David M. Borden, honored the other night at a testimonial dinner marking his retirement after 30 years as a judge in Connecticut, was commended for his personal qualities, especially his conscientiousnes s, kindness, and modesty.
Of course there was much discussion of his quiet righteousness and courage on the Supreme Court over the last year, during which he reported to the General Assembly the misconduct and political maneuvering of the chief justice and then, as acting chief justice himself, led Connecticut’s court system into dramatic new openness and accountability. (Connecticut’s new chief justice, Chase T. Rogers, has appointed Borden to continue to superintend the Judicial Department’s efforts to be more open and accountable.)
But at his testimonial dinner there was not much recognition of what may prove to be Borden’s greatest bequest to Connecticut: his legal scholarship, his keeping alive the idea that the law is the law, different to some extent from what the judiciary might like it to be.
A remark by a former intern, quoted at the dinner, hinted at this. Justice Borden, the intern remembered, had been “a fierce defender of intellectual honesty.”
Probably because it would have recalled a moment of bitter division on the Supreme Court, nobody at the dinner mentioned it, but Borden’s intellectual honesty shone brightest in his dissenting opinion in the Supreme Court’s decision in 1996 in the school desegregation case of Sheff vs. O’Neill. By a 5-4 majority, the court concluded in Sheff that Connecticut’s Constitution requires assigning children to school according to their race throughout the state, even as racial disparities in schools result only from voluntary patterns of residency, not from government action to segregate.
The Sheff decision was judicial determinism running amok on the horse of political correctness, and Borden’s dissent skewered it brilliantly. As was typical of the Supreme Court of that time, its majority opinion did not deign to address contrary evidence and argument. The court simply decided where it wanted to go politically, contrived a rationalization for it, and ignored even obvious questions.
With its decision in the Sheff case the Supreme Court might as well have found bad weather on weekends to be unconstitutional. For the court’s mandate is so ridiculous and beyond implementation that no one has ever tried to enforce it, and a decade later Hartford’s schools, the focus of the case, are as racially segregated as ever.
Odds are that if this lack of enforcement ever reaches the Supreme Court, the Sheff decision will be rewritten into oblivion. It will be nice if Borden is still around when that happens. He would never say he told them so, but others may be tempted.
For his advocacy about global warming, former Vice President Al Gore has won the Nobel Peace Prize, which used to be given out a lot more literally, to peacemakers. Surely Gore deserves the award more than, say, President Bush, the destroyer of Iraq, but the award for Gore is still a stretch—and some are stretching it further to portray Gore again as a political victim or martyr because of the result of the disputed presidential election in 2000.
Regardless of what they think about global warming, most Americans might like to try doing over the last seven years of federal government with Gore in charge instead of Bush, since those years hardly could have gone any worse.
But Gore did not lose the 2000 election to Bush because of the Supreme Court’s meddling in the vote count in Florida, nor because of anything nefarious in that count, nor because Ralph Nader’s third-party candidacy siphoned away the votes in Florida that would have made Gore president.
No, Gore lost the 2000 election because himself. It was his election to lose, and he lost it. He failed to capitalize on the prosperity enjoyed during President Clinton’s administration, of which Gore could claim to have been a major part. He could not carry his own state, Tennessee, nor Clinton’s Arkansas, nor even hugely Democratic West Virginia, any one of which would have given him a majority in the Electoral College without Florida.
Play a close game and it always can be lost on a fluke or a mistaken call. Whether or not Gore has done a public service in regard to global warming, he was an awful presidential candidate, insufferably smug while his opponent was mostly just ignorant. Many voters are ignorant too and so don’t notice ignorance in others, but even they can be put off by smugness.
If, as some hope, Gore becomes a candidate for president again, would he be any less smug with the Nobel Prize around his neck?
Chris Powell is managing editor of the Journal Inquirer in Manchester.
