I know, to put forth a Roe v. Wade-like preface few will take seriously, that this subject has been covered over and over with a tendency each side to throw coals on the fires. But, like that ruling, it seems like the same canards are replayed each time, eventually becoming accepted wisdom even for those not too sympathetic to the opposition. Thus, repeated efforts must be supplied to counteract such things, especially since the basic issues will not go way. Furthermore, at various times, things pop up that makes it useful or at least somewhat appropriate to re-examine some of the issues.
The Florida Republican primary for U.S. Senate ... with Katherine Harris the odds on favorite* ... seems like such a situation. I also point the interested to a New Republic piece entitled "Katherine Harris, still crazy." The general sentiment of the piece being that conservatives/Republicans are a bit late in the game of finding fault with KH, and more generally, since some of them are willing to doubt every other aspect of the Bush regime, why not add the election fight to the mix? Anyway, I wish not to re-cover every issue here, but a discussion over at LGM did lead me to think a few things in particular were particularly noteworthy to comment upon.
Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. See SOUTER, J., dissenting; BREYER, J., dissenting. The only disagreement is as to the remedy. [Fake reason offered to suggest possible remedy is not appropriate.]
-- Bush v. Gore, per curiam (assumed to have been written by Justice Kennedy)
By a vote of seven to two, with Justices Stevens and Ginsburg dissenting, the state supreme court's decision was held to run afoul of the equal protection clause. By a vote of five to four, the Court held that there was no remedy available. ... Justices Stevens, Souter, Ginsburg, and Breyer each filed dissenting opinion.
-- Constitutional Law and Politics, Volume One (Fifth Edition) by David O'Brien
We hear of "lies" repeatedly these days, but I have a more basic problem with misleading spin that is properly called "bullshit." Let's call a lie a lie, sure enough, but as is often the case, a lesser wrong is still wrong enough, surely if it is more firmly provable. And, the "Bush v. Gore was a 7-2 opinion" spin is simply that -- bullshit. Now, the fact that the majority opinion cited it is not too shocking -- one really should take some things such opinions say with a certain grain of salt.
It is more appalling, however, when it becomes accepted wisdom even if casebooks that honestly can be said not to be conservative spin jobs. Why shouldn't this also be the message sent by the media, as it is now speaking of "liberals" wanting to hinder the war on terror by opposing listening to Bin Laden, when in fact they oppose illegal warrantless taps on American citizens? Something polls suggest a majority of the public oppose.
The Oxford Companion to the Supreme Court entry to the case notes that Souter and Breyer "expressed some sympathy for the equal protection argument, but they stressed that these issues were more properly addressed by the state and (if necessary) the Congress." This approaches the truth. "The" equal protection argument refers, of course, to the argument put forth in the majority opinion. Justice Stevens and Ginsburg were concerned with equal protection as well. Stevens, for instance, noted how different the counts was statewide with different machines. Ginsburg was in fact said to have been challenged by Justice Scalia when she planned to include a footnote pointing out how if anything, the problem was racial discrimination. This was deemed by Scalia as some sort of "Al Sharpton" moment.
And, overall, the dissent thought the “remedy” offered by the majority was a bit ridiculous for those truly concerned with equality. In fact, both Stevens and Ginsburg noted that for the sake of argument, the best way to approach a need for a clearer recount standard was to remand it to the state. They too mentioned the "remedy" addressed by the other two dissents, but perhaps knew giving more ammo than that would lead them to be played for fools. One thing in particular stands out: Justice Breyer (along with Ginsburg) JOINED Stevens' dissent in full. The other three "dissents" (this is useful to note ... none of the four somehow "concurred" with the majority's equal protection argument ... only five justices joined it) did not receive full support from four justices. But, Breyer joined Stevens' opinion in full.
