advisors had not anticipated. They thought that Bush would most likely win the largest number of votes nationwide, but that Gore would win in the states that Writings on George W. Bush would give him the winning votes in the Electoral College. So they had prepared a strategy of getting all the radio talk shows and all the conservative TV September, 2004 commentators to call on Gore to step down and allow the “real” winner, Bush, to step into the presidency. They intended to keep up this call on radio, TV and in Part 2 — Stealing Elections print until Gore and the Democrats caved in. But, of course, the U.S. election ended up just the reverse, and Gore obtained the popular vote. So the Bush folks scrapped the idea of pushing for the winner of the popular vote to be the “real” There are many ways to steal an election. Among the more blatant is to pass out winner! handbills saying “if the lines are too long, come back tomorrow.” Another is to spread the rumor that they will check for past traffic tickets before letting you What was needed now was to get the electoral votes of Florida. Bush chose the vote, or put extra police in a minority neighborhood and have them start pulling old family friend James Baker III (the fellow from Princeton that had the over folks for “routine checks.” Perhaps the most blatant is to ask for a photo id roommate who bought a million dollars of Bush’s failing business) to be the when none is required and turn away those that do not produce one — this was leader of his team of lawyers. Baker faced a huge uphill battle. All the legal done repeatedly in South Dakota and Florida in the spring of 2004. And it was precedents were in Gore’s favor, most notably: Florida explicitly allowed continued even when poll watchers showed the election workers that the law manual recounts and had used them frequently. Bush, as governor of Texas, had permitted voting without a photo id. just signed an “intent of the voter” law just like Florida’s. Mailed in ballots were explicitly required by law to be postmarked before the date of the election to be But in Florida in 2000 a method was used that was difficult for journalists to see valid, no matter if they came from military personnel or not. So Baker had to or report until the election results were long in the past. Polling, done long control the narrative being talked about in the media and the court room so that before the election, showed that black voters were far more likely to vote for he could ignore the laws and legal precedents in order that the incomplete vote Gore than Bush. So Katherine Harris, the person in Governor Jeb Bush’s could be certified as complete by the Florida Secretary of State, Katherine administration in charge of voting procedures (and also, it must be noted, in Harris, the lady mentioned above that carried out the purge of the registered charge of Dubya’s campaign in Florida), decided it was time to purge the voting voter rolls. A second possible ploy was considered — to get the Republican rolls of all the persons that had been released from prison convicted of a felony dominated Florida legislature, or the U.S. Congress, or the U.S. Supreme Court — in Florida you are taken off the registered voter roles while in prison and to get the recount stopped or overturned, and Bush certified as the winner. But must reapply after getting out. She contracted with an outside firm to do this this ploy was considered such a nakedly political move that it might damage task. The firm compared the list of registered voters to the list of felons and Bush’s image and seemed unlikely to succeed. But… removed names from the registration rolls that were similar to names on the felons list. They were required by law to do some checking to make sure they The media picked up the story line that they were given by James Baker; they were removing the correct persons. But they did little or no checking, in almost began putting pressure on the process by calling it “legal wrangling”, “endless every case they did no checks at all (perhaps because checking would have challenges” and “unduly prolonging the election”. Tom Brokaw said, “If the taken time and reduced the profit on their contract, or maybe they were quietly Florida recount drags on, the national markets are a risk here. National security given the message that they shouldn’t check too closely). It is estimated that is involved.” These comments are wildly off the mark since, throughout the they removed at least 10,000 registered voters incorrectly. We simply do not entire process, polls taken of U.S. voters found that the citizens backed manual know how bad the damage was since we do not know how many tried to vote recounting by very high percentages: between 75 and 80%. What the voters and were turned away. None of the folks removed from the rolls knew of this wanted was a fair and accurate recount. The Bush team pressed the media to cast until they went to vote. What we do know is that the majority of the folks on the the entire process as a crisis. list were African-Americans. Had this purge of innocent voters from the The ultraconservatives got tough. Tom DeLay, a Republican from Texas and registered list not taken place Gore’s vote total would have been much higher currently the Majority Leader in the House of Representatives, began rounding since the African-American community voted overwhelmingly for Gore. up Republican supporters from around the country. They were flown to Florida They