“Bush v Gore”: Maybe The Supreme Court Should Have Said “Let Democracy Take Its Course”
Retired U.S. Supreme Court Justice Sandra Day O’Connor hasn’t given much thought to which was the most important case she helped decide during her 25 years on the bench. But she has no doubt which was the most controversial.
It was Bush v. Gore, which ended the Florida recount and decided the 2000 presidential election.
Looking back, O’Connor said, she isn’t sure the high court should have taken the case.
“It took the case and decided it at a time when it was still a big election issue,” O’Connor said during a talk Friday with the Tribune editorial board. “Maybe the court should have said, ‘We’re not going to take it, goodbye.'”
In talking to the editorial board of the Chicago Tribune, the retired justice added that the case “gave the court a less-than-perfect reputation.”
You don’t say.
O’Connor went on to say Florida election officials “hadn’t done a real good job there” — she seems to have quite an appreciation for understatements — but the high court “probably … added to the problem at the end of the day.”
Had the Supreme Court not intervened, the 2000 recount process in Florida almost certainly would have continued. If all the state’s ballots had been properly counted, then-Vice President Al Gore “would have won, by a very narrow margin,” according to an independent newspaper consortium that examined all of the ballots.
O’Connor, in other words, was one of five justices who directly dictated the outcome of a national presidential election, helping elect the candidate who came in second.
By: Steve Benen, The Maddow Blog, April 29, 2013
“The Bullhorn Is In The Museum, And So Is The Bull”: Bush’s Long-Shot Campaign To Be Seen As Truman
The dedication this week of the George W. Bush Presidential Library and Museum was more than an opportunity for the five living U.S. presidents to compare notes on what Stefan Lorant called “the glorious burden” of the office.
It also was the beginning of Bush’s campaign for rehabilitation. As Bill Clinton said at the ceremony, all presidential libraries are attempts “to rewrite history.”
Bush’s ultimate goal — already hawked by his former political advisor Karl Rove — is to become another Harry S. Truman, a regular-guy commander in chief whose stock rose sharply about 20 years after he left office.
The superficial comparisons are intriguing. Vice President Truman only became president because Franklin D. Roosevelt died in office in 1945. The failed haberdasher and product of the Kansas City political machine was unlikely to make it to the top on his own. He was a plain-spoken, unpretentious man who cared enough about racial injustice that he desegregated the armed forces.
Bush became president because he was born on third base, to paraphrase Texas governor Ann Richards’ quip about his father, and because of the Supreme Court decision in Bush v. Gore in 2000; an unexceptional man who drank heavily until he was 40 probably wouldn’t have made it on his own. He’s a blunt, compassionate conservative who, as Jimmy Carter pointed out at the dedication, saw the ravages of AIDS in Africa and elsewhere and did something about it. (Bush also appointed two black secretaries of state.)
Like Iraq in Bush’s era, the Korean War was hugely unpopular when Truman left office in 1953, and his decision to drop two atomic bombs on Japan was at least as controversial as Bush’s support for torture.
Still, you don’t have to be Arthur Schlesinger Jr. to know that the differences between Bush and Truman are much greater than the similarities.
In Korea, Truman was responding to communist aggression, not hyping unconfirmed stories about weapons of mass destruction.
While Truman’s “Marshall Plan” (named for his secretary of state, George C. Marshall) produced spectacular results in postwar Europe, Bush apparently didn’t even have a plan for postwar Iraq.
His decision to disband the Iraqi army was catastrophic. Iraq and the simultaneous neglect of Afghanistan are only the best-known Bush administration fiascos that are all but airbrushed out of the museum, though not out of the historical record.
A broader list would include weakening bank-capital requirements and prohibitions on predatory lending that helped pave the way for the financial crisis; botching the response to Hurricane Katrina; gutting federal rules on worker safety, education, veterans’ affairs and other protections; endorsing a Constitutional amendment banning gay marriage; editing climate-change reports to the specifications of ideologues; reinstating the global gag rule on family planning in deference to right-wing anti-abortion activists, and politicizing appointments to the federal bench and federal law enforcement.
All this is ignored by Bush apologists. Ed Gillespie, a longtime Republican operative who last year helped the party’s presidential nominee, Mitt Romney, offered a defense of Bush in National Review that sought to absolve him of any blame for the budget deficit. As if the trillion-dollar wars, unaffordable tax cuts, the $550 billion (unpaid-for) prescription-drug benefit and hundreds of billions of lost revenue in the recession that began on his watch could be erased from history.
The new museum on the campus of Southern Methodist University in Dallas is cleverly designed to subsume Bush’s record within the burdens of the presidency. It includes a “Decision Theater” that puts visitors in the shoes of a president forced to make tough calls on a variety of pressing issues.
The subtext is that this is an extremely hard job and that you, the visitor, couldn’t do it any better than Bush did.
