During an interview aired last night on "60 Minutes" Antonin Scalia demonstrated, in his inability to discuss articulately the decision of the Supreme Court in Bush v. Gore, just how vacuous and hypocritical the legal reasoning behind that tragic theft of democracy truly was. Shockingly, after suggesting that anyone who has the gall to question the decision should "get over it," Scalia then pronounced that Bush would have won the election anyway and the result would not have been different had the Supreme Court declined to intervene. The Court, it will be remembered, stopped a vote recount ordered by the Florida Supreme Court, handing the presidency to George W. Bush. Apparently Scalia is not aware that a consortium of news organizations performed a complete recount of Florida votes and found conclusively that Gore had won Florida. Unfortunately, this inconvenient truth was at least temporarily misplaced - and maybe permanently lost - in the aftermath of September 11, 2001. As seems appropriate for a national candidate who had a popular majority of more than 500,000 votes, Gore won the presidential election in 2000. [Yes, Gore WON in Florida:
Had it not been for the tortured logic of the majority of the Supreme Court - consisting of its five "conservative" Republican members who, as the interviewer Leslie Stahl correctly pointed out, rendered a political decision - then the United States would not have suffered eight years of George W. Bush, along with the degradation of the Constitution and the rule of law; an immoral and unjustified war of choice based solely on lies propagated by the bastard Bush administration and our concomitant disgrace in the eyes of the world; the descent of America into rationalizing the need for - and its right to - torture; the transfer by the Bush administration of the national treasury to the private hands of its corporate cohorts; the destruction by intentional neglect of the City of New Orleans and the country's general infrastructure; the politicization of the CIA, the Justice Department and virtually every other agency of the Federal government; the appointment of incompetent political cronies to important government positions; and the virtual dismantling of the social structure of the nation.
The damage caused by the Supreme Court as the result of its palace coup is incalculable and in all likelihood irreparable. The legal "reasoning" used by the Court in Bush v. Gore was, to anyone familiar with constitutional law and, indeed, to anyone who understands American democracy, astonishingly dishonest. (As far as Scalia's call during the 60 Minutes interview for honesty is concerned, the Justice claimed that the decision was 7-2, when it was actually 5-4.)
In Bush v. Gore, 531 U.S. 98, 121 S. Ct. 525, 148 L.Ed.2d 388 (2000), the Supreme Court ordered that a recount of votes directed by the Florida Supreme Court be stopped because of the potential violation of the right of Bush and his supporters to equal protection of the law under the Fourteenth Amendment. Equal protection jurisprudence had developed over the previous century to guard the rights of persons based on their minority status, the "discrete and insular minorities" famously identified 70 years ago by an earlier Supreme Court. The discrete and insular minorities referred to in the 1938 decision included groups subjected to discrimination on the basis of race, national origin or religion. But who were the vulnerable minorities in Florida? They were Bush himself, Bush voters and Bush supporters and suit-and-tie Republican operatives sent to Florida by the Republican National Committee, people like John ("I'm John Bolton and I'm here to stop the recount") Bolton, and henchmen dispatched by James Baker, the Texas oil oligarch, Republican uber operative and Bush I former Secretary of State. By assigning to these persons protected minority status, the Supreme Court effectively announced that the rule of law means nothing, not when it stands in the way of a desired political result. The decision represents and will likely always represent the lowest point of American jurisprudence.
Leslie Stahl made much of Scalia's sense of humor and purportedly pleasant personality. The liberal Justice Ruth Bader Ginsburg joined in the humanization of Scalia. Scalia himself discussed his identity as the first Italian American on the Court, noting that traditional negative stereotypes of Italians sometimes included identification with the Mafia. But a thug is a thug regardless of his ethnic identity, whether his thuggery is perpetrated at the point of a gun or the point of a pen. Surely there were many people who believed Hitler was charming and that Mussolini had a wonderful sense of humor. The crimes of the two, however, remain unforgivable. The crime perpetrated by black-robed thugs in 2000, a crime hidden behind pseudointellectual and dishonest legal reasoning for purely political purposes, a crime so vile that it makes a mockery of democracy, is equally unforgivable.
"Get over it," indeed.
William Betz Attorney at Law 1010 Northern Blvd., Suite 208 Great Neck, NY 11021 Tel.: (516) 767-3964 Fax: (516) 767-0545 www.williambetz.com
For reaffirming that there are still a few sane people left in the U.S.
I have a question for you. I will draw upon your expertise as a lawyer. Was there anything President Clinton or VP Al Gore could have initiated to bring about a more proper and constitutional resolution in the 2000 election? I know the Repub operatives simply hijacked the whole process holding it hostage to legal manipulation that no one could have, or in any event, did not circumvent.
