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I try to ignore the Kaus/Jarvis axis of faux Dems as much as possible. But Ann Althouse spent a day slandering Atrios and the commenters so I was checking to see if she had corrected herself. Unsurprisingly she doesn't. But then I stumbled on to her post defending Scalia's saying Gore made him do it in Bush v. Gore. What is striking to me is not her defense of Scalia, which, truth be told, doesn't surprise me. But rather her defense of Bush v. Gore in the comments. I'll discuss it on the flip.

Althouse wrote:

. . . Among courts, the United States Supreme Court goes last. With no higher court, it cannot be reversed. It has the pseudo-infallibility of finality. . . . Many of those who were hoping to see a shift in the votes that would elect Al Gore contended that we could afford several more weeks of uncertainty and a political fight in Congress to make the final determination. Justices Souter, Breyer, Ginsburg, and Stevens all thought the United States Supreme Court ought to have sat out the dispute and left it to Congress to right any wrongs that the various efforts in Florida might have caused. . . . But as Justice Stevens wrote in Printz v. United States:

"Since the ultimate issue is one of power, we must consider its implications in times of national emergency." Printz held that Congress may not "commandeer" the executive branch officials of state and local government, in a case that involved the use of local law enforcement officials to do background checks on gun purchasers. Dissenting, Justice Stevens stressed the seriousness of finding a lack of power to do something that might be extremely important in an emergency.

. . . Did the members of the Court who managed to end the election controversy on December 12 go wrong? The concurring opinion dared to take a close look at the state court's statutory interpretation and declare it a sham. That could be seen as taking over the state court's role of saying what state law is, but there must be some limit to the extremes to which a state court can go in calling things state law. The United States Supreme Court has a duty to defend its own lawsaying role. Did the per curiam opinion arrogate a power to determine state law by assuming there was nothing more to decide about the deadline? But the Florida Supreme Court had committed itself to the December 12 deadline, and one can well understand the good sense in denying that court a chance to reconsider.

. . . Just as the Florida Supreme Court had cloaked itself in the language of statutory interpretation in what seems to have been an effort to protect itself from the United States Supreme Court, the United States Supreme Court, though it had no higher court from which it needed shielding, wrapped itself in the language of judicial restraint in what seems to have been an effort to protect itself from the attack to which it is exposed: criticism in "the political sphere." In a stroke of poetic justice, even as the Florida court's references to statutory interpretation could not protect it from the attack of a United States Supreme Court that is determined to reverse it, the United States Supreme Court's references to the unwilled, apolitical nature of its role could not shield it from the attacks of those who are determined to criticize. The Supreme Court's critics themselves use the cloak of language and are subject to rejection when people do not take their writings at face value.

In the end, Bush v. Gore works best as a rich and revealing case study of the human mind in action. . . . .  I will end my effort, having attempted to show something of the interplay between the Florida Supreme Court and the United States Supreme Court as both courts, though they were staffed by human beings who had to have cared about who became President, struggled within a system of separated state and federal legal authority and orthodoxy about the role of judges.

Let's start with the last, and to me, the most important part of the pile of manure:

In the end, Bush v. Gore works best as a rich and revealing case study of the human mind in action. Everyone who talks about Bush v. Gore without admitting that they are engaged in the same kind of cloaking and advancing of personally preferred ends is still an active participant in that larger display. . . .  I will end my effort, having attempted to show something of the interplay between the Florida Supreme Court and the United States Supreme Court as both courts, though they were staffed by human beings who had to have cared about who became President.

Now is the election of the President the one issue Justices care about? Do they NOT care about, say, the issue of abortion rights? Is Althouse NOT admitting that a potential Justice like say, Sam Alito, who is quite open about his belief that not only is abortion a moral wrong, but that Roe was wrongly decided, is going to be strongly influenced by that belief?

In short, does not Althouse admit that she too, is a legal realist? And given that admission, is it not fair to expect that Althouse would approve of a query in detail regarding Alito's views on legal issues? Is it not fair to expect that Althouse would not condemn critiques of the results of Alito's opinions without trying to engage in hypertechnical "gotcha-isms"?

But Althouse is a "pundit realist" as well. She'll shift gears as it suits her to achieve the pundit "result" she desires. Does that make her different than anyone else, including me? No, but she plays the same type of pseudo-"judicial resraint" game that Conservatives play when discussing judicial philosophy. She'll claim faithfulness to some "neutral" principle when in fact she is just twisting to achieve her desired result, just like the rest of us.

But it is worse than that. Because even a legal realist like myself understands that the judicial rules place limits on how much wiggle room judges have to achieve their desired results. Concepts like precedent, consistency, rules of construction, political question doctrine, etc., place limits on the ability of judges to render any result they deem the correct one. And in a case like Bush v. Gore, adhering to those rules is more important by a factor of 10 than in any other case. It is precisely because of what was being decided that the SCOTUS' actions in Bush v. Gore were egregious in a manner almost unequalled in the history of the Court. They should never have taken the case period.

But it is even worse than that. Because Bush v. Gore is so obviously nonsense as a judicial ruling. No one believes it as even close to being sound law. Equal protection? That does not even rise to the level of laughable. And Althouse knows this. She will not even bother to defend it on legal grounds.

Her grounds of defense are the SCOTUS had the power. And, implicitly, that the Florida Supreme Court did the same thing. In effect, she adopted Scalia's argument - who gets to decide - the Florida Supreme Court or the United State Supreme Court? For Scalia and Althouse, it is obvious, the SCOTUS does.

Well, certainly it had the POWER to do so. But to appeal solely to POWER is to eviscerate the concept of law itself.

Let's assume for the sake of argument that the Florida Supreme Court DID act in a naked results oriented manner. Or to put it as Althouse did:

the Florida Supreme Court had cloaked itself in the language of statutory interpretation

But this is a perfectly acceptable action by the Florida Supreme Court. They are the ultimate arbiter of FLORIDA law, which was what was at issue here. To say that the Presidency was being decided is only a question of circumstance. The LEGAL issue was STRICTLY a Florida election law question. In no way was federal law implicated in a real sense. The safe harbor argument had fallen by the wayside. The silly Article  II argument was always completely absurd. Since the Florida Supreme Court was determining what Florida law was, AS COURTS DO ALL THE TIME, there was no way that could be ruled a change in the law.

So, assume the worst, the Florida Supreme Court acted completely with an eye to favor Gore. It still was exclusively a question of Florida law.

Althouse wrote

That could be seen as taking over the state court's role of saying what state law is, but there must be some limit to the extremes to which a state court can go in calling things state law.

Limits? It WAS undisputedly state law!! Did someone argue that Florida election law is not Florida law? Of course not. What extreme is Althouse talking about?

Finally, what was the essential difference between the actions of the Florida Supreme Court as compared to the SCOTUS'? Very simple. The Florida Supreme Court HAD TO DECIDE the case. It had no choice. It could have ruled in favor of Bush or in favor of Gore. But it HAD to rule.

The Supreme Court of the United States had no such compulsion. Cert denied is all they had to say. They chose to do otherwise.

Originally posted to Daily Kos on Wed Nov 23, 2005 at 09:49 PM PST.

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Comment Preferences

  •  Happy T-Day, brother! (3.30)
    Pimp this diary, please.

    Joe Lieberman's performance puts him on the side of land theft.

    by Joe Lebensrauman on Wed Nov 23, 2005 at 09:47:26 PM PST

  •  Supreme Overreaching (4.00)
    That choice the (USurper) Supremes made to take the Gore case away from the Florida Supremes: would you think it was made under the rubric of "original intent" or "strict construction"?

    I can't imagine a post-Civil-War Court more loaded with States Righters than this one. And they couldn't let a state court decide an issue of state law.

    •  Legal Realism (4.00)
      And won't ScAlito pull the same crap?

      The SCOTUS is Extraordinary.

      by Armando on Wed Nov 23, 2005 at 09:55:20 PM PST

      [ Parent ]

      •  Scalito is going to take the court (4.00)
        to a new low.
        •  lol (none)

          In the matter of J. Bush v. H. Clinton the Court finds in favor of Bush and also names Him God.

          "In the beginning the universe was created. This has been widely criticized and generally regarded as a bad move." -- Douglas Adams

          by LithiumCola on Wed Nov 23, 2005 at 10:09:27 PM PST

          [ Parent ]

          •  It is my considered opinion (none)
            that within the next year, there isn't a Bush who would get voted in as dogcatcher!
            •  I hope you're right (none)
              I was making a joke about Scalito's fetishization of Executive power.

              "In the beginning the universe was created. This has been widely criticized and generally regarded as a bad move." -- Douglas Adams

              by LithiumCola on Wed Nov 23, 2005 at 10:16:01 PM PST

              [ Parent ]

            •  Can a Bush get elected? (none)
              You're probably right that a Bush couldn't get elected if there was an honest count of the votes, but with Diebold or their like counting the votes the announced election results might well be a majority for Bush.   Unfortunately this isn't a joke, but it is the most serious problem facing democracy in America.
          •  Indeed (none)
            In the ruling, written by Scalia, he states that electors shall be chosen in a manner determined by the State Legislatures.

            This whole concept of having citizens vote for their electors is an unconstitutional usurpation of legislative authority by a bunch of poorly qualified individuals with no legal standing. We hereby declare that all states which used "voting" to choose their electors shall have the results of these "elections" overturned. Since there is not enough time for the State Legislatures to appoint electors, we hereby appoint electors for all the States which used the unconstitutional "voting" technique for choosing electors.

            Coincidentally, all of the electors happen to be Republicans. But that wasn't by choice. It's merely that we couldn't find any non-Republicans who were qualified.

            congratulations on your foreskin -- osteriser

            by bartman on Thu Nov 24, 2005 at 09:49:55 AM PST

            [ Parent ]

    •  No way they would (4.00)
      "States Rights" are handy code words for racist or Fascist or corporatist whichever aspect of the right wing agenda need serving.

      Nobody in the Republican Party the Party of Torture, Corruption and Treason believes in anything like "States Rights"

      "Such is the irresistible nature of truth that all it asks, and all it wants, is the liberty of appearing."

      by Nestor Makhnow on Wed Nov 23, 2005 at 09:56:59 PM PST

      [ Parent ]

      •  Republicans Believed (none)
        in states rights when they were a minority party in the federal government. As soon as they became the magority party they were not so interested n fighting it out in fifty states.
      •  the problem with so-called 'Republicans' is that (4.00)
        they do not believe in anything except profit, profit, and more profit.

        Protecting their privelege and class is the one and final goal. Ensuring the Corporation rules Supreme is the end all, be all. There are no core beliefs in the Republican Party, except the maintenance of their upper class status.

        When it suits their purposes, they will reverse on 'State's Rights', they distort people's religious faith, using it as a blunt instrument to attack the truth of science, they will willingly, make that gleefully, stomp on protections of the Constitution of the United States for power without power and class.

        "Symplerovus vulgaris americanus" - nasty unindicted co-conspirator. -7.63, -9.59

        by shpilk on Wed Nov 23, 2005 at 10:27:17 PM PST

        [ Parent ]

      •  I daresay (none)
        the proof in the pudding of how much they believe in 'States Rights' will be evident if they're successful in overturning Roe vs Wade.

        Can you say 'Constitutional Amendment'? I knew you could.

  •  Eschaton Is Greater Than The Sum Of Its Blogger (4.00)
    Ann Althouse spent a day slandering Atrios so I was checking to see if she had corrected herself.

    She didn't just slander Atrios.  She slandered a lot of his commenters (ahem).  I know some dKos folks' attitude is that Atriots aren't "serious" (not to start a civil war over artificial distinctions), but we have a tight communtiy with a private language, and Althouse not only doesn't get that, she refuses to accept any other points of view that contradict her hasty and uninformed judgement.

    [/mini rant]

    Althouse is a "pundit realist" as well. She'll shift gears as it suits her to achieve the pundit "result" she desires.


    •  Tight community (none)

      You guys have a secret code.

      I never try to judge the comments because I have no idea what you folks are talking about most of the time.

      Looks like fun.

      The SCOTUS is Extraordinary.

      by Armando on Wed Nov 23, 2005 at 09:59:25 PM PST

      [ Parent ]

    •  I'm with Armando (none)
      I quit trying to comprehend the extremely long Haloscan popups a long time ago although I will scroll through them on occasion.  About three years ago I commented there but got lost in the S/N ratio.

      I still always notice your comments, though, NTodd, and usually I can pick up what's going on for awhile.

      It'd be nice if Atrios went to a comment system where one could tell who was replying to whom but you can't beat the price of Blogger and Haloscan.

      Economic Left/Right: -6.75 Social Libertarian/Authoritarian: -6.67

      by Swoof on Wed Nov 23, 2005 at 10:09:21 PM PST

      [ Parent ]

    •  fghkjhkdgsf (none)
      four is for calling armando out.

      since armando didnt address your pantless point, you get a post.  snark goes somewhere in there, right? ima check out your domain though

  •  I always remember (3.75)
    about a year after Gore v. Bush, Sandra Day O'Connor justifying her vote because 'the country needed closure' on the case.

    I was so angry.  I'd figured the Florida count would end up going to Bush, one way or another, but for the Supreme Court to have stepped in the way it did was unconsciencable.

    Democracy died that day, as far as I'm concerned.  And it was my birthday.

    •  Closure (4.00)
      Yes, that must be what we got.  Why else would wingers tell us to "get over it" and "move on"?
    •  not to harp on it - but (none)
      having unresolved conflicts directly affects profitability.

      Even the OJ trial resulted in lost millions for Wal-Mart as people stayed home, glued to their screens.

      "Symplerovus vulgaris americanus" - nasty unindicted co-conspirator. -7.63, -9.59

      by shpilk on Wed Nov 23, 2005 at 10:29:43 PM PST

      [ Parent ]

    •  What a hypocrite (4.00)
      There will be no closure ever. 2000 will always bring out fucking anger at these election-stealing Republicans. It's truly pathetic that such a scumbag Republican hack is being replaced by someone far worse.

      Why the fuck should Bush get to appoint any supreme court justices? They already appointed him President.

      •  I will never forge!! (none)
        I voted in Duval County, Florida.  When I voted for Al Gore, there was an obstruction behind the punch card.  None of my other votes felt the same so I went back to punch my vote for Gore again.  

        The machine was rigged!!!

