For those that insist the Supreme Court is disgraced...

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Village Voice

Nat Hentoff A Judicial Coup d'État? Is the Supreme Court Disgraced?

The Rehnquist Supreme Court's ruling that, in effect, made George W. Bush president has been furiously condemned by an array of law professors, editorial writers, and columnists, among many others. Yet, when the supreme court of Florida ordered the recount, by hand, of disputed votes, two of the three dissenters to that ruling—which was vacated by the U.S. Supreme Court—predicted how our highest tribunal would end this case and the election.

Chief Justice Charles Wells wrote: "Continuation of this system of county-by-county decisions regarding how a dimpled chad is counted is fraught with equal protection concerns which will eventually cause the election results in Florida to be stricken by the federal courts or Congress."

Also in dissent, Justice Major Harding anticipated the arguments around the country that, in fairness, the U.S. Supreme Court should have allowed the recount to continue: "Even if such a recount were possible, speed would come at the expense of accuracy, and it would be difficult to put any faith or credibility in a vote achieved under such chaotic conditions."

These prophetic dissents by members of the Florida Supreme Court were largely ignored by the media, in all its forms, and by the hordes of lay and professional "experts" who told the country that the United States Supreme Court had lost its integrity and credibility.

The cover of the December 25 New Republic showed a photograph of the United States Supreme Court over which was superimposed, in large capital letters, DISGRACE.

Inside that issue, Georgetown University law professor Jeffrey Rosen, who often writes on constitutional law, fulminated that the Rehnquist Supreme Court's Bush v. Gore decision resulted in "destroying the legitimacy of the Supreme Court." I hope his students have access to second opinions.

In the December 25 New Yorker, Hendrik Hertzberg, who has been writing all along as if he were a pro bono publicist for the Democratic Party, said of Al Gore: "He lost the post-election, in which the franchise, it turned out, was limited to certain members of the Supreme Court."

In his December 19 New York Post column, Sidney Zion described "the judicial coup d'état that putsched George W. Bush into the White House." But my old friend Sid couldn't quite get the count right. He wrote of the 5-4 majority, but overlooked the fact that seven justices—not only Rehnquist and Scalia—found a constitutional violation of equal protection of the laws in the way the Florida ballots were counted. Of the seven, Justices Breyer and Souter joined the two dissenters in the 5-4 decision that stopped the recount. The four believed that the remedy was to allow the recount to continue.

In the December 17 Daily News, Floyd Abrams, whom I often call for advice on First Amendment cases, wrote an article titled: "Supreme Injustice." Said Abrams, "The highest court in the land imperiled its own stature as our nation's impartial arbiter of law."

Richard Briffault, vice dean and professor of election law at Columbia Law School, said in the December 14 Newsday: "The Supreme Court runs the very serious risk that its decision will be seen as an act of political partisanship and not constitutional principle."

Anthony Lewis, who has written and lectured widely on the rule of constitutional law, approvingly quoted, in his December 16 New York Times column, this denunciation of the Supreme Court by the Financial Times columnist Philip Stephens: "Deciding a case of this magnitude with such disregard for reason invites people to treat the court's aura of reason as an illusion."

On December 15, the New York Post reported that Terry Moran of ABC-TV News said the Supreme Court's decision "opens up more wounds rather than closing them." On the same page, Aaron Brown, also of ABC-TV, added solemnly that "many Americans . . . see politics written all over the Supreme Court's 5-4 ruling."

And CBS-TV's distinguished constitutional law expert, Bryant Gumbel, intoned authoritatively: "Al Gore was given the bum's rush by five very conservative justices." Like Sidney Zion, Gumbel left out the relevant fact that seven of the justices wrote that what was happening in Florida violated the Fourteenth Amendment's guarantee of "equal protection of the laws."

In the December 17 Newsday, the lead in Les Payne's column was, "They stole it fair and square. This seems to be the Supreme Court's mixed view of Governor George W. Bush's promotion to be the 43rd president of the United States."

