Originally created 02/29/04

Supreme Court justice examines a disputed presidential election



WASHINGTON -- With a presidency in the balance, Supreme Court justices stepped in to help decide the outcome of a messy election. Sound familiar?

Chief Justice William H. Rehnquist should know, but his new book isn't about the disputed 2000 election he helped call for Republican George W. Bush. It's a historical account of the election of 1876, which also involved electoral deadlock and voting problems in Florida.

The parallels aren't lost on Rehnquist.

"There was profound dissatisfaction with the process on the part of the losing parties in both 2000 and 1876," Rehnquist writes in the introduction to his latest book, due in stores next month.

"Perhaps when such a dispute erupts, there is no means of resolving it that will satisfy both sides," Rehnquist wrote in "Centennial Crisis, The Disputed Election of 1876."

Rehnquist offers no glimpse inside his own court's resolution of the 2000 contest between Bush and Democrat Al Gore, in which Rehnquist was part of the bare 5-4 majority that voted to end ballot recounts in Florida and effectively called the deadlocked election for Bush.

Rehnquist has previously said the Supreme Court does not act out of political motives, but has otherwise said little else in public about the Bush v. Gore ruling he helped write in December 2000, five weeks after the contest was supposed to be decided.

Rehnquist was named to the court by Richard Nixon. The other justices who voted with him in Bush v. Gore also were chosen by Republican presidents.

Rehnquist has a knack for writing historical books about subjects with modern political implications. He has previously written about presidential impeachment and problems balancing legal rights in wartime.

The latest book, published by Alfred A. Knopf, includes a lively account of the politics surrounding the campaigns of Democrat Samuel J. Tilden and Republican Rutherford B. Hayes, including dubious backroom dealing.

Tilden won the popular vote but fell a single vote short in the Electoral College. A Republican-dominated panel of members of Congress and Supreme Court justices decided the election for Hayes, with Justice Joseph Bradley casting the deciding vote.

In 2000, it was up to only the nine Supreme Court justices. It is unlikely Rehnquist cast the deciding fifth vote in favor of Bush's position. That role more likely went to moderate conservative, swing-voter Justice Sandra Day O'Connor. However, Rehnquist still sympathizes with Bradley's "almost impossible position."

A Republican appointee who had once run unsuccessfully for Congress on that party's ticket, Bradley "was not thought of by anyone as an 'independent,"' Rehnquist writes.

But Bradley got a bad rap, Rehnquist concludes.

"His participation as the decisive fifteenth member of the Electoral Commission would subject him to largely undeserved opprobrium," Rehnquist writes.