America's Judicial Coup
Editor’s Note: In accepting the Nobel Peace Prize – and a measure of vindication that came with it – Al Gore recalled the painful events seven years ago when five Republicans on the U.S. Supreme Court stopped the counting of votes in Florida and handed the Presidency to George W. Bush.
At the time, many in Official Washington rejoiced at the decision on the grounds that it spared the country more partisanship. It also was the result that many top pundits wanted, the “election” of the well-liked Texas governor and the return of the so-called Republican “adults” who supposedly would guide him.
There was remarkably little concern among the Washington elites that the will of the American people was being overturned, that Gore had won a plurality of the votes cast across the country and was almost certainly the choice of Florida voters, too.
The hot word of the moment was “legitimacy.” It was deemed important to assure the American people that Bush’s selection was “legitimate” even if Bush would be the first popular-vote loser in more than a century to enter the White House.
But the day that those five U.S. Supreme Court justices overturned a recount order from the Florida Supreme Court – Dec. 12, 2000 – also was a turning point in American history.
In view of the significance of that judicial coup seven years ago, we are presenting the following excerpt from our book, Neck Deep: The Disastrous Presidency of George W. Bush:
During the Iran-Contra investigation in the 1980s, special prosecutor Lawrence Walsh likened the Reagan-appointed federal judges in Washington to “the strategic reserve of an embattled army.”
When President Ronald Reagan’s political troops were under the gun of legal accountability, the judges could be counted on to jump into the trenches and find some legal excuse to pull the endangered operatives to safety.
At a crucial moment of the Iran-Contra scandal, tough law-and-order appeals court judges Laurence H. Silberman and David Sentelle – both Reagan appointees – suddenly went soft on criminals and carved out a broad new legal right for defendants relating to grants of limited immunity.
The defendant who benefited from this new liberal legal construction was named Oliver North. Silberman and Sentelle overturned North’s conviction on three Iran-Contra felonies.
Similarly, George W. Bush turned to Republicans on the U.S. Supreme Court when it looked like the Florida Supreme Court might actually require disputed votes to be examined and counted. The Florida court was one place where Bush didn’t have enough allies.
In its various rulings on the recount issue, the court hewed to the principle that the right of voters to have their votes counted – when their intent could be clearly discerned – trumped technical legal provisions. The state court took that position both when it helped Gore and when it helped Bush.
Yet, even before the Florida Supreme Court considered a statewide recount of disputed ballots, Bush went to the U.S. Supreme Court to head off that possibility. He requested and got the U.S. Supreme Court to consider his appeal seeking to throw out hundreds of votes for Gore that had been discovered in a recount in Broward County.
Oral arguments made clear that the U.S. Supreme Court’s Republican majority sympathized with Bush’s position that the Florida Supreme Court had erred in citing the state constitution and the broader principle that the right to vote was more important than legal technicalities.
But – rather than prevail in a narrow partisan decision – Chief Justice William Rehnquist opted for a compromise that won over all nine justices. The court chose to vacate the Florida Supreme Court’s ruling with a request for clarification of the state court’s justification for extending a certification deadline that had allowed recounts to continue.
Effectively, the U.S. Supreme Court was signaling that the state court could not cite constitutional provisions regarding a citizen’s right to vote and must confine its reasoning to narrow statutory interpretations.
That and other legal setbacks for Gore were welcomed by both conservative and mainstream commentators. The new watchword among the pundits was “legitimacy” – meaning the acceptance of Bush’s “victory.”
Speaking for many of his mainstream compatriots, New York Times columnist Thomas L. Friedman hailed the pro-Bush judicial rulings.
“Slowly but surely, in their own ways, the different courts seem to be building a foundation of legitimacy for Governor George W. Bush’s narrow victory,” Friedman wrote. “That is hugely important. Our democracy has taken a hit here, and both Democrats and Republicans must think about how they can start shoring it up.”