Payne had written previously, and accurately, that there were serious denials of equal protection of the laws to blacks and other voters in Florida before Election Day on November 7; the various newspapers that are now conducting recounts of the ballots should also be sending out teams to investigate those abuses.

But journalists should also investigate this report in the December 20 New York Post by Stephen Bronars, chairman of the University of Texas economics department, and John Lott, a senior research scholar at Yale Law School:

"A review of voting rolls by the Miami Herald reveals that more than 5000 felons, over 75 percent of whom were registered as Democrats, apparently voted." And the December 24 Miami Herald reported that "scores of dead people and nonregistered individuals were allowed to vote . . . in [a] heavily Democratic county."

Next week: An account of why it will not be the credibility of the Supreme Court that will have been eroded by the decision in Bush v. Gore. Instead, the partisanship of many of those attacking the court's ruling—particularly law professors—will be rightly questioned. What will come out of this? As Al Sharpton, a critic of the decision, nonetheless said on Channel 1-TV on December 19: "Even as the Supreme Court said, one standard [of voting] must be established."

-- Ken Dccker (kcdecker@att.net), January 06, 2001

Answers

Bold off

-- Ken Decker (kcdecker@att.net), January 06, 2001.

Is it?

-- sumer (shh@aol.con), January 06, 2001.

um, nope.

-- sumer (shh@aol.con), January 06, 2001.

????

-- help (help@help.help), January 06, 2001.

Nat Hentoff is a self-hating Jew who keeps his position at The Voice only because of seniority, tokenism and expertise in jazz criticism. He has sold out to the forces of reaction and is an embarrassment to Progresssive thought.

-- (LeonTrotsky@TheNew.School), January 06, 2001.


The constitution provides for means of deciding ties and clarifying ambiguities. These prerogatives are reserved for the legislatures, and NOT for the courts. Elections are purely political exercises, and must one way or another be resolved by political means.

The Florida Supreme Court placed the USSC into a lose-lose situation by overriding the legislature, deciding that 7 days *really meant* 19 days out of thin air, deciding that the legally defined discretion of the Secretary of State *really meant* the overriding discretion of the Florida Supreme Court, deciding that the law that partial recounts cannot be accepted *really meant* we should accept partial recounts, etc. etc. etc.

The lower courts in Florida kept trying to kick the ball back into the political venue, but the all-Democrat Florida Supreme Court fell all over themselves diving into raw politics to try to rescue their favorite son, running roughshod over existing statute which would have awarded the election to the "wrong" person. After all, the legislature, the governor and the secretary of state were all republicans. Can't have that!

So the FSC left the USSC no choice but to select the president -- Bush if they acted, and Gore if they left the decision to the FSC. In EITHER CASE, the president would have been decided by the USSC, which is improper. It's indeed a disgrace that the FSC was so unseemly eager to abandon judicial restraint and start unabashedly engaging in furious "judicial legislation" in their zeal to have Gore win. Once they did that, there was no possible appropriate result, no matter who won.

What's so amazing is that legal "scholars" like Jeffrey Rosen are NOT complaining that the USSC was involved at all, but rather that the majority made the "wrong" decision. Without any doubt whatsoever, had the USSC decided in Gore's favor, people like Rosen would have seen *no problem at all* with the USSC picking the president! And that's a very sad commentary on our educational system -- that the USSC picking the president is JUST FINE, so long as they pick the right guy. And these same people are saying the *USSC* put politics first!

-- Flint (flintc@mindspring.com), January 06, 2001.


Is this the best you can do Ken? Pointing to the dissenting opinion of the Florida Supreme Court makes a poor "analysis." I can give the full dissenting opinion of Justice Stevens in Bush v. Gore, which is more to the point.

The Supreme Court built their case on "nothing" -- no substantial legal precedents, no logical arguments, no historical basis. It was constructed out of thin air, and a lone tinny voice in the Village Voice cannot restore the loss of integrity the court has inflicted upon itself and upon the nation.