While this may make for a thought-provoking museum experience, it’s a low bar for presidential performance. Allowing for some mistakes, we should admire our presidents not because they have to face tough decisions but for making the right ones.
The “moral clarity” that is Bush’s claim to presidential respectability is only worth something if it results in clear achievement.
As a sign that even Bush knows his batting average on big decisions was low, the museum barely mentions Vice President Dick Cheney, Defense Secretary Donald Rumsfeld, and other officials who helped him make them.
Cheney’s churlish behavior and frequent shots at President Barack Obama over the last four years have made Bush, who has refrained from criticism, look restrained and classy by comparison.
But you can’t flush a disastrous war down the memory hole. At the dedication, the word “Iraq” wasn’t mentioned once, and the museum covers the subject in a section devoted to “the Global War on Terror.”
Continuing to conflate Iraq with the Sept. 11 attacks is an insult to truth that historians will never be able to overlook.
On Sept. 14, 2001, I was in the White House press pool and was five feet from Bush as he stood atop a crushed truck as rescue workers at Ground Zero shouted that they couldn’t hear the president speak.
“I can hear you! I can hear you,” Bush said through a bullhorn. “The rest of the world hears you, and the people who knocked these buildings down will hear all of us soon!” It was a defining moment for his presidency.
The problem that Bush can never get around is that “the people who knocked these buildings down” — namely, Osama bin Laden — didn’t hear from Bush, while others unconnected to the attacks did.
The bullhorn is in the museum. And so is the bull.
By: Jonathan Alter, The National Memo, April 26, 2013
“Elected By Nobody”: Our Supreme Court Has Lost Its Honor
Once upon a time, in a place called America, there was a government with three equal branches. That America no longer exists.
One branch now rules American life.
It is the Supreme Court, and it consists of nine people elected by nobody. They rule for life. Their power is absolute.
To overrule them requires an amendment to the Constitution, a process so politically difficult, it is nigh on impossible. (The most recent amendment, the 27th, which deals with congressional salaries, took 203 years to ratify.)
Technically, the justices can be removed from office for high crimes and misdemeanors, but none ever has been.
There is no aspect of American life — from civil rights to sports, to guns, to religion, to sex — over which the justices have not exerted control.
There are no qualifications to serve on the Supreme Court.
Though the Constitution lists qualifications to become a president, a senator or a representative, none are listed for the high court. The justices need not be of a certain age or have been born in the United States or even be a citizen.
They do not have to be lawyers, though all have been. (Some, however, never went to law school.)
You could be a justice of the Supreme Court. I could. Justin Bieber, age 18 and a Canadian citizen, also could be, though Senate approval would not be likely.
The greatest power the justices have is carved into the marble of the Supreme Court Building and gilded in gold: “It is emphatically the province and duty of the Judicial Department to say what the law is.”
These are the words of John Marshall, the fourth U.S. chief justice, written in 1803. His decision established forever that the Supreme Court had the right to uphold or strike down laws passed by Congress.
Nowhere in the Constitution is the Supreme Court given this power. The Supreme Court took it in a 4-0 decision. (There were only six members on the court at the time and two were sick.)
The Supreme Court would, over its history, come up with some terrible decisions countenancing slavery, locking up Japanese-American citizens in camps, supporting “separate but equal” segregation and approving the forced sterilization of the mentally ill.
But these were anomalies. Overall, the court would help create a vibrant and free society where citizens could live under the rule of law, where nobody was above the law and where equal rights were promised to all.
For much of modern times, the court has been seen as being above politics. This was very important as a balance to its vast power. Even though justices were appointed by political presidents and approved by political senators, their own politics was to be suppressed.
We realized they were human beings with political opinions, but we expected them to put those opinions aside.
And then came 2000 and the court’s 5-4 decision that made George W. Bush the president of the United States. The decision was nakedly political. “The case didn’t just scar the Court’s record,” Jeffrey Toobin wrote in The New Yorker, “it damaged the Court’s honor.”
Its honor has never fully recovered. Our current court is led by Chief Justice John Roberts, who was appointed by Bush in 2005 after having worked on Bush’s behalf in Florida in 2000.
The signature of the Roberts Court, Toobin wrote, has been its eagerness to overturn the work of legislatures. This is hardly conservative doctrine but today, politics trumps even ideology. In Citizens United v. Federal Election Commission, the court “gutted the McCain-Feingold campaign-finance law” which amounted to “a boon for Republicans.”
“When the Obama health-care plan reaches the high court for review,” Toobin predicted 18 months ago, “one can expect a similar lack of humility from the purported conservatives.”
At this writing, I do not know how a majority of the justices will rule on Obama’s health care plan, which was passed into law by Congress. Two branches of government have spoken, but their speech is but a whisper compared with the shout of our high court.
