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Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts [Hardcover]

Richard A. Posner
3.2 out of 5 stars  See all reviews (26 customer reviews)
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Book Description

July 25 2001

The 2000 Presidential election ended in a collision of history, law, and the courts. It produced a deadlock that dragged out the result for over a month, and consequences--real and imagined--that promise to drag on for years. In the first in-depth study of the election and its litigious aftermath, Judge Posner surveys the history and theory of American electoral law and practice, analyzes which Presidential candidate ''really'' won the popular vote in Florida, surveys the litigation that ensued, evaluates the courts, the lawyers, and the commentators, and ends with a blueprint for reforming our Presidential electoral practices.

The book starts with an overview of the electoral process, including its history and guiding theories. It looks next at the Florida election itself, exploring which candidate ''really'' won and whether this is even a meaningful question. The focus then shifts to the complex litigation, both state and federal, provoked by the photo finish. On the basis of the pragmatic jurisprudence that Judge Posner has articulated and defended in his previous writings, this book offers an alternative justification for the Supreme Court's decision in Bush v. Gore while praising the Court for averting the chaotic consequences of an unresolved deadlock.

Posner also evaluates the performance of the lawyers who conducted the post-election litigation and of the academics who commented on the unfolding drama. He argues that neither Gore's nor Bush's lawyers blundered seriously, but that the reaction of the legal professoriat to the litigation exposed serious flaws in the academic practice of constitutional law. While rejecting such radical moves as abolishing the Electoral College or creating a national ballot, Posner concludes with a detailed plan of feasible reforms designed to avoid a repetition of the 2000 election fiasco.

Lawyers, political scientists, pundits, and politicians are waiting to hear what Judge Posner has to say. But this book is written for and will be welcomed by all who were riveted by the recent crisis of presidential succession.


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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.

Inside This Book (Learn More)
First Sentence
BEHIND THE 2000 Presidential election in Florida lie thousands of years of thinking about, controversy over, experimentation with, regulation of, and tinkering with the popular vote as the method of political governance deemed central to democratic theory. Read the first page
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Front Cover | Copyright | Table of Contents | Excerpt | Index | Back Cover
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Customer Reviews

Most helpful customer reviews
By Digger
Format:Hardcover
This book, while a difficult read, lays out the Constitutional arguments for the legitimacy of the Supreme Court's decisions in the presidential election of 2000. I didn't vote for Bush, and I won't vote for him in November, but after reading this book, I can accept that his presidency, while controversial, is legitimate. (Opposition to Bush's policies is a separate matter entirely, and I won't be sorry if he loses.)
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1.0 out of 5 stars Don't believe one word!!!!!!!!!!!!!!!!! March 27 2004
By A Customer
Format:Hardcover
Posner is the also the author of a big pile of lies titled CASE CLOSED which made the ridiculous claim that Lee Harvey Oswald acted alone in killing President Kennedy. He is a propagandist for the right wing/big oil/big money/military industrial- complex. He has written Clinton Bashing books, anti-democracy books and more. He is evil and his books should be avoided as much as those of Ann Coulter, another evil scumbag!!
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5.0 out of 5 stars All the votes that are fit to count.... July 29 2003
Format:Hardcover
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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2.0 out of 5 stars Thorough, but tedious reading July 17 2003
Format:Hardcover
Unlike most of Posner's other writing (his judicial opinions included), this book lacks the verve and wit that marks his style. What is here is a thorough examination of the Bush-Gore contretemps, in which the author concludes, quite persuasively, that almost everybody was right. Yes, the Democrats had a point -- Gore might have gotten more votes, had they all been counted. But yes, Harris was within her discretion to stop the vote-counting. And yes, the Supreme Court majority made the right decision to close the whole show.
While his conclusions are interesting, the analysis makes for tedious reading as Posner drills down to the most mundane details of the vote-counting. It's almost like reading a political science text and times, and that's not a good thing if you are a general reader (Posner's target audience, I believe).
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3.0 out of 5 stars Disappointing Nov. 28 2002
Format:Hardcover
Unfortunately, Posner ultimately ends up relying on the same intellectual dishonesty in trying to justify the Supreme Court's decision that at least three of the justices used in crafting the opinion. Left unaddressed is the most disturbing of Dershowitz's observation that these same three (Rehnquist, Scalia and Thomas, and probably others) completely ignored their overall "judicial philosophies" (as contained in their previous opinions) to install "their" man in the White House. It isn't the judicial activism that is the problem. Had these justices been consistent with what they SAID they believed in, the decision would have at least been defensible. As it stands, the decision is justifiable only as a raw exercise of Machiavellian rationale. THAT is the tragedy.
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5.0 out of 5 stars Exposes Bugliosi as a liberal B.S artist July 11 2002
By A Customer
Format:Hardcover
After reading the junk books by Bugliosi and Dumbshawitz it's nice to read a book that uses actual law as a criteria.
There is a reason that Bugliosi claims the verdict was 5-4 (Not 7-2) and why he avoids the Reynolds v Sims ruling..Bugliosi is a hack!
This really laws down the law in simple terms and unlike Bugliosi and Dunshawitz, Posner is a judge!
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4.0 out of 5 stars Could be TOO thorough 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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