As for the time factor, if the GOP hadn't done everything they could to stop counting, we could have counted all the votes well before December 12, and in any case, we had up until December 18 to continue counting, and could have counted. Why the huge rush? The public wasn't in a hurry. The GOP was.

Well, no matter. A consortium of media groups is now counting. The truth will come out. Whoever wins the votes in Florida is in my mind not the issue. The real issue is that critical information -- vote totals -- were kept from the public. I don't care who wins the total vote in Florida. What I care about is the deliberate suppression of facts, of information.

Suppressing information, keeping information from the public, is a good definition of a how a totalitarian state operates. Now we have the independent media conducting a thorough investigation of all those ballots.

In the end, the truth will still come out, even though the GOP and the Supreme Court worked together to suppress the truth from us before December 18. This deliberate suppression of the facts, and the illogical and unfounded reasoning of the U.S. Supreme Court, will forever tarnish the GOP. The case against the GOP is just beginning. In fact, this all forms a prelude to the swan song the GOP will hear as the truth about voter fraud and suppression of facts comes to the forefront over the next few years.

-- Disgrace Indeed (so@long.democracy), January 06, 2001.


Last week we learned what the five conservative justices of the U.S. Supreme Court would do when forced to choose between well-established conservative jurisprudence and their desire for a Republican president. This week we learned what the conservative punditocracy would do when faced with the same choice. And the result was--you guessed it--goodbye, state's rights and judicial restraint; hello, transition. The general conservative argument can be summed up thus: Who cares about judicial philosophy--this thing had to end! Had the Court not slammed the door on recounts, opined Charles Krauthammer, "Political tension would only have grown--this would not have been resolved until January!" "Were it not for the Court's willingness to take the case and the heat," predicted William Safire apocalyptically, "internecine mud wrestling would have gone on for at least another month." National Review crowed: "Supreme Court 1 Anarchy 0." Leave aside the fact that the "mud wrestling" would have gone on precisely because conservatives like Safire and National Review would have demanded that the Florida legislature appoint its own electors to match the slate Al Gore would likely have won through a full hand recount. More remarkable is the idea that letting Florida control its own recount, or even letting the battle go to Congress, constitutes "anarchy." Wasn't it only yesterday that right-wingers insisted that deference to the states and to the legislative branches constituted democracy at its most sublime? Now it's anarchy. If the political process can't handle a recount fight, after all, how could it possibly handle a really contentious issue, like abortion? In the midst of all this hideous spin, one specimen of conservative honesty stands out: John Diulio, writing in The Weekly Standard. "The arguments that ended the battle and `gave' Bush the presidency are constitutionally disingenuous at best," he writes. "They will come back to haunt conservatives and confuse, if they do not cripple, the principled conservative case for limited government, legislative supremacy, and universal civic deference to legitimate, duly constituted state and local public authority." A brave and compelling statement--and a lonely one.

-- Appropos to this discussion (end@all.costs), January 06, 2001.

Disgraced:

What tireless stupidity. So, we should have kept counting until Gore won. If we stop counting, we are depriving ourselves of information. If we count and the wrong guy wins, we have ipso facto proof of cheating, or else we need to count even more!

I'd bet the last count we had in Florida was far and away the MOST accurate count of ANY state in the union. So why the continued kvetching? Hint: it's not the failure to count, and it's not the failure to be accurate, it's the failure to find the "right" winner. And *nothing* else.

Know what a poor loser is? Check a mirror sometime.

-- Flint (flintc@mindspring.com), January 06, 2001.


No Flint, we should have kept on counting until we knew who had won. I just wanted the facts, Flint, NOT SUPPRESSION OF THE FACTS. The media is doing that now, and we WILL KNOW WHO WON THE MOST VOTES IN FLORIDA -- that is, if the GOP doesn't step in and shut down fact gathering again.

Equal Protection of Whom? From What?

