I always thought those advocates of "get over it" for Bush v. Gore should vigorously advance the same argument for People v. Williams.

Tookie's last murders were in 1979. It's so old by now. Get over it.

I'm sure these same advocates would apply their same argument in a different case. Wouldn't they?

In short, it's a fatuous, disengenous, shabby little piece of hypocrisy to pretend that elections don't matter shortly after they're stolen.
 

The obvious counterexample is Roe v. Wade -- surely the most unpopular and "dubious" decision from the point of view of the right.

What would Scalia's reaction be to anyone -- a Supreme Court Justice, even -- telling him to "get over it" in reference to Roe. I mean, it's so over by now, isn't it?
 

I am not quite sure why anyone thinks it is productive to rehash these old battles, but it's my lunchtime, so I'm game. It doesn't make any sense to refer to deciding the 2000 Florida presidential election "democratically." John Allen Paulos had what I thought was the best column about this election, in which he made the essential point that the "true" margin of victory (however you define that) was less than the error in the measuring apparatus (i.e., the entire election process). That being the case, there is no "democratic" outcome out there to discover. Some political actor will in the end have to make a decision. It may be the U.S. Supreme Court, it may be the Congress, it may be the Florida Supreme Court, it may be the Florida legislature, it may be the Florida Secretary of State, but it will not be the unmediated voice of the people.
 

jpk: To be sure, the only "advocates" of get-over-it here are Scalia and McCain by extension. To say "those advocates" risks generalizing into a stereotype that does not (to my knowledge) exist. Scalia is the first person I've heard articulate it in those words.
 

Roe v. Wade is a better example.
 

Very well, to focus only on present examples, and to bring it home with the most comparable examples, sure: I'd love to hear Scalia tell the right to life crowd to "get over it" and accept Roe v. Wade, rightly or wrongly decided, just get over it people.

I would stand in line to hear him tell them that.

But I'm not holding my breath waiting to stand in that line.
 

A line from Justice Scalia in the same Stahl interview linked above:

"It may well be that I'm something of a contrarian."

Thats an interesting admission.

We have climate contrarians and so forth. What is a judicial contrarian?

One who bucks the regnant orthodoxy or one who argues, a la devils advocates, for conclusions he knows are not necessarily correct?
 

Here's a link to a video that is a graphic representation of your point re the Iraq war: http://www.youtube.com/results?search_query=tough+guy+special&search_type=

Read the description of the video: it is dedicated the generation of young people who now think that war is just a kick-ass video game.

Thanks, Supreme Court
 

I posted the wrong video link. Here's the right one:
http://www.youtube.com/watch?v=7EOYU08WO-I

If that link doesn't work, do a search on YouTube:
It's called "Tough-Guy's Special"
 

I'm not sure why the Iraq war supplies any additional reason to think that the Florida Supreme Court's decisions were consistent with the Equal Protection Clause or with Article II. I'm all for continuing to discuss the Supreme Court's errors, but if you want to do that, I think it makes much more sense to discuss the actual errors, rather than just casting scorn on people who might disagree.
 

Chris:

I'm not sure why the Iraq war supplies any additional reason to think that the Florida Supreme Court's decisions were [did you mean "in-"?]consistent with the Equal Protection Clause or with Article II. I'm all for continuing to discuss the Supreme Court's errors, but if you want to do that, I think it makes much more sense to discuss the actual errors, rather than just casting scorn on people who might disagree.

I see your point, but I'd point out that there are those (including Richard Posner) who defended the decision based on the fact that it was needed to 'save the country'. If this imperative, unbound by any common understanding of normal jurisprudence, resulted in the opposite actual result, then isn't that relevant?

Did the 'thinking' of the conservatives, in engaging in such "outcome-bound jurisprudence", not negate its own raison d'etre in proving the obvious flaws in such an approach?

What to make of O'Connor's reputed exclamation, on hearing that Gore had been declared the victor in Florida, of "Oh, this is terrible"?

