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A Day Late, Several Trillion Dollars Short

[ 42 ] April 29, 2013 |

I dunno, somehow I prefer Scalia’s belligerent, protesting-too-much defenses of his bad faith in Bush v. Gore to O’Connor’s attempts to disassociate herself:

“Obviously the court did reach a decision and thought it had to reach a decision,” she said. “It turned out the election authorities in Florida hadn’t done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day.“

And, again, it’s not just that justices notably unsympathetic to broad equal protection claims claimed to accept an innovative equal protection argument. Where Bush v. Gore immediately falls apart and becomes a historic disgrace is that the completely lawless remedy left an election count with all of the alleged equal protection defects of the court-ordered recount (and the “mess up” job of the Florida authorities) in place.

Bush v. Gore
will always be a massive embarrassment to the five judges that understandably refused to sign their names to it (although, in fairness, Rehnquist, Scalia and Thomas did put their names on the even more hackish concurrence.) I can understand why O’Connor is uncomfortable with that, but she can’t escape it.

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  1. fumphis says:

    “O’Connor’s attempts to dissociate herself”

    Old Sandra hitting that nitrous again…

  2. Cody says:

    I would have trouble sleeping at night after I was part of that ruling too…

  3. Davis says:

    Scalia in 1954: “Plessy v Ferguson? Get over it!”

  4. c u n d gulag says:

    “It turned out the election authorities in Florida hadn’t done a real good job there and kind of messed it up.”

    Would that be the election authorities in Florida, where they were overseen by the Governor?

    The Governor who is the then Republican Presidential candidates brother?

    The Governor’s brother, that “Sandy-baby,” and four of her pals, made the 43rd POTUS?

    Uhm…
    What incentive will any Governor in the future have, to make sure that his/her election officials do a really good job, if they’re interested in swinging the Presidential election to their parties candidate?

    Too bad you have to live with that cosmically horrible decision, Sandra Day O’Conner.
    You lined your bed with lies, now you have to sleep in it, and try to sleep with your decision.

    Believe me, we’d ALL love to give you 5 assclowns a Mulligan.

    But I hope you realize that enablers of War Criminals and torturers, don’t really deserve Mulligan’s.

    • Davis says:

      And the Secretary of State overseeing the fiasco was the chairman of the Bush campaign in Florida, Katherine Harris.

      • Green Caboose says:

        Which somehow the media never seemed to find in any way troubling.

        I mean, imagine this scenario. You read about a contested election in a far away country. You learn that the two main candidates for the Regency are the son of a former Regent and the current Vice-Regent, who is the son of a former powerful Senator. The results all hinge on the results of one of the provinces. The son-of-a-Regent’s brother is the local Viceroy and his local campaign manager is in charge of the vote counting. Exit polls showed that the Senator’s son won the province by 7% but with all kinds of very strange problems with vote counting the end result was a virtual tie. Eventually the courts had to decide and by 5-4 vote the country’s Supreme Court ruled for the son-of-a-Regent – ironically all 5 of those were appointed either by the son-of-a-Regent’s father, or earlier while the father was the Vice Regent.

        Well, if you read all this and know nothing else about that country what do you assume? You probably assume first that the country is run on neopotism … although they have elections only children of those in power need apply. Second, it’s a virtual certainty that the son-of-a-Regent stole the election by leveraging powerful friends in that one province and in the courts.

        Furthermore, you can be sure the US media would report it that way – as long as it was about some inferior distant country.

        • Incontinentia Buttocks says:

          Furthermore, you can be sure the US media would report it that way – as long as it was about some inferior distant country.

          When did the U.S. media last go into so much detail about election procedures in a distant country?

          Other than that, I totally agree with you, GC.

          • Green Caboose says:

            Oh granted, you’d have to read an article from a better-quality resource to get that kind of detail. Usually the McPaper articles just skim the surface.

            But pretty much every time there is a controversial election result involving an exit poll the US media does cover it as though there probably was fraud – see Ukraine, for example.

          • Bill Murray says:

            Venezuela? This year or Chavez’ last election

            • Incontinentia Buttocks says:

              Nope. Sure this year’s Venezuelan election got a lot of coverage. But the kind of electoral-system detail (or really any kind of close psephological analysis) suggested by GC above was notably missing. NPR, for example, had a Steve Inskeep in Caracas for a week before the election, but he basically did endless person-on-the-street interviews that were more or less designed to cast Chavez (and Maduro) in a negative light.