We interrupt the era of reconciliation to bitch about an awful Supreme Court decision.

By Michael Kinsley

Thursday, Dec. 14, 2000, at 4:00 p.m. PT

The Equal Protection Clause of the 14th Amendment is the constitutional provision that protects African-Americans and other minorities against official discrimination. In Bush v. Gore, the U.S. Supreme Court invoked the Equal Protection Clause to protect … whom, exactly? And from what? Don't say, "George W. Bush. From democracy." This is a period of reconciliation and healing the wounds, remember?

And the majority opinion makes clear that the rights at stake are those of voters, not of candidates. So which voters are the victims here? Who is a recount unfair to? The court never spells it out, but there are only two possibilities: a) those who are excluded from the recount; and b) those whose votes were already counted correctly before the recount.

The court begins by noting that voting is a fundamental right under the Constitution. It's not easy to get from here to the conclusion that the Constitution therefore requires you to order that thousands of votes must not be counted. The argument is not that there's anything wrong with trying to divine a voter's intent from ambiguous evidence such as dimples and dangling chad. Indeed, the court implicitly assumes the opposite: that the recounts are correct. It argues that any partial recount denies equal protection to those who don't get one. For example, the Florida court's ordered re-examination of undervotes (ballots where the machine detected no choice for president) was unfair to overvotes (ballots the machine disqualified for seeming to contain two choices). But it cannot be an unfair advantage to have your vote credited incorrectly. So the court is assuming that manual recounts are accurate—chad, dimples, and all. Or at least they are more accurate than not doing a recount.

Please note in passing that, in the course of handing Bush the White House on a platter, the court thus rejects some central arguments of his partisans over the past five weeks: Manual recounts are hopelessly inaccurate, ballots the machines couldn't read had nevertheless been "counted," etc., etc. But that is merely infuriating, not illogical. Likewise the court's implied rejection of another pro-Bush sound bite heard ad nauseam—that the Florida court was "changing the rules after the game is over." The U.S. Supreme Court's preferred analysis is (to paraphrase), "You could have done it right, but now it's too late, suckers." And let's not even get into the judicial philosophy President-elect Bush endorsed on the campaign trail: judicial restraint, strict constructionism, states' rights ...

But what about this newly discovered constitutional right, apparently defined as the right to an equal chance of having your ballot counted correctly? If they're serious, it will keep the justices busy. There are vast differences in voting systems and accuracy among states and within states. Are they now all unconstitutional? In the majority opinion's most fatuous passage, the court breezily suggests that some disparities may be justified by the "expertise" of "local entities."

More important, what sense does it make to address the problem of inaccurate vote counts by requiring any given group's vote count to be just as inaccurate as any other's you can point to? If the court were serious here—which it isn't—the result would be a round robin of lawsuits dragging every vote-counting jurisdiction down to the lowest common denominator.

The majority opinion also suggests, without excessive clarity, that allowing a recount would also be unfair to those whose votes had already been tabulated correctly. How? By "diluting" the value of their votes. This is totally mystifying. Every recorded vote dilutes every other recorded vote equally, whether it is recorded initially or after a recount. Unless there is something independently wrong with counting your vote, how can it be unfair to me just because it dilutes the value of mine?

In a separate opinion, Chief Justice William Rehnquist can't resist quoting the Florida voting instructions about making sure you punch through the card, etc., etc. But even he doesn't suggest that the punishment for failure should be losing your vote. This would be like saying that a sign warning pedestrians to look both ways makes it OK to run them over if they don't. In fact, throw in Equal Protection and—by the court's analysis—it might be unconstitutional not to run them over.

It was George Bush, Katherine Harris, the Republican Florida legislature, and the U.S. Supreme Court itself who prevented the complete and uniform recount that could have met the justices' Equal Protection standards. Meanwhile, through the entire long debate, complaints about lesser recounts—whether complaints about accuracy or complaints about fairness—overlooked the question, "Compared to what?"

