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.
Well .. I don't agree with you .. but you can believe whatever you want!
Thank You
it was actually a 7-2 on the equal protection part of the case - you cannot recount the votes under one standard in politically selected counties, and not do the same elsewhere in the state.
So does this mean the libs don't like O'Connor now?
good summary. I personally believe the Dems stole the VA race, Allen was ahead with over 99% reporting - then POOF, the Dem voter fraud surge is pushed through once they see how many they need to win it. they tried the same thing in florida in 2000, but fell short.
Almost stopped reading there.
Scalia, answering questions after a speech, also said that critics of the 5-4 ruling in Bush v. Gore ...
That was enough. The ruling was 7-2, not 5-4. The reporter is a liar. No point in wasting more time on his drivel.
No doubt,, those were some ballsy statements for Sandra to make.
Levin believes the equal protection clause is over-used, and didn't want to see it used in a voting case.
I don't believe that personally, but we could avoid the appearance of that if we changed the law so that NO results could be reported in a race until ALL precincts had sent in their information.
There is absolutely NOTHING gained by reporting partial results. Nobody takes office for weeks, nobody needs to know at 10pm who won, as compared to 7am the next morning.
A lot of things would be better if we simply kept all voting information secret until all the results were in.
By a 5-4 decision, the Supreme Court held that the Florida Supreme Court (all Democrats) could not arbitrarily alter the state's election laws.
You are absolutely correct, bobjam. Idiots like the joker who wrote the article cannot and will never be able to appreciate the legal subtleties of the case. You never see them saying that 7 justices found a constitutional violation in conducting the recount in the manner Gore wanted and a bare majority of the Florida Supreme Court had permitted. The much closer vote was on the nature of the remedy.
It's not about 'belief' it is about fact. I can find no 7-2 "vote" or ruling. If you have it, please link it so I can see it. That would easily change my mind.
This also isn't personal - don't get so upset.
The main thing is that, whether it was 5-4 or 7-2, the activist Florida Supremes were stopped in their tracks.
So .. you're trying to tell me there was no such thing as TWO votes - one of 7-2 and the other 5-4 ..??
If you are .. you're going to be sadly disappointed. There were two votes. I suppose I could spend days or weeks researching it FOR YOU .. but why don't you research it for yourself.
And .. you're right .. it's not personal!
Now wait just a dadburned minute. Due to the nature of the case, the fact that an injunction had already been issued, and the critical need to prevent further irreparable harm from constitutional violations of the type the Florida Supreme Court had endorsed, the U.S. Supreme Court rendered its opinion just 16 hours after hearing arguments. (Indeed, in the article itself, Tribe himself referred to "the uniquely hurried and thus arguably extenuating circumstances in which the Court acted.") Meanwhile, in writing his essay responding to the arguments in favor of both major holdings in Bush v. Gore advanced in articles written by another academic, Nelson Lund, Laurence Tribe had over two and a half years to craft the arguments you found so "cogent and convincing." Also quite telling is the fact that when push came to shove, no one on Gore's legal team at the time, including good old Larry himself, pressed the argument that the controversy was nonjusticiable.
I've read Tribe's paper, as well as those that preceded and followed it, and I found his argument to be neither cogent nor convincing, even though he had the luxury, as a Harvard academic, of being an arm-chair quarterback and taking his own sweet time before second-guessing the Court and raising arguments that were not even presented to it for decision. Furthermore, Tribe acknowledged that there was considerable scholarly debate concerning the case and the "rightness" of one or more of its holdings, and that several respected judges and academicians had defended the decision on crisis-avoidance grounds.
One more thing -- as he admitted in his paper, Tribe is hardly a disinterested observer on the topic, having served as counsel to Gore during both the federal and state litigation surrounding the dispute. Don't you think that colors his analysis just a tad? After all, in the piece, Tribe dismissed Professor Lund's argument to that effect on the ground that he was nothing more than "a Bush-campaign cheerleader from the first days of the dispute."
The bottom line is that legal opinions, even those of Professor Tribe, remain like belly buttons. At the beginning (and the end) of the day, there were sufficient votes to grant certiorari, and then there were sufficient votes to reverse the Florida Supreme Court's perversion of the electoral process. As Justice Scalia noted, nothing anybody says or thinks about it now (and, in particular, the post-hoc ruminations of Tribe, Lund, and Posner et al.) can change that simple historical fact.
Here is a somewhat simplified but nonetheless informative account of the case, which discusses the three major holdings and the votes on each major issue decided in Bush v. Gore:
http://en.wikipedia.org/wiki/Bush_v._Gore
The only 2 ways irreparable harm could have occurred in this matter would have been a) Katherine Harris certifying a slate of Gore electors, or b) a Joint Session of Congress overruling Harris and counting the illegally appointed (by the FLA supremes) electors instead of the legally certified ones.
The author of the story is so backward, that he would probably flame broil the lettuce and throw the burger on the sandwich raw.
I think you're right.
Remember how Rita Cosby announced so breathlessly that the court had ruled in favor of gore?
It seems like at least a part of the ruling was that, if they wanted to continue with the re-re-re-counting, they could, but they had to include the entire state (and maybe that they couldn't try to discern voter intent of the under/over votes ?).
At that point, I believe there were so many military votes from the panhandle that hadn't been counted, gore didn't stand a chance.
I also remember talk of a Constitutional crisis if the election went to the Senate. As bad as the Florida chad-counting circus was, imagine what the dems could have done to the country if that had happened!
Harris already backed off twice. GOP, the get along to get along party, would have backed over that line if told to by the Floozies.
The whole situation was a total mess from start to finish, what's worse is that we haven't done much to fix it in the intervening six years.
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