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Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts

3.5 out of 5 stars 23 customer reviews
ISBN-13: 978-0691090733
ISBN-10: 0691090734
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Editorial Reviews

From Publishers Weekly

In this dense and detailed study, Posner, a U.S. Court of Appeals judge and University of Chicago law professor, departs from many recent analyses of the 2000 presidential election in finding both the election and the Supreme Court decision that ended it fair and defensible. Posner begins by arguing that U.S. democracy should be seen as a practical, structured procedure for picking leaders. He next moves to a quite confusing, statistical analysis of whether or not Gore could have won the Florida vote in a hand recount. His answer is maybe, depending on what ballots were counted hanging chads, pregnant chads, what have you. But he then argues this is moot, since the Florida Supreme Court was wrong to order hand counts in the first place, a decision properly belonging to the Florida legislature, in accordance with Article II of the U.S. Constitution. It then follows that the U.S. Supreme Court decision in Bush v. Gore to end the hand count was correct, although its reasoning was not. The Court found the recount violated the equal protection afforded by the Constitution, but should have just referred to Article II. Posner sees this decision as an exercise in judicial "pragmatism," in which judges consider the practical implications of their rulings. By acting as it did, the Supreme Court avoided the chaos of throwing the election to the U.S. House of Representatives and thus preserved election procedure. Posner's endless references to legal arcana and statistical minutiae, make his arguments oblique and extremely difficult to follow. (Sept. 5)Forecast: Posner is a highly visible and respected jurist, and his book will receive media attention, but it won't compete sales-wise with the election postmortems of his liberal opponents Alan Dershowitz and Vince Bugliosi.

Copyright 2001 Cahners Business Information, Inc.

From Library Journal

Posner, a leading law and economics scholar and judge of the U.S. Court of Appeals for the Seventh Circuit, offers a careful examination of state and federal litigation concerning postelection ballot and constitutional controversies culminating in the U.S. Supreme Court decision in Bush v. Gore (2000). Posner offers precise insights and analysis of constitutional law and statutory provisions, criticizing both liberal and conservative constitutional scholars while exploring the complexities of Florida's voting processes. His excellent analysis reveals the societal underpinnings of democracy, constitutionalism, and voting schemes. Demonstrating the difficulties of solving electoral problems in presidential elections within our existing laws and institutions, Posner argues that in Bush v. Gore the Court acted reasonably and pragmatically if not necessarily correctly according to state law and the U.S. Constitution. In this regard, his analysis stands in sharp contrast to that of Alan Dershowitz in Supreme Injustice (LJ 8/01) and like that book represents a leading view on this controversial subject. Highly recommended for general readers with knowledge of American politics or constitutional law. Steven Puro, St. Louis Univ.
Copyright 2001 Reed Business Information, Inc.
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Product Details

  • Hardcover: 264 pages
  • Publisher: Princeton University Press (July 25, 2001)
  • Language: English
  • ISBN-10: 0691090734
  • ISBN-13: 978-0691090733
  • Product Dimensions: 9.5 x 6.4 x 1 inches
  • Shipping Weight: 1.4 pounds
  • Average Customer Review: 3.5 out of 5 stars  See all reviews (23 customer reviews)
  • Amazon Best Sellers Rank: #1,883,679 in Books (See Top 100 in Books)

Customer Reviews

Top Customer Reviews

By Kevin Currie-Knight VINE VOICE on July 5, 2002
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!!
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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.
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By A Customer on May 22, 2002
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.
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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).
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