        What would it take?  A few test punches, a drop of super glue and suddenly you have dimples instead of punched out ballots.  Would they do that in Duval County, HELL YES.

        If I knew then what I learned over the next few days, I would have called the FBI, the DNC and whoever else I could think of and raised hell.

        I will never forget.

        •  History will vote for Gore (none)
          No matter what the Republicans ever do or say, it is clear that a majority of Floridians voted for Al Gore, or intended to do so.  Regardless of the dimpled chads and all that, also remember the thousands of "Buchannan" votes which were intended for Gore, too.
          And this is the fact that historians will record in the end -- Al Gore, the best president America never had.

          Do not go gentle into that good night. Blog, blog against the dying of the light. CathiefromCanada

          by CathiefromCanada on Thu Nov 24, 2005 at 04:50:13 AM PST

          [ Parent ]

        •  I voted in Duval County, too (none)
          and didn't experience the same problem you did with the obstruction.  The punch hole for Gore was punched, no problems.  Given the general incompetency of the Supervisor of Elections office at the time (don't blame me, I voted for Warren Jones) and the type of machinery used, I can't say for certain that my vote was tallied accurately.

          Speaking of the incompetency, in Jacksonville a lot of the blame could be laid at the feet of the now retired S of E John Stafford, who inexplicably won re-election after the 2000 fiasco.  Stafford and an all GOP canvassing board.  Stafford's temporary replacement in 2004, Bill Scheu was a big improvement, but now we're stuck with GOP/First Baptist Church flunky Jerry Holland.  

          Don't get me started about my most hated person in Jacksonville politics right now, former good Councilwoman turned evil Councilwoman Suzanne Jenkins, but that's another story.  <rant off>

          I feel better now, and I'm ready for my cranberry sauce...

          "We will not walk in fear, one of another." -- Edward R. Murrow

          by Theodoric of York Medieval Liberal on Thu Nov 24, 2005 at 08:52:54 AM PST

          [ Parent ]

        •  What sort of precinct? (none)
          Heavily Democratic with a lot of blacks?

          I heard that the Republicans were trying to spin that they had 20,000 undervotes in Duval county, so undervotes didn't just affect Gore counties. Of course, careful analysis showed that they were all from the heavily Democrat and black areas.

          •  What kind of precinct? (none)
            I'm not sure, but my guess would be heavily Democratic based on my perception of the socio-economic demograpphics of the area.

            The wouldn't have to rig every machine.  Just one for each precinct that it would make a difference.

    •  and in her view, a much (4.00)
      better form of closure than the Constitution itself provided for disputes such as this?

      Oh, I know now that she's retiring the conventional wisdom seems to be to praise O'Connor to high heaven, but I'll never forget in oral arguments how she insisted that the vote counting standard should just be what was stated on the voting machines. Nice, except that the Florida legislature had determined the standard was to determine the intent of the voter. She didn't seem at all aware that she was substituting her own opinion as to what Florida law should be, as opposed to determining whether there was any violation of federal law.

  •  subject as follows (none)
    Among courts, the United States Supreme Court goes last. With no higher court, it cannot be reversed. It has the pseudo-infallibility of finality. . . . The only thing that is infallible is the constitution. She's full of it. Yes, its hard to get a Supreme Court Ruling overturned, but its not impossible if the ruling was unconstitutional. I think republicans have an alternate fantasy government they work from. I dunno.

    If you want a vision of the future, imagine a boot stamping on a human face - forever. [George Orwell]

    by Krush on Wed Nov 23, 2005 at 10:00:48 PM PST

    •  Fantasy (none)
      I think republicans have an alternate fantasy government they work from. I dunno.

      Indeed, King Arthur and the Round Table.  but ithout the Chivalry

      We have no desire to offend you -- unless you are a twit!

      by ScrewySquirrel on Thu Nov 24, 2005 at 02:24:02 AM PST

      [ Parent ]

    •  She's trying to play on a quote (none)
      from a Supreme Court Justice, which is "we're not final because we're infallible but we're infallible because we're final."

      Don't give her too much of a hard time for that. She's wrong on whole other levels.

  •  I don't know why you analyze so much of what (4.00)
    they so as though they are really taking what they say seriously. It's like trying to argue with a drunk. Whatever they say will change by next morning, and they won't remember it even if you do. I guess my point is you are trying to grab hold of a moving target with facts and analysis, and I don't think facts and analysis matter to a moving target because once you pin them down they move again. For example, OT, but instructive, Andrew Sullivan's response to someone saying that the Iraqi War has nothing to do with terrorism is that well it does now. This, of course, begs both the moral, financial and political question of was it before? But if you engage him in this sort of conversation proving that what we heard before is not what we heard- then you have already lost. The way to engage someone like this is to assume they are lying, and then talking about your facts as though they are the facts on record. ie, with scalia, I would assume from the start that he is lying and explain how his lies have hurt us rather than try to prove that he is a liar.
    •  Couldn't help myself (none)
      Hell, it's 1:00 am the night befre Thanksgiving.

      Consider it me indulging myself.

      The SCOTUS is Extraordinary.

      by Armando on Wed Nov 23, 2005 at 10:03:29 PM PST

      [ Parent ]

      •  To each his own (4.00)
        I am gettin' up tomorrow to cook a nice T day dinner for my family and one of the things I am thankful for is that over this last year I have begun to get ahead of the bs game. Going back to Sully, and this person, the best thing we can do for ourselves is to stop taking them at their word. Realize they have an agenda, and realize that everything they say is part of that agenda. It was like the slick wet fish that was Christopher Hitchens the other day on the issue of when should we exit from Iraq. Once you know you aren't going to get the truth out of someone, you should deride them for it rather than giving them the respect of treating their lies as something equivalent to or approximating the truth I treat them as someone not deserving of that level of respect. Now I do read them to see what spin and views they are putting out there, but I don't think it's deserving of more than just a single line like "She lied" now let me tell you the truth.
      •  Remind (none)
        me to send you a fifth of scotch next year so you can indulge yourself properly on Thanksgiving Eve.

        I want to know what the limit is of a state court insisting their cases are about state law?  Is it okay to insist that blacks can't go to the most prestigious state university?  Is that the limit?  No?

        •  That obviously implicates Equal Protection (none)
          Give me a hard one.

          The SCOTUS is Extraordinary.

          by Armando on Wed Nov 23, 2005 at 10:19:08 PM PST

          [ Parent ]

          •  Nevertheless (none)
            even though the case clearly would violate equal protection it is still their right to hear the case and rule on it.  It's clearly a state law, although a state law (or state ruling) that should be overturned.

            The Supreme Court was acting as though we were in an emergency situation and they couldn't allow the Florida's courts remedy to take place.  That was not the case.  It was clearly  state law that was being interpreted.  There were no federal issues outside the issue of who would run the Federal government.

            •  Sure (none)
              And you know that federal defenses can, and generally must be raised in state actions.

              State courts have concurrent jurisdiction regarding federal law.

              Interestingly, the equal protection claim was NOT forwarded by Bush before the FSC.

              That claim came from the federal appeal.

              I have to review that because it still is not clear to me how it was before the SCOTUS.

              The SCOTUS is Extraordinary.

              by Armando on Wed Nov 23, 2005 at 10:34:03 PM PST

              [ Parent ]

              •  There was no federal question (none)
                The Clerk's office, for Christ's sake, could have punted it back down.  But since it was THAT case, they skipped right over jurisdiction.  I knew we were dead when SCOTUS took the case.

                A halfway decent Chief in control of this Court would have lobbied for a unanimous decision, at least.When such a historical, important decision has to be made, everyone ought to be on the bus. But since five of them were up to no good, the other four dissented and rather loudly. Even Burger managed to get the Court together on the Watergate cases. But instead you have a Court acting like they were in three different court rooms in different states. It is fairly useless as precedent. Moreover, I always chuckle when I see the majority opinion listed as Per Curiam. Nobody had the guts to sign the thing?

                I wouldn't want to be a clerk at the Court that night. I'm sure quite a few clerks got very drunk that night.


                We do not rent rooms to Republicans.

                by Mary Julia on Wed Nov 23, 2005 at 11:18:06 PM PST

                [ Parent ]

                •  how about standing? (none)
                  How in the world did some dufus from Texas (Bush) get standing to challenge vote counting in Florida? Especially when the Supreme Court had already refused to hear an equal protection challenge filed by an actual, honest to god Florida voter?

                  Oh, don't get me going on this case. There were so many crazy, unexplainable things about it. The entire equal protection argument made in the Bush brief to the Supreme Court was ONE SENTENCE thrown in on the second to the last page of the brief. And the deadline, that wasn't a deadline, but was a safe harbor? How in the world can you violate a safe harbor?

                  My spouse, who is also a lawyer, can't bring himself to read the opinion in Bush v. Gore to this day. He gets chest pains just thinking about it.

    •  Partially agree (none)
      because even liquid opinions can build on - and grow - vastly improper memes and themes, gaining all-too easy acceptance of partial veracity through frequent repetition.

      Armando did a terrific job of clearly and properly demeaning this piece of shite analysis.

      It seems a worthwhile exercise to call out bs for the sake of an audience who may actually listen and learn (e.g., DKos readers), because this might reinforce their collective ability to identify bs which poses as learned analysis in this topic area, ongoing.  Perhaps this might embolden more vocal opposition to said bs, and the spouters of such will slowly be drowned out by an ever-increasing, loose federation of educated information consumers over time.

      One can hope, at least.

  •  Bush v. Gore? (4.00)
    a preordained decision in search of an argument.

    I took the time to read althouse's writings on this. they belong in the outhouse.

    •  Everytime I read Bush v. Gore I get pissed (4.00)
      I just skimmed through it again and I was again astonished at the language the various concurring opinions used.  We here so often about how Roberts and Alito had to argue certain positions because it was their job and I get that same feeling, that it was SCOTUS's job, to advocate for Bush.

      Althouse is probably the worst of the Law Prof bloggers.  She always plays both sides when it suits her agenda.  I'll take Bainbridge or Leiter or the various Volokhs because at least you know where they stand.

      Economic Left/Right: -6.75 Social Libertarian/Authoritarian: -6.67

      by Swoof on Wed Nov 23, 2005 at 10:19:12 PM PST

      [ Parent ]

    •  interesting (none)
      That seems to be the way Bush governs. First comes the policy, then come the reasons. You know, tax cuts? We need 'em because of the surplus. No more surplus? Oh, we need 'em because of ...the deficit!
  •  Dershowitz proposed a simple test (4.00)
    to prove there was a partisan grab:


    I now challenge you to respond directly to the central question of my book: Can you look your readers in the eye (virtually if not directly) and assure them that you are completely confident that each of the five majority justices would have voted to stop the hand count had the shoe been on the other foot--had Gore been ahead by a few hundred votes and had Bush needed the hand count to have a chance of winning the election?

    •  thx for that. good stuff. (none)
      "Imagine if the one hundred most experienced observers of the high court--academics, Supreme Court litigators, journalists who cover the justices--had been presented, one year before the Florida case, with a hypothetical case based precisely on the facts of the Florida case but without the names or party affiliations of the candidates" and were asked to predict how the majority justices would have voted.

      Haven't read either book yet, but they're now on the list.

      Being a terrible president is hard work

      by tinfoilhat on Thu Nov 24, 2005 at 03:43:10 AM PST

      [ Parent ]

  •  This is one of the quite rare instances (4.00)
    where I find myself regretting that FP diaries can't be recommended.

    Damn George Bush! Damn everyone that won't damn George Bush! Damn every one that won't put lights in his window and sit up all night damning George Bush!

    by brainwave on Wed Nov 23, 2005 at 10:17:18 PM PST

  •  EQUAL protection -- (4.00)

    Did you know of this extra irony,    -->  "facts on the ground, 2nd chance voting."
  •  There IS a limit to the extremes (4.00)
    Justice Ginsburg dealt with this issue head-on:

    Rarely has this Court rejected outright an interpretation of state law by a state high court. Fairfax's Devisee v. Hunter's Lessee, 7 Cranch 603 (1813), NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958), and Bouie v. City of Columbia, 378 U.S. 347 (1964), cited by The Chief Justice, are three such rare instances. See ante, at 4, 5, and n. 2. But those cases are embedded in historical contexts hardly comparable to the situation here. Fairfax's Devisee, which held that the Virginia Court of Appeals had misconstrued its own forfeiture laws to deprive a British subject of lands secured to him by federal treaties, occurred amidst vociferous States' rights attacks on the Marshall Court. G. Gunther & K. Sullivan, Constitutional Law 61--62 (13th ed. 1997). The Virginia court refused to obey this Court's Fairfax's Devisee mandate to enter judgment for the British subject's successor in interest. That refusal led to the Court's pathmarking decision in Martin v. Hunter's Lessee, 1 Wheat. 304 (1816). Patterson, a case decided three months after Cooper v. Aaron, 358 U.S. 1 (1958), in the face of Southern resistance to the civil rights movement, held that the Alabama Supreme Court had irregularly applied its own procedural rules to deny review of a contempt order against the NAACP arising from its refusal to disclose membership lists. We said that "our jurisdiction is not defeated if the nonfederal ground relied on by the state court is without any fair or substantial support." 357 U.S., at 455. Bouie, stemming from a lunch counter "sit-in" at the height of the civil rights movement, held that the South Carolina Supreme Court's construction of its trespass laws-criminalizing conduct not covered by the text of an otherwise clear statute-was "unforeseeable" and thus violated due process when applied retroactively to the petitioners. 378 U.S., at 350, 354.

        The Chief Justice's casual citation of these cases might lead one to believe they are part of a larger collection of cases in which we said that the Constitution impelled us to train a skeptical eye on a state court's portrayal of state law. But one would be hard pressed, I think, to find additional cases that fit the mold. As Justice Breyer convincingly explains, see post, at 5--9 (dissenting opinion), this case involves nothing close to the kind of recalcitrance by a state high court that warrants extraordinary action by this Court. The Florida Supreme Court concluded that counting every legal vote was the overriding concern of the Florida Legislature when it enacted the State's Election Code. The court surely should not be bracketed with state high courts of the Jim Crow South.

    •  Yep (none)
      As did Stevens, with fewer words.