Since the situation was unprecedented in history, the Democrats seemed, as usual, to have been off-stride. And what steps can be taken to prevent it from happening again? Was it simply a matter of playing by two separate sets of rules? What did constitutional scholars have to say about other alternatives?
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Marilyn Frith (6 articles, 0 quicklinks, 4 diaries, 191 comments)
on Monday, April 28, 2008 at 8:39:15 PM
Look, Bush is evil and undeniable the worst president the country has ever seen. It is a shame that he won in 2000. Yes, he did win. No, he was not appointed by the Supreme Court. It was Al Gore who asked the supreme court to rule on whether Florida had to follow federal election laws and not change Florida election law after an election but prior to certification of the vote. The SC was 100 percent correct in making its ruling, however the ruling had no impact on the outcome. No mater how the votes were counted, Bush won. Counting Gore’s way, Bush had even a larger margin of victory.
PS: democracy makes a mocker of itself, for it is perhaps the worst form of government. Thank God the founders of our country rejected democracy and established our republic.
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M. Bennett (0 articles, 0 quicklinks, 0 diaries, 56 comments)
on Monday, April 28, 2008 at 10:09:06 PM
If Gore had sued in the Supreme Court the name of the case would have been Gore v. Bush, not Bush v. Gore. The fact is that Bush sued in the Supreme Court to overrule the Florida Supreme Court, which -- like the courts in every state -- is responsible for elections. Gore sued in the state courts, as he was required to do, to force the local election boards to count the votes. It was Bush and the hypocritical "small government" "states' rights" Republicans who sued in the Supreme Court. They got the political decision they wanted.
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William Betz (1 articles, 0 quicklinks, 0 diaries, 4 comments)
on Tuesday, April 29, 2008 at 4:20:06 AM
In this segment of 60-Minutes, before the topic of the 2000 election was brought up, there was a long discussion about Scalia's Originalist philosophy of law which says basically that the Constitution is now a dead document, and that it means exactly what it meant in 1776. Scalia made the point that the Supreme Court should be devoted to interpreting the Constitution in the way it was originally intended and should not consider it a living document to be reinterpreted according to modern circumstances.
When the topic arose, it surprised me that Leslie Stahl failed to ask Scalia how the Bush vs. Gore decision can be explained according to that originalist philosophy. I have been unable to find in the Constitution where it explains why the Supreme Court should involve itself in determining how a state should select its deligates to the electoral college. In fact it seems quite clear to me that the intent was that no branch of the federal government should ever be involved in this decision; the intent was that this decision was to be made entirely at the state level.
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PrMaine (8 articles, 4 quicklinks, 1 diaries, 241 comments)
on Tuesday, April 29, 2008 at 9:02:08 AM
If it were true that even in cases of a national election that the federal government has no jurisdiction over the way states run their elections, then the voting rights act is invalid. Is that your position? What is important is that states not be able to change their methods of counting votes etc. after the fact to achieve a particular goal. That is what the Florida Supreme Court did. It is my understanding that is a violation of federal law.
In any case, it did not matter how the US Supreme Court ruled. No matter how the votes were counted, Bush won. Had Gore prevailed in the US Supreme Court, Bush would have won by a larger margin.
In this case I agree with Scalia. Get over it. How about getting upset over the 2004 Washington State gubernatorial race where the democrat definitely, unquestionably stole the race?
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M. Bennett (0 articles, 0 quicklinks, 0 diaries, 56 comments)
on Tuesday, April 29, 2008 at 12:40:17 PM
Your information is incorrect. I suggest you read "The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose Our President" by Vincent Bugliosi.
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William Betz (1 articles, 0 quicklinks, 0 diaries, 4 comments)
on Tuesday, April 29, 2008 at 12:47:04 PM
What specifically is incorrect? Are you denying that Bush would have won no matter how the votes were counted?
Are you denying that it was Al Gore who brought the matter to the courts to decide rather than simply following the election laws that were in place at the time?
I don’t have the time to read every book written by every crackpot with a word processor. Please just give me the lowdown.
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M. Bennett (0 articles, 0 quicklinks, 0 diaries, 56 comments)
on Tuesday, April 29, 2008 at 2:21:50 PM
Here is what NewsWatch had to say in April of 2001.
"In the first full study of Florida's ballots since the election ended, The Miami Herald and USA Today reported George W. Bush would have widened his 537-vote victory to a 1,665-vote margin if the recount ordered by the Florida Supreme Court would have been allowed to continue, using standards that would have allowed even faintly dimpled "undervotes" -- ballots the voter has noticeably indented but had not punched all the way through -- to be counted."