tried to pull off a similar same scam in the spring of 2004. But this time by Enron and Halliburton, either in the companies’ private jets, or on regular jet they were caught and the State of Florida quickly dropped the whole process of aircraft with their tickets paid for by these companies. They were then put up in eliminating registered voters through the use of an incomplete and biased list. good hotels, and on some nights even entertained by the likes of Wayne Newton. The companies paid the whole bill, and we know that this took place only because it showed up on their income tax filings for the year 2000. Once in Florida and the 2000 Election Miami these protesters were controlled from a small group of trailers set up for DeLay and his crew to use as a headquarters. The task of the recruited folks was When the election deadlocked in Florida it did so in a manner that Bush and his
Page 1 of 7 to create demonstrations (which turned into riots on several occasions) around billions (as we can most easily see in Iraq). Enron is also easy to connect to the Miami and to get nasty with the folks who would try to recount the votes. In one action. Ken Lay, the CEO of Enron, has been a long time friend of Dubya and instance, on November 22, they assaulted the Miami-Dade canvassing board as was the largest contributor to Bush’s campaign for the presidency. He also stood they showed up to start the recount. The head of the board was attacked with a to make billions if Bush were president — and he did in the electric power baseball bat and another member was knocked down, punched and kicked debacle of the winter and spring of 2000-2001 where Enron and the power around. This board never came back to recount the votes — they were afraid. At generators stole about $30 billion from the citizens of California with the help of another site a poll worker was trampled when the mob tried to knock down a the Bush administration. Helping the Bush campaign in Florida by flying in and door. In other instances the rioters only beat on doors and windows, waved paying support for volunteer demonstrators with its corresponding payoff for placards and signs. Some of the local Cuban population was recruited. (This Enron and Halliburton is an example of the corrupt interplay that takes place group comes from the modestly wealthy Cubans that fled Cuba before Castro’s between business and politicians. This sort of collaboration between government revolution took over Cuba. They are mostly very conservative and Republican, and big business shows one way in which we are snuffing out democracy and so they made a good group from which to recruit). They mobbed the Cuban sinking toward fascism. radio station and called for a riot against a ballot recounting site. The recount there closed down when the crowd arrived. Supreme Court and Election 2000 No arrests were ever made and no charges were ever filed against anyone during any of this. From the newspaper, TV and radio reports at the time it is clear that Action in the Courtroom the reporters never understood that many of the demonstrators were called in Several books have been written on the actions of the Supreme Court in the from out of town with all expenses paid by the leadership of the Bush campaign. election of 2000. Each describes the events in a similar manner and interprets Without doubt the Miami-Dade election board could have recounted their the outcome in slightly different fashion. The book that was clearest to me, and 10,750 ballots in five days if they had not been scared off. Later, eight new which I have relied upon heavily, is Supreme Injustice: How the High Court judges completed the task in just 12 hours, but that recount was rejected by Hijacked Election 2000 by Alan Dershowitz, a law professor at Harvard. Katherine Harris, who declared it to be past the deadline. American citizens do not seem to realize what a crisis of government took place One of the chants of the rioters was that they had to be let in to view the when the Supreme Court stepped into the Florida recount debate. It was a recounting — that there should be no recounting behind closed doors. A member capturing of the U.S. by the radical right-wing of the Republican Party. It cannot of the Bush legal team, Ted Olsen (the lawyer that was to represent Bush before be said to be illegal since there are no limits on the Supreme Court and, in any the Supreme Court), repeated this theme time and again on TV and said the case, legality is often settled by political power. The Supreme Court is more rioters had a valid point. He seemed to forget that there were far too many limited by how much backing the members of the Supreme Court believe exists persons in the street to ever fit into the recounting areas, and that each poll among legal scholars and in the general citizenry. Legal scholars believe it to be worker doing a recount was flanked by both a Democratic and a Republican the most blatant political act of the court in its history; that it generated bad law, judge to watch every move. This is hardly working “behind closed doors”, and because it was such bad law the Court specified in its verdict that this especially when those doors were needed as protection against rioters that may verdict should not be applied to any other case or by any other court. In fact, it well have totally wrecked the recount areas if they could have gained entry, seems quite possible that several of the justices that were planning to