The proper comparison is not to some ideal voting system but to what, in the end, we got. Guessing a voter's intent with even 51 percent accuracy—and the guesswork was surely better than that—is fairer and more accurate than assuming in effect that he or she intended not to vote. Even counting votes by a mishmash of different standards would produce a fairer and more accurate result than not counting them at all. [But not if you're illogical Flint!]

You might think that if voting is a fundamental right, the Constitution would be best served by maximizing the number of citizens whose votes are counted correctly—not by worrying whether each vote has an equal chance of not counting. You might wonder about a use of the Equal Protection Clause that takes away this fundamental right from thousands of voters without extending it to a single one. But if you think like this, you'll never be a Supreme Court justice. At least for the next four years.

-- Michael Kinsley (ProvesFlint@Full.of.sh*t), January 06, 2001.



In his speech to the nation, Gore cited the phrase inscribed above the portals of the Harvard Law School library: NON SUB HOMINE SED SUB DEO ET LEGE, "Not under man but under God and law." In the very same place, some students at the law school have now unfurled a banner expressing their fury at the Court they were taught to revere. Their banner says NOT UNDER GOD OR LAW BUT UNDER REHNQUIST. As it happens, Chief Justice William Rehnquist's career of limiting citizens' access to the voting booth goes back many years. An article by Dennis Roddy with the headline "just our bill," which appeared in the Pittsburgh Post-Gazette on December 2 (and is accessible on the Web at www.post- gazette.com), recounts how in the election of 1964 the then-youngish Republican lawyer William Rehnquist intimidated blacks and immigrants in Phoenix, Arizona, from exercising suffrage. Then he did it as the thuggish boss of an insidious project called "Operation Eagle Eye." Now he does it in a long black robe from behind the great bench.

-- Martin Peretz (rehnquist@a.swine), January 06, 2001.

Umm...I probably knew the answer to my own question a while ago, but I've forgotten -- why didn't Florida's electoral votes get thrown completely out? Why give them to anyone?

-- helen (b@r.f), January 07, 2001.

helen:

That's not the way things are supposed to work. In case of a tie (or unresolvable dispute), the slate of electors is supposed to be selected by the state legislature. If the nature of the dispute is such that this slate is doubtful, then it's the job of the US House of Representatives to select between two slates. In case of a tie in the House, it goes to the US Senate, etc. This was all laid out a couple of centuries ago. You will notice that, very deliberately, the courts are *not involved* in this process. It's a political and not a legal process.

This would have worked just fine in Florida, as intended, except that Florida has a very liberal, very activist supreme court. That court, painfully aware that the legislature is dominated by republicans, that the governor is a republican, that the secretary of state is a republican, decided to override inconvenient laws, and interpret existing law as saying whatever was necessary to assist Gore.

I can't really blame Gore for his attempt to get the Florida Supreme Court to override the *proper* branches of government and attempt to impose its own unconstitutional will. After all, Gore was trying to win, whatever it took. The USSC tried to hand the FSC a very broad hint by vacating their first attempt at judicial legislation, saying "Hey, guys, where'd you get the authority to do this?" The FSC flat ignored this hint, put their first decision right back where it was, and bulled on obliviously.

Once the FSC had insisted on pissing in the soup, the USSC was stuck. They could live with this defilement of the entire process, or they could throw it all out. Neither is a good choice, but they HAD no good choices, the FSC hadn't left them any.

-- Flint (flintc@mindspring.com), January 07, 2001.


Flint,

I can't improve on that. Very well said.

The only thing I might disagree with is that the Florida Supreme Court deliberately tried to "aid" Gore. I think it was just reflexive liberalism coming into play, not specifically targeted at Gore.

Maybe I'm being generous. :)

At any rate, it's a quibble. Well said.

-- Stephen M. Poole (smpoole7@bellsouth.net), January 07, 2001.