Cheers,
 

1) Staying true to the Constitution by reversing prior precedent which strayed from the Constitution is not any more activist than recovering a purse from a thief and returning it to its rightful owner is theft.

2) Bush v. Gore was a bipartisan 7-2 decision which was the second time the US Supremes had to reverse the Florida Supremes. Finding that using different unspecified methods to count votes has been held to be a violation of the EPC for decades in previous African American voting rights cases and is hardly activist.

Gore lost in every recount, official and unofficial. GET OVER IT.
 

"[did you mean "in-"?]"

No, Prof. Koppelman seemed to be suggesting that the Iraq war supplies a reason to think that the Supreme Court was wrong to reverse the Florida Supreme Court on those grounds.

"[T]here are those (including Richard Posner) who defended the decision based on the fact that it was needed to 'save the country'. If this imperative, unbound by any common understanding of normal jurisprudence, resulted in the opposite actual result, then isn't that relevant?"

I don't think so. The pragmatic argument for Bush v. Gore was about the cost of prolonged electoral uncertainty, not the pragmatic benefits of having a particular person as president. Not that I think that such a pragmatic argument was particularly strong--but the Iraq war doesn't show that.
 

Can anyone point me to a link of a good critique of the decision? I know there are many, but if there is one that is considered "leading" and is readily available, I'd like to read it.

thanks in advance.

Side note: I have some advice to law professors out there. My Con Law prof. started us off with Bush v. Gore on day 1 of class. Don't do that. The case made no sense to anyone and just confused the hell out of us.
 

Perhaps "get over it" mentality is precisely calibrated to distance themselves and the country from that horrendous, totalitarian-style "legal" ruling.

The idea that activist judges are Democrats is antithesis to the truth - it's the Republicans who are activist judges, but the logic has be flipped upside down to instill the propaganda in people's minds that it's the opposite.

I always said and thought that Republicans cannot conceivably win election on their narrow political platform - economic right - free markets for the poor and welfare for the rich. So lies and manipulative ploys must be employed in order to win elections. John McCain's statement only further corroborates this hypothesis.
 

Dave, I don't know of any link, but there are several good books out. One I like is Bruce Ackerman's.
 

The important question is "what can you do about it?" Confronted with a murderer, one can make the murderer take responsibility. Cruel fate, in contrast, accepts no adjustments.

The problem is not that people continue to suffer from the decision. Surely, it is too late for anyone to get us a President Gore before January 2009. The suffering is an irretrievable consequence of the decision.

What we can change is the law that made Bush v. Gore possible, either on the books, or by changing the people who interpret the law. Alternately, we can, perhaps, somehow hold the judges who made that decision accountable, socially, in reputation, or otherwise. We can shame them for their deviant acts. But, does Scalia really know shame?
 

"I'm not sure why the Iraq war supplies any additional reason to think that the Florida Supreme Court's decisions were consistent with the Equal Protection Clause or with Article II . . ."

It doesn't.

It supplies real world examples of things that aren't getting over it.

It's relevant therefore to Scalia's recent defense of the decision, which was not an appeal to the Equal Protection Clause or Article II, but to the dictum "get over it". His reasoning underlying his theory is "it's so old by now". As I lack legal training, I probably fail to appreciate his sublime jurisprudence.

I can however see how his reasoning can be applied to Roe v. Wade. I'm sure he'll be telling the right to life crowd to "get over it" as part of his impartial application of his principles to cases. Oh wait, he won't.
 

Thanks Mark! I'll check it out.
 

Actually, the President is not democratically elected by the people. Had the Supreme Court acted properly that would have become clear to all the people and maybe we would have done something about it. The way the Constitution works, the states select the electors who then elect the President. Had the Florida Supreme Court decided that Gore won, the Republican state legislature of Florida may well have followed through on an earlier threat to select the Bush electors. That would have meant that two sets of electors from Florida -- one for Bush, one for Gore -- would each elect its candidate and the House of Representatives, controlled by the Republicans, would have selected the Bush electors. Under this scenario, Bush would still have ended up being President. But there was a reasonable chance that the people would have undertaken to make the choice of President one for the people by enacting an amendment, just as happened when the Constitution was amended to make Senators democratically elected.
 

