Revista da EMERJ - V. 20 - N. 2 - Maio/Agosto - 2018

13  R. EMERJ, Rio de Janeiro, v. 20, n. 2, p. 8 - 53, Maio/Agosto 2018  If we broaden our perspective beyond constitutional litigation , however, an analogous instance does come to mind–the recent Clin- ton impeachment episode. Many observers plausibly concluded that the two parties’ positions on the substantive standard for impeach- ment, as well as on related procedural issues, were entirely a product of their partisan commitments. That is, had it been a Republican pre- sident being impeached for identical behavior, the Democrats would have insisted on a lower threshold standard for impeachment, the desirability/necessity of the Senate pursuing an impeachment trial to its bitter end, and so forth. I think this is the right way to understand the Clinton impeachment, 20 yet that still leaves one crucial distinction between that constitutional controversy and Bush v. Gore . The constitutional law of impeachment is highly indeterminate. The constitutional text is spare, the original intent evidence is conflicting and inconclusive, and precedents on impeachment are few and far between. 21 Given this degree of constitutional indeterminacy, it was inevitable that par- tisan preferences would drive post hoc constitutional interpretations regarding Clinton’s impeachment. Bush v. Gore was importantly di- fferent, because the constitutional law relevant to adjudicating that dispute was reasonably clear; the majority simply chose not to follow it. While the Clinton impeachment controversy illustrates partisan preferences dictating the resolution of constitutional indeterminacy, Bush v. Gore reveals partisan preferences trumping law. This is a strong claim, though I believe it is one that virtually all Democratic lawyers, and a fair number of Republican ones, will agree with. Let us now take a close look at the reasoning of the majority and concurring opinions in Bush to see if this serious charge is a fair one. The per curiam opinion, representing the views of the five con- servative Justices, relies on two bases for its reversal of the Florida Supreme Court’s decision ordering a state-wide manual recount of presidential undervotes–those ballots for which the voting machines could not ascertain the voter’s intention, but a manual inspection might. First, the majority rules that a manual recount of improperly- 20 See Michael J. Klarman, Constitutional Fetishism and the Clinton Impeachment Debate, 85 Va. L. Rev. 631, 654-55 (1999) (arguing that, in light of the “legal indeterminacy” surrounding impeachment, “it is natural and perhaps inevitable that the personal values of the interpreters will determine legal outcomes”). 21 See id. at 631-50.