VI. the View from Academia

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This panel of the symposium was presented on November 13, 2010, at the St. Thomas University School of Law in Miami Gardens, Florida.

Michael Vera: Welcome and thank you all for coming to lunch, and I'm very excited for this next and last and greatest that we saved the best for last. We've got a panel of distinguished academics from all across the nation who have studied this, analyzed it, written about it, spoken about it. It's just--they know what they're talking about. So without further ado, the academic panel.

(Applause)

Professor Nathaniel Persily: I'll say this has been a historic event thus far. This panel is the least historic of the events. That's because this is what we do, go someplace and talk about law and politics, whether we're talking about the 2000 election in Florida, redistricting controversies, campaign finance issues, judicial elections, constitutional law. And so we've hashed this stuff out ad nauseam. And so we've gained an incredible amount from the earlier panels providing us data and information that we never knew existed, so it was really wonderful.

What we have here today--who we have here today are experts in various subfields, so it's a little bit different than the type of conversation we've had up until now. So Jim Gibson is the foremost expert on public attitudes towards the Supreme Court bar none and has written more on the effect of Bush v. Gore and public attitudes than anyone. Nelson Lund I think it's fair to say is the foremost defender of the equal protection holding in Bush v. Gore itself and has written extensively on that among many other things. And Ed Foley is the world's expert on recounts. And so he is a professor at Ohio State. And I should add that Jim Gibson's at Wash U in the Political Science Department. Nelson Lund is at George Mason University Law School, and Ed Foley is at Ohio State. And Ed has written a lot on Bush v. Gore as well as recounts from basically the founding era to the present.

I thought I would start from the most concrete and then go to the most abstract and start with Nelson Lund to talk a little bit about the holding itself from Bush v. Gore. To some extent, the discussions that we've had up until now have taken for granted a lot of the reasoning in Bush v. Gore, have taken for granted that people know what it is. But the equal protection holding that became subject to a lot of academic discussion, the notion that the intent of the voter standard plus the other aspects of the Florida recount violated the 14th Amendment. But you were a big defender of it, and I thought maybe you could talk a little bit about what you wrote on that subject and also maybe the colloquies you've had with others.

Professor Nelson Lund: Okay. The response to Bush v. Gore in academia. Responders to Bush v. Gore in academia fall into three main camps. The first one is people on the left; in other words, almost everybody in legal academia. The almost universal view there is that Bush v. Gore was an outrageous, indefensible, usurpatious decision that is a disgrace to the Supreme Court and will forever live in infamy. There are a few conservatives in legal academia, and most of them took the position that while the court's decision doesn't really make any sense, maybe they should have gone with the Rehnquist concurrence, which makes more sense; or maybe nothing makes any sense but somebody had to put a stop to the chaos, so it was a good thing that the Court did what it did. I think that's a fair summary of the views of most of the few conservative legal academics who've talked about this. And then there's me. I guess it's fair to say that I'm the foremost defender of the court's opinion and decision because I'm practically the only one. So I'm probably the foremost.

In my view, this was a perfectly straightforward application of the Court's equal protection precedents. And I think I can summarize very clearly and concisely exactly why that is. …