What Bush and Barak have in common

Legitimacy continues to be a word very much on everyone’s lips in both Israel and America. In both countries, however, those most loudly proclaiming the desire to ensure legitimacy have given the word twists worthy of George Orwell’s 1984.

This past Saturday night, Prime Minister Ehud Barak shocked Israelis by announcing that he wished to ``spare" the nation a prolonged election campaign and would therefore resign so that new elections for prime minister alone could take place within sixty days. Barak sought a new ``mandate" for his leadership.

By tendering his resignation, Barak hope to avoid an electoral confrontation with Binyamin Netanyahu whom he currently trails by nearly 20% in the polls. (Only a sitting Knesset member is eligible to run in a special election for prime minister following a prime minister’s resignation.) Unanswered, and unanswerable, was the question: How can one claim a ``mandate" on the basis of an election in which ones most formidable opponent is barred from running?

Barak thus gave new meaning to the phrase ``stinking manueuver," first coined in 1990 to describe Shimon Peres’ attempts to buy MKs votes to bring down the national unity government and resurrected in 1994 when Yitzchak Rabin bribed two Tsomet MKs to pass Oslo II.

Netanyahu was only one of the opponents from who Barak was fleeing. Weighing heavily upon him was the whithering public criticism from Chaim Ramon, his own Interior Minister, just two days earlier. Ramon predicted that Barak and his Labor Party would suffer a crushing defeat in the coming elections and accused Barak of being a complete failure in running the government.

Barak correctly read those remarks as a signal that his days as head of the Labor Party were limited, and that party elders had decided that if they were going to be crushed better to go down nobly behind the banner of someone they at least like. By calling a snap election, Barak successfully prevented anyone within the party from mounting a challenge.

A third factor driving Barak was the realization that the dawdling police investigation of the fictitious non-profit organizations was coming to life and that he would soon be deprived of his last issue against Netanyahu – the latter’s ethical lapses. Last week, Yitzchak Herzog, his cabinet secretary and the central figure in the scandal refused to answer investigator’s questions, as had Barak’s once and future campaign manager, Tal Zilberstein, and Barak’s brother-in-law Doron Cohen before him.

Herzog claims that there is no place for a police investigation because the campaign financing laws do not apply to prime ministerial campaigns, but he left unexplained: If so, why was it necessary to create dozens of fictitious non-profit organizations, issue fake receipts and suborn perjury from those called as witnesses by the State Comptroller?

Two weeks ago, Barak challenged the Knesset to dissolve itself and go to new elections. He boldly proclaimed, ``I already beat Bibi, and I’m not afraid of him. The possibility of resigning in order to neutralize him did not even pass through my mind for a single moment."

Now, he reminds us of Floyd Patterson, the heavyweight champion in the ‘50s. Patterson found an endless series of Joe Palookas to fight, while assiduously avoiding Sonny Liston, whom he deemed unworthy of being heavyweight champion because of his prior prison record. As it turned out, Patterson’s reticence was well founded; his two fights with Liston lasted less than five minutes all total. Barak’s reluctance to confront Netanyahu at present is equally well founded.

Things were not much better half way around the world where the United States Supreme Court issued a stay against further recounting in Florida last Saturday. George W. Bush, the Court ruled, might suffer ``irreparable harm" if the recount showed that Al Gore had actually received more votes and his ``legitimacy" thereby undermined.

No doubt. Yet it is hard to see how Bush’s legitimacy will be less tarnished by having the referees confiscate the ball and hold it as the two-minute clock runs out with the opponent on the five-yard line. The only person who will be irreparably harmed by the stay is Gore, who may not have time to get his recount even if the Court decides to let one proceed.

No less shocking was the Court’s determination that Bush had shown a ``substantial probability of success on the merits." The Rehnquist Court has long been the avatar of ``states rights." From 1941 to 1995, the Court did not strike down a single piece of federal legislation on the grounds that Congress had exceeded its powers under the Commerce Clause to enact nationwide legislation. Since 1995, the Court has done so 25 times in defense of ``states rights." Yet on Saturday, the Supreme Court effectively short-circuited state procedures.

As Georgetown Law Professor Jeffrey Rosen convincingly showed in the November 6, New Republic, no Supreme Court – including the Warren Court – has been so contemptuous of legislative perogatives or so willing to say, ``the Constitution is what we say it is, period" as the Rehnquist Court. Yet that same Court now appears poised to rule that Article II of the United States Constitution gives state legislatures absolute control over the selection of electors and leaves no role for the state’s highest court in the interpretation of state electoral law and the state constitution.

Ehud Barak may avoid confronting Binyamin Netanyahu, and George W. Bush may prevent any more ballots from being counted in Florida. But is hard to see how the ``legitimacy" of either man to govern his nation will thereby be enhanced.