        • JohnTh says:

          It’s been a while since I’ve seen the December 2000 situation described so succinctly – I still can’t understand why all the allegely sober and responsible people in the great American Republic didn’t commit collective suicide in protest at what their country had become. (still is mostly – it’s not unlikely that the next round will be between a former Regent-Consort and the son and brother of Regents). Any other country where this sort of thing was going on would be described as a ‘partial’ democracy, at best

  5. laura says:

    The exact mix of “shit, how do we make sure our guy wins?” and “oh noes, a constitutional crisis! We have to stop it now before our heads end up on pikes!” probably differed across the five judges. I think O’Connor gets so much flak because people suspect she had the highest ratio of 2 to 1.

    • Incontinentia Buttocks says:

      I would have assumed that Kennedy had the highest 2:1 ratio. O’Connor was widely rumored to be thinking about retirement at the time and to not want a Democratic president to replace her.

      But in fact, the constitutional crisis story was so ludicrous that I suspect that 1 outweighed 2 for all of the five Justices who supported the decision.

  6. divadab says:

    It’s hard not to conclude that the fix was in across all branches to support the coup that brought us 9-11.

    It’s a scary conclusion that has even scarier corollaries (which I won’t mention).

    The made-for-teevee “Democracy” we are presented with is sort of like professional “wrestling” – the game is faked up but there is still an underlying connection to reality that breaks through from time to time.

    • Incontinentia Buttocks says:

      Given the remarkable, across the board incompetence displayed by the Cheney-Bush administration, explanations of the 2000 election or 9/11 of the “inside job” variety (let alone explanations of the former that entail the latter) are simply not credible, especially given the absence of evidence for such conspiracies.

      The fact is that no conspiracy was necessary. The Y2K election was a perfect storm of coincidence, which was then very effectively exploited by the more disciplined of our two major parties, not a carefully managed plot.

      • quercus says:

        Look, any conspiracy that relied on the Florida vote being so remarkably close, in such litigatable ways, is so far-fetched and incompetent as to be laughable.

        And, of course, on the other end, who could possibly accuse the Bush administration of pulling off a conspiracy given their well-demonstrated incompetence and ridiculous planning … Oh, My God! It is true!!!

        • Green Caboose says:

          Agree about the rank incompetence. I mean, can you think of ONE example of GOP management the last 30 years that succeeded and didn’t rely on just being flat out dirtier than the opponents? You can’t think of any where they won by being better managers. It’s like Microsoft – take away monopoly leverage and they are reduced to smoke and mirrors.

          Most likely the plan in 2000 was to steal a few states in advance with vote blocking schemes but the plan failed because it relied on a) overly optimistic numbers from Rove and b) the same kind of election day management oversight that we saw in the Romney election day GOTV program.

          Hell, this scenario reeks of plausibility: it’s 10 pm eastern time and Gore is sweeping all the big swing states he needs. Rove’s map is falling apart – as it did again later in 2006 and 2012. They call the Bush cousin who works at Fox (and who later wrote that article in – what? – Esquire I think) and say “Florida can’t really be that bad can it? Jeb said he’d fixed it” and the cousin responds “I’m seeing a screenful of Gore”. They need to invoke the emergency, last-ditch, can’t-imagine-it-would-ever-be-needed plan. They call Jeb: General Order 66 (or whatever). Jeb reminds them that he can’t contact the field troops directly – not in time. They need the agreed signal. So GWB calls in the press to his Austin governor’s mansion – an unprecedented event on election night – and tells them that “he’s pretty darn confident right now” about Florida. And with that signal the vote purge begins. Even with that, fuck, Karl miscalculated again. The plan was to clear 20k votes in the end, but a random error at the last minute gave a bunch of votes back to Gore and – holy shit – it’s a virtual tie. Ok, call Daddy. Daddy, can you get your hencemen in here? We’ve spent $2B on this thing and it’s too close to lose. No rules, do whatever it takes. No problem says Daddy – James Baker owes me a favor.

          The rest is history.

        • DocAmazing says:

          You’re relying on a definition of “conspiracy” that is all-encompassing. Take, for example, the “Brooks Brothers riot”: do you really believe that was spontaneous? If not, then it was a conspiracy, because its organizers kept their role secret. The response of the media was not specifically organized, but could be pretty well predicted by said organizers.

