Bush v. Gore, age 10

    Given the way we live now, life in the year 2000 seems so innocent. Ten years ago, we were at peace and the unemployment rate was four percent. Matchbox Twenty was a hot band, Meet the Parents was a hot film, and Bernie Madoff was seen as a savvy money man. Bill Clinton was winding down with a 60 percent approval rating, and there appeared to be so little at stake in the presidential race that many voters sincerely saw scant difference between Al Gore and George W. Bush.But then came the farcical Florida balloting, followed by six weeks of bitter legal battling. And then, on a mid-December night – 10 years ago this Sunday – five Republican appointees to the U.S. Supreme Court put the screws to the political process by concocting a decision that, even today, still reeks with hypocrisy.OK, here come the caveats: I’m not saying that the 5-4 majority “stole” the election for Bush; the stolen-election meme was popular among Democrats back in 2001, but that always struck me as way too facile. Even if the high court had stayed out of the Florida dispute (as it should have, for reasons to be explained), Bush might have won anyway. Gore’s lawyers at the time were pushing for a recount of the “undervotes” (ballots that had no apparent presidential preference), and that recount could have sealed it for Bush. The GOP-run Florida legislature might have simply awarded the state’s electoral votes to Bush. The GOP-run U.S. House of Representatives could have ultimately awarded the election to Bush. And, hey, incumbent vice president Gore was a lousy candidate who couldn’t even win handily in a time of peace and prosperity; he should never have been tied at the finish line.What stinks is that the high court majority took it upon itself to wedge a wrench into the state machinery and shut it down. Because Justices Scalia, Rehnquist, O’Connor, Kennedy, and Thomas violated their own intellectual principles, we’ll never know how the plot would have played out. (Some news reports have said that Gore may well have won a recount of all disputed ballots.) For short-circuiting the state process, Bush v. Gore has weathered the test of time as a travesty of justice.One of the dissenters, Republican appointee John Paul Stevens may have said it best: “The (opinion) by the majority of this court can only lend credence to the most cynical appraisal of the work of judges throughout the land…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 pellucidly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”It was obvious to Stevens, and to many others of a non-Democratic persuasion, that the five majority judges had breached impartiality, by dint of their hypocrisy:1. Conservative judges typically insist that they respect legal precedent and thereby practice judicial restraint. Yet, in Bush v. Gore, they defied legal precedent (the Supreme Court had traditionally avoided intervening in states’ electoral disputes) and engaged in blatant judicial activism (by stopping a state-ordered recount, and summarily awarding the race to one of the contestants).2. Conservative judges typically insist that they respect the authority of the states to manage their own disputes – and, after all, election procedures are the province of state law. Yet, in Bush v. Gore, they purposely intervened in a state dispute, in which the state’s highest court was interpreting state election law. They flexed federal muscle to shut down the state process, thereby violating their own fundamental precepts.Writing that winter in the conservative Weekly Standard magazine, conservative thinker John DiLulio Jr. nailed it: “The arguments that ended the battle and ‘gave’ Bush the presidency are constitutionally disingenuous at best. 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 deference to legitimate, duly constituted state and local public authority.”The five judges tried to justify their intervention by concocting an argument that had no legal precedent (again, judicial activism); in their novel view, the differing recount standards in Florida localities violated George W. Bush’s equal protection rights as guaranteed by the Fourteenth Amendment. What’s fascinating about this majority decree is that two of the five judges (Rehnquist and O’Connor) had previously argued in Anderson v. Celebrezze that equal-rights principles were not relevant in presidential elections. Why not? Because election procedures fall under state law.The day before Bush v. Gore was issued, I spoke by phone with a political scholar, Allan Lichtman of American University, and he warned that the ruling would be messy: “Look, everyone is human. Nobody is immune from their partisan and ideological views. There is no forum sitting on top of Mount Olympus. Never has been, never will be.”That’s for sure. Scalia had let it be known that he relished the opportunity to become chief justice under a Republican president. O’Connor had let it be known that, upon her retirement, she wanted to be replaced by an appointee named by a Republican president. (Indeed, at an election night party, when CBS News had initially called Florida for Gore, O’Connor announced to her party mates, “This is terrible.” According to news reports, she then went off in search of food with “an air of obvious disgust.”)And yet, during an appearance on CNN last January, when retiree O’Connnor was asked whether Bush v. Gore yielded the right decision, this was her response: “I don’t know.”John Paul Stevens, in his dissent, saw one ray of hope: “Time will one day heal the wound to (the public’s) confidence that will be inflicted by today’s decision.”As we near the 10-year anniversary of the infliction, has the wound healed?

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