However, to the dismay of many Washington insiders, Bush’s string of legal successes didn’t continue.
Late on the afternoon of December 8, by a single vote, the Florida Supreme Court dealt a dramatic blow to Bush’s desire to discard thousands of uncounted Florida ballots.
Four justices – Peggy Quince, Barbara Pariente, Fred Lewis and Harry Lee Anstead – ruled that not only must the disrupted Miami-Dade recount be completed but ballots kicked out by counting machines across the state must be examined and added to the tally if the intent of the voter could be discerned.
But the ruling of the Florida Supreme Court – where a majority of justices were Democratic appointees – infuriated Bush and his supporters. Bush’s team of lawyers quickly devised a strategy that turned the concept of a court injunction inside out.
They rushed into federal court seeking to stall the state-court-ordered recount until after December 12 when Bush’s certified victory was scheduled to become official and thus render any recount meaningless.
Bush’s lawyers argued that the vote counting was a threat to “the integrity of the electoral process” and could cause Bush “irreparable injury.”
When Bush’s legal arguments were presented to the conservative-dominated U.S. Court of Appeals in Atlanta, the case was promptly rejected. But Bush’s lawyers then hastened to a friendlier venue, the U.S. Supreme Court.
Inspecting the Ballots
Meanwhile, in Florida, the state-court-ordered recount was underway. County by county, election canvassing boards were moving smoothly through the machine-rejected ballots, discovering hundreds that clearly had registered choices for presidential candidates.
Gore gained some and Bush gained some. When there was a dispute, the ballots were set aside for later presentation to Leon County Circuit Judge Terry Lewis, who had been named by the Florida Supreme Court to oversee the process and was given wide leeway to make judgments about which ballots should be counted.
“The Circuit Court is directed to enter such orders as are necessary to add any legal votes to the total statewide certifications and to enter any orders necessary,” the Florida Supreme Court ruling stated. “In tabulating the ballots and in making a determination of what is a ‘legal’ vote, the standard to be employed is that established by the Legislature in our election code which is that the vote shall be counted as a ‘legal’ vote if there is ‘clear indication of the intent of the voter.’”
As the recount proceeded, the chairman of the Charlotte County canvassing board posed a question to Judge Lewis: what should be done with ballots in which a voter both punched the name of a presidential candidate and wrote the name in?
These so-called “over-votes” – containing two entries for President although for the same candidate – had been kicked out of the counting machines, too, along with the “under-votes,” those where the machine couldn’t discern a vote for President.
The Florida Supreme Court ruling had only specified tallying the under-votes, but the ruling also had instructed Judge Lewis to count every vote where there was a “clear indication of the intent of the voter.”
The over-votes demonstrated even more clearly than the under-votes who the voter wanted. So Lewis sent a memo to the state canvassing boards, instructing them to collect these over-votes and send them along with under-votes still in dispute.
“If you would segregate ‘over-votes’ as you describe and indicate in your final report how many where you determined the clear intent of the voter,” Judge Lewis wrote, “I will rule on the issue for all counties.”
Lewis’s memo – a copy of which was later obtained by Newsweek magazine – might not have seemed very significant at the time, but it would grow in importance because the over-votes were discovered to heavily favor Gore.
If they were counted – as they almost surely would have been under Lewis’s instructions – Gore would have carried Florida regardless of what standard was applied to the “chads,” the tiny pieces of paper that were not completely dislodged from the punch-through ballots that were then kicked out by the counting machines.
After the Lewis memo surfaced almost a year later, the Orlando Sentinel of Florida was virtually alone in asking the judge what he would have done with the over-votes if the Florida recount had been permitted to go forward. Lewis said that while he had not fully made up his mind about counting the over-votes in December 2000, he added: “I’d be open to that.”
But only hours after Lewis issued his instructions, five Republicans on the U.S. Supreme Court did something unprecedented. The narrow court majority ordered a halt in the counting of ballots cast by citizens for the election of the President of the United States.
