January 7, 2001
Supreme Ambitions
By Mollie Dickenson
On Dec. 12 -- another December date which will live in historic infamy --
Vice President Al Gore was still confident that the Florida recount would
resume and that the vote tally would give him the presidency.
His lead in the national popular vote was swelling toward more than a half
million votes over George W. Bush. The Florida recount seemed all but
certain to give Gore enough votes to win that key state, too. With Florida
would come a clear majority of the Electoral College.
Four days earlier, the Florida Supreme Court had ordered a statewide
recount of ballots that had been missed by machine tabulations. The next
day, vote counters across the state discovered in these so-called
"under-votes" scores of uncounted ballots. Bush's narrow lead dwindled
toward zero.
Republican vote-counting observers tried to forestall the inevitable loss
of Bush's lead by deliberately "slow-counting" and lodging frivolous
objections even to obvious Gore votes. It seemed as though Bush needed a
miracle to hang on to his dubious claim to the presidency.
That intervention came in the nick of time when the five most conservative
justices on the U.S. Supreme Court stepped in to stop the counting of votes
for president, an unprecedented act in American history. The slim court
majority agreed to suspend the Florida recount and to hear Bush's appeal on
Dec. 11.
Gore remained optimistic as he awaited the U.S. Supreme Court's final
ruling on Dec. 12. He had faith that U.S. Supreme Court Justice Sandra Day
O'Connor - one of the five conservative justices - would resist the lure of
partisanship and let the vote-counting resume.
Gore was making campaign thank-you calls, including one to Sarah Brady, the
gun-control advocate whose husband James Brady had been wounded in the 1981
assassination attempt against President Ronald Reagan.
At 4 p.m., Gore reached Sarah Brady. He sounded upbeat.
"We're going to win this thing, Sarah," Gore said. "I just have all the
faith in the world that Sandra Day O'Connor is going to be with us on this
one."
"He was just very optimistic and trustful that the system would work," said
Sarah Brady. The Handgun Control leader was not as sanguine about O'Connor,
recalling that the justice had voted to strike down part of the so-called
Brady law that required localities to run background checks on handgun
purchasers.
As it turned out, of course, Gore's trust was misplaced.
Six hours later, O'Connor joined with the four other conservatives to order
that the recount, as structured by the Florida Supreme Court, must be
abandoned. The five justices also imposed midnight - two hours later - as
the impossible deadline for resolving any inconsistencies and completing
the statewide recount.
Equal Protection?
In making their ruling, the five justices cited the 14th Amendment's
requirement for equal protection under the law. The justices contended that
Florida lacked consistent recount standards.
Yet what the U.S. Supreme Court's 5-4 ruling ensured was that uncounted
votes from Florida's poorer precincts -- with outmoded punch-card ballot
systems -- remained uncounted. That gave greater weight to the votes from
wealthier precincts with modern optical scanners that experienced a far
smaller error rate.
Not surprisingly, the poorer precincts had higher percentages of
African-Americans, as well as large numbers of retired senior citizens,
many of them Jewish. Both groups overwhelmingly favored Gore and his vice
presidential running mate, Joe Lieberman.
The hand count of these uncounted ballots would have reduced this disparity
between the wealthier and the poorer precincts. Instead, the U.S. Supreme
Court cited the 14th Amendment to ensure that greater weight was given to
the votes of wealthier whites in Florida than to poorer African-Americans
and elderly Jews.
The irony - the outrage to many civil rights leaders - was that the 14th
Amendment had been enacted after the Civil War to prevent discrimination
against African-Americans. Now, it was being used to disenfranchise them
and to grant greater voting power to whites.
Sandra Day O'Connor had joined in this unprecedented and seemingly
illogical opinion that handed the White House to George W. Bush. According
to some sources, O'Connor - the court's supposed "swing vote" - even wrote
the unsigned majority opinion in Bush v. Gore.
Personal Interests
Gore had miscalculated O'Connor's interests and her character. Beyond a
partisan desire for Bush's election, O'Connor had strong personal reasons
to block Gore's apparent victory. According to close friends, she wants to
become the first female U.S. chief justice, an ambition that she hopes
President Bush will fulfill.
As I reported on Dec. 11, O'Connor was visibly upset -- indeed furious --
when on Election Night, Nov. 7, the networks predicted that Gore would take
Florida.
"This is terrible," she said, as the announcement came from the television
in the basement den of former Ambassador Walter Stoessel's widow's
Washington home.
When O'Connor angrily left to get her dinner from the buffet table
upstairs, O'Connor's husband John explained that she was upset because the
couple wanted to retire to Arizona, but that his wife would never vacate
her seat if Gore won. She would remain on the court to deny Gore the
opportunity of replacing her.
"I thought John was spinning us a bit to protect her since she had been so
indiscreet," said a source who was there. The O'Connors' friends say they
believe the O'Connors want to remain in Washington even after retirement.