retire have forever ruining the ballots to be counted. stayed on to try to rectify the stain which this decision put on their careers. This seems especially true for Justice Sandra Day O’Connor. Paul A. Gigot, editor of the Wall Street Journal, praised the actions of the rioters, calling it the “bourgeois riot” which made the election board “cave” in The difficulty in dealing with a revolution by the grasping of power by the the face of the rioters, thus “saving the presidency for George W. Bush”. [No Supreme Court is that the Constitution does not specify any remedy. In fact, liberal bias there!] there are few inhibitions upon Supreme Court action, and the framers of the Constitution likely never envisioned such an active Court as we find today. If What is one to make of rioting in the streets and beating up poll workers as a any action was to be taken to hem in the Court it would have to be taken by the means of settling an election? Is this the way Americans elect a president? This Congress, and since the Supreme Court had just put Bush in the Presidency, and sounds more like something happening in a third world country. In fact, I’m the House and Senate both were led by Republican majorities it was very willing to bet that most of you reading this have never heard this part of the unlikely that they would take action against such a helpful Court. In fact, it was story. More about how this can come to pass below. the increasingly right-wing Republican Presidents and Congress that had put the What about the involvement of Enron and Halliburton in this sordid mess? Why conservative justices on the Supreme Court that permitted this power grab. Halliburton was involved is easy to understand — it is the company that was led First, let us understand that the Constitution of the U.S. is a document that joins by Dick Cheney until he became Dubya’s running mate. They had every reason the various states together with the national government with many rights to cooperate knowing that if Chaney were in office they would stand to make
Page 2 of 7 remaining with the states. States are like little countries in many respects, and punch the card properly. This possibility was raised even higher since it was in the federal government is not permitted to interfere in those aspects of state these counties that the oldest machines, which were very prone to breakdown, government that are restricted from interference by the federal government. were located, and they were also the machines which were using the very Voting rights and procedures are one of the rights reserved to the states, so that confusingly arranged “butterfly” punch cards. when Florida began to deal with recounting votes it was totally within its own legal system and the federal government could not interfere. When cases were Bush went to court to stop the recount. Florida’s rule on what is a legal vote, taken to court they could rise to the level of the Florida Supreme Court, but whether in counting or recounting votes is that a “clear indication of the intent of could go no further because that was the top legal authority in the state. the voter” should be honored. If the person examining the ballot can determine by any means what the voter intended, then that is how the vote will be counted. One federal law comes in to play in elections concerning the electing of a For instance, if a voter had written in pencil or pen on the ballot that they were president, it sets a deadline for settling who will be the electors that will meet in voting for Bush and then failed to place a punch after any candidate’s name, the the Electoral College. It was passed after the election of 1876 when Hayes stole vote would still be counted for Bush since the voter had indicated that on the the election from the popularly elected Tilden. [Hayes essentially bought the ballot. This law has been in force since 1917 and has survived several court legislature in Louisiana and Florida to set up a different set of electors than challenges. The voter’s intent, as long as it can be determined, is to be followed those originally chosen by the voters.] The law enacted after the Hayes-Tilden — even if the voter did not follow instructions on the ballot. debacle is called the “Safe-Harbor Law” and it specifies that if the electors from a state are determined at least six days before the meeting of the Electoral The judge ruled against Bush and ruled to have recounts started. But Katherine College then that determination cannot be challenged. But, if they are Harris, who was in charge of Dubya’s Florida presidential campaign, and also in determined with fewer than six days before the Electoral College meets, then charge of elections, ruled that there would be no recount unless there was an other sets of electors cannot be automatically ruled out. This became relevant in established machine malfunction on a particular machine. However, the two ways in this election. It formed the deadline that everyone accepted as the Attorney General, a Democrat, ruled to recount any machine that failed to show final date that the electors would have to be chosen. It also became relevant for voter intent, which would have been essentially all of the punch card machines. the Florida legislature, which had a Republican majority. It was threatening to This conflict stopped the recount until it was resolved in court. Harris further choose a set of Republican electors if the recount found that Gore had won ruled that there