      The SCOTUS is Extraordinary.

      by Armando on Wed Nov 23, 2005 at 10:37:17 PM PST

      [ Parent ]

      •  Since you mentioned it (4.00)
        What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. 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.
        •  I wonder if Justice Stevens is rethinking (none)
          this sentence,
          Time will one day heal the wound to that confidence that will be inflicted by today's decision.
          in view of the events and attitudes, in America and the whole world, during the 59 months since he wrote it.
          For my part, and speaking for all of my friends and family and most of the people I talk to, I am farther from healing than ever.
          And it may well turn out that, for our system of government, this wound is mortal.
          •  There actually might have been (none)
            some healing, had this administration governed as it promised during the campaign.

            What happened instead was one slap in the face after another.  I can't really imagine an organization working so effectively to alienate its opposition.

            I'm not of course proposing that the Supremes did the right thing -- it's the most hypocritical thing I do think I've ever seen.  I'm just saying that there might have been a chance at healing, had the BushCos dealt with us in a reasonable way, instead of behaving like a bunch of spoiled little shits.

            -9.25, -7.54

            Yikes. Good thing I don't have guns.

            by Marc in KS on Thu Nov 24, 2005 at 06:24:01 AM PST

            [ Parent ]

    •  the only defense of the decision I buy (none)
      Is Richard Posner's -- the pragmatic defense.  He has written that the decision itself was awful as a matter of law, but that it was necessary for the Supreme Court to take control of the election and prevent a constitutional crisis in which on January 20, 2001, Larry Summers could have become Acting President.

      (Election gets thrown to the House where there's a bitter, unresolvable fight -- Hastert refuses to resign from the House to take the Presidency; Thurmond's 98, plus stepping down from the Senate would have put it under Dem control, esp with a Dem SC governor appointing his replacement; Albright can't take the position because she's not American-born.)

      It's crappy legal reasoning as written, of course.

      Also, Althouse is not a Democrat.  

      •  huh? (none)
        What irresolveable conflict? Didn't Republicans control the House? Wouldn't they simply have selected W as President? That isn't a constitutional crisis, it's what the constitution provides for in these circumstances, and not incidentally, it has worked in the past.
        •  Remember (none)
          The House votes based on state delegations, not individual members, and there's no telling how that would have turned out.
          •  well, no (none)
            Article II, Section 1 says this:

            "The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote."

            Tell me how Dennis Hastert gets in here somehow, cause I don't see it.

      •  Crisis? Tough titty. (none)
        On the very wall of the Court building itself is the inscription 'Fiat justitia, ruat caelum', 'Let justice be done, even if the sky fall'.

        Seems like more jurists need to study more Latin.

        Patria est ubicumque bene. "Their 'Homeland' is wherever they can turn a buck." Cicero, Tusculan Disputations.

        by Otis Noman on Thu Nov 24, 2005 at 08:24:43 AM PST

        [ Parent ]

  •  What is wirth the people who don't get this (4.00)
    The Democratic party may be the big tent party, but if you support partisan Republicans on the SCOTUS stealing an election for the worst President ever, get the fuck out of our party. The SCOTUS ended the recount December 9th, 3 days before the non-binding deadline of December 12th. How the fuck you can defend that is beyond me.
  •  Thank you, Armando (4.00)
    Armando, you and I have clashed a few times, especially on this issue of whether to filibuster a judicial nominee.  But I have to say, you are dead on with this critique.

    I consider Bush v. Gore to be the most unprincipled, nakedly partisan decision in the history of the Supreme Court. Not only did the Court decide the matter incorrectly, it also did NOT have the power to hear the case at all. There was no substantial federal question presented. The equal protection claim had been summarily rejected by the Florida federal court and by the Eleventh Circuit. And even the Supremes themselves seemed to see that, because they said the case couldn't be considered precedent.

    Yes, the human mind was at work here. The part of it we saw displayed by the five justices in the majority was arrogance. A judge truly committed to the law would not consider the partisan implications of the decision; nor would that judge frame the question of "who is hurt" in a way that dishonestly benefitted one candidate over the other.

    And, I might add, there was no "emergency." The Constitution itself discusses how to handle a presidential election in which no candidate receives a majority of the electoral votes. In that situation the House of Representatives decides. Indeed, that legal principle could have been invoked in 2000 and, if it had, the country would undoubtedly have reached the same result imposed on it so unconstitutionally by the Supreme Court: a Bush presidency. (Of course I think the Florida Supreme Court decision should have been left in place by a rejection by the Supremes of the certiorari petitions, which would have led to a rapid recount).

    I would go so far as to say that Bush v. Gore reflects, in addition to the things you correctly point out, an unfortunate and increasing American tendency to distrust the political process. Judges should not be deciding who is President, especially when the Constitution plainly gives that power to the legislative branch in cases where the outcome of the electoral college results do not cause a victory by one candidate.

    It was and is my belief that the Democrats should assert the illegitimacy of his election as a reason to oppose any Bush Supreme Court nominee. Indeed, I believe the Democrats on Capitol Hill have been way too accommodating to Bush on way too many issues and should have taken a much harder line from January 2001 simply because the man was appointed and not elected. The results in 2004 challenge this approach, to be sure, but I think if my advice had been followed during the first term (at least on domestic issues and Iraq), Kerry may well have won last year.

    So, again, thank you for this thoughtful diary. And I did enjoy your "new Armando" post the other day. Maybe "new Armando" and "new FlagstaffHank" should have an extremely civil discussion. :)

    •  Heh (4.00)
      Hank, since you and i dsagree on so much on legal issues and yet we fully agree on this, what does that tell you about Althouse's disingenuousness?

      Don;t you think it is fair to basically laugh when she claims to be a liberal? Or even a moderate?

      Only a Wingnut can defend Bush v. Gore.

      The SCOTUS is Extraordinary.

      by Armando on Wed Nov 23, 2005 at 10:43:54 PM PST

      [ Parent ]

      •  Again I am awed (none)
        Yes, Armando, I am truly awed by your insight here. Althouse is no liberal and no moderate, either. To my mind she is an unprincipled vacillator who cannot see that Bush v. Gore cut one more fragile thread holding our democracy together.

        And I'd like to say, too, that you and I probably don't disagree as much as you think. Yes, I don't like Roe and Casey and, no, I am not generally supportive of using the filibuster too easily. And I am probably somewhat more of a hawk on international affairs than you. But, on the first two, I plead my affinity for populism, democracy, and faith in the democratic process and a certain pickiness about having constitutional law be at least reasonably based on the Constitution. And I am Catholic, so can you blame me too much for not being fond of abortion? On the latter I subscribe to the "speak softly and carry a big stick" theory. Unfortunately W speaks loudly and carries a fucked up stick. That's why Iraq is FUBAR.


    •  Coup (4.00)
      I appreciate you emphasizing the role of the
      House in deciding disputed elections according to the constitution. As badly reasoned as the majority opinion was in Bush v. Gore, it wasn't the first time the court came down with a bad decision. But usurping the role of the House in deciding the outcome of the election amounted to a judicial coup. Five thugs in robes took over the country five years ago. Viva Bush!

      I have some yams in the oven. I have to go check.

  •  The United States Supreme Court goes last (4.00)
    The United States Supreme Court is not the court of last resort in impeachments. Neither is it the court of last resort for determining disputes over the credentials of competing slates of Presidential electors. It is not the court of last resort in these instances because the U.S. Constitution says it is not.

    Justices Breyer, Souter, Ginsberg, and Stevens were correct. The U.S. Supreme Court should have sat this one out because there may have been no competing slates of Presidential electors from Florida, but also because the case presented a non-justiciable political question. Chief Justice Rehnquist surely knew this. The views he expressed in Bush v. Gore were wholly inconsistent with his opinions in Goldwater v. Carter and the Walter Nixon impeachment case.

    •  Yes (none)
      I hadn't thought about this aspect of the decision, but I think you are probably right on the political question thing. Of course that is just more evidence supporting the complete abdication to partisanship over adherence to law so obvious in the majority decision.
      •  Regrettably, Bush would have won anyways... (none)
        ...because of a corrupt bargain with the GOP-dominated Florida state legislature sending a bogus slate of electors to a GOP-dominated US House.

        But the Florida representatives, and the US representatives, involved, would have had to have faced the people in subsequent election(s).

        The Court acted because it held the People in contempt. In a democratic republic, that's a hanging offense.

        The Rehnquist court turned the halls of justice into a political brothel, insofar as it exercised in Bush v. Gore what Stanley Baldwin called 'power without responsibility, the prerogative of the harlot throughout the ages'.

        Patria est ubicumque bene. "Their 'Homeland' is wherever they can turn a buck." Cicero, Tusculan Disputations.

        by Otis Noman on Thu Nov 24, 2005 at 08:20:58 AM PST

        [ Parent ]

  •  I agreed with Bush v. Gore. (none)
    I still do.

    Don't troll rate me, at least please let me explain.

    The SCOTUS was right. A partial recount of Florida DID violate equal protection laws. I don't see an argument around that.

    What the SCOTUS did WRONG, is that they stated in their argument that their decision wouldn't become precident.

    That was totally chickenhearted, and probably the scummiest decision of all time. What that precident would have done, is that it would have said that any election where in the same voter pool, there are different voting techniques or different margins of error, become null and void.

    And then there would be REAL and true electoral reform.

    And all would be good.

    And Gore probably would be president right now.

    This is our story...

    by Karmakin on Wed Nov 23, 2005 at 11:52:29 PM PST

    •  Let's assume you're right (none)
      I don't think there's a valid defense for the refusal to remand for a correct count, in any event.
      •  Oh, you can't violate the safe harbor (none)
        oh, dear me, no! That would be so very wrong. Despite the fact that electoral results in the past had been delivered outside the safe harbor date with no ill effects to the nation.

        No, it just was too bad that there was not enough time to do that full recount. Of course, had a certain Supreme Court Justice who shall be nameless not issued an injunction to stop it from going forward, there would have been enough time for a full recount, which then wouldn't have run afoul of any equal protection argument. I guess that was the irreparable harm, because without equal protection, they had no argument to use to get to their desired outcome.

        •  SCOTUS (none)
          hng FSC by its own petard there - FSC said Florida legislature intended to avail itself of the safe harbor.

          But the safe harbor gave them time anyway.

          It was all just lying.

          The SCOTUS is Extraordinary.

          by Armando on Thu Nov 24, 2005 at 08:38:15 AM PST

          [ Parent ]

          •  oh, right (none)
            We all know the Florida Supreme Court would much rather have Florida voters go take a hike and not have their votes counted rather than miss that nondeadline deadline.  That's really what they meant, when they wrote that opinion with all that stuff in there about how voting is really important and how the intent of the voter is paramount.
    •  A bit late to introduce that requirement (4.00)
      into state election laws, it being right after the election and all.  Once the election rules are set, they ought to be followed (as they should have been here); for this reason I think courts are too hesitant to take on challenges to election rules pre-election.  I don't think I'd have favored the solution you present, nor do I think that it would have been viewed as legitimate:  why should this apply only to Florida and not New Mexico, Wisconsin, and any other close vote?  Still, as a pre-election decision, stemming from a declaratory judgment suit (if they'd ever grant one standing), that sort of holding would have been fun to see.  In real life, though, I think it never would have come about.

      Given the positions of the five pro-Bush justices, what they should have done instead of printing a "good for this ride only ticket" would have been to bite the bullet and acknowledge that they could not agree on a rationale for their decision.  There was no real reason that Scalia and Thomas had to concur in the Equal Protection rationale that they clearly didn't endorse -- and, indeed, if push had come to shove I think that to avoid the outcome you suggest they simply would instead have written an opinion concurring solely in the result based on a different analysis.

      Without a single governing rationale, you don't have the "oh, by the way, this doesn't set a precedent" fiasco.  Rather, you settle the case without a true holding.  Rehnquist would have announced the decision of the court and and opinion with O'Connor and Kennedy concurring that had no precedential weight.  Scalia and Thomas (given their beliefs) just chickened out.  Why they thought that failing to agree on a rationale was worse than pretending to agree on one and then undercutting the new holding is a mystery to me.  Supposedly, I guess the reason they did this is the fear that the country would have been roiled by the absence of a single majority rationale for the decision.  To which I say:  more roiled than it was anyway?  Ha.  The leglessness of the decision was like a neon sign saying "we're being unprincipled here."

      It is fitting, though, that the Bush Administration came into being via a supreme act of intellectual dishonesty.

      "If you [just] wanted to reduce ignorance, you could ... abort every Republican baby in this country, and your ignorance rate would go down."

      by Major Danby on Thu Nov 24, 2005 at 12:17:49 AM PST

      [ Parent ]

      •  Oh! Well said!! (none)
        It is fitting, though, that the Bush Administration came into being via a supreme act of intellectual dishonesty.
        Your entire post is excellent, and legally beautiful [IANAL, but..] but that last sentence is pure poetry; the ultimate truth-in-language.
        One is immediately reminded of truisms such as, "You cannot achieve a good end by bad means," or the more recent [and succinct] GIGO. It would make a good sig line.
        •  You're welcome to use it as a sig. (none)
          I'm not done stomping on the memory of William Bennett's misdeeds yet.

          (And thanks for the compliments!)

          "If you [just] wanted to reduce ignorance, you could ... abort every Republican baby in this country, and your ignorance rate would go down."

          by Major Danby on Thu Nov 24, 2005 at 01:32:36 AM PST

          [ Parent ]

    •  there IS an argument around that (none)
      Regardless of whether equal protection rights were violated, there was no plaintiff in this case who had standing to assert such rights.  The alleged EP right of "a vote equally considered" would be possessed by the VOTER, and not be the candidate seeking their approval.

      Standing.  Bush didn't have it for that claim.

    •  A partial recount of Florida DID violate equal (none)
      protection rights. This may be correct to some degree, but a partial recount did not violate Florida election law. And the Florida Supreme's were in the process of rectifying this with a statewide recount based on Florida election law. This recount would have given equal protection to the voters of Florida in accord with Florida voting laws. Would the SCOTUS have accepted an equal protection case from the voters of Florida? It seems their equal protection rights were also violated.
    •  Ffa SC Ordered State-Wide Recount (none)
      Gore's folks had demanded recounts in selected counties but the Florida Supreme Court ordered a recount for the entire state.  The Florida Supreme Court rejected the Republican argument that a Florida statute required the recount to be completed by a certain date in December, and that the recount couldn't be done by that date.  The Florida Supremes held that the right of the people to vote and have their votes counted could not be trumped by such a statutory deadline (whether the statue even required this deadline wasn't even clear).

      The statewide recount started and went on for about a day before the U.S. Supreme Court stopped the recount on the grounds that there was no uniform specific rule for checking the ballots.  This despite the fact that the SCOTUS acknowledged that there were different machines in the different counties - the 5 person SCOTUS majority even held in Bush v. Gore that the equal protection clause didn't require one type of voting machine per state.  Then in a footnote the 5 justices stated that per Florida law the recount couldn't be completed by the date required by state law - ruling on a state law that the Florida supremes had already considered!

      Bush could have won the statewide recount and he would have been president with a lot more legitimacy.  I would have despised him a lot less - conceding that he was legitimately elected.  But Scalia-Thomas-Rehnquist-O'Connor-Kennedy wouldn't take the chance that their man with their ideology wouldn't get into office.

      The majority decision was Per Curium, unsigned.  Per Curium decisions are usually short unanimous uncontroversial decisions, for example, denials of writs of certiori.  But neither Scalia, Thomas, Rehnquist, O'Connor nor Kennedy would put their names on this piece of crap.

      "Great men do not commit murder. Great nations do not start wars." William Jennings Bryan

      by Navy Vet Terp on Thu Nov 24, 2005 at 07:15:17 AM PST

      [ Parent ]

    •  Well your'e wrong (none)
      There was no equal protection violation.

      Not in anyone's conceivable imagination.

      It is not even arguable.

      Indeed, I ask you to state the violation now if you can.

      The SCOTUS is Extraordinary.

      by Armando on Thu Nov 24, 2005 at 08:35:50 AM PST

      [ Parent ]

    •  "Eqaul protection" violation nonsense (none)
      The SCOTUS was right. A partial recount of Florida DID violate equal protection laws. I don't see an argument around that.

      Balderdash.  In the protest phase, Gore asked for a recount in specific counties (as in fact is what he had to do procedurally under Florida state law).  Maybe this is un-Constitutional (more on that below), but it's clearly state law.  But the  Dubya v. Gore case was an appeal of Gore's election contest, which challenges the election itself (in this case on a state-wide basis), and in fact the FSC ordered as a remedy a full state-wide recount (and it was this ruling, not the earlier Palm Beach v. Harris, that Dubya took to the SCOTUS).  Funny they'd challenge the ruling that in fact went along with their own position in the prior Harris case: that the recounts would not be legal if not uniform.

      The cowardly SCOTUS per curiam didn't know what the result of this would be, but they were prepared to assert that any remedy fashioned by the Florida Courts had to be per se un-Constitutional (a view that brought bitter language from the dissenters who thought that any problems might best be adjudicated and resolves if and when they happened (in the language of Breyer, IIRC).  It's hard to believe that they in fact thought such a thing, because essentially the same conditions pertained to the same election in states all across the country, and to elections never even given a wink for many years prior.  I'd note that is the per curiam was serious, pretty much every election subsequest has been un-Constitutional by the same standards, and no one since elected and serving is doing so in concordance with the U.S. Constitution.

      In addition, their "cure" did absolutely nothing to actually remedy the supposed Constitutional defect (as the dissenters also rightly pointed out).  This is pretty much unique as a case where the court claims to find a problem psychically, in advance and then does nothing to fix it, but instead makes sure that it will happen.  Kind of like ruling in favour of a plaintiff, and then ordering them to pay the defendant money....

      As others pointed out, the "equal protection" violation was a slender reed indeed ... and it came from justices who have had a life-long adversion to finding "equal protection" violations without such things as persons showing actual harm and proof of invidious intent (neither of which were shown here, in particular as they acted in advance of the FSC ruling even having been carried out).  So blacks have one hurdle to jump to show such a violation (to the likes of Rehnquist), but if your name is Dubya, you get a pass on both those hurdles and get to claim standing even though it's not your rights that are being trampled.  As Bugliosi and others have pointed out, it's the 180 degree turn from their prior "equal protection" opinions that give the proof to the partisan hackery of the Dubya opinion.  These people wouldn't dream of even letting people in the front door to make an "equal protection" claim on such hypothetical and non-individual claims of future damage -- certainly not absent proof of actual discriminatory intent -- in any other case but this ... which they wrote into their opinion in  saying it was never to be used again....



  •  Alternate Universe (none)
    Didn't it turn out that Gore did actually win Florida?  How does the SOTUS decision get reversed, overturned, vacated?  Don't we have to get a big majority in congress to address this, redress this?  Is it really too late, or just practically too late?  And, would that oust the * administration and inaugurate Gore?  I, too, am a bit tipsy, but the times seem to call for thinking way outside the box, and what I'm driving at, here, isn't as goofy as it sounds.  The Constitution is in shreds, and deadly earnest people need to be doing deadly earnest things to restore it.  Seems the only deadly earnest people we have are the hate-splattering clown-faced criminals running the show.  As this heinous SCOTUS decision was explained to me, it was an in-this-one-case-only decision, which prima facie makes it not a SCOTUS ruling, even as it was a SCOTUS ruling.  Should I just drink more, or go look for 86?
    •  I'm afraid that your suggestion (none)
      is as goofy as it sounds.  (No offense; it's late, you're tipsy, and Barbara Feldon is nowhere to be found.)  See my above post.  Bush v. Gore really has no holding because Scalia and Thomas didn't agree on the Equal Protection rationale and would only grudgingly sign onto it if the other judges in the majority agreed to chop off its legs.  The real breakdown of BvG (and I hope this formatting works) was:

                            EQUAL PROTECTION RATIONALE?

                            YES                    NO

         YES            WR, SDO, AK        AS, CT

         NO             DS, SB                 JS, RBG

      That's five votes for the Equal Protection rationale and five votes for the remedy of freezing the recount, but they're not the same five.  It would not have been any more unprincipled than the decision already was for the three "yes/yes" Justices to argue that while there was an Equal Protection violation, the fact that Florida had been allowed to use its system and the lack of time to decide meant that the holding could only be applied prospectively.

      That would have been consistent, and avoided the horrible "one time only" consequence, but I don't think Rehnquist would have allowed it.  He didn't like Equal Protection in voting, and of course he didn't like federal intrusion into state prerogatives (other than here.)  I think that under those circumstances Rehnquist might have abandoned the Equal Protection rationale and joined Scalia and Thomas (who joined his concurrence to the per curiam decision, which was based on several other idiotic grounds.)  The rub there is that Kennedy's vote may have depended on the presence of the Equal Protection argument as a holding (which is stupid, given how they implemented it), possibly dropping him into the box with Souter and Breyer.  But, if Rehnquist really didn't want Equal Protection principles of this sort to apply even prospectively -- i.e., even after Bush v. Gore -- he should have risked losing Kennedy's vote rather than taking the "good for this trip only" route.

      But, really, what would you have expected of him?

      "If you [just] wanted to reduce ignorance, you could ... abort every Republican baby in this country, and your ignorance rate would go down."

      by Major Danby on Thu Nov 24, 2005 at 12:42:31 AM PST

      [ Parent ]

      •  Barbara was 99 and Don was 86 (none)
        I was trying to explore an alternate universe where we might yet DO something about this aged mess you describe.  I remember it engaging the cogs in most attorneys' brains when it was coming down, and remember feeling that, as bitter a pill it would have been to swallow, I could have kept my faith in that court if they hadn't tacked on the just-this-once part.  This is all apart from the apparently successful vote rigging, which has yet to be addressed.

        Seems to me if congressional Republicans begin fearing for their seats enough, or just remembering their real duty at last, Democrats could coax them into doing something as florid as I suggest.  Everyone's so big on showing the world how a real democracy works, and we're showing them how a corrupted democracy works.  We're out there killing people to spread our corrupted democracy.  I say better to nullify * and his administration than to impeach him.  Strip him of ever legally having been president.  Republicans probably would prefer that to having to go through the muck of impeachment... a type of face-saving approach to doing the right thing.  Is there a statute of limitations for this?

        •  Don Adams is dead, so don't seek him out (none)
          I guess my attitude towards retroactive nullification of election results is like my attitude towards lots of other forms of major destructive weaponry:  if push comes to shove, I think that my side is less likely to be willing and able to use it, so I want to see it banned.

          "If you [just] wanted to reduce ignorance, you could ... abort every Republican baby in this country, and your ignorance rate would go down."

          by Major Danby on Thu Nov 24, 2005 at 01:22:58 AM PST

          [ Parent ]

          •  Our Side (none)
            I think you're right about our side's willingness and ability, and in a world where such monster offenses to our sensibilities didn't pop up at such a fast and furious rate, it would be the soul of political rectitude.  We're not living in that world.  I'm going to ruminate on your point about "major destructive weaponry", think about how such a precedent might morph in the future, but I truly believe there needs to be major constructive weaponry brought to bear, instanter.  Not next year.  Now.  I do not wish to give offense, but it sounds to me as if you are not letting the import of current events sink all the way in.

            Maybe I'm misinformed, but I could swear I was told by a reliable source that Gore beat * in Florida, after the SCOTUS selected *.  So it would not be nullifying election results, but nullifying a SCOTUS decision.  We could not undo the damage of the intervening five years, but we could show the world how a real democracy takes itself back from corruption.  We pop out of us-and-them mode long enough to glare at the precipitating cause together, and, poof, a chance for sense to overtake our country.  Is this honestly any crazier than letting Alito be confirmed? than letting this one-time-only precedent stay on the books? than giving * the distinction of POTUS in perpetuity?

      •  Minor quibble (none)
        Neither David Souter nor Steven Breyer agreed with the "equal protection" argument.  Their words were quote mined by those seeking to shore up legitimacy.  Read their dissents carefully.  Trying to snip dicta out of their dissents, place them in isolation, and claim they found an equal protection, ignores the rest of their opinions, and most importantly ignores the fact that they could have said "I concur in part 1 [IIRC] of the majority but dissent as to the remedy", but they both said "I dissent"!.  Neither said that they found an equal protection violation, merely that they were troubled (never asserting that anything did in fact rise to the level of such a violation).  In fact, Breyer explicitly said later than any such troubles would best be addressed by the Florida courts if and when they were found to be a problem.  Because the actions under consideration in the case hadn't even taken place yet, it's hard to see how they could have found a violation (as they in fact pointed out).  For that matter, I'm not sure how the per curiam authors could have figured this out ... psychic, I guess....
        This goes a long way towards explaining the curious situation of Souter and Breyer supposedly finding this problem but then saying that they were quite opposed to the majority's cure: they didn't find such violations!, and suggested that any "cure" they thought might be worthwhile should happen ... you know ... like, after there had been an actual fact basis developed in the case and applied to those facts as needed.


  •  cert denied (4.00)
    The Court's decision to take the case based on federal question jurisdiction overlooked the fact that the Constitution plainly and wisely provides for resolution of just such a controversy by the Congress. Therefore, the Court should have abstained in favor of that process. While the outcome might have been the same (I mean, what was the rush?), if enough voters objected to the actions of their Representatives in deciding the case, voters could have thrown them out two years later, whereas they cannot eject the Justices, short of the indirect and more arduous impeachment process whcih requires 2/3 of the Senate as well.
    •  True (none)
      enough.  Bush would have still been elected (remember tallying up state delegations?), but at least elected officials would have to take the rap.

      "If you [just] wanted to reduce ignorance, you could ... abort every Republican baby in this country, and your ignorance rate would go down."

      by Major Danby on Thu Nov 24, 2005 at 01:23:51 AM PST

      [ Parent ]

  •  One of the few tiny (none)
    solaces of the Bush vs. U.S. (as I prefer to call it) is that of seven Republican justices, two ruled "for Gore" while 5 ruled for Bush.  Thus Gore won 100% of the Democrats on the court and 28% of the Republicans.  

    Rehnquist adored his historical perch, stripes and all; he will be remembered along with Taney as the nadir of Chief Justices (except that despite his racism Taney was sounder on the law where Rehnquist was and will always remain a totally partisan hack).  

    Meaning no disrepect, the country is better off with him dead.

    Power corrupts. Hey, let's learn it the hard way!

    by Bob Love on Thu Nov 24, 2005 at 01:58:49 AM PST

  •  "Limited to the Present Circumstances?" (none)
    SCOTUS Majority, overstepping their limitations and undermining the rule of law across this country--and firmly establishing precedent in THAT precedent--then made a mockery of their ruling when they wrote:

    "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."

    It was a sad day for this country, and Stevens was right to say in his dissent that the LOSER was the people's faith in the Judiciary.

    Althouse, may say, "but I have perfect faith in the judiciary...." But, of course, she has faith because she believes that it is her ideologues on the court and they will protect her. That is not faith in the judiciary; it's faith in the power of a politicized judiciary when her politics are in power.


  •  Still puzzled (none)
    about Bush v. Gore, cause I can't for the life of me figure out how Bush could be the plaintiff.  In order to bring a cause of action in the Federal system, you need to have standing.  As I understand it, the case was premised upon a violation of the equal protection clause and an alleged denial of the rights of Florida voters - but Bush was neither a resident of Florida nor a voter registered in Florida.

    Absent that status, how was it that Bush was permitted to bring an issue of Florida election law before the Federal courts?  Beats me?

    Any thoughts?

    "But the sea is wide, and I can't swim over, and neither have I wings to fly . . ."

    by bobdevo on Thu Nov 24, 2005 at 05:46:27 AM PST

  •  All you need to know about Bush v Gore (none)
    Court historians will call it the second worst decision by the SCOTUS after Dredd Scott.  Bush had no standing to sue, there was no grounds for an injunction and the Court ignored the Tenth Amendment.

    It was as if in the ninth inning of a tie game the umpires decided one team's batters are alloted only two strikes and two outs and the other team's batters get six strikes and six outs.

    Who do you complain to?  Game over.

    Quis custodiet ipsos custodet? (Who will watch the watchers?)

    by The Crusty Bunker on Thu Nov 24, 2005 at 06:01:12 AM PST

  •  Excellent diary (none)
    I haven't really thought about Bush v. Gore in a long while and this was a truly interesting read.

    Thank you.


    Never have so few taken so much from so many for so long.

    (-6.75, -3.85)

    by mapKY on Thu Nov 24, 2005 at 06:30:56 AM PST

  •  Thank You Ann! (none)
    Most Repubs. would just like us all to forget Bush V. Gore, because they know its an issue that motivates most Dems. and some non-Dems.  So thank you Ann for bringing up again, and for reminding us what a complete travesty of justice it was.

    Oh, could you please write another column on it in Fall 06 and Fall 08, we would be most grateful!

    Snark! Snark!

  •  Richard Posner's book (none)
    Judge Posner's book about Bush v. Gore said that it was a bad decision, but it was justified because it was a kind of "rough justice" in response to the unjustified, in his opinion, decision by the Florida Supreme Court.

    Since he teaches at U Chicago Law School, I was able to find an email address for him and tell him that what he was advocating is lawlessness, and that I found that pretty weird for a Court of Appeals judge and a teacher of the law.

    I didn't get a response.

    Carolyn Kay

    Philosophical question: If a Bush commits a crime and no one hears about it, has a crime really been committed?

    by cmkay on Thu Nov 24, 2005 at 06:42:32 AM PST

  •  "Get Over It" (none)
    Mrs. Toes tells me to "get over it" referring to the 2000 fiasco.

    I respond "NEVER"

    The failure of the American people to rise up with indignation at this travesty of justice and palace coup is primary evidence that American democracy is rapidly headed for the dumper.

    Bush v. Gore has rendered traditional American concepts of federalist interrelationships and states rights meaningless.

    Don't get me started about the shameless conflicts of interest by Scalia and Thomas that should have made the vote 4-3 for Gore. Excuse me, any realistic reading of the Constitution should have made the vote 7-0 for Gore. Excuse me again, any realistic reading of the Constitution should have dicatated that there was clearly no federal issue and that the case venue was in the Florida Supreme Court.

    From the movie JFK: "They have a word for that, ladies and gentlemen. It's facism."

    •  It's facism. (none)
      It's actually fascism, but you are forgiven. I just looked in here at 8 a.m., left coast time, and I can't believe how you all spent your Thanksgiving eve (and night). Have a great day, if you can:-).

      "That story isn't worth the paper it's rotten on."--Dorothy Parker

      by martyc35 on Thu Nov 24, 2005 at 08:25:27 AM PST

      [ Parent ]

  •  Michael McConnell (none)
    Even conservative judge Michael McConnell agrees that Bush v. Gore was wrongly decided:
    •  mcconell (none)
      folloed the \ link to McConnell's letter. I've heard it mentioned before that he was somewhat critical of Bush v. Gore, but that letter sure didn't express those sentiments. He was mostly sympathetic to the position the SCOTUS found itself in
  •  power -- law -- justice (none)
    Her grounds of defense are the SCOTUS had the power. And, implicitly, that the Florida Supreme Court did the same thing. In effect, she adopted Scalia's argument - who gets to decide - the Florida Supreme Court or the United State Supreme Court? For Scalia and Althouse, it is obvious, the SCOTUS does.

    Well, certainly it had the POWER to do so. But to appeal solely to POWER is to eviscerate the concept of law itself.

    May I add that it eviscerates the concept of justice?

    If it QUACKs like a duck ...

    by Dale Read on Thu Nov 24, 2005 at 08:24:07 AM PST

  •  Exchange with Althouse on her blog (none)
    I wrote on Althouse's blog (a little tongue-in-cheekily, Armando--sorry) as follows:
    I read Armando's posts regularly, and I don't agree with the accusations against him posted here. Vitriolic language is the order of the day on Kos, to be sure; I suspect that most of the posters there are pretty young. But try reading some of Armando's stuff before dismissing him simply for his angry use of the word 'manure'.

    There is something very disingenuous about Ms. Althouse's painfully careful, measured reasoning here. Scalia's recent comments regarding Bush v. Gore were at least as divisive and worthless as those made by Armando; they solidly blamed his political opponents for a catastrophe for which, at the very least, both sides were responsible. In view of the many well-known election irregularities that exclusively benefited Republicans in both the 2000 and 2004 elections, it was an extremely injudicious and yes, partisan thing for Scalia to say in public.

    Why does Ms. Althouse feel that Scalia should be entitled to the kind of inflammatory, senseless accusations forbidden to Armando?

    She wrote back--and well, she asked me, so I answered her:

    Maria: Please specify what you consider to be an "accusation" here that isn't true. That Armando is a hardcore political partisan who isn't interested in seriously going through the legal arguments in the case?

    Yes, this is untrue. You claim that Armando is a 'hardcore political partisan'. Exactly what you mean by that is anybody's guess, and you give no reason for saying it. Unlike many Kos posters, Armando's political/ideological convictions don't prevent him from engaging in substantive discourse. He has shown himself capable of admiring informed, thoughtful conservatives, and capable of changing his mind.

    As for his interest in 'seriously going through the legal arguments', you complain that he hasn't read your underlying article, and in the same breath say it's not available to read except on LEXIS.

    In any case I, a casual Kos reader, have read enough of Armando's posts to see quite clearly that he is not afraid of the minutiae.

    The questions Armando raises in his original post are valid ones; you have not addressed them directly; to be specific, you don't discuss the fact that the Supreme Court could have declined to hear Bush v. Gore in the first place, which is at the heart of Armando's post.

    That Armando presented my article conclusion as if it didn't have an article preceding it?

    This is a straw man. Armando addressed specific comments made by you, quoted you directly, and engaged with specific ideas whose significance can't be altered by anything that went before, so far as I can tell from reading your extracts. You put the main point well enough yourself:

    As the Chief Justice pointed to the state court's distortion of state law and used that to detect a federal question in the tangle of state law out of which the state court may have manufactured an illicit power, he exposed his own work to the criticism that he distorted the law to manufacture an illicit power.

    It doesn't take much to see that this is Armando's view. He wrote:

    Concepts like precedent, consistency, rules of construction, political question doctrine, etc., place limits on the ability of judges to render any result they deem the correct one. And in a case like Bush v. Gore, adhering to those rules is more important by a factor of 10 than in any other case. It is precisely because of what was being decided that the SCOTUS' actions in Bush v. Gore were egregious in a manner almost unequalled in the history of the Court. They should never have taken the case period.

    I would welcome a clearer explanation of why you think the specific passages you quote in any way alter Armando's criticisms.

    That Armando adopts the view that judges are essentially political actors and should be assessed as such?

    He did not say this.

    •  A couple of things (none)
      I didn't that which was not available to the reader. To wit, the remainder of her article. IS it my fault that it is NOT available? More importantly I assumed, for the sake of argument, that HER conclusions were correct. Unless what she wrte is not her view of Bush v. Gore, I don't understand her quibble there.

      As for discussing Bush v. Gore in detail, I have done so with Professor Sam Isacharoff of Columbia Law School. Just because I have not done so with her does not mean I have not.

      Finally, right here on this blog, I have discussed the minutia of the Florida Supreme Court decision in minute detail with Categorically Imperative, a brilliant young Yale Law educated lawyer who believes that the FSC violated Article II.

      You could look it up. Thus, as usual, PRofessor Althouse is correct.

      The SCOTUS is Extraordinary.

      by Armando on Thu Nov 24, 2005 at 12:05:04 PM PST

      [ Parent ]

  •  Yet More (none)
    For those who can't get enough of Armando v. Althouse, the Professor has a couple of responses over on her blog:

  •  Bush v Gore (none)
    Many misinterpret the new consortium's Florida recount results.
    The study's key result: When the consortium tried to simulate a recount of all uncounted ballots statewide using six different standards for what constituted a vote, under each scenario they found enough new votes to have narrowly given the Florida election--and by extension the presidency--to Al Gore. Under three models that attempted to duplicate the various partial recounts that were asked for by Gore or ordered by the Florida Supreme Court, however, Bush maintained a slight margin of victory.
    Here is a better analysis of the Supreme Courts Bush v Gore ruling, which, despite the Ann Althouse spin, is pure, unmitigated bunk.
    Of course, you should read the entire article, but here is one excerpt:
    What the majority did in this passage was to attribute to the Florida legislature not just an intention to adhere to Section 5, but an intention to adhere to Section 5 at any cost. The majority said, in effect, that the Florida state legislature would want to take advantage of Section 5 even if that meant awarding the state's electoral votes to the candidate who lost the election--"lost" according to the state's election laws, as interpreted by the state's highest court and modified by any federal constitutional requirements. That is an unlikely intention for any legislature to have. Certainly one would expect that the legislature would rather send forward challengeable electoral votes for the winner of the state's popular vote, rather than unchallengeable votes for the loser. To attribute a contrary intention to Florida on the basis of a general statement in the Florida Supreme Court's opinion is very strained. [9] In fact, the Florida Supreme Court's opinion suggests, if anything, that it would not have wanted to abandon the effort to count votes; the majority of that court explicitly rejected the argument, advanced in a dissenting opinion, that "because of looming deadlines and practical difficulties we should give up any attempt to have the election of presidential electors rest upon the vote of Florida citizens as mandated by the Legislature." [10]
  •  That case had 'cert. denied' written all over it. (none)
    There was really no reason why the Supreme Court needed to review the case.  None at all.  It was an absurd reach on their part.

    It's pretty damned clear why they did it.  In granting certiorari, Scalia even said as much: they didn't want doubt cast on Bush's win.  

    Easiest way to do that is to make sure he wins, and that's what they did.

    And the end of the fight is a tombstone white with the name of the late deceased, And the epitaph drear: "A Fool lies here who tried to hustle the East." --K

    by RT on Thu Nov 24, 2005 at 12:35:32 PM PST

  •  I don't know if you were at CLS in 2000 (none)
    as I was, but he had an interesting take on the 2000 election and then Bush v. Gore at the time, which I don't recount here simply for fear of misrepresenting it.  I'm off to celebrate/mourn Thanksgiving (see other thread, or better yet, don't); I'll try to reconstruct it when I get back.

    "If you [just] wanted to reduce ignorance, you could ... abort every Republican baby in this country, and your ignorance rate would go down."

    by Major Danby on Thu Nov 24, 2005 at 01:04:02 PM PST

  •  3 basic points here... (none)
    1. The 11th Circuit, which had an 8-4 GOP majority at the time, found, en banc, that there was no federal question presented.  It refused to take the case.

    2. The granting of the stay on Saturday, 12/9/00, effectively acted as a decision on the merits.  That stay was granted on an ex parte basis.  Gore's attys were never given a chance to contest a ruling that, at the end of the process, proved to be dispositive.

    3. The Supremes' stating that the decision would have no precedential value.  I've been either a law student or an atty for 25 years now.  I've yet to see another opinion that a court at any level stated would have no precedential value.  It's particularly ridiculous for the Supremes to make such a statement, as the primary importance of what they do is precedential.  They obviously knew that they would be opening a floodgate of future litigation challenging election results on equal protection grounds if they didn't issue this disclaimer.  Hell, the Kerry people could've had numerous grounds to challenge equal protection violations in OH in 2004.  This aspect of the decision is, in many ways, the most reprehensible of all.

    Some men see things as they are and ask why. I see things that never were and ask why not?

    by RFK Lives on Thu Nov 24, 2005 at 08:13:10 PM PST

  •  FWIW (none)
    Crossposting from Althouse's "argument" entry:

    There's a reason that Armando, and many others (even the likes of Judge Posner), don't see the need to get into the "legal arguments" of the BvG edict. It's the same reason Ann feels compelled to preface her remarks with qualifiers about "complexity," and "everybody's partisan" and the various other things she posts. The purpose of which is to convince herself of something, nothing else.

    This is because there ARE NO legal arguments involved. What the feeble, felonious five set down to "end this thing" doesn't stand on any logical basis, let alone any legal or constitutional one.

    There is nothing they could say about one party that shouldn't also apply to the other, so when Scalia revealed in his acceptance of the case that the bushkid had some claim to the legitimacy of "his election," he revealed his disqualifying bias.

    Similarly, there is nothing they could say or imply about the FSC that shouldn't also apply to themselves. Some "legal scholars" have simplified the basis for their "decision" saying it was based on a distrust of the FSC. Trouble is, they don't have the option to harbor such a distrust. If it's there, it demands recusal.

    Further, as the NYTimes reported (albeit in paragraph 49 of an article safely spiked until Feb):

    "The majority had a conclusion in search of a rationale."

    This is a description of the opposite of justice.

    As for the "get over it," crowd, I would imagine that's what they say to all crime victims. But that's simply not gonna happen.

    Unless and until we deal with the reality of the Stolen Elections (I and II) they'll continue to eat through our society like an acid.

    It's my opinion that this is THE ONLY way to recover our national self-respect; to redeem our national soul; to get the American People "off the hook" for this crime spree that they did not participate in nor authorize.

    There is no "worse" catastrophe. Not 9-11, not lying into war, not torture, not even genocide. This was willful violaton of THE ONLY moral principle on which this once-great nation, and democracy itself, ever rests: that gov't power can only be derived from the consent of the governed.

    Without that, you can slap any label on it you want: fascism, authoritarianism, totalitarianism, monarchism, theocracy, oligarchy, whatever. They're all "true enough" in that they're all less than what our children deserve to inherit.

    Or we just let allow our "leaders" to continue to sweep these things under the Palace carpeting.

    But there's no statute of limitations on High Treason. We The People simply need to make Impeachment over the BvG edict the second priority after we take Our Congress back in 2007, or 2009, or 2011, or ...



    by Dusty on Fri Nov 25, 2005 at 03:39:29 AM PST

  •  Strange Decision (none)

    Bush v. Gore was a strange decision in many ways. Some of them:
    1) Per curiam is a way for the court to repeat decisions that have come before it previously. It is a decision "of the court" and is unsigned. This was a 5 - 4 unsigned decision. It may have had more dissents than all previous per curiam decisions put together.
    2) By law in Florida, in my state of Illinois, and probably elsewhere, the right to a recount is something that candidates have in certain circumstances. The decision said that it is a right that voters have, and -- so -- that cannot be applied to some ballots unless it is applied to all. That means, if taken as law instead of a special argument, that any future recount must be done to all ballots.
    3) The phrase "equal protection" has always before been interpreted as giving a 'protection' to some when it has been extended to others. This decision denied the protection of having their ballots recounted to some on the grounds that it had not been extended to others.
    4) The supreme court had the case before it once before; they hadn't mentioned recounting all the ballots at a time when this was possible in time.

    A very strange decision.

    •  Scalia's twisted reasoning (none)
      Boiled down, Scalia's BvG reasoning is that irreparable harm would have been done to the plaintiff (bush) if all the votes were counted.

      And - it's true, as Gore got more votes and would have won - thereby harming bush.

      In retrospect, perhaps the kindest thing Scalia could have done for Bush would have been to decide for Gore.  Bush would have gone down in history as a loser - but not as the most wretched, abominable and disastrous president in the history of the USofA.

      When I see him on TV now he's a total breakdown waiting to happen.

      "But the sea is wide, and I can't swim over, and neither have I wings to fly . . ."

      by bobdevo on Fri Nov 25, 2005 at 08:22:11 AM PST

      [ Parent ]

  •  Ridiculous analysis (none)
    to be sure, SCOTUS' per curiam opionin was a terrible decision and a piece of garbage.  That having been said, SCOFLA's opinion was ridiculous and your analysis defending it is laughable.

    1.  To say that it was purely a questio of FL law is silly.  There were constitutional provisions involved, specifically ones that gave the Legislature plenary (i.e., unreviewable) power to decide how the electors are selected.  Neither SCOFLA nor anyone else had any authority to circumscribe the power of FL legislature.  Surely you do not contend that FL state laws supercede whatever requirements are set by the federal law and constitution.

    2. In Gore II, SCOFLA directly contradicted what it itself said in Gore I.  In Gore I, SCOFLA stated that the Secretary of State must accept revised totals from counties by date and time certain.  They did not mandate nor give her any authority to accept late returns.  In Gore II, SCOFLA simply ignored that part of the Gore I order, and substituted it with a different order, extending the deadline again.  That is not interpreting the law.  That is pure lawmaking, on the fly no less.  

    3.  Gore's attorneys admitted during the SCOTUS arguments that if the very same actions that were taken by SCOFLA were taken by Florida legislature, it would amount to an undisputable change in the law and would thus violate federal statute.  It is quite bizarre to suggest that if the action were done by one branch it would be illegal, but if done by another, achieving same results, it would be legal, simply because a different label could be attached to the action.  

    4. Ideally, FL election should have been settled in the political process, without involvement of either state or federal courts.  It would also have been an interesting development if the Secretary of State, invoking her own constitutional oath and responsibility simply refused to carry out SCOFLA's decree.  To be sure, it would have provoced a constitutional crisis, but it would have been a good crisis for the country to live through.

    In any event, to suggest that either a) interpretation of FL law cannot be constrained by the federal law or that b) SCOFLA didn't change the law of the state of Florida as it existed on the election day.
    •  Pfft (none)
      The Florida Legislature passed the law the SCOTUS was expressly called upon to interpret as per the contest provisons.

      You are full of it of course and as usual.

      It was purely a state law question.

      The SCOTUS is Extraordinary.

      by Armando on Fri Nov 25, 2005 at 04:14:23 PM PST

      [ Parent ]

      •  And according to your (none)
        logic the "interpretation" can very from week to week?!  

        Where exactly did SCOFLA (and I assume you meant SCOFLA not SCOTUS) get the new certification date?  Interpreting generally means "The act or process of explaining the meaning of something."  It doesn't mean adding extraneous material to something.  The new dates that SCOFLA mandated and rescinded with such ease were nowhere to be found in any of the statutes that SCOFLA was supposedly "interpreting."  They were pure inventions.  Show me anything that even remotely resembled permission to extend the deadlines and I will eat crow.

        (BTW, SCOFLA got involved in both "contest" and "protest" provisions even though "protest" provisions did not foresee judicial involvement).

        •  The new date? (none)
          What was the old date?

          The SCOTUS is Extraordinary.

          by Armando on Fri Nov 25, 2005 at 06:14:33 PM PST

          [ Parent ]

          •  Here it is: (none)
            Section 102.111, Florida Statutes (2000) required that:

             If the county returns are not received by the Department of State by 5 p.m. of the seventh day following an election, all missing counties shall be ignored, and the results shown by the returns on file shall be certified.

            Section 102.112 had the same language with the word "may" instead of "shall," the decision nonetheless resting with the Secretary of State.

            In Palm Beach County Canvassing Bd. v. Harris,
            772 So.2d 1220 (Fla. 2000, SCOFLA susbtituted the 7 day deadline (which would have expired on November 14, 2000 for a 19 day deadline to expire at "5 p.m. on Sunday, November 26, 2000."  This is the second date.  SCOFLA said that the "Secretary of State and the Elections Canvassing Commission shall accept any such amended certifications received by 5 p.m. on Sunday, November 26, 2000," which the Commission did.

            Then, in Gore v. Harris, 772 So.2d 1243 (Fla. 2000) the Cout ignored the second deadline that it itself set, and concluded that the second deadline was optional too saying that it "was never intended to prohibit legal votes identified after that date through ongoing manual recounts to be excluded from the statewide official results."  This created yet another "deadline" for submission of returns.

            So, show me which part of the statute was "interpreted" to arrive first at November 26th, 2000, and second to arrive at the notion that even that deadline is wholly optional.

            •  CONTEST phase (none)
              Your issues were moot.

              Bone  up herrDoktor.

              The SCOTUS is Extraordinary.

              by Armando on Sat Nov 26, 2005 at 11:06:55 AM PST

              [ Parent ]

              •  What about the CONTEST phase? (none)
                Does the fact that contest phase occurred somehow justify the lawless actions of SCOFLA?

                The only reason there was no time left for "contest" is because SCOFLA on a whim extended the protest phase thus shortening the contest.

                Not only that, but despite being in the contest phase, SCOFLA kept ordering amendement of certified returns.  It was plain under FL statutes that contest could not even start until the returns are certified and final.  

                The point is SCOFLA just kept making law up and not "interpreting," no matter how you dress it up.

                •  on edit: (none)
                  Does the fact that contest phase occurred somehow justify the prior lawless actions of SCOFLA?
                •  Because (none)
                  even if I bought your "lawless" nonsense, the Contest phase is what was before the SCOTUS.

                  Sheesh. You are not doing very well today.

                  OF course, it is impossible to defend Bush v. Gore. No one in their right mind does.

                  The SCOTUS is Extraordinary.

                  by Armando on Sat Nov 26, 2005 at 12:25:02 PM PST

                  [ Parent ]

                  •  Much like its impossible (none)
                    to defend Goe v. Harris (the SCOFLA decision).  I think it that respect Stevens was right.
                    •  Whether that's true or not (none)
                      They had to hear the case. The SCOTUS had NO business hearng the case.

                      The SCOTUS is Extraordinary.

                      by Armando on Sat Nov 26, 2005 at 01:26:12 PM PST

                      [ Parent ]

                      •  They didn't HAVE to (none)
                        hear the case.  They could have refused cert.  And when they did, they didn't HAVE to make up rules on the fly.  And they didn't HAVE to re-write FL Election law thus violating federal statutes.
                        •  You're wrong (none)
                          It was an appeal as of right.

                          Get your facts straight.

                          The SCOTUS is Extraordinary.

                          by Armando on Sat Nov 26, 2005 at 01:59:30 PM PST

                          [ Parent ]

                          •  No it was not. (none)
                            You gt your facts straight.  The case was certified to SCOFLA by "First District Court of Appeal as being of great public importance and requiring immediate resolution by this Court."  SCOFLA did not have to accept the certification.  The jurisdiction was based on "art. V, § 3(b)(5), Fla. Const."  The citd section states that SCOFLA "May review any order or judgment of a trial court certified by the district court of appeal in which an appeal is pending to be of great public importance, or to have a great effect on the proper administration of justice throughout the state, and certified to require immediate resolution by the supreme court."  As you can see it is not required to, but merely may.

                            The only mandatory jurisdiction of SCOFLA are in death penalty cases (§ 3(b)(1)), special indebtedness and utilities appeals (§ 3(b)(2)), and advisory opinions when requested by FL AG (§ 3(b)(10)).  In all other cases, jurisdiction is optional.

                          •  Oh please (none)
                            The APPEAL was as of right. The Appeals Court OR the SOTFLA would have to have heard the appeal immediately.

                            It was properly certified to the Supreme Court of Florida IMMEDIATELY. How can you possibly argue otherwise.

                            Now you are just being a fool.

                            The SCOTUS is Extraordinary.

                            by Armando on Sat Nov 26, 2005 at 05:29:14 PM PST

                            [ Parent ]

                          •  Yes the appeal was as of right (none)
                            but SCOFLA did not have to hear it.  You said that SCOFLA HAD to get involved.  They didn't.  They chose to.  And to the extent that SCOTUS was partisan, so too was SCOFLA.

                            Furthermore, as I argued in my previous posts, even granting that they HAD to get involved, they certainly did not have to twist the law well past the breaking point in order to achieve the result they wanted.  They got themselves into that hole (by prolonging the protest without legal authority to do so) and then just kep on digging.

                            Simply slapping a label "interpretation" does not change illegitimate lawmaking into legitimate judicial resolution of the dispute.

                          •  You seem to be unduly fixated... (none)
                            on the importance of dates/deadlnes.

                            See my post below for some clarification.


                            by Dusty on Sat Nov 26, 2005 at 08:23:20 PM PST

                            [ Parent ]

                          •  I am not UNDULY fixated (none)
                            The dates and dealines are there for a reason.  And even if they are not, that does not make them optional.  

                            In any event, the Legislature has plenary authority to choose method of the choosing of Electors.  If they set deadlines, those dealines are firm because it is within plenary and unreviewable power of the Legislature to set such deadlines.  Courts have absolutely no authority whatever to vary these deadlines.

                            Now, to address your argument about the meaning of "legislature" as encompassing all past legislatures.  I am not quite sure I understand what you are getting at.  Of course old laws do not cease to exist simply because the new legislators took their seats.  But just as surely, the new legislture can abrogate old laws, and can pass news ones without much regard for what old legislature may have thought.  Florida legislature (whetehr the then sitting or prior ones) acted and set a deadline for election cerification.  The reasoning behind those deadlines are wholly immaterial.  They had the sole power and authority to set this deadlines.  SCOFLA's extension of these deadlines was utterly lawless and unsupported by any law except their own sense of "fairness."  With all due respect, but courts must follow the law and not try to impose their sense of fairness in lieu of the law.

                            Thus, my "fixation" on deadlines is not "undue."  Deadlines at the time were the law of the state, and had to be honored.  I suppose that you don't deny that some deadlines were absolutely firm.  For example, the Constitution requires that electors all cast their votes on the same day.  I do not suppose that FL could continue counting past that date.  Or could it under your theory?  After all, it's just another deadline.  Did the inaguration have to occur by January 20th?  That too is just another deadline.  And if you do recognize those deadlines, I do not understand why you fail to recognize other earlier ones.

                          •  You're beginning to get it (none)
                            Let me just answer your questions and see where that goes.

                            I do not suppose that FL could continue counting past that date.  Or could it under your theory?

                            Yes. And it is not a theory as it has happened in the past (Hawaii 1960).

                            Did the inaguration have to occur by January 20th?

                            No. And again, not theoretical. Federal law provides  for the installation of an acting president. And, you'll be unhappy to hear, sets no time limit for Congress (specifically the House) to select a legitimate occupant of the People's House.

                            Now if it's theory you're interested in, here's a theory that holds that the inauguration could/should have been stayed and that the electoral vote count could/should (still could/should?) be declared invalid.


                            by Dusty on Sun Nov 27, 2005 at 04:58:33 AM PST

                            [ Parent ]

                          •  Well that is absurd (none)
                            The Constutution REQUIRES that all electors cast their ballots on the same date.  That is not an optional deadline, it is a constitutional mandate.  (Hawaii actually allowed two sets of electors to vote on the same date.  The Democratic set could have easily been challenged by Nixon who chose not to do so since it wouldn't have changed the overall result).

                            In any event, like I said, the Legislature can set whatever rules it likes.  The "People" have no constitutional right to vote for the President unless and until the Legislature decides to grant it to them and even then only on the terms that the Legislature deems appropriate.  The Florida Legislature determined that the condition of people selecting the electors was that the count be complete within 7 days.  End of story.  That is their constitutional prerogative.  Indeed, even if one adopts your silly "balancing" theory, there are no legitimate interests you can cite in opposition to enforcing deadlines.  As mentioned previously, there is no constitutional right to have your presidential vote counted and recounted because there is no constitutional right to vote for President.  That is a privilege enjoyed by the grace of legislative grant.  So

                          •  Absurd to you perhaps, but the law nonetheless (none)
                            So you agree that Nixon "could have" challenged, even after the supposed "deadline" had passed. Is that right?

                            So I'll "agree" that the FL leg "can set whatever rules it likes" (as I've not asserted anything else). But that is clearly not the "end of story."

                            This is the point where many seem confused about exactly where this plenary power to set the rules resides. It is simply not in the currently sitting body in Tallahassee. But rather, had been invested in that continuing body over many years.

                            Now, one of those "rules" is that election law in Florida (new and old) is subject to judicial review. And while you may consider the core purpose of our system of jurisprudence (to balance competing interests - thereby removing violence from conflict) to be silly, you are applying that label to hundreds of years of common law.

                            As for "legitimate interests ... in opposition to enforcing deadlines," they are countless. Natural disaster, terrorist attack, missing ballot boxes, computer malfunction, etc...

                            But the one used by the FSC was much simpler. It was the explicit "rule" of the continuing legislature that says every effort must be made to canvass and count legal votes. That "rule" seems to be missed by many because it is often expressed in vague, introductory language with words like "paramount."

                            To put it in more simple terms, the question of legislative intent boiled down to whether the continuing legislature wanted faster, inaccurate election results or slower, accurate results.

                            Without all the legalistic and propagandist smoke and mirrors, it's really rather a no-brainer. Don't you think?



                            by Dusty on Sun Nov 27, 2005 at 10:36:12 AM PST

                            [ Parent ]

                          •  I do not agree that (none)
                            it is a "no brainer."

                            First of all there is no "continuing" legislative body.  Each legislature is a separate and distinct body.  This is why legislative process has to start over with every legislature (i.e., bills do not survive from one legislature to another unless actually encated and signed into law).

                            Your argument is bizarre.  What the previous legislatures did or didn't do is only relevant to the extent that their enactments are still on the books.  To the extent that the previous enactment had been modified or abrogated they have ceased to exist irrespective of what previous legislatures have intended.

                            At the time election 2000 occured the law on the book mandated that election returns not received within the 7 day deadline shall be ignored.  That was the rule set by the Florida legislature.  To whatever extent it could have been varied, the discretion was vested in the Secretary of State and not Florida courts.  Nothing in Florida statutes gave the courts authority to balance interests in deciding whether to enforce the deadlines.

                            Moving on to your point about common law interest balancing.  To whatever extent that may be the purpose of common law, here we were dealing with statutiry interpretation and not common law adjudication.  In interpreting statutes courts are (or should be) bound by the actual enactment and not their own notions of the relative importance of interests.

                            Next, your statement that there are countless legitimate interests in opposition to enforcing deadlines.  You seem to misunderstand the word "interests."  All you listed may be legitimate causes to delay deadline enfocement.  It is not an "interest."  An "interest" is essentially the question of "rights."  In other words, in "balancing interests" one essentially balances rights.  However, as previously discussed there is no righ to vote for President.  So on one side of the scale you have an interest of finality and enforcing the Legislature's stated policy and the other side of the scale is empty (again since there is no right to vote for the President it could not have been impinged upon).

                            Finally, and upon review, I have not been able to find any section of Fl statutes that used the words "paramount" or such to express the will that "every effort must be made to canvass and count legal votes."  Furthermore, if such language appeared in introductory preambles and such, it is legally inoperative.  The only language that is legally operative is the language that appears after the enactment clause.  That's legislative interpretation 101.

                            Thus, we come to the following conclusions:

                            1.  FL legislature enacted a hard deadline pursuant to its constitutional authority to do so.

                            2.  No counterbalancing right was impinged upon by enforcing the deadlines, as the populace has no right to vote for President except at the pleasure of and subject to the rules set by the Legislature.

                            3.  Florida courts refused to enforce the mandate of the legislature, thus overstepping their bounds and impinging on legislature's constitutional authority.

                            (As an aside my point about Nixon was that he could contest the Dem slate in the House, since it was the GOP slate that was originally certified.  However, given that that wouldn't change the results and that the House was Dem controlled he wisely chose not to do it).
                          •  Well, you do agree... (none)
                            ...that the election laws "still on the books" apply. That is sufficient to illustrate where the power to "make the rules" is invested.

                            And as far as semantics go, it is the "interests" of the people of Florida that are always at issue here, as expressed through their legislature. I suppose I could have written "the people's interest in not having a hurricane damage their election..." but I didn't think to be that explicit.

                            But this bit is simply not true:

                            Nothing in Florida statutes gave the courts authority to balance interests in deciding whether to enforce the deadlines.

                            The courts have the authority to review all election statutes. And when they conflict, they can balance interests to resolve them (it is the people's interests that are being balanced at all times).

                            The paramount importance of the people's interest in having a legal vote canvassed and counted is also "still on the books" as well. Whether it exists in statutes, the FL Constitution, in the statements of legislators when enacting, or merely in the legal history of election law application; it still exists as settled law.

                            As such it is also "stated policy." Therefore, it is not "their own notions" the judges were balancing. But rather the interests of the people of Florida, as expressed through their legislature over time.

                            Again to simplify, the people of Florida had an interest in timeliness, an interest in equal treatment of voters and ballots, but also an interest in correctness of election results. All the FSC did was to determine which was the more important, and therefore controlling interest, according to the laws of Florida.

                            Until the election thieves put a stop to it.



                            by Dusty on Sun Nov 27, 2005 at 08:54:24 PM PST

                            [ Parent ]

                          •  There was no conflict (none)
                            That's the point. The statute said late returns *"shall"* be ignored. It is a mandatory provision. Period. Florida Constitution as nice as it is does not limit the plenary power of the legislature to set deadlines (even arbitrary ones) to certify election of the Presidential electors. Whatever rights the Florida Constitution gave to the people of Florida vis-a-vis elections, those rights are trumped by Legislature's authority that derives from the federal constitution (See Bush v. Palm beach county, a unanimous SCOTUS decision). But even if one adopts your position, and concedes that courts can balance all of these interests, you still lose. SCOTUS can do balancing just as well as SCOFLA. In addition to whatever state interests there may have been, there were also federal interests. The mere fact that SCOTUS' assignment of weight to different factors was different from SCOFLA's is of little import. They both balanced and since SCOTUS outranks SCOFLA, their balancing wins.
                          •  I've told you the stated conflict (none)
                            Whether you agree with it or not, it was stated that the interest of the people in a correct result won out over their interest in a fast one. No "shalls," no "mandatory," no "period" was more important.

                            The "trumping" complaint is simply circular -- as the FL Constitution is also a product of the authority of the continuing FL legislature; all of which is derived from the federal constitution.

                            As for what the Felonious Five on the (formerly) supreme court did, that's been well discussed above and by the legal community. They didn't even support it themselves, as evidenced by their feeble attempt to declare no precedent should be derived from it.

                            And as I said, it is not my "position" to win or lose. Balancing interests is simply what the judicial system does. There are no absolutes.



                            by Dusty on Mon Nov 28, 2005 at 08:04:41 AM PST

                            [ Parent ]

                          •  I disagree tha there are no absolutes (none)
                            There are. "Shall" and "mandatory" are examples. You are not free to ignore that simply because you dislike the result.
                          •  Sorry, but (none)
                            ...they are not "ignored." They are just outweighed by other interests, when warranted.

                            That is what justice is.



                            by Dusty on Mon Nov 28, 2005 at 10:25:12 PM PST

                            [ Parent ]

                          •  They can't be outweighed because they (none)
                            are absolutes. We are agoing around in circles here. I doubt we will convince each other, but just to make it clear, I do not subscribe to the notion of "justice" that posits that the coutrs can pick and choose which laws to follow and which not to follow based on little more than their own peculiar notions of fairness, notions that may not be shared by the majority of the population or even all of the judges on the court. Justice is applying pre-determined rules, even aboslute ones to the dispute and letting the chips fall where they may.
                          •  It is not my notion (none)
                            It is the fact of the matter.

                            Judges don't "choose which laws to follow." The reconcile conflicting ones by weighing interests. And their "notions of fairness," peculiar or not, are those that prevail.

                            You're free not to subscribe to it. But that doesn't change the fact that the entire legal profession does.



                            by Dusty on Tue Nov 29, 2005 at 01:11:44 AM PST

                            [ Parent ]

                          •  Entire legal profession (none)
                            certainly does not subscribe to the notion that there are no absolutes.  That notion was pulled, to use the fancy Latin term, ex recto.

                            I am glad you think that your interpretation, unsupported by any legal citation or history is "fact of the matter."  I am glad that you contniue to ignore the most straight-forward argument that there was nothing to reconcile, since the language is mandatory.  Oh, well.  Like I said you ain't convincing me or vice versa.

                            Oh, and finally, if its the judges' notions of fairness prevail, you must take the good with the bad.  SCOTUS had its own notions of fairness.  They prevailed.  the end.

                          •  It's not argument... (none)
                   simply repeat "nothing to reconcile" when I've told you what interests were reconciled. It's just contradiction.

                            And I don't know why you think I'm trying to convince you of something.

                            As for the "prevailing" high court traitors, their notions were not even of logic, let alone fairness, and a far cry from anything legal.

                            History has and continues to judge them harshly. And it always gets the last word.



                            by Dusty on Wed Nov 30, 2005 at 01:08:59 AM PST

                            [ Parent ]

                          •  SCOFLA;s notions were not (none)
                            of logic either.  Even assuming they had to and did "balance" I find it hard to believe that the same case, with the same facts with the same interests required "rebalancing" within 2 weeks with yet another outcome.  That's not "balancing."  That's pure lawlessness.

                            (And I don't think history has been or will be unkind to the Rehnquist court).

                          •  The outcomes were the same... (none)
                            ... until the Felonious Five stepped in. The American idealistic interest in counting legal votes was upheld. Then Stalinism* was imposed.

                            And BushvGore has already been compared to Dred Scott. Its infamy will only grow.

                            *Those who cast the votes decide nothing.
                            Those who count the votes decide everything. -- Josef Stalin



                            by Dusty on Wed Nov 30, 2005 at 11:14:48 PM PST

                            [ Parent ]

                          •  No, just what is (none)


                            by Dusty on Thu Dec 01, 2005 at 08:40:57 PM PST

                            [ Parent ]

                          •  I wouldn't bet the farm on (none)
                            your Dredd Scott - Bush v. Gore comparison.  But feel free to live in that delusional world.  I for one am glad that the federal judiciary is no longer populated by people like you who think they know better and can disregad clear statutory mandates in the interest of "fairness" as they (and only they) see it.
                          •  Again, it's not my comparison (none)
                            just one being made already.

                            And since, as I've been demonstrating, there is no such thing as a "statutory mandate," it would seem that I'm not the one engaged in an effort to delude myself.



                            by Dusty on Sun Dec 04, 2005 at 06:02:52 PM PST

                            [ Parent ]

                          •  You only THINK you have been (none)
                            demonstrating it.  In fact you have done nothing but pontificated about ignoring the law for the "greater good."  You seem to believe that our laws and constitutions are merely "advisory guidelines" and that the final word on almost anything rests (and should) with the courts.  Unfortunately for you that is not how the system works, nor has it ever.  To be sure, courts do sometimes behave in a lawless manner, but cloaking their actions in grand pronouncements do not make those actions any more legitimate.

                            As for comaprisons, I don't know who is making them, but I would venture to say that they are so far "out of the mainstream" as to be in a totally different river.

                          •  And you only think I haven't (none)
                            that much is clear.

                            But I would agree that at least some of the criticism of the BushvGore edict comes from "out of the mainstream."

                            Even Judge Richard Posner, who entertains notions like selling children and the economics of rape, could find no legal rationality in it.

                            But as to how the "system works," and always has, it is exactly as I've described. An example of it working differently simply does not exist.



                            by Dusty on Tue Dec 06, 2005 at 01:49:13 AM PST

                            [ Parent ]

                          •  Yeah right (none)
                            Despite your delusions to the contrary courts do not reign supreme and get to right whatever wrongs they perceive the world to have.  To be sure, courts have on accasion acted brazenly, but that does not mean that those actions were at all legitimate.  The Legislature gets to set the law and gets to limit the scope of courts interpretation and freedom to "balance."  Courts do not get to ignore those limits and when they do they are lawless.

                            As for Posner, lets get the full story.  Is he defending SCOFLA's opinion?  I don't think so.  The discussion is not only whether SCOTUS was right, but the overall politization of the judiciary on all levels throughout that case.

                          •  Well, no wrong (none)
                            Politicization of the judiciary is a political issue, not a legal one.

                            In fact, none of the Felonious Five have said the FL court acted in a partisan fashion. To do so would be to admit to treason.

                            It is a canon of judicial ethics that no judge has the right to consider the motives of the lower court. Their decision must be based on the facts and law. If they held any biased view of the lower court they were required to recuse themselves immediately.

                            Now reality is a different story; particularly with people who've demonstrated a lack of ethics. The fact that it was the bush kid involved should have caused all his father's appointees to recuse. And for Thomas and Scalia, who had immediate family with an interest in the outcome, the ethical violation was even worse.

                            So you see, if you are correct that this is a case of "politization of the judiciary on all levels," you admit their guilt in the greatest crime in the history of our (once great) nation.



                            by Dusty on Tue Dec 06, 2005 at 03:33:04 PM PST

                            [ Parent ]

                          •  Ummm (none)
                            Scalia was a Reagan appointee.  If all Bush Sr's appointees would have recused themselves the result would have been 4-3 same way.  Bush Sr. appointed only Souter and Thomas.

                            I didn't say that SCOTUS questioned SCOFLA's motives.  But much like you are questioning SCOTUS' motives, I am questioning SCOFLA's.

                            I admit politication of the judiciary to the extent that I believe that all of the courts should have stayed out of the fray and let the issue be settled politically.  But if lower got involved and you are defending their involvement, then there is nothing wrong as an abstract matter of higher courts' involvement.

                          •  So, you're blaming bush (none)
                            for filing the first lawsuit then?

                            I suppose it's just not clear what you imagine "settled politically" (without courts to weigh the competing interests) would look like.

                            The riot in Miami? Local officials declaring arbitrary results? Tanks in the streets?


                            by Dusty on Wed Dec 07, 2005 at 10:04:09 PM PST

                            [ Parent ]

                          •  Settled politically (none)
                            means exactly what it says.  HoR would get to vote on which slate of electors to seat.  (Given the fact that HoR was GOP controlled W would still have won, but that's another matter entirely).

                            There was no riot in Miami. Puhlease.  There were people demonstrating on both sides.  The GOP operatives banging on the door was perhaps not the prettiest sight, but to be fair Miami-Dade Board of Canvassers violated Florida's Sunshine law by excluding observers from their recount decisions.

                            As for "arbitrary results," I submit that a) they were not arbitrary, they were arrived in accordance with the law, and b) to the extent that they were arbitrary, they were no more arbitrary then the counting of "dimpled" and "pregnant" chads that occured in Broward and Plam Beach counties.

                            Finally, as to blaming W for filing the 1st lawsuit.  It bears pointing out that the federal judges before whom Bush litigated dismissed his suit and refused to get involved in the process.  Indeed, even state trial judges before whom Gore filed his lawsuit also refused to grant relief.  If only the same thing could be said for SCOFLA's judges.

                          •  Nothing political (none)
                            about having to be escorted home by armed police following the riot. And you can euphemize the "shut it down" thugs if it lets you sleep better, but the Cubans on the street outside and on the radio were not so easily dismissable.

                            And the law you seem to think supports the "ofishyl" results happens to include a contest provision. One that was never completed. As treasonous as the act of the Felonious Five was, it didn't "decide" the election in FL, but merely truncated it -- thus rendering it void as a legal matter.

                            And there's nothing arbitrary about dimpled or pregnant chads. They're called votes, not "undervotes." The cards didn't arrive in that state. A full, legal contest procedure would likely have counted them all, as Judge Lewis has said.

                            And yes, the ultimate responsibility was with the congress, as Justice Breyer described in his dissent. But presuming what the outcome of that would have been is just that, a presumption.

                            It's one thing to keep your head down and let someone else do the dirty work of ending over 200 years of applied democracy. It's quite another when you're put on the spot to become complicit with election theft, or remain true to the only moral principle on which your nation is founded -- that gov't power can only be derived from the consent of the governed.

                            Very few Repubs of Conscience would have been required to do the right thing and preserve our national integrity.



                            by Dusty on Fri Dec 09, 2005 at 04:52:43 PM PST

                            [ Parent ]

                          •  Pregnant chads and dimpled chads (none)
                            are not votes.  That much was clear as of the day of teh election.  just because Palm beach county changed itc counting standard THRICE within a matter of days on a 2-1 vote does not convert a non-vote into a vote.

                            SCOTUS' action was no more indefensible than SCOFLA's.  The latter invented rules and deadlines on teh spot, then repealed them when it didn;t suit them anymore.  They misinterpreted the statute by rendering some of its provisions obsolete, a big no no is statutory construction.  In short it was pure powergrab.  SCOTUS followed suit.  (Not much honor in that either, but like I said, you take the good with the bad).

                            I have alreday explained that the ideal situation would have been Florida Constitutional officers (Secretary of State, Governor, Legislature) simply refusing to carry out SCOFLA's mandates, and refusing to tally up and certify any post-deadline votes.  It would have been a constitutional crisis to be sure, but a crisis that would have been good for democracy as a whole, because it would have reestablished the principle that the courts are not superlegislatures and do not reign supreme and get to second-guess legislative enactments.

                          •  Chads of all types (none)
                            were routinely torn off by hand. It was common practice for years, across the country, as recommended by the machine manufacturers. A simple way to avoid voters being punished by the limitations of the technology.

                            It was only the desperate election thieves who picked through carpets and dumpsters trying to claim loose chads supported their bizarre delusion that thousands of voters finally came to the agonizing decision not to vote at the instant the stylus was in contact with the paper.

                            And as I explained earlier, the Felonious Five simply didn't have the option to "follow suit," even if they shared your unsupported charges against the FL judges. You are accusing them of dishonorable treason by claiming it. Like it or not, the FL court's decisions were defensible in that they defended them, while the five thieves disowned their edict.

                            In Florida they said -- this is what our law requires, what will be applied, and what will be applied in the future. In DC they said -- this is a one-time edict, only for the bushkid, no precedent set here, no one with the honor or courage to even sign their name to this.

                            Your ideal situation may be the latter, but only the former is lawful and honorable.



                            by Dusty on Tue Dec 13, 2005 at 04:38:18 AM PST

                            [ Parent ]

                          •  In case you didnt notice (none)
                            SCOFLA's opinion was unsigned.
                          •  Which is not unusual (none)
                            for state courts.


                            by Dusty on Thu Dec 15, 2005 at 05:20:29 AM PST

                            [ Parent ]

                          •  I thought your point was (none)
                            that SCOFLA justices had the balls to put their names to the opinion.  Unsigned big time cases are unusual.  See for example Goodridge case from SJC of Mass.
                          •  No, state courts are different (none)
                            as their rulings have far less ramifications and are less often nearly even splits. Like here, where the FL court wasn't really divided in their decisions.

                            The essential purpose of the (formerly) supreme court -- the one they used to live up to -- was to instruct and set precedent. They did neither. Which is why it was technically an edict, not a ruling or opinion.

                            No one spoke for the majority and all dissented in whole or some part. It was both logical and legal flummery.

                            You did read it all right? I only ask because like all those who try to defend it, you make no mention of its supposed "merits."

                            Which is where I enterred this dialog. Simply pointing out that in the legal community they are at a loss for how to "teach" this to law students.  Given the fact that no one can reasonably defend it on any moral or legal principle.



                            by Dusty on Fri Dec 16, 2005 at 07:47:41 AM PST

                            [ Parent ]

                          •  SCOFLA's decision (none)
                            was 4-3 (the Chief Justice was among the dissenters).  That's a split if I ever saw one. Plus, it reversed the lower court which means FL judges split 4-4.  And yet it was unsigned.  And I don't know how you can argue with a straight face that the "ruling[] ha[d] far less ramifications," then a ruling in the same case by SCOTUS.

                            As for SCOTUS' decision, yeah I read it.  TYpicall O'Connor garbage.  The concurrence is much better.  It actually states the law and applies it clearly to the situation at hand, and does not limit it to "this time only."  Parts of Breyer's and Souter's dissents were also decent.  (They, btw, agreed that SCOFLA needed to be reversed yet again, they just wanted to let them have another shot at it.  SO in reality, SCOFLA was overruled 7-2 not 5-4.  The process was ended 5-4, that's true, but SCOFLA was slapped down 7-2).

                            I didn't defend the merits of BvG.  I simply said that whatever the accusations are to be heaped at the judiciary in that case, they apply equally to SCOFLA with its lawless decisions as to any other court.

                          •  Less ramifications (none)
                            for the rest of the country. The Felonious Five rendered election laws for federal office in all 50 states essentially mute.

                            And saying only "the situation at hand" is no different from saying "this time only." All situations differ. That's why it's unethical for them to have ruled on (perceived) circumstances and not legal principle.

                            Had there been any legal, moral, or even logical principle involved, you might be able to defend the merits.

                            And btw, the 7-2 nonsense was/is just propaganda. The objection to the failure to send it back to the lower court was an additional dissent, not the only one (they express similar concerns, not agreement on fact). Something that was required if their edict was an honest ruling -- as opposed to treasonous election theft.



                            by Dusty on Sat Dec 17, 2005 at 04:51:18 AM PST

                            [ Parent ]

                          •  Did YOU read BvG? (none)
                            "I can conceive of no legitimate state interest served by these differing treatments of the expressions of voters' fundamental rights. The differences appear wholly arbitrary.

                                 In deciding what to do about this, we should take account of the fact that electoral votes are due to be cast in six days. I would therefore remand the case to the courts of Florida with instructions to establish uniform standards for evaluating the several types of ballots that have prompted differing treatments, to be applied within and among counties when passing on such identical ballots in any further recounting (or successive recounting) that the courts might order."

                            -Souter's dissent.  As you can see he would have vacated and remanded and not affirmed Florida courts. (Oh, and as a side note he dismissed the ridiculous argument that electoral votes could be cast at any time, deadlines be damned).

                            "However, since the use of different standards could favor one or the other of the candidates, since time was, and is, too short to permit the lower courts to iron out significant differences through ordinary judicial review, and since the relevant distinction was embodied in the order of the State's highest court, I agree that, in these very special circumstances, basic principles of fairness may well have counseled the adoption of a uniform standard to address the problem. . . .  An appropriate remedy would be, instead, to remand this case with instructions that, even at this late date, would permit the Florida Supreme Court to require recounting all undercounted votes in Florida, including those from Broward, Volusia, Palm Beach, and Miami-Dade Counties, whether or not previously recounted prior to the end of the protest period, and to do so in accordance with a single-uniform substandard."

                            -Breyer's dissent.  Again, he favors remand with instruction and not affirmance.  So read up before you argue.

                          •  Yes, it is as I described (none)
                            This is him saying what should have happened had the Felonious Five been issuing an honest ruling.

                            He says differences "appear" arbitrary and "could favor one or the other of the candidates" -- but makes no finding that in fact they were and/or did.

                            He is making the (polite but mocking) point that it was premature to stop Florida's vote counting (and thus thwart our democracy) to impose their political will by fiat.

                            Simply put, that they had no reason (logical or legal) to do what they did.

                            There is danger in reading too much (into) as there is in reading too little.


                            by Dusty on Sat Dec 17, 2005 at 01:57:52 PM PST

                            [ Parent ]

                          •  I think the statement (none)
                            "I would remand" is pretty clear.  Which is why the other 2 justices did not join in that part of the opinion.  You csan spin it any way you like, but its pretty clear that 7 justices thought that SCOFLA's decision should have been vacated.
                          •  It's the election thieves who've been spinning (none)
                            the strong dissents of Breyer and Souter into some sort of finding, agreement, or even "joining in part" or "voting with" the majority.

                            That's just self-delusional and propagandistic fantasy. And another sign of their consciousness of guilt.

                            You're far from being alone in being duped by it. But that's why they're having such trouble discussing this in law schools and the legal community. They have to deal with what really happened, not with how - and how successfully - it was spun to cover the crime.



                            by Dusty on Sun Dec 18, 2005 at 06:29:28 PM PST

                            [ Parent ]

                          •  Interpret it any way you like (none)
                            Breyer and Souter would have voted with the majority had they given Florida another shot.  There is little room left in their opinions to think otherwise.  (Otheriswe why didn't Ginsburg and Stevens join their opinions in whole?)  I am not "duped" by it.  You are just in denial that SCOFLA was lawless.

                            And, just so you know, I had little trouble "discussing this in law schools and the legal community."

                          •  It's not interpretation to simply read... (none)
                            ...what they said, without reading into it.

                            And if you're not "duped" or having "trouble," why is it that you're leaving even a "little room left" to think otherwise?

                            You might also ask yourself why this 7-2 vs. 5-4 thing is so important to you? Why isn't 5-4 good enough? What motivates the desire to inflate it?

                            Surely the supposed merits of the edict (whatever they were) should stand on their own. Otherwise, we'd have high court treason, no?



                            by Dusty on Mon Dec 19, 2005 at 06:48:17 PM PST

                            [ Parent ]

                          •  I don't care whether it was (none)
                            5-4 or 7-2.  7-2 is just useful to show that almost all thinking people on both sides of the aisle knew (and know) that SCOFLA was lawless and was making up rules as it went along.

                            Again, I am not defending BvG's per curiam opinion.  What I am talking about is the nonsensical argument that what the SCOFLA judges did was right and courageous while what the SCOTUS judges did was wrong and cowardly.  The opinions from both courts sucked.  End of story.  Both behaved in (at least seemingly) political way and got involved in a case where they should have stayed out.  You can twist yourself into a pretzel arguing that SCOFLA was A-OK, while SCOTUS was a collection of traitors.  But that argument is intellectually inconsistet and silly.

                          •  Well, you obviously do care (none)
                            or you wouldn't immediately rely on it being "useful," although I fail to see how any false "fact" is useful to a non-false argument.

                            But the reality of the Felonious Five being traitors has nothing to do with the merits of the FL court, as their ruling only effected one state and not the nation.

                            And btw, I actually haven't defended the merits of the FL court, but merely described how they made their decision and commented on its (limited) ramifications.



                            by Dusty on Wed Dec 21, 2005 at 04:20:26 PM PST

                            [ Parent ]

                          •  it's pure sophistry to argue that (none)
                            SCOFLA's decisions didn't affect the whole nation.
                          •  It's not an argument (none)
                            Just a statement of the obvious fact that their actions in no way mitigate those of the election thieves in DC.



                            by Dusty on Sat Dec 24, 2005 at 12:38:14 AM PST

                            [ Parent ]

  •  "Deadlines" and "Legislatures" (none)
    As I have "argued" this case over the years, two concepts seem to cause people the most trouble. They were both greatly abused by the right-wing propaganda machine to at best confuse, at worst defraud, the public.

    The biggest confusion was caused by "deadlines" in both Florida and Federal law and what actually constitutes a legal deadline.

    The answer is quite simple. There is no such thing.

    Jurisprudence simply does not treat any date as fixed. The purpose of law is to resolve competing interests, not apply/enforce arbitrary "rules" and therefore any judicial arbiter can waive any "deadline" in favor of a more compelling interest.

    The most common seemingly hard deadline is a statute of limitations. But these apparent deadline are "tolled" all the time for a variety of good reasons.

    The same is true for any dates in FL election law, the much discussed "safe harbor" date, and for that matter even the requirement for congress to act on January 6th. There are many good reasons to put such deadlines into law, but if a better reason demands that the date pass, then that is what the law requires.

    The other troublesome concept is what is meant by "legislature." This canard does not come up as commonly (particularly as of late) but still accounts of a good deal of confusion. Also, it is more specific to this set of circumstances.

    Some people seem to believe that when Florida or Federal law refers to the legislature it means the  current one, the one sitting now, or more accurately the one sitting sitting then. The one that the election thieves claimed had the power to dictate to whom the voters had given their consent.

    This is simply wrong. When discussing election law in Florida (or anywhere) the actions of "the legislature" means ALL election law passed over the years. Therefore, no Federal law gives any specific power to any current legislative body.

    Similarly, no Florida law gives any specific power to any current legislative body that avoids, or supercedes, proper judicial review by its own state courts. So any discussion of what that legislature may or may not have done is legally irrelevant.

    Now, its political relevance is another matter. And as Frank Luntz said on Hardball at the time, action by the FL leg. would have been a PR disaster. This only left defecating on the (formerly) supreme court as their only option to "shut it down."


    by Dusty on Sat Nov 26, 2005 at 03:49:29 AM PST

    •  Well, you do agree... (none)
      ...that the election laws "still on the books" apply. That is sufficient to illustrate where the power to "make the rules" is invested.

      And as far as semantics go, it is the "interests" of the people of Florida that are always at issue here, as expressed through their legislature. I suppose I could have written "the people's interest in not having a hurricane damage their election..." but I didn't think to be that explicit.

      But this bit is simply not true:

      Nothing in Florida statutes gave the courts authority to balance interests in deciding whether to enforce the deadlines.

      The courts have the authority to review all election statutes. And when they conflict, they can balance interests to resolve them (it is the people's interests that are being balanced at all times).

      The paramount importance of the people's interest in having a legal vote canvassed and counted is also "still on the books" as well. Whether it exists in statutes, the FL Constitution, in the statements of legislators when enacting, or merely in the legal history of election law application; it still exists as settled law.

      As such it is also "stated policy." Therefore, it is not "their own notions" the judges were balancing. But rather the interests of the people of Florida, as expressed through their legislature over time.

      Again to simplify, the people of Florida had an interest in timeliness, an interest in equal treatment of voters and ballots, but also an interest in correctness of election results. All the FSC did was to determine which was the more important, and therefore controlling interest, according to the laws of Florida.

      Until the election thieves put a stop to it.


      by Dusty on Sun Nov 27, 2005 at 08:58:25 PM PST

      [ Parent ]

  •  I love my brain also Armando, (none)

    What an excellent day for an Exorcism... SCI/Kenyon

    by DianeL on Sun Dec 11, 2005 at 03:44:50 PM PST

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