December 11, 2000
Supreme Court Intrigue
By Mollie Dickenson
Insider information in Washington suggests that the prospects of the U.S. Supreme Court letting the Florida vote count proceed are even dimmer than some commentators speculate.
One of the court's supposed "swing vote," Justice Sandra Day O'Connor, is firmly on board for George W. Bush's victory.
According to a knowledgeable source, O'Connor was visibly upset - indeed furious - when the networks called Florida for Vice President Al Gore on Election Night. "This is terrible," she said, giving the impression that she desperately wanted Bush to win.
Some have heard that one reason why O'Connor was so upset was that the O'Connors want to retire home to Arizona, but will not do so if Gore wins. In that case, O'Connor will remain on the court to deny Gore the opportunity to replace her.
Other friends say that there is a different reason - that if Bush wins, Chief Justice William Rehnquist will retire, and then O'Connor will take his place as the first female chief justice. The president appoints Supreme Court justices and the chief justice.
For Gore to rely on the bipartisanship of the other "swing vote" on the Supreme Court, Justice Anthony M. Kennedy, to save the day may also prove
to be resting on a weak reed.
Court watchers in Washington say that it is doubtful that Kennedy would have signed the majority opinion to stay the vote count on Saturday if he had any thought of changing his mind after the hearing Monday.
For what it may be worth, however, Kennedy has personal ties to Gore's
lawyer, Laurence Tribe, who argued the earlier Supreme Court case on the Florida recount. But divining the thoughts of individual members of the Supreme Court often comes down to reading tea leaves.
At holiday parties in Washington, meanwhile, Democrats are in deep depression about the Supreme Court's unprecedented move to shut down the counting of ballots in Florida.
One former U.S. senator's wife said, "I can't bear to even discuss it. It's so outrageous that it makes me physically ill." Her husband admitted to the same symptoms.
A former high Clinton appointee to the Justice Department said, "The
Supreme Court's vote is a totally self-interested vote" by the conservatives in the majority. "They are ensuring that they will remain in the majority, even increase their majority."
The paternalism toward the American people displayed in Justice
Antonin Scalia's opinion halting the vote count revealed a striking lack of faith in the
people's sophistication and judgment.
Americans already know that slightly different standards have been used to hand count Florida "under votes." Broward County used freer standards than did Palm Beach, but Broward's standards are legal and are incorporated in the statutes of George W. Bush's Texas.
Most Americans who have followed post-election events closely also know
that the Florida standard for hand counting is for county canvassing boards to "ascertain the intent of the voter."
Even if the U.S. Supreme Court lets the vote counting proceed, the stay has delayed matters so the Republican-dominated Florida state legislature can
get into the act.
Another Bush back-stop - should the people's votes go to Gore - would be
the Republican-controlled U.S. House of Representatives and the evenly divided U.S. Senate.
Ultimately, the final decision about Florida's electoral votes could be made by the chief executive of Florida, Gov. Jeb Bush, the candidate's brother.
George W. Bush is nothing, if he's not well connected.