JPK: "Scalia's recent defense of the decision ... was not an appeal to the Equal Protection Clause or Article II, but to the dictum 'get over it.'"

That's not true. In the CBS article Prof. Koppelman is commenting on, Scalia relied on the fact that Souter and Breyer agreed about the Equal Protection Clause claim: "[G]et over it. It's so old by now. The principal issue in the case, whether the scheme that the Florida Supreme Court had put together violated the federal Constitution, that wasn't even close. The vote was seven to two."
 

Eric: Scalia is the first person I've heard articulate it in those words.

I find this statement more shocking than Scalia's. What blessed peaceful rock have you been hiding under?

Scalia himself has been using the "get over it" line for almost two years now.

But the "get over it" meme has been a non-stop drone from Bush supporters for much longer.

EJ Dionne called it a Republican battle cry" in 2001.

See this entry from 2004 bemoaning the fact that any complaint of voting irregularity in the 2004 election was met by "get over it" arguments.

Here's a similar article from 2001.

See this op-ed from March 26, 2003 for an example of the "get over it" meme.

Perhaps the most telling example is this statement made by Ric Keller in 2005:

"There’s a wise saying we’ve used in Florida the past four years that the other side would be wise to learn: Get over it."

So Eric, while, yes, this is a new instance that we can consider separate of previous ones, no, it isn't a stretch to talk about "those advocates of 'get over it.'" There are many more than two data points.
 

Same lies over and over again:

Bush v. Gore was a bipartisan 7-2 decision....

Cheers,
 

More lies:

Gore lost in every recount, official and unofficial. GET OVER IT.

Cheers,
 

Chris:

[Arne]: "[did you mean "in-"?]"

No, Prof. Koppelman seemed to be suggesting that the Iraq war supplies a reason to think that the Supreme Court was wrong to reverse the Florida Supreme Court on those grounds.

Sorry, I misread SCOTUS for SCOFLA. I see what you said.

[Arne]: "[T]here are those (including Richard Posner) who defended the decision based on the fact that it was needed to 'save the country'. If this imperative, unbound by any common understanding of normal jurisprudence, resulted in the opposite actual result, then isn't that relevant?"

I don't think so. The pragmatic argument for Bush v. Gore was about the cost of prolonged electoral uncertainty, not the pragmatic benefits of having a particular person as president....

I didn't say that argument hinged n having a particular person as preznit. In fact, had they actually pushed that argument, people would have said "Geddouttahere!".

The argument (as stated) was that the constitutional chaos that might result might tear the republic apart and that the uncertainty and upheaval might lead others to take advantage of that and attack, thus not deciding would leave the nation at risk (thus the "urgency" of deciding who was "CinC", rather than letting it drag on. Well, we see how well that worked out. We put in an eedjit instead, and they succeeded in killing 3000.... But I'd note that the nation (at least for the time being) survived even this.

Of course the real reason was that they wanted a particular persn in....

... Not that I think that such a pragmatic argument was particularly strong--but the Iraq war doesn't show that.

The pragmatic argument was ... well, shall we say?, simply "results-oriented" and dishonest.... That was my original contention WRT Posner et al..

I had to appreciate Nino's comment about any recounting threatened irreparable harm to Bush "by casting a cloud upon what he claims to be the legitimacy of his election." As if the election was being run for the sake of Dubya's ego, and not for the sake of the country. You gotta live the folks that Scalia et al. think are the ones actually "injured" when push comes to shove. Which brings up another point: Dubya was not a voter in Florida and thus not a proper party to any suit claiming vote dilution.

Cheers,
 

Dave and Mark Field:

[Mark Field]: Dave, I don't know of any link, but there are several good books out. One I like is Bruce Ackerman's.