The die was cast in 2000. And it would take the most dewy-eyed of optimists to expect the court’s decision to be anything other than political.
Justice John Paul Stevens, now retired, wrote in his dissent in Bush v. Gore in 2000: “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.”
That is a lot to lose. But we have lost it. And getting it back may be a long time in coming.
By: Roger Simon, Politico, June 27, 2012
“Bush v Gore”: The Only Precedent That Seems To Matter To “Judicial Counter Revolutionaries”
Nobody would much describe Monthly alumnus and long-time Atlantic writer James Fallows as a firebrand. But he does have a sense of historical perspective. Over the weekend, mulling a probable Supreme Court action to invalidate some or all of the Affordable Care Act, Fallows put together a stunningly brief summary of how we came to this point:
Pick a country and describe a sequence in which:
* First, the presidential election is decided by five people, who don’t even try to explain their choice in normal legal terms.
* Then the beneficiary of that decision appoints the next two members of the court, who present themselves for consideration as restrained, humble figures who care only about law rather than ideology.
* Once on the bench, for life, those two actively second-guess and re-do existing law, to advance the interests of the party that appointed them.
* Meanwhile their party’s representatives in the Senate abuse procedural rules to an extent never previously seen to block legislation — and appointments, especially to the courts.
* And, when a major piece of legislation gets through, the party’s majority on the Supreme Court prepares to negate it — even though the details of the plan were originally Republican proposals and even though the party’s presidential nominee endorsed these concepts only a few years ago.
How would you describe a democracy where power was being shifted that way?
Fallows answers his own question by using a term—“long-term coup”—that he later downgrades to “radical change.” That’s appropriate, since “coup” implies tanks in the street rather than black-robed ideological cheerleaders. But it’s becoming more obvious each day that the judicial counter-revolutionaries of the Supreme Court don’t need the crisis atmosphere that they used to justify Bush v. Gore to continue its legacy. Indeed, it seems to have become the only precedent the majority reliably respects. Maybe they will surprise us all on Thursday and step back from the brink. But without question, if another seat on the Court falls their way, the constitutional substructure of every 20th century social accomplishment from the New Deal to the Civil Rights Act to the Clean Air Act to the right to an abortion is in immediate danger. And anyone who remembers that strange night in 2000 when the Court’s Republican appointees decided to seize the opportunity to choose a president should not be surprised.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, June 25, 2012
“The Fragility Of The 3rd Branch Of Government”: Why The Public’s Growing Disdain For The Supreme Court May Help Obamacare
The public’s growing disdain of the Supreme Court increases the odds that a majority will uphold the constitutionality of Obamacare.
The latest New York Times CBS Poll shows just 44 percent of Americans approve the job the Supreme Court is doing. Fully three-quarters say justices’ decisions are sometimes influenced by their personal political views.
The trend is clearly downward. Approval of the Court reached 66 percent in the late 1980s, and by 2000 had slipped to around 50 percent.
As the Times points out, the decline may stem in part from Americans’ growing distrust in recent years of major institutions in general and the government in particular.
But it’s just as likely to reflect a sense that the Court is more political, especially after it divided in such partisan ways in the 5-4 decisions Bush v. Gore (which decided the 2000 presidential race) and Citizen’s United (which in 2010 opened the floodgates to unlimited campaign spending).
Americans’ diminishing respect for the Court can be heard on the right and left of our increasingly polarized political spectrum.
A few months ago, while a candidate for the Republican presidential nomination, Newt Gingrich stated that the political branches were “not bound” by the Supreme Court. Gingrich is known for making bizarre claims. The remarkable thing about this one was the silence with which it was greeted, not only by other Republican hopefuls but also by Democrats.
Last week I was on a left-leaning radio talk show whose host suddenly went on a riff about how the Constitution doesn’t really give the Supreme Court the power to overturn laws for being unconstitutional, and it shouldn’t have that power.
All this is deeply dangerous for the Court, and for our system of government.
Almost 225 years ago, Alexander Hamilton, writing in the Federalist (Number 78, June 14, 1788) noted the fragility of our third branch of government, whose power rests completely on public respect for its judgement:
The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. [Yet lacking sword or purse, the judiciary] is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.
The immediate question is whether the Chief Justice, John Roberts, understands the tenuous position of the Court he now runs. If he does, he’ll do whatever he can to avoid another 5-4 split on the upcoming decision over the constitutionality of the Obama healthcare law.
My guess is he’ll try to get Anthony Kennedy to join with him and with the four Democratic appointees to uphold the law’s constitutionality, relying primarily on an opinion by Judge Laurence Silberman of the Court of Appeals for the District of Columbia – a Republican appointee with impeccable conservative credentials, who found the law to be constitutional.
By: Robert Reich, Robert Reich Blog, June 8, 2012
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