would be no changing of vote counts after the usual certification Florida. Had they carried out that threat it had to be before the safe-harbor date date (six days after the election), but a judge ruled it could be delayed if there or the Electoral College battle would have been difficult. [Take note, the was a good reason. So Harris demanded that each election supervisor submit in legislature in Florida could have selected a whole new set of electors, pledged to writing what they would use as a “good reason.” Sadly, none of the supervisors Bush, and sent them off to vote in the Electoral College. It would have been mentioned specifically “a broken machine”, which is what the Votomatics perfectly legal. Most states vest the choosing of the president in the legislature turned out to be. But when the machines were found to be so erratic as to be — the legislature just lets the popular vote rule the election, but they don’t have considered broken it was then too late, Harris would only allow those reasons to under our Constitution.] that had been listed earlier. On November 18 Harris was ready to certify Bush the winner when the Florida Supreme Court intervened to hear Gore’s case. On When our country was young you voted for an elector, and then trusted that November 21 it ruled all recounts should reflect voter intent and delayed elector to choose the proper person to be president, but now we vote directly for certification by twelve days to permit recounting the votes. It was at this point the president, and each political party has a set of electors pledged to vote for that the rioting occurred, as described above, which shut down some of the their candidate. The party winning the majority of votes in the state gets to use recounting since the folks doing the recount were afraid to show up at those its electors. If the Electoral College cannot determine the president because there centers. are equal votes for each candidate, or for any other reason, then the Constitution calls for the election of the president to be by the House of Representatives, Bush decided to go to a federal court to intervene in the recount on two grounds: where each state has one vote and the representatives from each state must 1) that the Florida Supreme Court had changed the rules on how to count votes decide how that vote will be cast. So there is no crisis if the Electoral College after the election (for instance, by counting “hanging chads”), and 2) that the fails to elect a president — the Constitution already has that possibility covered. persons doing the recount would not use the same rules at each polling site and therefore each voter was being deprived of equal protection under the law (a The claim of a Constitutional crisis by the media and the Republicans was just th wrong. guarantee of the 14 amendment of the U.S. constitution). This passed quickly to the U.S. Supreme Court which agreed to review the first point, but not the Gore asked for a recount due to the closeness of the vote, especially with as second (equal protection). This was November 24th. On December 3rd the many as 10,000 ballots in the Miami-Dade counties showing an “undercount” … Supreme Court stopped the decision of the Florida Supreme Court and asked for that is a ballot with no vote for president even though there were votes for most clarification of how they had reached their decision. This is like a parent other offices on the same ballot. Such a condition raises the probability that the warning their child about bad behavior. But in this case it is clear that the machine did not count the vote for president properly, or that the voter did not Florida court had not overstepped its powers, and had acted totally in accord
Page 3 of 7 with what state supreme courts are supposed to do. They had closely followed Was This a Departure from Normal? the intent of the Florida legislature — even including the wording of the law, as written by the legislature, in their decision. Thus the Florida Supreme Court was It is without precedent to intervene in the Florida court’s ruling, stopping the doing exactly what state supreme courts are supposed to do — interpret the laws recount before even hearing the Bush or Gore arguments. Stopping the recount of their state. Also note that the U.S. Supreme Court had no business interfering required five of the nine justices — only four justices were required to just get a in what the Florida court was doing. review and hear the case without stopping the recounting. Let’s put this in perspective: a number of prisoners on death row have gotten four justices to In fact, the Supreme Court had set a trap so that no matter how the Florida court agree to a review of their case, but not five, which would stop the execution until responded the Supreme Court could slap them down. The trap was that if the the review was completed a month or so later. They died by execution before court defined how to count hanging chads, dimpled chads, etc, then it would their cases came up to review. So here we have the Supreme Court saying that it have overstepped the legislature, but if it did not define it (so that poll workers is more important to stop the recounting of votes in Florida than it is to stop an would know exactly what the rules were) then there would be no equal execution while the review of the case takes place. In fact, it was the same four protection of for the voters. The Supreme Court set the trap even more carefully justices: Rehnquist, O’Conner, Scalia and Kennedy that failed to grant a stay in by saying they were not even considering the equal protection part of Bush’s Hamilton v Texas, where a man was executed before his review took place, that appeal, putting all the focus on whether the Florida court had changed the rules granted the stay on recounts in Florida. Stays are granted in the words of the law (by going beyond what the law said in how to count/recount a vote). On Friday “when irreparable and extraordinary harm” would be done if normal processes December 8th at 4 pm the Florida Supreme Court handed down their decision — continued while a review takes place. What would have been the harm in having to begin recounting immediately. On Saturday December 9th at 2:40 pm the the votes counted? Could counting votes be more harmful than saving a human Supreme Court overruled the Florida court and stopped all recounting. It also life? agreed to hear the Bush v Gore case to decide its merits. As a part of the verdict Justice Scalia wrote: “The counting of the votes that are On Tuesday December 12 at 10 am the Court issued its verdict saying of questionable legality does, in my view, threaten irreparable harm to petitioner recounting the ballots would not give voters equal protection under the rules in [Bush] and to the country, by casting a cloud upon what he claims to be the place at that time and that no recount was now possible since the safe-harbor legality of his election. Count first, and rule upon legality afterwards, is not a time was only two hours away. It was a 5-4 decision with Justices Rehnquist, recipe for producing election results that have the public acceptance democratic Scalia, Thomas, O’Conner, and Kennedy agreeing and Breyer, Ginsburg, Souter stability requires.” But in fact, counting ballots in contested elections and then and Stevens dissenting. determining their legality later is what is generally done, and is what the Florida So here we have the Supreme Court applying the 14th amendment (which was legislature wrote as law for its vote counting procedure. So Justice Scalia added to the Constitution to ensure that the freed slaves were given full overruled the Florida legislature, which is what he claimed was the error of the citizenship rights) to voters in Florida. The fact of the federal court stepping into Florida Supreme Court, and is also what a federal judge is unable to do, for a political area where states are supposed to rule without federal interference is Florida alone determines how it will count votes. Also, of course, popular very surprising, especially considering the very conservative justices that opinion in the U.S. wanted to have the votes recounted since the public saw the supported this heavy invasion of state’s rights. Most surprising, the Supreme counting of votes as a better means of supporting democracy than having Court overruled the Florida legislature in the matter of how votes were to be justices rule on fine points of law. What if, months later the votes were counted. This is an area where the Supreme Court must defer to the state under recounted and Bush was a loser, what would that do to public acceptance of the our federal Constitution. The majority justices wrote as if the voters Bush presidency? [In fact, that is what was found months later in November, intentionally miscast their ballots, when in fact it was the machines that caused 2001 — a full recount carried out by a nonpartisan national panel showed Gore many if the errors. They also sidestepped, apparently never accepting, that a won by a margin of from about 200 to several thousand votes depending on how vote should be counted under Florida law if the intent of the voter could be the recount was conducted. But the news was released only two months after the clearly determined, which is how the determining body, the state legislature, tragedy of 9/11 when editors feared being branded as unpatriotic if they wrote the law. headlined the findings, and so the story was generally buried on the inside of the newspaper. Moreover, multiple ways of performing the recounts were given To understand how unusual this whole chain of events was we must look at the making it difficult to get a clear picture of the results.] usual methods of the Supreme Court and also at the very well known beliefs of the justices involved since their actions here fly in the face of all that they believe and have espoused over the years. Reaction to the Court’s Action One legal expert said, “Scalia’s stay opinion was the single most disingenuous opinion by a justice I have ever read.” Ronald Brown of the L. A. Times observed that the stay only made sense if the court had already decided for Bush