It was a heart-stopping moment in the history of a democratic Republic. It carried the unmistakable odor of a new order imposing itself in defiance of the popular will. There were no tanks in the streets, but the court’s ruling was as raw an imposition of political power as the United States had seen in modern times.
In the 5-4 decision, the highest court in the land told vote-counters across Florida to stop the recount out of fear that it would show that Gore got more votes in Florida than Bush did.
Such an outcome would “cast a cloud” over the “legitimacy” of an eventual Bush presidency if the U.S. Supreme Court later decided to throw out the Gore gains as illegal, explained Justice Antonin Scalia in an opinion speaking for the majority, which included Chief Justice Rehnquist and Justices Anthony Kennedy, Sandra Day O’Connor and Clarence Thomas.
“Count first, and rule upon the legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires,” wrote Scalia, an appointee of President Ronald Reagan.
In other words, it was better for the U.S. public not to know for sure that Gore got the most votes if – as expected – the Supreme Court later decided simply to award the presidency to Bush.
In a sharply worded dissent, Justice John Paul Stevens took Scalia’s reasoning to task.
Stevens, a moderate who was appointed by Republican President Gerald Ford, complained that the high court’s action overrode the judgment of a state supreme court, took sides on a constitutional question before that issue was argued to the justices, and misinterpreted the principles of “irreparable harm.”
“Counting every legally cast vote cannot constitute irreparable harm,” Stevens argued. “On the other hand, there is a danger that a stay may cause irreparable harm to the respondents [the Gore side] and, more importantly, the public at large” because the stay could prevent a full tally of the votes before the impending deadline of December 12.
Immediately after the U.S. Supreme Court’s unprecedented injunction, we wrote at Consortiumnews.com that if the high court insisted “on stopping the vote count and handing the presidency to George W. Bush, the United States will have embarked upon a dangerous political journey whose end could affect the future of all mankind.
“For American political institutions to ignore the will of the voters – and to wrap partisanship in the judicial robes of the nation’s highest court – will almost certainly be followed by greater erosion of political freedom in the United States and eventually elsewhere.
“Illegitimacy and repression are two of history’s most common bedfellows. Perhaps most chilling, at least for the moment, is the now-unavoidable recognition that the U.S. Supreme Court, the country’s final arbiter of justice, has transformed itself into the right wing’s ultimate political weapon. A dark cloud is descending over the nation.”
The Final Ruling
Consortiumnews.com political reporter Mollie Dickenson reported that “one of the court’s supposed ‘swing votes,’ 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.”
But one optimist who thought that O’Connor would transcend partisanship and demand a ruling respectful of democratic principles was Al Gore.
Dickenson reported that as late as 4 p.m. on December 12, Gore was making 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 Reagan.
“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.”
As it turned out, Gore’s confidence in O’Connor had been misplaced. She was more of a Republican partisan than he had understood.
As the clock ticked toward a midnight deadline for Florida to complete any recount, O’Connor was working with Justice Anthony Kennedy to fashion a ruling that would sound principled but still would prevent a full recount and thus guarantee both George W. Bush’s inauguration and Republican control over the appointment of future federal judges.
Yet, behind the closed doors of the court chambers, O’Connor and the other four pro-Bush justices were having a harder time than expected coming up with even a marginally plausible legal case.
Indeed, outside public view, the five justices tentatively decided on one set of arguments on December 11 but then reversed their thinking nearly 180 degrees heading into the evening of December 12.
USA Today disclosed the inside story in a later article that focused on the stress that the Bush v. Gore ruling had caused within the court. While sympathetic to the pro-Bush majority, the article by reporter Joan Biskupic explained the court’s flip-flop in legal reasoning.
The five justices had been planning to rule for Bush after oral arguments on December 11. The court even sent out for Chinese food for the clerks, so the work could be completed that night, but events took a different turn.