So, how exactly can he not be joined with the "two?" Now, Souter noted that he joined in "significant extent" (whatever that means) with all the dissents. Notable. Still, at the very least, should not we have heard of a 6-3 ruling? Also, re-reading the Souter/Breyer dissents, I am not sure exactly how they "held" that Florida Supreme Court had "run afoul" of the U.S. Constitution. Again, this doesn't take some deep legal knowledge to understand ["Justice Stevens with whom Justice Ginsburg and Justice Breyer join, dissenting," however apparently confuses people, so who knows?]. Justice Breyer speaks of what "may well" be true, but felt that he "need not decide" the question. Souter speaks more strongly of what "seems" to be the case, but still noted that if left be the state courts "very well" might not have caused any problems in the end. Anyway, he starts his dissent firmly saying the Court shouldn't have taken the case.
So, basically Souter and Breyer "agreed" that the argument that the recount standards were constitutionally problematic was a reasonable viewpoint, but surely did not firmly decide upon the point. As to the supposed fact that they agreed that some remedy was demanded, one is unclear about this too. Neither one wanted the case taken in the first place. Both are rather empathic on the point, Breyer focusing on Congress' responsibility, "however awkward or difficult it may be," to settle the matter. [Listening Judge Posner?] A matter the majority not too surprisingly elided over, focusing on a phony reading of Florida law as to the "safe harbor" deal. The two, though again the other two referenced the point too, did offer "[i]n light of the majority's disposition" [trying to make the best of a bad situation] the possibility of remanding the case back to Florida.
But, clearly, their "remedy" would have been to leave it to the state and Congress throughout. If there was some sort of constitutional problem, therefore, it would have been a "political question" left to others than self-interested justices of the Supreme Court. [Scalia and Thomas had family members involved with the Bushies to a degree much more problematic than a duck hunt, Rehnquist's successor was at stake, as well as "this is terrible" O'Connor's future, plus the tenor of the hundreds of lower court judges that were due to be appointed, a chunk because Republicans refused to let Clinton nominees get "up and down" votes.] In fact, the conservative leaning 11th Circuit of Appeals recognized this fact ... this is why the case is entitled "Bush v. Gore," the losing party listed first in federal appeals.
I'm sorry, continual cries of "sore loser" or "get over it" will not erase such facts. It will not erase the rightful distrust in the system by the "losers" here as well as the ironic wariness of trusting the courts with true election inequalities that remain. The majority spoke of this ruling as of one of a kind, a sort of ticket good for one ride only, though annoyingly for them lawyers continue to cite it in their briefs and judges in their opinions. After all, is it not like the Korematsu decision, which spoke of strict scrutiny for racial classifications, even if it failed to apply the principle consistently then and there? Voting equality was raised, and the bait and switch tactics used can only fully succeed by letting them so.
Can it not be cited for this end, while ala the Japanese Internment Cases, its judgment rejected as a dark mark on the Court? We can use Justice Scalia's dissent in the Casey abortion ruling ... you know his appeal to Chief Justice Taney going somewhere he shouldn't have for the oh so wrong minded reason that he thought it was necessary for the good of the country, much to our detriment? The ruling surely will not be forgotten as long as its beneficiaries continue among us ... in office, representing us in the U.N., running for Senate, and yes, serving in the federal courts. So, Katherine Harris, thank you -- you are like an itchy scab, one that cannot be ignored, even though many of your supporters wish you to leave, so that the rest of us would. But, the sting is still there.
I guess the only disagreement is on the remedy.
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* Obviously, she is not the odds on favorite for the general election. In fact, top Republicans -- from the Bushes down -- nearly begged her not to run, since she is such a lousy candidate for a race in which a competent one might very well have a good shot at winning. Since the party is basically abandoning (well, they never quite supported him in the first place ... see also, Rep. Murtha's challenger) their party's candidate in Connecticut, they don't want some sort of trend forming. Harris currently is having problems holding on to staff people. Projections have her getting in the low 30s, basically the party faithful.
Unfortunately for them, Rep. Harris is not satisfied with a comfortable little district seat, a not too surprising prize for her efforts in '00, but apparently feels it a mission from God to seek higher. Putting aside the religious element, this reminds me of Secretary of Homeland Security Michael Chertoff, someone with a somewhat thankless job that many feel he is simply not fit to handle. It must have taken some interest in public service (or something) for him to give up a life tenure appellate judgeship (unless he got bored at it after less than two years) so people can blame him for Katrina et. al. Or, stupidity. Tomato/oe.