Page 4 of 7 before hearing the arguments and did not want to have the possibility of a decisions by the Court must be followed so as to keep the law consistent, so later majority vote for Gore to contend with when they ruled for Bush. Terrance cases must be constrained by the previous findings even if his “political or Sandalow, former dean of the University of Michigan Law School [an ultra- policy preferences regarding the outcomes are quite the opposite.” He believes right, Robert Bork style conservative] said “The balance of harms so this fidelity to past rulings crucial since it prevents judges from exercising unmistakably were on the side of Gore that the majority’s decision to grant the arbitrary decisions and indulging their own political preferences. So, clearly stay was ‘incomprehensible’ and that it was an unmistakably partisan decision, Scalia could never have voted to allow the Supreme Court to even accept this without any foundation in law.” case if he had stood by his principles. As a contrast, here is Justice Steven’s comment on the topic of irreparable harm: Scalia also strongly dislikes using the 14th amendment except under very narrow “Counting every legally cast vote cannot constitute irreparable harm. On the circumstances. He always wants to know who are the victims of the lack of other hand, there is a danger that a stay may cause irreparable harm to [Gore] — equal protection, for only those with “tangible injury and concrete harm”, in his and, more importantly, the public at large — because of the risk that the entry of view, have the legal standing to bring such a law suit. They cannot just have “a the stay would be tantamount to a decision on the merits in favor of [Bush]. perception of unfairness.” So who are the possible victims of lack of equal Preventing the recount from being completed will inevitably cast a cloud on the protection in this case? (Which Scalia never asked during the trial — in other legitimacy of the election.” cases he always has.) One possibility are those voters whose votes were not counted by the machines, but could have been counted by a careful hand count. In their oath of office justices swear that they will apply the law without bias, But those votes would have been counted in the recount that the Supreme Court and so cannot base their decision on their political beliefs. But here we see a blocked. So they were not victims until the Supreme Court made them victims. decision by the Supreme Court which is clearly political in its intent. All Another possibility is Bush, but he is not really in this lawsuit, he is claiming observers of the court believe that if Gore and Bush had changed places, with that the voters of Florida are the victims of unequal protection. So he is not a Gore asking the court to stop the recount, that the court never would have victim. Another possibility are those voters in a district where the machines stepped in. Thus, the five majority justices broke their oath of office by showing made about 5% errors (as opposed to other districts were 2% was an average overwhelming bias in favor of Bush, and also in deciding a case based on their error rate). Such voters have their votes diluted (or not counted) at a higher rate, political beliefs, not on the law. which is unequal protection. But again a hand recount was the best recourse to The Court even signaled what a poor decision it was making by writing as part undoing that wrong and it was blocked by the Supreme Court. So the only of the decision that this decision was never to be used to set precedent victims in this case were created by the Supreme Court, and since there were no (principles of law) for other cases or other courts. But that is what the Supreme victims by Scalia’s standards there should have been no trial. Court is for — to set precedent for all other federal courts. But let us examine Scalia was also one of the three justices that ruled the Florida Supreme Court the five majority justices to see how out of character this decision was for each had changed the rules for counting votes during the recount. To reach their of them. Unfortunately we do not have a means of recalling Supreme Court conclusion they ignored the most important previous court cases which justices in this country for this was surely the time when that process should established the precedent of allowing “voter intent”. But most amazingly in their have been called into play. But with their decision, the revolution of the right- logic they essentially went out on a limb and then sawed it off leaving wing conservatives in taking over the federal government was vividly put into themselves without any support. Let me explain. They said that the Florida court public view. had gone too far in interpreting the voter intent law — that the law had to be used exactly as it was written, with no interpretation by the court. This is Who Are These Folks? amazing because interpretation of the law is what courts do. Moreover, the U.S. Supreme Court is the powerful court that it is today because early in its history it Antonin Scalia found in the case of Marbury v Madison that the law under which Marbury was being tried was unconstitutional. Nowhere in the Constitution was this power Antonin Scalia is the intellectual and moral leader of the conservative, majority granted to the court, but since that ruling was accepted by the nation it has justices on the Court. He said (U.S. v Virginia) “The Supreme Court of the allowed the Court to become the sole arbiter of whether any law is in conflict United States does not sit to announce ‘unique’ dispositions. Its principal with the Constitution and when laws conflict how the conflict shall be resolved. function is to establish precedent — that is, to set forth principles of law that Of course, the state supreme courts have also always operated under this same every court in America must follow.” Contrast that with what was written as part set of rules. Now here these three justices are saying supreme courts are not of the Bush v Gore decision, “Our consideration is limited to the present permitted to make such rulings — that state legislatures are supreme and courts circumstances, for the problem of equal protection in election processes are unable to deal with conflicts between laws. This essentially puts themselves generally present many complexities.” Scalia believes that if there is no and state supreme courts out of business. opportunity to set precedent then the Supreme Court should not accept the case for review. Further, he so believes in precedent that he believes that previous Scalia said the U.S. Supreme Court needed to step in to save the nation from the