Bugliosi's book is good.

Cheers,
 

chris:

In the CBS article Prof. Koppelman is commenting on, Scalia relied on the fact that Souter and Breyer agreed about the Equal Protection Clause claim: "[G]et over it. It's so old by now. The principal issue in the case, whether the scheme that the Florida Supreme Court had put together violated the federal Constitution, that wasn't even close. The vote was seven to two."

So Nino's a liar too. Why am I not surprised? Oh, yeah. Right. Because he signed on to the cowardly per curiam that lied when it said: "Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy." More at the link; I won't bore the regulars to tears by repeating it.

Cheers,
 

Some political actor will in the end have to make a decision. It may be the U.S. Supreme Court, it may be the Congress....

It should have been Congress. It's been spelled out for two centuries exactly how Congress deals with the situation.

It was a grotesque novelty for the Court to perform this task.

Members of the House have to return to the People to answer for their actions, not speed away in the dark of night in their limousines, secure in the knowledge that they would face no consequences.

The 2002 Congressional elections should have been a referendum on the topic.
 

I haven't bothered to look up the credentials of the author, but I assume he's an academic. And I note the speed with which academics of his stripe discard all standards of intelligent discourse when the emotions become engaged.

Thus, judges who disagree with Koppelman are guilty "dishonesty or self-deception," and other academics who disagree with him are really "public relations flacks for political hacks." No need for Koppelman to refute their arguments; it's sufficient for him to question their motives or character. I guess the above descriptions would include Posner of the 7th Circuit and the University of Chicago, who I always thought was pretty honest and pretty smart.

How does one argue with someone like Koppelman? Most would decline, not because his arguments are effective, but because he has already disengaged from the substantive issues, and basically starts from the position that an opponent must prove to Koppelman that he isn't a scoundrel.

Koppelman's post is a rant. A rant is sting of words meant to make the author and his compatriots feel good, but which the author must honestly admit has zero chance of convincing one who does not already agree.

Koppelman teaches students, I presume. But if his approach is of a piece with this post, then his lesson is no more interesting or valuable than: Express your feelings.
 

I'll get over their malfeasance and politically motivated corruption of justice when their IQs rise to the level of Terry Schiavo's.

Alito still doesn't get that only the Pope gets to claim infallibility, which requires adherence to something beyond a mirror.
 

When Justice O'Connor - whose husband was eager to see her retire so they could return to AZ - expressed outward disapproval of a Gore win because she felt it compelled her to stick around till another Republican could name her replacement, she was admitting that her political belief outweighed the personal.

That can't be defended via logic nor reasonable discourse. It was an instinctive response to the dilemma thrust upon her. It was emotion.

It's also an emotion in an instant when someone acts as cop, judge, jury and executioner when confronted with the miscreant who just took the life of a loved one. But it can also be defended as justice.

In a blog, I don't think it's a requirement that one use dry legal language where an emotional shortcut conveys that one disagrees with the legal argumentation.

You assume Koppelman's rant is somehow indicative of his teaching performance, which is not at all germane to his main point (that the Supreme Court decision was flawed.)

If that's unpersuasive without more, fine, say that. The rest is idle presumption, Idle, due to your admitted decision not to take 30 seconds to verify his status as an academic). And that, too, proves unpersuasive as a critique of his teaching prowess.

As a diversion, however, it was a nice try.
 

"It was a grotesque novelty for the Court to perform this task."

Agreed. The proper response was for the Florida legislature to send up the Bush slate themselves, impeach the state supreme court majority for their actions, and then the House counts the Bush slate, ignoring the judicially appointed one.

Of course, I doubt that the people complaining about Bush v Gore would be any happier if that had happened; It's not the Court's presumption that bothers them, it's that the Florida court didn't get away with stealing the election.
 

Weird thing is, I'm mostly over it--
except on days when people insist on bringing it up to defend. Honest to God, if you're going to ask us to move on, don't flaunt the damned thing.
 