A close O'Connor friend, a prominent Democrat, confirms that. When told
about the Election Night episode, he said, "Oh, no, no, no. That's not her
plan. The plan is that, if Bush wins, Chief Justice [William] Rehnquist
will retire, and Bush will then nominate Sandra to be the first female
United States chief justice in history. That's the plan. I don't think they
will ever leave Washington."
Other personal conflicts of interest have surfaced with conservative
justices Clarence Thomas and Antonin Scalia. Before the Dec. 12 ruling,
Thomas's wife Virginia was working on the Bush transition at the
conservative Heritage Foundation. Scalia's son was a partner at the law
firm of chief Bush lawyer, Ted Olson.
U.S. law defines a disqualifying judicial bias as any situation that would
raise reasonable concerns about a judge's impartiality. The law - 28 U.S.
Code Section 455 - reads: "Any justice, judge or magistrate of the United
States shall disqualify himself in any proceeding in which his impartiality
might reasonably be questioned. Also, � where he has a personal bias or
prejudice concerning a party � or if his personal bias or prejudice is known."
After the court's Dec. 12 ruling and Gore's concession the next day,
Justice Thomas told a group of high school students that partisan
considerations play a "zero" part in the court's decisions. Later, asked
whether Thomas's assessment was accurate, Rehnquist answered, "Absolutely."
Judicial Warning
Bush v. Gore was a warning bell to the nation that the Rehnquist Court has
been transformed into a kind of supreme political weapon, ready to find the
flimsiest legal rationale for rendering a judgment in favor of its
conservative allies and against its enemies.
In the late 1980s and early 1990s, Iran-contra special prosecutor Lawrence
Walsh - a conservative Republican himself - found his investigation of the
Reagan-Bush administration's crimes frustrated by conservative federal
appeals court judges in Washington who used legal rationalizations to
protect their White House friends.
In his book, Firewall, Walsh called these conservative judges "a powerful
band of Republican appointees [who] waited like the strategic reserves of
an embattled army, � a force cloaked in the black robes of those dedicated
to defining and preserving the rule of law."
The same description could now apply to the conservative majority on the
U.S. Supreme Court. Under George W. Bush, these conservative federal judges
can be expected to consolidate their power as they refine their tactics for
bending the "rule of law" to political ends.
"What is so wrong about the Supreme Court's even agreeing to take this
case," said a former assistant attorney general in the Clinton
administration, "is that their vote was a completely self-interested vote
by the conservatives. They have ensured that they will remain in the
majority, even increase their majority."
O'Connor's goal of becoming the first female chief justice exposes at least
one of the very personal conflicts of interest in their having accepted the
case. Scalia also has his eyes on the chief justice's chair.
"This decision is absolutely the most intellectually dishonest and
transparent thing they could ever possibly do," added Washington defense
and election law lawyer Stanley Brand, a Democrat.
Bush Hardball
The incoming Bush administration also appears ready to play hardball with
the Democrats. Since the Dec. 12 ruling, Bush and his backers have added
little substance to their campaign promise: "uniter, not a divider."
On Dec. 13, as Gore was giving his concession speech, Bush supporters stood
outside the vice president's residence and shouted, "Get out of Cheney's
house." Others are still selling T-shirts reading: "Sore Loserman,"
referring to Gore and Lieberman.
Rather than the widely expected middle-of-the-road Cabinet, Bush is packing
his administration with conservatives. Attorney General-designate John
Ashcroft is a particular affront to African-Americans, given that he played
the race card in his losing 2000 reelection campaign and in his avowed
sympathy for leaders of the Confederacy.
During the Brady bill debate, Ashcroft also denounced the wounded Jim Brady
as "the greatest enemy of gun owners." Brady, who was Reagan's first press
secretary, remains permanently disabled, confined to a wheelchair from the
gun shot that damaged his brain two decades ago.
It seems Bush has decided to act as if he really won the election and is
coming to Washington with a popular mandate.
On the other side, the end of the election battle left millions of
Americans burning with rage � yet powerless to stop the overturning of the
popular will. Some have voiced a quiet despair that their self-image as a
free people has been stripped from them.
Jesse Jackson expressed the feelings of many when he held up a bumper
sticker that read: "Al Gore Is My President!" Pouring out his anger,
Jackson declared that he rejected Bush as the rightful president "with
every bone in my body and every ounce of moral strength in my soul."
In recent days, unofficial tallies by newspapers have discovered Gore
gaining more than 500 new votes in Florida, a total that puts him ahead of
Bush. Increasingly, it's clear that Al Gore was the people's choice to be
the 43rd President of the United States.
That popular will might have been respected if Sandra Day O'Connor had
applied a reasonable interpretation of the law, rather than her political -
and personal - self-interest.
www.consortiumnews.com
"Since Cassius first did whet me against Caesar
I have not slept.
Between the acting of a dreadful thing
And the first motion, all the interim is
Like a phantasma or hideous dream.
The Genius and the mortal instruments
Are then in council; and the state of a man,
Like to a little kingdom, suffers then
The nature of an insurrection"
-Brutus
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