Page 5 of 7 “political crisis” that would have arisen if the election would have gone to the Justice O’Connor has always deferred to state sovereignty and tried to keep the House of Representatives (as the Constitution mandates if the Electoral College federal courts out of state business. When the Supreme Court altered some is unable to elect a president). A crisis? Courts messing in political areas, which aspect of a state court’s case by some aspect of its ruling she would vote to send Scalia abhors? In a previous case Scalia had condemned an “ad hoc approach to the matter back to the state court to make the final decision. For instance, in constitutional adjudication…that will make the majority of the Court happy.” Adarand v Pena, 1995 she wrote, “ Because our decision today alters the playing He said he preferred, “to rely upon the judgment of the wise men who field in some important respects, we think it best to remand the case to the lower constructed our system, and of the people who approved it, and of the two courts for further consideration in light of the principles we have announced.” In centuries of history that has shown it to be sound.” So why did he think Gregory v Ashcroft, 1991 she said federal courts should not intervene when state following the rules set up in our Constitution two centuries ago was a crisis? and federal laws disagreed — in this case it was whether Missouri could set a Why did he resort to “ad hoc solutions”, which should never be used again or mandatory retirement law for state judges, which contradicted the federal law used as precedent — to make the majority of the court happy? against age discrimination. She is also a strong advocate for following precedent. She has upheld decisions that follow from Roe v Wade even though, Scalia has strong conservative views, and certainly thought Dubya was the better had she been on the court when Roe v Wade was decided, she would not have candidate. In this case his decision was based on which man he liked best, not voted with the majority. on the merits of the case — he broke his oath. On maintaining respect for the Court she said (Planned Parenthood v Casey, Sandra Day O’Connor 1992), “Like the character of an individual, the legitimacy of the Court must be Justice Sandra Day O’Connor is a former state legislator and judge from earned over time.” Arizona. She was a moderate Republican when she entered politics and moved right during her years in Arizona. She is a survivor of breast cancer and would Anthony Kennedy like to retire to join her husband in Arizona (he is in failing health), but would Anthony Kennedy is a moderate conservative who generally sides with like to retire during a Republican administration so that another conservative Rehnquist, Scalia and Thomas, especially in criminal cases. He sometimes joins justice can be nominated in her place. When it was announced on TV that Gore with the more liberal justices Breyer, Ginsburg, Souter and Stevens, had won Florida she exclaimed, “This is terrible!” So we can see her present occasionally also drawing in Justice O’Conner. He is far less ideological than political views. She has, despite her judicial oath, continued to be “interested in his fellow Reagan appointees and more committed to following precedent. He politics” and has incurred two ethical violations in this activity. In 1987 she sometimes changes his mind based on a good argument before the Court. One agreed to appear at a seminar for Republican donors of $10,000 or more to Supreme Court lawyer said, “Kennedy actually uses his ears during oral GoPac (the Newt Gingrich organization dedicated to getting Republicans into argument, as contrasted with Scalia, who only uses his mouth.” But Kennedy Congress). When criticism appeared she backed out. In another matter she wrote wants to become the Chief Justice and so has reportedly moved to the right to a letter supporting a movement to make the U.S. a Christian Nation based on the make himself a better candidate (Robert Novak, Dec 21, 2000). Also, in this Bible, and not a democracy. When that letter became public she claimed it was vein, he has let it be known that he was the writer of the final Bush v Gore only a personal letter. These incidents reveal that she has a mindset to help the opinion. right-wing of the Republican Party whenever she can. In his appearance before the Senate during his confirmation hearings he said that She has strongly favored keeping federal courts out of state matters, and she is “the Court must adhere to the text of the Constitution and the controlling statues also a strong advocate of following precedent. During her time on the Court she as they have been announced, not as the courts wish to see them applied.” But has insisted on showing “intent” when discrimination was shown, if the effect of neither the Constitution nor the case law supported intervening in Florida, so a law caused discrimination, but it was not intended, then the law was OK. In Kennedy also broke his oath and followed his political