Brett, try this one on:

"The view that the Florida Supreme Court acted contrary to the intent of the Florida legislature was rejected by six of the nine justices."
 

[Scholars] are worse than political hacks. They are public relations flacks for political hacks.

Isn't that the role of intellectuals under capitalism, to provide philosophical backing for the prevailing orthodoxy? At least for financially successful intellectuals.
 

Brett:

Agreed. The proper response was for the Florida legislature to send up the Bush slate themselves, impeach the state supreme court majority for their actions, and then the House counts the Bush slate, ignoring the judicially appointed one.

The the Florida legislature done so, they would arguably have violated the Constitutional requirement that "The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States." U.S. Constitution, Article II, Section 1.

Such ex post facto tinkering with the electoral process suffers as well from fundamental problems with procedural fairness (the "do-over" as well as "moving the goalposts" or similar such objections to rule changing in the wake of an undesired outcome).

That being said, the Rethuglican House of Representatives couldn't have been relied on to do the right thing, and to reject any such slate of electors picked after the fact....

Cheers,
 

No, not really, Arne: All they were going to do was vote to send to the House the slate of delegates which were indeed chosen on that date, by the method dictated by the legislature, instead of the slate chosen by the courts' prefered procedure.

Whether or not you think that's what they were doing, constitutionally it was up to the House, not the Supreme court, to make the call. I think the Supreme court made the right call, but it clearly wasn't their call to make.

Would have been a good national civics lesson had the Supreme court stayed out of the matter, and let the mechanism the Constitution actually specified resolve the conflict.
 

Brett:

No, not really, Arne: All they were going to do was vote to send to the House the slate of delegates which were indeed chosen on that date, by the method dictated by the legislature, instead of the slate chosen by the courts' prefered procedure.

The legislature gets to "direct" the manner of appointing electors. They can, if they wish, "direct" that they do so themselves (or, as Nevada prescribes for tied elections, by a poker game). But once they have done that, their job is finished. They do't get a "do-over" after the fact, should the "manner" they have "directed" happen to result in an outcome they don't like.

And Florida's legislature, like all other states currently, has specified that the "manner" be through popular elections (done on the date set by Congress).

In addition, the Florida legislature set up methods to handle protests and contests of the tabulation and results of those elections, and further specified that the Florida courts should be the proper venue for handling any such protests and contests (of course, following the state election laws in doing so; something that the Florida Supreme Court did, and which the U.S. Supreme Court did not dispute in Dubya v. Gore).

This was the method they specified. If they want to change this method after the fact, they are arguably violating the Constitutional provision that said that the date of appointment of the electors (whether by voting or Texas hold'em) should be the same; they don't get to go back after the fact and try something different. The stipulation that the date should be the same was for a reason; namely that states shouldn't be taking a "After you, my dear Alphonse" approach and waiting to see what others did before they committed themselves (with the attendant issues that the inevitable "Alphonse" conundrum would bring).

This is all unremarkable. Pretty much every state provides that courts are the proper venue for election disputes to be decided, and no state provides that the legislature should, after the fact, step in and issue its own "rulings" on any disputed election results (with the possible exception of those that, by legislative vote, decide the "qualifications" of the presumptive victors for their own body and whether to seat them, as does the U.S. Congress [but only infrequently]).

Stated mure succinctly, the Florida legislature did speak: They said: "Elections, and if there's a problem, go tell it to the judge." End of story.

Cheers,
 

Brett:

No, not really, Arne: All they were going to do was vote to send to the House the slate of delegates which were indeed chosen on that date, by the method dictated by the legislature, instead of the slate chosen by the courts' prefered procedure.

To clarify, it would be like stating in advance that the electors should be decided in a poker game, and then after the power game was turning out badly for their preferred slate, stating that the means of arbitration of the ranking of the poker hand should rank straights above flushes (something that would be permissible [albeit idiosyncratic] in advance, but which, after the fact and under the circumstances of an obvious "results-based" 'reformulation' in their favour, should be considered not only fundamentally unfair but also beyond their power since they had already done their part and had no further stake in the game, the hand having already been dealt).