Get over it.
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M. Bennett (0 articles, 0 quicklinks, 0 diaries, 56 comments)
on Tuesday, April 29, 2008 at 2:24:45 PM
I did not say and I did not mean to say that I agree with Scalia's position as an originalist. Let me be quite clear about this: I do not agree with that position and would not defend it. My comment was that it would seem very difficult to reconcile the originalist position that Scalia claims to take as fundimental to his judicial philosophy with the Bush vs. Gore decision.
With respect to the vote count in Florida, I would direct your attention to the New York Times article reporting the results of the recount. This article appeared while emotions were still very high about 9/11/2001 and it appears that the Times was exercising their tradition of burying the lead. That is they de-emphasize what might seem to some the most important conclusion by burying that information deep in the article. The truly interesting statement in the article appears in the fifteenth paragraph. I quote:
An approach Mr. Gore and his lawyers rejected as impractical — a statewide recount — could have produced enough votes to tilt the election his way, no matter what standard was chosen to judge voter intent.
To which it adds (tenth paragraph from the end):
The Florida Supreme Court urged a statewide recount and ordered the state's 67 counties to begin a manual re-examination of the undervotes in a ruling issued Dec. 8 that left Mr. Gore and his allies elated.
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PrMaine (8 articles, 4 quicklinks, 1 diaries, 241 comments)
on Tuesday, April 29, 2008 at 8:15:26 PM
I think...as with any question as complex a constitutional law (which rivals the interpretation of religious scriptures for continuing debate) the opinions keep coming fast and furious. I will often defer to experts. I have read Bugilosi on his reading of the 2000 SCOTUS decree and others on the topic.
But I did have some issues with him on his dissection of the OJ trail. So I don't put my entire faith in one man or on one explication. Objectivity is hard to come by when passion is involved...and politics brings out extreme passion in the elctorate (and in anyone seeking resolution).
Incidently, Rush Limbaugh is fond of repeating his mantra that we are a republic and not a democracy. We are a democratic republic. That means we get to VOTE for our representatives. That is the ideal, of course, which we stubbornly cling to. (We are too large to hold a New England style community hands-up vote on every issue.)
Then you have to factor in the subtext of the 2000 Florida race: caging lists, voter suppression (not voter fraud--a hot-button topic now in circulation re the Indiana voter ID card), disregard of overseas absentee ballots, the oddly-designed "butterfly ballot" that cleverly put Gore votes in the Pat Buchanan column, etc. FL Sec. of State, Katherine Harris, was Bush's campaign manager and his brother was governor. Duh!
That means Bush did not win; the race was stolen by Repubs long before the US Supreme Court got involved; they merely put the final nail in the coffin of our democratic republic.
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Marilyn Frith (6 articles, 0 quicklinks, 4 diaries, 191 comments)
on Tuesday, April 29, 2008 at 3:11:05 PM
It was asked if there was another way of avoiding this disaster. Yes there was.
It was said that SCOTUS didn't appoint Bush to the presidency, which is technically true; the Electoral College did.
The case of Bush v. Gore applied only to the two parties in the suit and to the Florida Supreme Court's order. It said nothing about the Electoral College or Congress, so when Congress met to count the electoral votes there was ample opportunity for Congress to disregard Florida's votes until a full recount was made. Anyone in Congress could have made the motion or could possibly engaged in a filibuster until the recount was complete. Likelihood of that working is almost nil, but it could have made the point. But nobody made an effort.
One respondent to this article claimed that voter fraud in Washington state resulted in Democrats "stealing" the 2004 gubernatorial election. Not true. The Bush administration pushed the issue and the Republican federal attorney in Seattle, who was fired for his honesty, could find only one case of voter fraud. That involved a woman who cast the absentee ballot for her husband who died weeks before the election, and he had instructed her to vote a straight Republican ticket.
It seems Mr. Bennett is wrong on several issues.
One. The Fourteenth Amendment (Section 5) gives Congress power to enforce "equal protection of the law," "privileges and immunities," "due process of law" under state jurisdiction when states fail to do so ~ even when states do act ~ and that involves election law.
Two. If Florida would have recounted only in the four counties Gore wished, Bush would have still won but with a smaller margin of victory. Had Florida recounted the entire state as the state supreme court ordered, Gore was the winner. That was all proven in an independent recount of the entire state by a group of media organizations which did the recount on their own.
For those who wish to judge Scalia's idea or "original intent" please read:
