Wrote Justice Scalia to the rest of the Supreme Court on December 12, 2000, quoted in a CNN article by Joan Biskupic, "New documents show how Sandra Day O’Connor helped George W. Bush win the 2000 election."
To paraphrase: I'm all for vigorous dissents — I do them myself — but I dissent to tell the truth as I see it, and you just did it to say we ought shrink from the truth. Ha!
ADDED: That headline is terrible. The article is about how Sandra Day O’Connor kept Chief Justice Rehnquist from having a majority for deciding the case the same way on a different legal theory. Either way Bush would win, so she didn't "help him win."
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It's funny to remember that Scalia and Ginsburg were personal friends given the vast differences in their capabilities and seriousness as justices. He was a careful thinker and strong defender of the integrity of the court, she was a narcissistic activist who inappropriately embraced the hero worship of the left.
Either way Bush would win, so she didn't "help him win."
Worse, it implies intention--that she did it in order to help him win. That's the big lie of the headline.
Althouse said...
That headline is terrible. The article is about how Sandra Day O’Connor kept Chief Justice Rehnquist from having a majority for deciding the case the same way on a different legal theory. Either way Bush would win, so she didn't "help him win."
Doesn't matter. This NYT story is part of the coordinated campaign by Democrats to impugn and intimidate the US Supreme Court.
Now this.
Democrats from the Judiciary Committee have sent a letter to the Appropriations Committee asking that funding for the security that defends the lives of the Supreme Court Justices and their families be denied until the Court buckles to the demands of the Democrats.
Cruz: "We had 15 Senate Democrats, including six members of this committee, send a letter to the appropriations committee threatening to cut off the funding for security at the Supreme Court. The left is willing to threaten the lives of the justices."
Hawley: "Now Democrats threaten to cut off security funding for Supreme Court - unless the Justices do what Dems want. This is AFTER an assassin tried to kill Justice Kavanaugh. Talk about threatening the rule of law."
1. No Ginsburg tag? The headline refers to her and her past behavior is quite relevant to the current smear campaign against the other justices.
2. Given there is an obvious ongoing blizzard of articles with the distinct focus of delegitimizing the court, along with contemporaneous statements (Chuck Shumer yesterday threatened to defund the police protection afforded Supreme Court justices, after criticizing them and calling for an unleashing of "a whirlwind" upon them to punish them for Dobbs, and after AG Garland was caught instructing the US Marshalls to NOT arrest protesters at SC Justices' homes, etc.) piling up just as fast as these poorly sourced gotcha hit pieces.
3. Circling back to point one, why no articles on RBG's highly partisan past, advocating for abortion and donating signed opinions to auction off to raise money for Democrats? It's like the media is heavily biased against Constitutional jurisprudence and out to sabotage THIS current SCOTUS. What does the retied law prof think of this all-hands-on-deck effort by journalists and Democrats to undermine SCOTUS and put certain justices in harm's way?
"New documents show how Sandra Day O’Connor helped George W. Bush win the 2000 election."
Funny how the 2000 and 2016 elections elicit so much bellyaching about being stolen...but the 2020 election? Not so much.
So many election deniers, but only one group is called treasonous, seditionists by the main stream democrat media. And it’s not democrats.
Once again, Grandma O'Connor, the most unqualified person on the Court, rides the rescue ambiguity, judicial power, and the status quo. Heaven forbid, we should have the state legislatures control elections, as stated in the Constitution. Far better, to have a meaningless half-assed opinion that leaves everything up in the air and fuzzy.
That she latter had "regrets" over the decision, just shows she never should have been on the court in the first place. Thank God she resigned. As much as I loath Roberts, she has to be my least favorite justice of the last 40 years.
Poorly written headlines are standard these days. If the press can twist and lie "don't say gay" - they will do it.
Actually, the voters of Florida helped him win as shown by the curious media's canvass of the votes after the election. Media not curious any more. maybe because they already know what would happen if they probed into 2020 votes.
Headline looks fine to me. As article describes, Chief set hard December 12 deadline to issue ruling (a date made famous in 2020). Can't get there unless 5 agree. 5 could not agree on Chief's rationale (On elections, fuck off state supreme court), but 5 could agree on O'Connor's (equal protection--with Scalia adding, never quote us on this!).
It's CNN, of course the headline is terrible, not just terrible but thoroughly dishonest. So, par for the course.
The article says that the decision was 5-4 over a blistering dissent. But two of the dissenting justices (Souter, Breyer) conceded there was an equal protection problem with the Florida Supreme Court's decision; their dissent was hardly blistering -- they disagreed with the majority as to whether the Court should have taken it up at the time and with the remedy (stop the recount) or whether it should have waited until the Florida-Supreme-Court-ordered recount applied standards incompatible with the equal protection clause, allowed the Florida Supreme Court to consider that again, and then maybe possibly taken up the issue in the future if the Florida Supreme Court messed up yet again. (A future, by the way, where Congress would be receiving state tallies 6 days later).
Every move--by Gore to challenge only in 4 democratic counties (picking up "undervotes" in a statistically favorable way), by canvassing boards who changed their standards for counting undervotes based upon their estimation for how many votes Gore needed to win, by the Florida Supreme Court, who paid no heed to Florida law or federal law--was calculated to result in a "winner" by the candidate who almost certainly received fewer statewide votes on any pre-existing measure of counting.
Ex ante, I suppose it was statistically possible (though not at all probable) that Gore was the "objective" winner of the Florida 2000 presidential election. But Gore's strategic litigation strategy was not designed to answer the question of who received the most votes when objectively applying pre-election uniform standards and on a statewide basis. The litigation strategy was designed to have the greatest chance of Gore winning Florida's electoral votes -- of stealing an election even if (as was confirmed by the post-election audits) that Bush received the most votes in Florida.
"Even to the point of footnote 4 in Ruth’s offering (I call it the Al Sharpton footnote)"
Good one, Nino.
"To paraphrase: I'm all for vigorous dissent — I do them myself — but I dissent to tell the truth as I see it, and you just did it to say we ought shrink from the truth. Ha!"
That paraphrase seems incomplete. The incongruity he refers to is the sudden, and to him presumably specious, invocation of "damage to the court" as a pseudo-argument.
The court did damage itself with that decision for the most part. That election should have gone to the new House when it convened, which is surely what would have happened had SCOTUS never taken the case. Florida's electoral slate was either going to be sent to vote for Bush, or no slate was going to be sent, leaving the matter up the the House. The most SCOTUS should have done was rule the Florida state supreme court could not certify or order certified the slate itself- that would have been a proper a ruling.
"Analyzing the litigation calmly, afterward, I accepted the soundness of Baker's point. These were ballots designed to be read by machines, the ballots had gone through the machines twice, and there was no showing that the machines had malfunctioned. Switching to human readers introduced much more ambiguity and risk of deviousness than accepting the verdict of the machines. The machines, as they processed each card, didn't have political preference and awareness of which side was being helped."
This was written by Ann Althouse in her March 19, 2011, post on the death of Warren Christopher.
She prefaced this opinion with, "Chez Althouse, we were for Gore, so Baker's "votes have been counted" line drew hoots of derision."
I, too, had voted for Gore but I quickly was concerned about television news that showed the people doing the recount in largely Democrat districts were holding up ballots above their heads in an apparent attempt to determine the "voter's intent."
This brings to mind the purported statement Joseph Stalin: "It's not the people who vote that count, it's the people who count the votes." And, hard facts make bad law.
That case was the first time I took the time to read contemporary court decisions. My, untrained, impression was Thomas, etc. wrote real argument where RBG's and her lot were very emotional and based on feels. Nice to see someone with real knowledge was seeing similar.
I, too, had voted for Gore but I quickly was concerned about television news that showed the people doing the recount in largely Democrat districts were holding up ballots above their heads in an apparent attempt to determine the "voter's intent."
Democracy by witchcraft.
"The decision has endured as one of the greatest threats to the court’s vaunted impartiality and institutional stature, perhaps eclipsed only recently by the court’s 5-4 decision last June reversing nearly a half century of abortion rights."
Moving Robert's concurrence into the against column is as dishonest as it gets.
Far left partisans always like to claim this was a 5-4 decision, but as noted by Just A Thought, above, this was 7-2 and 5-4. Oyez gets it right:
[[Noting that the Equal Protection clause guarantees individuals that their ballots cannot be devalued by "later arbitrary and disparate treatment," the per curiam opinion held 7-2 that the Florida Supreme Court's scheme for recounting ballots was unconstitutional. Even if the recount was fair in theory, it was unfair in practice. The record suggested that different standards were applied from ballot to ballot, precinct to precinct, and county to county. Because of those and other procedural difficulties, the court held, 5 to 4, that no constitutional recount could be fashioned in the time remaining (which was short because the Florida legislature wanted to take advantage of the "safe harbor" provided by 3 USC Section 5).]]
Without rehashing this case in full, this decision was the result of the selective partial recount ordered by the Florida Supreme Court. When looking at this case, we should look at the decision of the trial court (Judge N. Sanders Sauls was a registered Democrat), and the three dissenting Florida Justices, also Democrats, who agreed with the 7-2 SCOTUS decision. See Gore v. Harris, 772 So.2d 1243, 1273 (2000) (Harding, J., dissenting); id. at 1267 (Wells, C.J., dissenting).
In addition, remember, the December 12 deadline was what the Florida Supreme Court determined was required by Florida law. This wasn't an arbitrary date set by Rehnquist.
By the way, I went back and looked at RGB's dissent and don't see a footnote 4 or anything that includes the quoted language. Anyone disagree?
‘Either way Bush would win, so she didn't "help him win."’
Yes, she did. There was a third way, for Gore to win the case, and her vote was necessary to Bush winning. Anyway, the article is about “how” she helped him win.
I thought at the time that Bush would at the end of the process prove to be the winner, but that the Supreme Court should not have intervened. The Florida result was within the margin of lawyering and Gore got outlawyered. First, he wasted time stalling certification instead of allowing the certification to happen and then having more time to challenge it. Second, he failed to establish an orderly process for conducting the recount, which would have helped tremendously in the court of public opinion and when he got to the Supreme Court.
As for the alternative way that Bush could have won the case, it’s an odd idea that states courts have no jurisdiction over electoral votes, but the federal courts do have jurisdiction to tell the state courts that they have no jurisdiction. Congress should be the sole judge of that, if you’re going to read the roles assigned by the Constitution to the electoral college so narrowly. If the three conservative judges had been true to their reasoning, they would have had to side with the liberal judges and vote against intervening. But they instead voted for the result they wanted, Bush instead of Gore.
Helping Bush win. This is a religious belief on the left since 2000, and must be invoked at every possible juncture. That there were two issues decided, the important one 7-2 for Bush and the lesser one 5-4; actual vote totals; the Constitutional arguments; the original reticence on the SCOTUS in calling out the reasoning of the Florida Supreme Court - none of this mattered in the least. The left believed they had finally taken back the country in 1992 ("Those are our planes now") and for even a moderate rightist to win meant that it must have been STOLEN! STOLEN, I tell you! It has never receded. Working in mental health, I can assure you that even up to 2020 older liberals would mutter about how the Supreme Court had given the presidency to Bush. Doctors, lawyers, psychologists, lots of folks with terminal degrees. The facts meant nothing and still mean nothing. Time has not mellowed them or given them pause. Purely tribal. It is all still Serbs and Croats to them. I don't think the wokesters know or care anymore, but among Boomers it remains part of the Clintonasian Creed.
It is a grudge that will not go away until the last of them dies, and maybe not for a hundred years after.
ADDED: That headline is terrible. The article is about how Sandra Day O’Connor kept Chief Justice Rehnquist from having a majority for deciding the case the same way on a different legal theory. Either way Bush would win, so she didn't "help him win."
Wait, Joan Biskupic wrote a totally worthless article with an utterly dishonest headline, for the sole purpose of attacking republicans?
I'm, shocked, shocked!
Could you explain why you ever waste your time on a Joan Biskupic screed?
Readering:"Headline looks fine to me."
10:40 AM
who-knew: "It's CNN, of course the headline is terrible, not just terrible but thoroughly dishonest. So, par for the course.
10:48 AM
Well, readerings hot take is certainly "par for the course".
If Gore had gotten the partial recount he requested, he would have lost by a larger margin, according to the very thorough (and slow) media recount. They tried seven recount scenarios: Bush won in six of them, by very close margins.
The headline is reflective of the current propaganda campaign to delegitimize the Court as a partisan institution. When its decisions are pro-left, they are still legitimate. If the decision gives aid and comfort to the right, it is illegitimate. We have always been at war with Eastasia.
Here is what was going to happen if SCOTUS refused to take the case and rule on it:
(1) The Florida courts would have ordered a statewide recount using the same standards for all the counties- this likely would have entailed trying to determine "undervote" intent, which is a complete black box for the outcomes (and stupid, in my opinion, but those judges were Democrats, so unsurprising).
(2) Either Bush is still ahead after the Florida court's order recount, or Gore is ahead. However, either outcome would have been taken to court again- either the difference is still under 1000 votes, or one or other of the candidates makes a big gain that raises questions about the method of the recount.
(3) If Gore is ahead after the recount, Bush goes to court, and the Democrat controlled state court laughs in his face and orders the Secretary of State to certify Gore the winner. The SoS would have refused with the backing of the Florida legislature. This is where SCOTUS, if they were to take a case, could have intervened properly. The best case scenario for the Democrats, even without SCOTUS involvement, is that two slates show up, and Congress is unable to decide which to accept given the House was firmly Republican and the Senate was divided evenly. In such a case, neither candidate had 270 electoral votes, and thus the House would have picked the President and the Senate the Vice President.
I have written it many times- even though I voted for Bush times, it was a catastrophic outcome for the country itself over the last 23 years. Gore would have been a much better President, and I think Gore would have avoided the quagmires of Iraq and Afghanistan. With Republicans firmly in control of the House after the 2000 election, I think Gore would have largely been a more conservative version of Bill Clinton, and I think the gross US government debt today would be half of what it is. So many awful things happened because of Bush's idiotic foreign policy, one of which was probably the Great Recession that led to lots of other mistakes for the last 13 years.
I think Gore would have avoided the quagmires of Iraq and Afghanistan
Afghanistan, perhaps. The first Iraq war preceded Bush. Bush could have maintained the ceasefire as Clinton did, left without mercy like Obama did with a segue to World War Springs, and now Biden sharing dreams of his Obama.
Blogger Yancey Ward said...
Gore would have been a much better President, and I think Gore would have avoided the quagmires of Iraq and Afghanistan.
===========
how do you see 9/11 playing out under Gore presidency
Narayanan,
Assuming the attack occurs (I think it would have, but might be known today as 10/15 or 8/120, I think the pressure to strike back would have required some action in Afghanistan, but I think Gore might have avoided the nation-building nonsense that required us to stay for the next 20 years. I think the deposing of Hussein in Iraq never happens.
n.n.,
It was a no-fly zone in Iraq, and that likely would have remained for a long time even under Gore, but we wouldn't have put a 100k troops into the country and tried to govern the country and then turn it into a democracy. Today, the Hussein sons would probably still be in charge.
Just a Thought wrote:
"Ex ante, I suppose it was statistically possible (though not at all probable) that Gore was the "objective" winner of the Florida 2000 presidential election."
The counts were done differently each time in those 4 Florida counties, so I am not even sure statistics counted any longer. Bush's lead held through the "voter intent" on the hanging chads recount, which was enough for me. What were they going to do, keep counting until Gore finally ended up ahead by 20 votes and then certify that result? I often asked a hypothetical at the time of people who wanted to keep counting until Gore won. The question was this:
Let's say we recount the entire state 5 times, and Bush is ahead on the first 4 by an average of 20 votes, and Gore is ahead on the last count by 20 votes. Who would you certify as the winner?
Basically, no one who supported Gore's case would answer the question. If the recount had been conducted 10 times in a row using the exact same methods for each separate jurisdiction, and with no shenanigans (a big if), I suspect Bush's margin would have bounced between +300 to -100, with more positive values than negative ones- his margin would have been something like +100 (+/- 200) in the 95% confidence interval.
As for who really had more voter support at the ballot box- I think a pretty strong case can made that that was Gore- I think the butterfly ballot issue where Pat Buchanan got an inordinate number of votes in that one county is pretty clear evidence that Gore lost a couple of thousand votes at least. I also think Gore clearly lost more votes where the voters either forgot to vote for President (undervotes) or voted for two candidates (overvotes). I suspect that if every voter who showed up and cast a ballot that day had done so with 100% accuracy, Gore wins the state by 3000-5000 votes. Of course, there is also the fact that the news networks called the state way too early, and before the polls had closed in the panhandle which was heavily Bush territory- I think that also cost votes, but for Bush, not Gore.
So, in summary, we will never know who actually had more valid votes in Florida with greater than 95% certainty (we usually know with greater than 99.99%+ certainty). The media recounts indicate it was probable that Bush had the most valid votes, and that is as good as it will ever get.
Yancey,
Every time I start to think that Gore gets a bad rap in our thinking about the 2000 election, with a lot of that cominh from anachronistically projecting his later nonsense back into the 2000 time period... I recall that Earth in the Balance was published in 1992 and a go, "Yeah, nevermind."
Yancey Ward said...
The court did damage itself with that decision for the most part. That election should have gone to the new House when it convened, which is surely what would have happened had SCOTUS never taken the case. Florida's electoral slate was either going to be sent to vote for Bush, or no slate was going to be sent, leaving the matter up the the House. The most SCOTUS should have done was rule the Florida state supreme court could not certify or order certified the slate itself- that would have been a proper a ruling.
Seriously?
I thought you had a functioning brain.
The Left was going to "count" and "count" until they got a "count" that put Gore ahead.
Then they were going to stop all counting, and declare Gore the victor.
With the Florida State Supreme Court ruling that Gore was the victor, and that FL's TVs had to go to Gore.
See Al Frankin stealing the MN 2008 Senate election with 2009 "vote counting".
The idea that every single Republican in Congress would have stood shoulder to shoulder to stop the steal, after everyone else, including SCOTUS, had stood back and let the Dems create the steal, is delusional idiocy.
I was getting ready to fly out to FL to help fight the steal after the latest FL SC ruling, when SCOTUS stepped in.
And when I say "fight the steal", I mean smashing down doors, hunting down Democrat vote abusers, and stopping their attempts to steal the election (see "Brooks Brother's riot" after the Democrats took their vote stealing behind closed doors. That was the nice version).
SCOTUS not getting involved would have led to massive bloodshed. For you to claim it was a bad idea is simply insane
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