Scoppe: Ruling suggests a court grown weary of Mark Sanford

THE MOST telling language in the Supreme Court ruling that rejected Gov. Mark Sanford's pathetic contention that waiving his confidentiality doesn't really mean waiving his confidentiality is in Footnote 8.

The footnote doesn't specifically use the term "whiny, deceptive liar" - just as the ruling itself doesn't come out and say that the court is hoisting the governor upon his own petard. But that's what the footnote says, and that's what the opinion does.

The point made in the footnote is that the governor is flat wrong when he argues that the public shouldn't see a preliminary investigation into his travel and campaign spending because "he will not get a chance to present 'his side of the story'" until much later in the process. In fact, the footnote says, "the plain language of the statute refutes the Governor's contention" and "Counsel for the Commission confirmed at oral argument that the Governor has been allowed to offer information during the investigatory process, and has availed himself of that opportunity."

Now that might sound like a pretty obvious point to make but for this fact: The court said in the body of the opinion that Mr. Sanford's "tell his side of the story" objection was irrelevant because he had issued a sweeping waiver of any and all confidentiality rights. In other words, there was no legal reason to refute this particular objection.

There apparently was, however, another reason. I don't want to call it political, because that has all sorts of implications, when dealing with a court, that I don't think would be fair to apply here. You might call it personal, or perhaps professional.

It is common knowledge that the vast majority of legislators are counting the days until - one way or another - they don't have Mark Sanford to kick around any more. But it wasn't until I came across that dig in the latest case with "Sanford" in the title that it hit me: The justices must be at least as anxious to say good-bye to the governor.

I don't mean to imply that they have anything against his politics. In fact, they have ruled in favor of the governor on the major cases that will have long-term implications for our state - and thank goodness for that. On those cases, challenging the Legislature's self-serving, irresponsible, dangerous and unconstitutional logrolling, Mr. Sanford was dead right.

What must surely irritate the court is the way the governor keeps dragging it into the political arena - where the justices do not belong and do not want to be. Even in South Carolina, a supreme court can't very well ignore a governor when he leapfrogs over the lower courts and demands to be heard. So whenever he asks for original jurisdiction, the court feels compelled at least to listen.

In the past, it has done more than that, agreeing to decide the case, and then doing so - in his favor in the logrolling cases (which he didn't technically bring but was clearly behind) and against him in the federal stimulus suit that had to be brought this spring because of him.

Mr. Sanford's decision to run to court - prematurely - to try to get a bye on his own political gamesmanship seems to be the back-breaking straw. Consider:

Even after hearing the arguments that it really didn't have much choice but to hear, the court easily could have denied the governor's request as premature, and left it at that. It did not.

Even after deciding to go beyond that and examine the question of whether the governor had waived his right to confidentiality - when he sent a letter to the Ethics Commission and the public congratulating himself for being so committed to transparency in government that he would "go the extra mile" and take the "unilateral step" of letting the public in on the secret process - the court easily could have concluded that his letter was written in the context of the commission's assurance that transparency didn't really mean transparency.

In fact, Justice Costa Pleicones dissented on that point, writing that he did not think the governor realized he was waiving all confidentiality. "To the contrary," he wrote, "I conclude that the letter of August 28, 2009, though grandiose and poorly-articulated, is clearly the end-product of negotiations between the Governor's counsel and the executive director of the Ethics Commission."

I think Justice Pleicones got it right factually, even if he was too nice to say "The governor is a big fat prevaricator." Mr. Sanford felt certain that he had found a way to deceive the public into believing he was going the extra mile with a unilateral step to bring transparency to the ethics process without actually doing that.

But while there clearly was room for the court to go easy on the governor, it just as clearly was on firm legal ground, because of this annoying and well-established proclivity that our legal system has toward exaggerated literalism. If you say you're going to eat your hat if you don't live up to your terms of an agreement, and then you don't live up to your terms of an agreement, the court expects you to eat your hat. Salt optional.

By applying that literalist approach to the governor's deceptive rhetoric, the court has not only done something that must have felt very good to do. It also has sent a valuable message to politicians: You can play all the political games you want out there in the public, but once you start messing with the legal process, watch out. You are going to have to live with the actual words you speak.