Looking out over the bleak landscape of economic and national security disasters that George W. Bush is leaving behind, I sometimes think the best use of the trillion-dollar bailout funds might be to invent a time machine that could take the world back eight years to the fateful decision of the U.S. Supreme Court to give Bush the White House.
That decision – on Dec. 12, 2000 – may rank as one of the most destructive turning points in history, putting the United States and the world on a course so dangerous that there may be no feasible route back to the relative peace and prosperity that existed at the time.
If only there were a way to return to that date and convince Justices Sandra Day O’Connor and Anthony Kennedy to follow the logic of their own legal arguments and have Florida conduct as full and fair a recount as possible – a process that apparently would have made Al Gore, not George W. Bush, the 43rd President of the United States.
Gore already had claimed a half-million-vote plurality in the national balloting and was widely viewed as the choice of most Florida voters. Even if the butterfly ballot fiasco and other irregularities were ignored, Gore still was likely to prevail narrowly if all the legally cast ballots – those expressing the clear intent of the voters – were counted.
Instead, O’Connor and Kennedy joined with right-wing justices Antonin Scalia, Clarence Thomas and William Rehnquist in effectively delivering Florida’s 25 electoral votes and the White House to Bush. It was a matter of partisan choice, not an exercise in legal logic or democratic principles.
But how that momentous decision was reached is still little understood by Americans, even eight grim years hence.
The story began on Dec. 8, 2000 – with Bush clinging to an official lead of only a few hundred votes out of six million cast in Florida – when the Bush forces were dealt a crushing blow. A divided Florida Supreme Court ordered a statewide review of ballots that had been kicked out by counting machines.
The recounting began on the morning of Dec. 9. Immediately, the canvassers began finding scores of legitimate votes that the machines had rejected.
Bush’s lawyers raced to the U.S. Appeals Court in Atlanta to stop the count. Though dominated by conservatives, the court found no grounds to intervene.
A frantic Bush then turned to the U.S. Supreme Court in Washington. There, in the late afternoon, the high court took the unprecedented step of stopping the counting of votes cast by American citizens.
Justice Antonin Scalia made clear that the purpose of the court’s action was to prevent Bush from falling behind in the tally and thus raising questions about his legitimacy should the Supreme Court later declare him the winner.
That outcome would “cast a cloud” over the “legitimacy” of an eventual Bush presidency, explained Scalia. “Count first, and rule upon the legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires,” Scalia wrote.
Trusting the Law
Nevertheless, on Dec. 11, Gore and his lawyers voiced confidence that the rule of law would prevail, that the U.S. Supreme Court would rise above any partisan concerns and would insist that the votes be counted and that the will of the voters be respected.
The Gore team went before Rehnquist’s court apparently still unaware that whatever they argued, the five conservative justices were determined to make Bush the next President.
The evidence is now clear that Rehnquist and his four Republican colleagues decided on their ruling in Bush v. Gore first and settled on their rationale second. Indeed, their legal logic flipped from the start of their deliberations to the end, but their pro-Bush verdict remained steadfast.
USA Today disclosed this inside story in an article about the strains that the Bush v. Gore ruling created within the court. Though the article was sympathetic to the pro-Bush justices, it disclosed an important fact: that the five were planning to rule for Bush after oral arguments on Dec. 11. The court even sent out for Chinese food for the clerks, so work could be completed that night. [USA Today, Jan. 22, 2001]
At that point, the legal rationale for stopping the Florida recount was to have been that the Florida Supreme Court had made “new law” when it referenced the state constitution in an initial recount decision – rather than simply interpreting state statutes.
Even though this basis for giving Bush the White House was highly technical, the rationale at least conformed with conservative principles, which are supposedly hostile to judicial “activism.” But the Florida Supreme Court threw a wrench into the plan.
On the evening of Dec. 11, the state court submitted a revised ruling that deleted the passing reference to the state constitution. The revised ruling based its reasoning entirely on state statutes, which permitted recounts in close elections.
A Conservative Split
This modified state ruling opened a split among the five conservatives.
Justices O’Connor and Kennedy no longer felt they could agree with the “new law” rationale for blocking the recount, though Justices Rehnquist, Scalia and Thomas were prepared to stick with the old thinking even though its foundation had been removed.
The plans for finishing up the formal opinion on the evening of Dec. 11 were scrapped as O’Connor and Kennedy veered off in a very different direction. Through the day on Dec. 12, they worked on an opinion arguing that the Florida Supreme Court had failed to set consistent standards for the recount and that the disparate county-by-county standards constituted a violation of the “equal protection” rules of the 14th Amendment.
The logic of this argument was quite thin and Kennedy reportedly had trouble committing it to writing. To anyone who had followed the Florida election, it was clear that varied standards already had been applied throughout the state.
Wealthier precincts benefited from optical voting machines that were simple to use and eliminated nearly all errors, while poorer precincts with many African-Americans and retired Jews were stuck with outmoded punch-card systems with far higher error rates.
Some counties had conducted manual recounts, too, and those totals already were part of the tallies giving Bush a tiny lead.
The statewide recount – ordered by the Florida Supreme Court – was designed to reduce those disparities and thus bring the results closer to equality. Applying the “equal protection” provision, as planned by O’Connor and Kennedy, turned the 14th Amendment on its head, guaranteeing less equality than would have occurred by letting the recount go forward.
Indeed, if one were to follow the “logic” of the O’Connor-Kennedy position, the only “fair” conclusion would have been to throw out Florida’s presidential election in total. After all, the U.S. Supreme Court was effectively judging Florida’s disparate standards to be unconstitutional.
That, however, would have left Gore with a majority of the remaining electoral votes – and wouldn’t have served the purpose of putting Bush into the White House.