Stephen:

I think I must disagree here. The FSC, in prior closely comparable circumstances except that the *republican* had lost by a nose, flat rejected any and all recount requests by the republicans. So the FSC wasn't making "liberal" decisions in the usual sense of principles here. Their history is to make decisions that aid the candidate they themselves voted for. The precedent isn't "the FSC will favor recounts", but rather "the FSC will favor democrats". If the democrat lost, they insist on recounts. If he won, they prohibit recounts.

-- Flint (flintc@mindspring.com), January 07, 2001.



Michael Kinsley is a self-hating Jewish homosexual who asserts that Pat Buchanon is not anti-semitic. Kingsley is an intellectual whore who has sold out to the big-money media. He is their token leftist but knows where his bread is buttered.

-- (LeonTrotsky@PC.for_sale), January 07, 2001.

So which voters are the victims here? Who is a recount unfair to?

Well, for starters, the military absentee voters, whose ballots were so vigorously tossed by the libbies. (These same libbie DemocRATS are the same ones who just killed a bill to allow polling places at overseas military bases. Can't have those DemocRAT haters voting, you know.)

-- Yeah Right (Ahhh@haaa.haaa.haaa), January 07, 2001.


Flint:

Care to post the names of the cases in which the FSC rejected recounts? I have read most of the cited cases and I do not remember this happening.

-- FutureShock (gray@matter.think), January 07, 2001.


Flint,

I'd be more likely to accept that the FSC was exercising their usual grudge against Republicans in general, the legislature and Katherine Harris in particular, rather than specifically trying to help GORE.

To give you a really farcical example, if Nader had somehow been the one only 1,000 votes behind Bush, the FSC would probably have ruled the same way.

-- Stephen M. Poole (smpoole7_nospampleeze@bellsouth.net), January 07, 2001.


The liberal chant, "count all the votes", will live on in infamy. What I find really sad is that Harvard law students don't think with their heads but rather their feelings. I know what it says about our educational teachings (it's always been that way) but what does it say about our future lawyers. They'll argue a case based on emotional appeal rather than the law. Looks like many OJs will be roaming the US in golf carts, "looking for the real murderers".

-- Maria (anon@ymous.com), January 08, 2001.

Maria,

What I find really sad is that Harvard law students don't think with their heads but rather their feelings...

Arch conservatives never allow feelings to come into play in situations like this. They're the paradigm of rationality! Case in point, from this thread:

Michael Kinsley is a self-hating Jewish homosexual ...

Know what a poor loser is? Check a mirror sometime...

Everyone likes to think they're being rational while the "other side" is being reactionary. I challenge you too take a close look at the rhetoric on both sides, including your own. Better yet, tune in to some conservative call-in talk radio show, particularily in the south or midwest. Absolute raving loonies, sprinkled with calmer types who try to justify what amounts to conservative-radical positions with obfuscation and severe rationalization, driven by what I suspect is a deep-seated undercurrent of plain 'ol racism.

-- Bemused (and_amazed@you.people), January 08, 2001.


Bemused,

"Michael Kinsley is a self-hating Jewish homosexual ... "

Maria did not say this, I did. Maria is a self-hating female impersonator.

-- (Leon _(hot to)_Trotsky@union.dues), January 08, 2001.


I know, Trots. I was posting from the thread, not just Maria's last post. The other quotable-quote is not Maria's either.

BTW, how's Mexico?

-- Bemused (and_amazed@you.people), January 08, 2001.


Bemused, Absofuckinlutely! But I'm not the one putting banners up across law schools denouncing the Supreme Court. Just making a comment that it shows how they think. BTW, I don't need to examine my rhetoric, you do an excellent job for me, thanks :)

Flint gave an excellent counterpoint to this article. One that I think is well-founded as opposed to the article which just bashes. Gore's lawyers (Boies included) couldn't come up with any justification to count only a portion of the votes, further they couldn't come up with a non-partisan way to count those disputed ballots.

-- Maria (anon@ymous.com), January 08, 2001.


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