January 7, 2001
By Mollie Dickenson
On Dec. 12 -- another December date which will live in historic infamy -- Vice President Al Gore was still confident that the Florida recount would resume and that the vote tally would give him the presidency.
His lead in the national popular vote was swelling toward more than a half million votes over George W. Bush. The Florida recount seemed all but certain to give Gore enough votes to win that key state, too. With Florida would come a clear majority of the Electoral College.
Four days earlier, the Florida Supreme Court had ordered a statewide recount of ballots that had been missed by machine tabulations. The next day, vote counters across the state discovered in these so-called "under-votes" scores of uncounted ballots. Bush's narrow lead dwindled toward zero.
Republican vote-counting observers tried to forestall the inevitable loss of Bush's lead by deliberately "slow-counting" and lodging frivolous objections even to obvious Gore votes. It seemed as though Bush needed a miracle to hang on to his dubious claim to the presidency.
That intervention came in the nick of time when the five most conservative justices on the U.S. Supreme Court stepped in to stop the counting of votes for president, an unprecedented act in American history. The slim court majority agreed to suspend the Florida recount and to hear Bush's appeal on Dec. 11.
Gore remained optimistic as he awaited the U.S. Supreme Court's final ruling on Dec. 12. He had faith that U.S. Supreme Court Justice Sandra Day O'Connor - one of the five conservative justices - would resist the lure of partisanship and let the vote-counting resume.
Gore was making campaign thank-you calls, including one to Sarah Brady, the gun-control advocate whose husband James Brady had been wounded in the 1981 assassination attempt against President Ronald Reagan.
At 4 p.m., Gore reached Sarah Brady. He sounded upbeat.
"We're going to win this thing, Sarah," Gore said. "I just have all the faith in the world that Sandra Day O'Connor is going to be with us on this one."
"He was just very optimistic and trustful that the system would work," said Sarah Brady. The Handgun Control leader was not as sanguine about O'Connor, recalling that the justice had voted to strike down part of the so-called Brady law that required localities to run background checks on handgun purchasers.
As it turned out, of course, Gore's trust was misplaced.
Six hours later, O'Connor joined with the four other conservatives to order that the recount, as structured by the Florida Supreme Court, must be abandoned. The five justices also imposed midnight - two hours later - as the impossible deadline for resolving any inconsistencies and completing the statewide recount.
In making their ruling, the five justices cited the 14th Amendment's requirement for equal protection under the law. The justices contended that Florida lacked consistent recount standards.
Yet what the U.S. Supreme Court's 5-4 ruling ensured was that uncounted votes from Florida's poorer precincts -- with outmoded punch-card ballot systems -- remained uncounted. That gave greater weight to the votes from wealthier precincts with modern optical scanners that experienced a far smaller error rate.
Not surprisingly, the poorer precincts had higher percentages of African-Americans, as well as large numbers of retired senior citizens, many of them Jewish. Both groups overwhelmingly favored Gore and his vice presidential running mate, Joe Lieberman.
The hand count of these uncounted ballots would have reduced this disparity between the wealthier and the poorer precincts. Instead, the U.S. Supreme Court cited the 14th Amendment to ensure that greater weight was given to the votes of wealthier whites in Florida than to poorer African-Americans and elderly Jews.
The irony - the outrage to many civil rights leaders - was that the 14th Amendment had been enacted after the Civil War to prevent discrimination against African-Americans. Now, it was being used to disenfranchise them and to grant greater voting power to whites.
Sandra Day O'Connor had joined in this unprecedented and seemingly illogical opinion that handed the White House to George W. Bush. According to some sources, O'Connor - the court's supposed "swing vote" - even wrote the unsigned majority opinion in Bush v. Gore.
Gore had miscalculated O'Connor's interests and her character. Beyond a partisan desire for Bush's election, O'Connor had strong personal reasons to block Gore's apparent victory. According to close friends, she wants to become the first female U.S. chief justice, an ambition that she hopes President Bush will fulfill.
As I reported on Dec. 11, O'Connor was visibly upset -- indeed furious -- when on Election Night, Nov. 7, the networks predicted that Gore would take Florida.
"This is terrible," she said, as the announcement came from the television in the basement den of former Ambassador Walter Stoessel's widow's Washington home.
When O'Connor angrily left to get her dinner from the buffet table upstairs, O'Connor's husband John explained that she was upset because the couple wanted to retire to Arizona, but that his wife would never vacate her seat if Gore won. She would remain on the court to deny Gore the opportunity of replacing her.
"I thought John was spinning us a bit to protect her since she had been so indiscreet," said a source who was there. The O'Connors' friends say they believe the O'Connors want to remain in Washington even after retirement.
A close O'Connor friend, a prominent Democrat, confirms that. When told about the Election Night episode, he said, "Oh, no, no, no. That's not her plan. The plan is that, if Bush wins, Chief Justice [William] Rehnquist will retire, and Bush will then nominate Sandra to be the first female United States chief justice in history. That's the plan. I don't think they will ever leave Washington."
Other personal conflicts of interest have surfaced with conservative justices Clarence Thomas and Antonin Scalia. Before the Dec. 12 ruling, Thomas's wife Virginia was working on the Bush transition at the conservative Heritage Foundation. Scalia's son was a partner at the law firm of chief Bush lawyer, Ted Olson.
U.S. law defines a disqualifying judicial bias as any situation that would raise reasonable concerns about a judge's impartiality. The law - 28 U.S. Code Section 455 - reads: "Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. Also, … where he has a personal bias or prejudice concerning a party … or if his personal bias or prejudice is known."
After the court's Dec. 12 ruling and Gore's concession the next day, Justice Thomas told a group of high school students that partisan considerations play a "zero" part in the court's decisions. Later, asked whether Thomas's assessment was accurate, Rehnquist answered, "Absolutely."