feelings. the Florida recount there was no “intent” to discriminate, only a possible effect if different poll workers counted hanging chads differently. So, following her William Rehnquist previous precedent she should have voted that there was no need to apply any Chief Justice Rehnquist was the fellow who worked behind the scenes to get his remedy. She also broke her previous stance in two additional ways. Previously fellow justices to accept Bush v Gore and to hand down a decision in favor of she had followed the original intent of the 14th amendment and applied it only to Bush. Rehnquist has been described as a judge with an “unprincipled, partisan discrimination based on race or gender. Since there was clearly no race or judicial activism that mars his history on the Court.” He follows his own gender basis in Bush v Gore she should have voted to reject review by the political, ideological and personal agendas. All observers of the Court expected Supreme Court. She has maintained that there is no possible equal-protection him to act in a partisan manner. He was selected for the Court during the Nixon challenge unless there is a “showing of individualized harm” (U.S. v Harris, administration and never would have made it (he was an undistinguished judge) 1995). There was no such individual (since Bush or Gore could have been aided except for the Senate being exhausted by the back-to-back battles over the failed by a recount) and no class of victims since not counting their vote was obviously confirmations of Clement Haynsworth and G. Harrold Carswell. In a discussion more discriminatory than attempting to count it by a recount. on the Nixon tapes Nixon’s assistant Haldeman tells Nixon Rehnquist “would
Page 6 of 7 not have a snowball’s chance of getting on that court” if the Senate was not theory are far beyond the ordinary sphere of federal judges… The matters the exhausted from the two prior confirmation hearings. Kissinger asks if Rehnquist Court has set out to resolve in vote dilution cases are questions of political is “pretty far right” [which, of course, was why Nixon had picked him] and philosophy, not questions of law. As such, they are not readily subjected to any Haldeman replies, “Oh, Christ, he’s way to the right of Patrick Buchanan”, who judicially manageable standards that can guide courts in attempting to select was at that time a speech writer for Nixon. between competing theories.” In Bush v Gore the political theory that the
th Florida legislature had chosen was voter intent theory, which tends toward over For Rehnquist, who thinks that the 14 amendment deals only with racial issues, inclusion of questionable ballots, rather than any of a number of theories that it is strange to see him writing how it applies to voters in Florida. Rehnquist is tend toward under inclusion. So when Thomas voted to tell the Florida Supreme also a strong proponent of keeping the federal government out of state matters. Court and legislature that they could not use the voter intent law they had on the He has written against the propensity of the Supreme Court to “devour the books he was going against the precedent that he formulated above. essentials of state sovereignty” (Fry v U.S., 1976). He says the first principle of federalism is that the federal government has limited powers in relation to the Thomas was one of the three justices that also said that the Florida Court had states and quotes James Madison that those powers “delegated to the federal rewritten the rules for counting ballots after the election. However, his government are few and defined.” So he abandoned his own principles when he intervening in Florida’s business was strictly against his own views. He has voted that the Florida court did not have the power to interpret its own state written that the Constitution “leaves to the several states a residuary and laws, and then voted to override what the Florida legislature had written as its inviolate sovereignty…reserved explicitly to the states by the Tenth law governing how to count votes. That power clearly has not been given to the amendment” (New York v U.S.). When Arkansas put term limits on its senators U.S. Supreme Court. and congressmen (federal offices), Thomas voted to permit Arkansas to have that freedom even when electing federal officials. He said it was up to the Clarence Thomas people of the state to determine such issues. He went on to speak of the selection Justice Clarence Thomas is an angry black man using the Supreme Court to of electors in presidential elections. He said that states had the power to strike back at his liberal critics. He divides the world into friends and enemies, determine how they chose electors for “even the selection of the President — and he acquired many enemies during his confirmation hearings (he called it “a surely the most national of figures.” So how could he decide in Bush v Gore to high-tech lynching”). Both Gore and Lieberman voted against his confirmation step in to this very process in the state of Florida? Apparently he broke his own — need we go any further to know how he would vote in Bush v Gore? He does rules because he could pick his selection for president and also strike directly at not let ethics considerations impede his actions. Despite ethics rules against two of his enemies — Gore and Lieberman. speaking to political groups, he regularly speaks before politically active — Gail Marsh
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