Posted on 01/24/2007 11:26:25 PM PST by NormsRevenge
WASHINGTON - Three of the five Supreme Court justices who handed the presidency to George W. Bush in 2000 say they had no choice but to intervene in the Florida recount.
Comments from Justice Anthony Kennedy and retired Justice Sandra Day O'Connor are in a new book that was published this week. Justice Antonin Scalia made his remarks Tuesday at Iona College in New York.
Scalia, answering questions after a speech, also said that critics of the 5-4 ruling in Bush v. Gore need to move on six years after the electoral drama of December 2000, when it seemed the whole nation hung by a chad awaiting the outcome of the presidential election.
"It's water over the deck — get over it," Scalia said, drawing laughs from his audience. His remarks were reported in the Gannett Co.'s Journal-News.
The court's decision to halt the recount of Florida's disputed election results, thus giving Bush the state's electoral votes, has been heavily criticized as an example of the court overstepping its bounds and, worse, being driven by politics.
Rather than let the recount take place and leave state officials and possibly Congress to determine the outcome of the election, the court's five conservative justices decided to intervene.
They eventually overturned a ruling of the Florida Supreme Court and halted the recount of the state's disputed election results 36 days after the voting. The decision effectively gave Bush Florida's electoral votes — and the presidency — by 537 votes.
"A no-brainer! A state court deciding a federal constitutional issue about the presidential election? Of course you take the case," Kennedy told ABC News correspondent Jan Crawford Greenburg in her new book, "Supreme Conflict."
Kennedy said the justices didn't ask for the case to come their way. Then-Vice President Al Gore's legal team involved the courts in the election by asking a state court to order a recount, Kennedy said.
Legal scholars and the four dissenting justices have said the Supreme Court should have declined to jump into the case in the first place.
In a decision made public on the evening of Dec. 12, 2000, the court said the recount violated the Constitution's Equal Protection Clause because Florida counties were allowed to set their own standard for determining whether to count a vote.
"Counting somebody else's dimpled chad and not counting my dimpled chad is not giving equal protection of the law," Scalia said at Iona. Justice Clarence Thomas and the late Chief Justice William Rehnquist, who died in 2005, also were part of the majority.
O'Connor said the Florida court was "off on a trip of its own."
She acknowledged, however, that the justices probably could have done a better job with the opinion if they hadn't been rushed.
Still, O'Connor said the outcome of the election would have been the same even if the court had not intervened.
She was referring to studies that suggest Bush would have won a recount limited to counties that Gore initially contested, although other studies said Gore might have prevailed in a statewide recount.
"other studies said Gore might have prevailed in a statewide recount."
But Gore didn't want a statewide count.
Given the outright intransigence demonstrated by the four members of the majority of the Florida Supreme Court who accepted all of the legal arguments advanced by Tribe and the Gore legal team (remember, the three judges who dissented on the Florida court warned (and correctly predicted) that the majority opinion would be promptly reversed, in part for reasons very similar to those ultimately adopted by the Bush v. Gore majority), I don't think it's too far-fetched to argue that option a) was a distinct possibility. As Lund has argued:
"Although the Court acted with unprecedented dispatch after the Florida court's December 8, 2000 decision, it was highly improbable that a legally proper recount could be conducted by the December 18 deadline set by federal law. And it was quite impossible for such a recount to meet the December 12 deadline that the Florida court itself had found in Florida law. Contrary to a widespread misconception, the U.S. Supreme Court properly accepted the Florida court's interpretation of state law and provided that court with an opportunity to reconsider its own interpretation of state law. When the clock ran out, it was entirely due to mistakes and delays attributable to the Florida court."
Personally, I think the four judges in the Florida court majority might well have wound up ignoring all this by simply ordering Harris, at the eleventh hour, to certify a slate of Gore electors. Cynical, yes, but nevertheless a possible outcome.
Meanwhile, my primary argument remains wholly intact -- why weren't the nonjusticiability arguments you and Tribe think are so compelling actually advanced by Tribe in the Supreme Court (or by the dissenters in Bush v. Gore) in the first place? As I argued, that's my main concern with Tribe's Monday-morning quarterbacking. Again, as Lund has pointed out: "The least known passages in Bush v. Gore are those in which the dissenters explain why the majority's legal analysis was erroneous. These passages are not well known because they do not exist." Instead, what we got from Justice Stevens was an argument that consisted "of a rhetorical flourish rather than analysis: 'What must underlie [George W. Bush's] entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed.'"
"what's worse is that we haven't done much to fix it in the intervening six years."
You are so right. The Republicans haven't done much to fix the problem, but the Dims have learned from their mistakes. I'm not convinced that there wasn't a lot of "hanky-panky" with votes in the 2006 elections. Too many influential Republicans lost their seats this past election.
We all know about the 5-4 decision,yes.Was there not also a 7-2 decision that went our way in the case?
I think that between an unpopular war and constant high-profile scandals, we screwed ourselves. Maybe there was some vote tampering, but I don't think that that was really necessary.
Of course there was, although the author of this piece of slanted, drive-by "journalism" failed to mention it. For a decent and informative account of the case, which discusses the three major holdings and the votes on each major issue decided in Bush v. Gore, visit http://en.wikipedia.org/wiki/Bush_v._Gore
Of course, I'm certain they would have.
The question is, would Harris have followed the law, as she was required to do, or the illegal FLA SC decision?
My argument is based on the assumption that there would have been two slates of Florida electors, one legally appointed and certified by Harris and one illegal one designated by the FL SC.
Five of the eight Supreme Court justices who handed America the unconstitutional and unjust communist kelo decision are not American, they are marxist and should impeached and then put in stocks in public display after being tared and fethered for pretending to be American justices.
I don't even think that it was a matter of backbone or agenda, I think that our guys went up to the hill and got corrupt as hell on the money and power. Say what you will about Tip O'Neil, but it took his party 40 years on the hill to vomit out a majority leader that crooked, and it took us less than 10 years to gorge ourselves mad at the public trough.
Doesn't he look like he just sat on something pointy? Look at his mouth, it screams, "OWWWWWWWWWWWWWW!!!!!!!"
George Allen ran possibly the worst campaign in recent memory, Curt Weldon is under FBI investigation for influence trading (and looks guilty as hell), and Santorum's name is now synonymus with something so vile that you shouldn't google it before breakfast.
I do recall the ridiculously blatant media cheerleading for Gore clearly, though. It was causing the race to slip away from George Bush - there was this general sense that Gore was going to find a way to steal the election, no matter what Bush did, thanks to the media. That completely turned, however, when Gore and his lawyers started trying to throw out military ballots. After that, and after the public outrage over that, I started thinking that maybe things were going to turn out all right after all.
Definitely try to read that book, though.
Another exaggeration in a laughable array of them. The media did a bunch of "recounts" after the fact, looking to trumpet the story of how Gore "really won the election". It was true that they did find a scenario in a statewide recount where Gore would have "won", but it was so implausible and unrealistic that it was laughable.
It was like the issue of the font kerning in the TANG fake documents story. As far as the media and the left (one and the same) were concerned, all that had to be done was to prove that a typewriter that was capable of proportional font spacing did exist at the time those fake documents were "written." To them, it was completely irrelevant to be able to explain how such a (for the time) high tech and costly machine wound up on the desk of a secretary for an obscure lieutenant colonel in some Air National Guard unit in Texas.
To them, the machine existed, therefore the documents were real. The same flimsy logic is used here.
Thanks! I believe that article agrees with what I said.
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