          The fact that a huge, overarching conspiracy is highly implausible does not negate the high likelihood of smaller, on-the-ground conspiracies. Ratfucking is as old as democracy.

  7. Joe says:

    When states “kind of” mess up death cases, principles of federalism means letting the state courts handle it. Here, it was up to the USSC to intervene instead of letting the state courts and political processes handle things.

    Sort of like today’s ruling where the court “DIGGED” a case and Alito/Scalia/Thomas thought they knew more than the state courts as noted by the Sotomayor Four (thanks Obama for Sotomayor and Kagan, the latter even getting love from our libertarian pal David Nierpoint … sorry if the name is spelled incorrectly).

  8. Anonymous says:

    While we rightly focus on the SCOTUS for the horrible decision let us not forget the giant role the media played. First there was the goring of Gore before the election. Then there was the giant Voter News Service cover-up – remember the exit polls had Gore up 7% in Florida – certainly too big of a margin but nevertheless indictative of a serious electoral problem when the actual results turned out to be an alleged tie. Oddly, whenever there are exit poll discrepancies in foreign countries the US media is quick to headline speculation of vote fraud, but in the US they just cover it up as fast as possible.

  9. Todd says:

    Jesus, O’Connor…

    I have to wonder if part of the reason for this stance is a specific reaction to the job the nutbag who replaced her has done generally.

    • howard says:

      todd, you beat me to my very thought: it turns out that elections have consequences, including consequences that apparently never crossed o’connor’s mind when she was elevating the guy who picked alito….

      • sibusisodan says:

        …she was elevating the guy who picked alito….

        Eventually. On his second attempt. Which is a shame, because Miers would’ve made Scalia look reasoned & thoughtful.

  10. cpinva says:

    “Obviously the court did reach a decision and thought it had to reach a decision,”

    you could have decided to leave the decision making to the court actually responsible for it, the supreme court of FL. but then, bush wouldn’t have been president.

  11. Joe b says:

    Mea culpas notwithstanding, she’s still going to bloody hell.

  12. L.M. says:

    Well, let me go play the same tiny violin I played for Lewis Powell when he said he regretted McCleskey.

  13. Heron says:

    I point this out every time this issue comes up, but the Court’s lawlessness in this episode was even more basic. Section 1 of Articles 2 of the Constitution clearly lays out what is supposed to happen in the event of a too-close-to-call race, and letting the SC decide the election on technicalities isn’t the method detailed. Given the conflicting tabulations, that election should have passed to the House for decision.

    • Incontinentia Buttocks says:

      Exactly. The notion that following the Constitution was, in and of itself, a constitutional crisis was an extraordinarily audacious piece of political spin that was eventually accepted not only by the media, but also by Al Gore and the Democratic Senatorial caucus (which unanimously refused to challenge Florida’s electoral votes when it came time to count them).

  14. Glenn says:

    Hey, can Al Gore file a Rule 60(b) motion with the Supreme Court now and have them reverse the prior judgment?

  15. GeoX says:

    I say the very least O’Connor could’ve done in penance would’ve been to remain in office until a Democrat was back in power. Oh, you retired because you wanted to take care of your husband with Alzheimer’s? Guess what? No one cares! You undermined democracy, so screw your personal needs.

    I suppose there’s a certain bitter satisfaction in knowing how she must feel knowing that the guy she subverted democracy to install replaced her with someone devoted to destroying everything she cares about. But it’s really not enough. Not even close.

  16. Slocum says:

    I bet Scalia farts a lot.

  17. sibusisodan says:

    Oh, and from the quotes in the Prospect piece, the thing I really hate: Scalia being such an insufferable twit that Piers Morgan comes off as reasonable and serious by comparison.

    America, I love you, an’ all, but sometimes you just cross the line. Although you did take him off our hands in the first place, I guess.

  18. Johnny Sack says:

    In your linked Prospect piece (Piers Morgan interview) Scalia says: ” I—my court didn’t—didn’t bring the case into the court. It was brought into the courts by Al Gore. ”

    There’s a bad faith argument in there. Yes, Gore brought it to the courts, but Bush was the petitioner at the SCOTUS level.

  19. Tehanu says:

    If I may quote Woody Allen: “Oh, what I wouldn’t give for a large sock filled with horse manure.”

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