July 1, 2001
How the Power of One Vote Changes the Course of History

by Joseph P. Tartaro
Executive Editor

In our print issue, there is a story with roots that go back to the siege at Ruby Ridge in Idaho almost nine years ago. Those who have watched the story about the consequences of government actions there, and the possible prosecution of the FBI Hostage Rescue Team sniper Lon T. Horiuchi, have been aware of the ins and outs of court decisions.

The story in this issue continues to leave the question of culpability up in the air, as has been the case with most of the preceding chapters in this continuing drama. Of particular significance in light of other recent events is the power of one single individual to change the course of history.

When the then Boundary County, ID, prosecutor sought to try Horiuchi on a manslaughter charge for the death of Vicki Weaver in August 1992, that single person made the decisions that took the issue to the federal courts. As the case was argued at the circuit court level, before a three-judge panel of the federal 9th Circuit Court of Appeals and finally before the full 11-member appellate court, each ruling turned on the decision of one judge. Finally, on June 5, the full appellate court ruled 6-5 that Horiuchi could be tried in state court.

But, as the case moved through the courts, the original county prosecutor was replaced by another in a county-wide election. That new prosecutor, given the power to pursue the case by a margin of one vote, was the one person to decide not to prosecute. And, in the Page 2 story, you will note that one person, a Los Angeles attorney, hopes to change the prosecutor’s mind, or encourage some future prosecutor to bring the case to court.

Because there is no statute of limitations in homicide cases in Idaho, Horiuchi’s future will always be clouded by the fact that another vote of one could change everything that has gone before.

Other One-Vote Margins
The Horiuchi case apparently will not go to the US Supreme Court, but if it did and the court decided to hear the appeal, the final decision might turn on a single vote—by one woman or one man.

The June 2001 issue of The Champion, the monthly publication of the National Association of Criminal Defense Lawyers, also calls attention to the power of one vote—particularly of one judge. Lisa Kemler, co-chair of the NACDL Amicus Curiae Committee, notes that recent Supreme Court decisions have included five cases involving criminal law issues, and that four of the five were decided by one vote in 5-4 decisions.

Among these narrow decisions, Kemler cites Fourth and Sixth Amendment cases, including one that recently made a lot of headlines, in which the court said police may make a warrantless arrest even for a misdemeanor offense—like a traffic violation—that is punishable only by a fine.

Even more recently, the Supreme Court ruled in yet another 5-4 decision that high-tech searches conducted from outside a home or business require that a warrant be issued.

The list goes on, but it is clear from the foregoing that landmark court cases that may affect all Americans are frequently decided by a single vote.

Control of the Senate
Court cases are not the only matters that may hang on a single vote.

The recent decision by Vermont’s Sen. James Jeffords to leave the Republican Party and organize with the Democrats is another example of how one vote can affect history, especially in unusual circumstances, such as the narrowly divided Senate.

Jeffords’ decision changed the party make-up of the Senate from 50-50 to 50-49, and effected a historic change of control of committees and Senate leadership. His one decision or vote changed many things, not the least of which is the impending battle over confirmation of President Bush’s nominees to the federal court system.

The chairmanship of the Senate Judiciary Committee, where the confirmation hearings are held and the first crucial votes are taken, switched from Sen. Orrin Hatch (R-UT) to Sen. Patrick Leahy (D-VT). And with that change, the power of Sen. Charles Schumer (D-NY), another individual member of the Judiciary Committee, to determine the course of the hearings and confirmation process, was significantly enhanced.

Because of Jeffords’ vote, one prospective Bush nominee for the courts, Rep. Christopher Cox (R-CA), took his name out of contention by declining the nomination. That was not an easy thing for Cox to do; appointments to the federal court are life terms. If Cox had been confirmed, he would have served on the 9th Circuit Court, the very court that decided the Horiuchi case.

Just a few weeks ago, Bush nominated 11 people to federal judgeships with an appeal to Senate Democrats to “rise above the bitterness of the past” and give them a fair hearing.

“I now submit these nominations in good faith, trusting that good faith will also be extended by the United States Senate,” Bush said as he made the nominations for appeals court judges in a White House East Room ceremony.

At the time, Reuters news service noted that the event, complete with mood music played by the red-coated Marine Band, marked Bush’s official entry into the battle over the ideological direction of the federal courts.

Partisan wrangling over whether a nominee is too liberal or too conservative in the past decade has fostered a situation where there are around 100 vacancies on the federal bench—where one vote may change the reading of the Constitution—perhaps forever.

In their first reaction to Bush’s list, Senate Democrats said they would hold up at least of one of the nominees, a former aide to conservative Republican Sen. Jesse Helms of North Carolina.

Democrats Included
Even before the decision of one senator—Jeffords—the White House was bracing for Democratic opposition to some of the picks, in particular because they are still upset Republicans blocked some of Clinton’s choices. The stakes are high: Bush may have a chance to pick a few justices for the Supreme Court, which already has a conservative leaning.

Before Jeffords’ move, Leahy, the new Judiciary chairman, said, “Those who were selected primarily for their ideology are not likely to be confirmed.”

Sen. Tom Daschle (D-SD), now majority leader, said Democrats may end up opposing other nominees, but they have not yet had an opportunity to adequately review their credentials and judicial philosophy.

Ideology is at the core of the court nomination process. The next time someone tries to tell you how important a single vote can be, say “Amen.” History may hang on that single vote.