Perhaps even more startling than the stretched logic of the O’Connor-Kennedy faction was the readiness of Rehnquist, Scalia and Thomas to sign on to a ruling that was almost completely at odds with their original legal rationale for blocking the recount.
On the night of Dec. 11, that trio was ready to bar the recount because the Florida Supreme Court had created “new law.” On Dec. 12, the same three justices were voting to block the recount because the Florida Supreme Court had not created “new law” – by establishing precise statewide recount standards.
The five conservatives had devised their own Catch-22. If the Florida Supreme Court set clearer standards, that would be struck down as creating “new law.” If the state court didn’t set clearer standards, that would be struck down as violating the “equal protection” principle. Heads Bush wins; tails Gore loses.
There was one other clever twist to the conservative majority’s maneuvering. When the ruling was issued at around 10 p.m. on Dec. 12, the O’Connor-Kennedy rationale asserted that the 14th Amendment required a recount with equal standards applied statewide, but then gave Florida only two hours to complete the process before a deadline of midnight.
Because this two-hour window was absurdly unrealistic, the result of the ruling was to give Bush the White House based on a 537-vote lead in the “official” Florida results, as overseen by the state administration of his brother, Gov. Jeb Bush.
After the court’s ruling and Gore's concession the next day, Justice Thomas told a group of high school students that partisan considerations played “zero” part in the court's decisions. Later, asked whether Thomas's assessment was accurate, Rehnquist answered, “Absolutely.”
In later comments about the court’s role in the case, Chief Justice Rehnquist seemed unfazed by the inconsistency of the court’s logic. His overriding rationale seemed to be that he viewed Bush’s election as good for the country – whether most voters thought so or not.
In a speech on Jan. 7, 2001, Rehnquist said sometimes the U.S. Supreme Court needed to intervene in politics to extricate the nation from a crisis. His remarks were made in the context of the Hayes-Tilden race in 1876, when another popular vote loser, Rutherford B. Hayes, was awarded the presidency after justices participated in a special election commission.
“The political processes of the country had worked, admittedly in a rather unusual way, to avoid a serious crisis,” Rehnquist said.
Scholars interpreted Rehnquist’s remarks as shedding light on his thinking during the Bush v. Gore case as well.
“He’s making a rather clear statement of what he thought the primary job of our governmental process was,” said Michael Les Benedict, a history professor at Ohio State University. “That was to make sure the conflict is resolved peacefully, with no violence.” [Washington Post, Jan. 19, 2001]
But where were the threats of violence and acts of disruption in the 2000 election?
Gore had reined in his supporters, urging them to avoid confrontations and to trust in the “rule of law.” The only violence had come from the Bush side, when the Bush campaign flew protesters from Washington to Miami to put pressure on local election boards.
On Nov. 22, 2000, as the Miami-Dade canvassing board was preparing to examine ballots, a well-dressed mob of Republican operatives charged the office, roughed up some Democrats and pounded on the walls. The canvassing board promptly reversed itself and decided to forego the recount.
The next night, the Bush-Cheney campaign feted the rioters at a hotel party in Fort Lauderdale. Starring at the event was crooner Wayne Newton singing “Danke Schoen,” but the highlight for the operatives was a thank-you call from George W. Bush and his running mate, Dick Cheney, both of whom joked about the Miami-Dade incident, the Wall Street Journal reported.
The Journal noted that “behind the rowdy rallies in South Florida this past weekend was a well-organized effort by Republican operatives to entice supporters to South Florida,” with House Majority Whip Tom DeLay's Capitol Hill office taking charge of the recruitment. [WSJ, Nov. 27, 2000. For more details, see Consortiumnews.com’s “Bush’s Conspiracy to Riot.”]
In other less violent ways, Bush-Cheney operatives signaled that they would not accept an unfavorable vote total in Florida.
In the chance that Gore pulled ahead, the Republican-controlled state legislature was preparing to void the results. In Washington, the Republican congressional leadership also was threatening to force a constitutional crisis if Gore prevailed in Florida.
If one takes Rehnquist’s “good-for-the-country” rationale seriously, that means the U.S. Supreme Court was ready to award the presidency to the side most willing to use violence and other anti-democratic means to overturn the will of the voters.
Rehnquist’s approach suggested that since Gore and his supporters were less likely to resort to violence – while Bush and his backers were ready to provoke a crisis if they didn’t get their way – that the high court should give the presidency to the side most committed to disruption.
A far more democratic – and rational – approach would have been for the Supreme Court to accept the O’Connor-Kennedy logic and simply extend the deadline for Florida to turn in its results. The court could have ordered the fullest and fairest possible recount with the winner being whichever candidate ended up with the most votes.
If that had occurred, the almost certain winner would have been Gore. When a group of news organizations conducted an unofficial recount of Florida’s disputed ballots in 2001, Gore came out narrowly on top regardless of what standards were applied to the famous chads – dimpled, hanging or punched-through.
Gore’s victory would have been assured by the so-called “overvotes” in which a voter both punched through a candidate’s name and also wrote it in. Under Florida law, such “overvotes” are legal and they broke heavily in Gore’s favor. [See Consortiumnews.com's "So Bush Did Steal the White House" or our book, Neck Deep.]
So all the world needs now is a time machine that can take us back to that moment eight years ago – and then convince Justices O’Connor and Kennedy to do the right thing by letting the voters decide.
Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous Presidency of George W. Bush, was written with two of his sons, Sam and Nat, and can be ordered at neckdeepbook.com. His two previous books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History: Contras, Cocaine, the Press & 'Project Truth' are also available there. Or go to Amazon.com.
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This story was published on December 12, 2008.