Getting Over Scalia
by William Betz
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.
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William Betz is a lawyer practicing in New York.