issues, not on how he won the election," Schauer said.

Even though Gore conceded tonight, the fallout from the recount controversy may sustain political opposition to Bush, particularly among partisans of the vice president.

"Many of us will continue the fight against this illegitimate president," Dershowitz said.

"This is not a time to heal, but a time to pour disinfectant on the wound. This is still an infected wound."