The December 11 legal rationale for stopping the recount was to have been that the Florida Supreme Court had made “new law” when it referenced the state constitution in an initial recount decision – rather than simply interpreting state statutes.
Even though this pro-Bush argument was highly technical, the rationale at least conformed with conservative principles, supposedly hostile to “judicial activism.”
But the Florida Supreme Court threw a wrench into the plan. On the evening of December 11, the state court submitted a revised ruling that deleted the passing reference to the state constitution. The revised ruling based its reasoning entirely on state statutes that permitted recounts in close elections.
The revision drew little attention from the national press, but it created a crisis within the U.S. Supreme Court’s majority.
Justices O’Connor and Kennedy no longer felt they could agree with the “new law” rationale for striking down the recount, though Rehnquist, Scalia and Thomas still were prepared to use that argument despite the altered reasoning from the state court.
Searching for a new rationale, O’Connor and Kennedy veered off in a different direction.
Through the day of December 12, the pair worked on an opinion arguing that the Florida Supreme Court had failed to set consistent standards for the recount and that the disparate county-by-county standards constituted a violation of the “equal protection” rules of the 14th Amendment.
But this argument was so thin and so tendentious that Kennedy reportedly had trouble committing it to writing – with good reason.
To anyone who had followed the Florida election, it was clear that varied standards already had been applied throughout the state.
Wealthier precincts had benefited from optical voting machines that were simple to use and eliminated nearly all errors, while poorer precincts – where many African-Americans and retired Jews lived – were stuck with outmoded punch-card systems with far higher error rates.
Some Republican counties also had conducted manual recounts on their own and those totals were part of the tallies giving Bush a tiny lead.
The suspended statewide recount, even if there were slight variations of standards regarding “intent of the voters,” was designed to reduce these disparities and thus bring the results closer to equality.
Applying the “equal protection” provision, as planned by O’Connor and Kennedy, turned the 14th Amendment on its head, guaranteeing less equality than would occur if the recount went forward. Plus, the losers in this perverse application of the 14th Amendment would include African-Americans whose legal rights the amendment had been created to protect.
Yet possibly even more startling than the stretched logic of O’Connor-Kennedy was the readiness of Rehnquist, Scalia and Thomas to sign on to the revamped opinion that was almost completely at odds with their own legal rationale for blocking the recount in the first place.
On the night of December 11, that trio was ready to bar the recount because the Florida Supreme Court had created “new law.” A day later, they agreed to bar the recount because the Florida Supreme Court had not created “new law,” the establishment of precise statewide recount standards.
Never before in American history had U.S. Supreme Court justices exploited their extraordinary powers as brazenly to advance such clearly partisan interests as did these five justices.
The Bush v. Gore decision was finally released at 10 p.m., December 12, just two hours before the deadline for completing the recount. After having delayed any remedy up to the deadline, the five pro-Bush justices then demanded that any revised plan and recount be finished in 120 minutes, a patently impossible task.
In a dissenting opinion, Justice Stevens said the majority’s action in blocking the Florida recount “can only lend credence to the most cynical appraisal of the work of judges throughout the land.”
Justices Stephen Breyer and Ruth Bader Ginsburg, appointees of President Bill Clinton, said in another dissent, “Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”
Tacitly recognizing the nonsensical nature of its own ruling, the majority justices barred the Bush v. Gore decision from ever being cited as a precedent in any other case. It was a one-time deal to put Bush in the White House.
The next day, Al Gore – whose final national plurality by then had grown to about 540,000 votes, more than the winning margins for Kennedy in 1960 or Nixon in 1968 – conceded Election 2000 to George W. Bush.
After Gore’s concession, Justice Thomas told a group of high school students that partisan considerations played a “zero” part in the court’s decisions. Later, asked whether Thomas’s assessment was accurate, Rehnquist answered, “Absolutely.”
Neck Deep: The Disastrous Presidency of George W. Bush, can be ordered directly from the publisher at http://www.neckdeepbook.com or from Amazon.com.
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