Cheers,
 

"In the CBS article Prof. Koppelman is commenting on, Scalia relied on the fact that Souter and Breyer agreed about the Equal Protection Clause claim [so it's not the case that Scalia's defense of the decision is "get over it"] . . ."

Thanks for the pointer to the CBS interview. A careful reading shows Scalia actually utters three defenses:

1. Get over it. It's so old.

2. The decision was seven to two, hence presumably noncontroversial (this turns out to be only the "principal" issue, ignoring all else).

3. It was Al Gore's fault for using the civil justice system.

I would point out that these three defenses are not entirely compatible with each other. For instance, if 2 is true, then it makes no sense to assert 1 (there's nothing to get over). If 1 and 3 are true, then 2 is irrelevant (it doesn't matter whether it was close). And so on.

I must be missing the brilliant legal reasoning here.

The only sense in which 1 ("get over it") adds to the discourse is an appeal to accept a longstanding decision that you believe was decided wrongly.

Following that sense, I again ask Scalia, and yes, the many other right wing blowhards (thanks pms_chicago for a partial list) who spew "get over it" on Gore v. Bush, to spew the same dictum at Right to Life meetings with respect to Roe v. Wade. Just as any principled person would, who had advocated "get over it" in other cases.
 

Arne, you seem to be standing the events in Florida on their head. It wasn't Bush who went to court to have the pre-established election rules changed, it was Gore. Starting with depriving the Secretary of State of her legal discretion as to whether to accept late recounts.

But in any event, I believe we can agree that the Supreme court shouldn't have gotten involved.

Perhaps Scalia could deflect the criticism by telling critics to "move on" instead?
 

Brett:

Arne, you seem to be standing the events in Florida on their head....

No.

... It wasn't Bush who went to court to have the pre-established election rules changed, it was Gore....

No. As I pointed out, Gore first protested four counties, and then contested the election, all as provided for in Florida election law (written by the Florida legislature in saner days). Nothing about rewriting "pre-established election rules".

... Starting with depriving the Secretary of State of her legal discretion as to whether
to accept late recounts.

Well, right. Yesindeedy. Florida election law are for the benefit of Katherine Harris (R-Stoopid). My, we'd hate to see Her Arrogance get inconvenienced.

But outside to that wunnahful democratic sentiment you have there, Florida election law wasn't quite as friendly to Harris as you seem to think.

FWIW, Palm Beach v. Harris was not Dubya v. Gore (which is what we're discussing here), and the Florida Supreme Court (the ultimate authority on Florida election law) ruled against Harris on her interpretation.

Cheers,
 

"FWIW, Palm Beach v. Harris was not Dubya v. Gore (which is what we're discussing here), and the Florida Supreme Court (the ultimate authority on Florida election law) ruled against Harris on her interpretation."

Was not Bush v. Gore, but led to it. It was the start of the Florida supreme court's decision to rewrite rather than implement the election laws enacted by the Florida legislature.
 

Brett:

[Arne]: FWIW, Palm Beach v. Harris was not Dubya v. Gore (which is what we're discussing here), and the Florida Supreme Court (the ultimate authority on Florida election law) ruled against Harris on her interpretation.

[Brett]: Was not Bush v. Gore, but led to it. It was the start of the Florida supreme court's decision to rewrite rather than implement the election laws enacted by the Florida legislature.

As I said, they were different cases and covered different sections of Florida election law (Palm Beach v. Harris concerned a Fla.St. 102.166 protest [and other statutes such as 102.112] and Dubya v. Gore a contest under Fla.St. 102.168). This is undisputable.

Furthermore, the U.S. Supreme Court was looking only at 3 USC § 5 and Article II objections to the Florida Supreme Court decision (as they should; they have no jurisdiction to decide Florida election law), and vacated and remanded for clarification of the grounds for the Florida high court's decision so as to be able to determine if either of the federal questions pertained. They did not overrule the Florida Supreme Court's decisions as to the interpretation of §&Sect; 102.111, 102.112, and 102.166 (nor could they), and this interpretation stands (albeit these laws have been amended since to remove some of the ambiguities; but incidentally to also specifically prohibit any "standard" such as "only machine-countable votes", such as the Rethuglicans insisted was the only proper standard).

IOW, absent a ruling by the U.S. Supreme Court that the Florida Supreme Court violated either 3 USC § 5 or Article II (which they did not do), even Palm Beach v. Harris was decided in Gore's favour, and correctly so, IMO.

Cheers,
 

a) Get over it
b) Oh shut up
c) I would prefer not to talk about it because
d)There's a high probability that discussing this matter will prove deleterious to my aroma
e) All of the above

***

Also, nice job, Arne.
 

Brett:

Forgot to mention the little tidbit that 5 of the 7 Florida Supreme Court Justices were Republican appointees.....

Yep, couldn't have been anythng but Democratic partisanship that shaped their opinions of their own state law....

Or maybe they just saw what a disaster that Dubya would be for the Republican party, six years ahead of the majority of the U.S..... ;-)

Cheers,
 

JPK--I didn't mention the full context of Scalia's comment to defend it; I'm merely pointing out that his argument isn't anything at all like "Bush has turned out to be a wonderful president, so what we did was right." That would be a pretty nutty argument. But "Bush has turned out to be a terrible president, so what the Supreme Court did was wrong" is just as nutty.
 

"Bush has turned out to be a terrible president, so what the Supreme Court did was wrong" is just as nutty."

Yes. But I don't see anyone advancing that argument here.

Rather, a right wing defense of the decision, "it's old", is taken to task with the observation that the fallout isn't old; it's recent and present and ongoing.

Of course the decision isn't responsible for the fallout.

But a defense of the decision "it's old" must contend with fallout that isn't old. That seems a valid criticism.

Also valid: "it's old" is only principled as an appeal to accept a longstanding precedent even if you believe it was decided wrongly. But the right wing is unwilling to apply the same principle to Roe v. Wade.

So I accept that it's hard to defend the right wing defense of the decision. I wouldn't try it myself :-)
 

When Justice O'Connor - whose husband was eager to see her retire so they could return to AZ - expressed outward disapproval of a Gore win because she felt it compelled her to stick around till another Republican could name her replacement, she was admitting that her political belief outweighed the personal.

Of course, this statement is obviously based on a false premise based on some unsourced gossip. If O'Connor did not want Gore to win because she wanted to retire, then why didn't she retire? She stayed around for six more years.
 

Me: '"Bush has turned out to be a terrible president, so what the Supreme Court did was wrong' is just as nutty."

JPK: "Yes. But I don't see anyone advancing that argument here."

Koppelman's initial post reads that way to me: "More Americans and Iraqis are going to die next week because of the Court’s astonishing abuse of its power."
 

McCain pontificates --

“For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges. With a presumption that would have amazed the framers of our Constitution, and legal reasoning that would have mystified them, federal judges today issue rulings and opinions on policy questions that should be decided democratically."

If he knew what he was talking about, he'd shut up, because he is directly objecting to Bush[it] v. Gore

But note that he makes no mention of the Constitution, which expressly gives Congress the authority to settle election disputes such as that in 2000 -- exclusive of the UNELECTED/nondemocratic SC.
 

I really get tired of the side issues and tangents, regardless which way argued --

"Mike Zimmer --

"Actually, the President is not democratically elected by the people. Had the Supreme Court acted properly that would have become clear to all the people and maybe we would have done something about it. The way the Constitution works, the states select the electors who then elect the President. Had the Florida Supreme Court decided that Gore won, the Republican state legislature of Florida may well have followed through on an earlier threat to select the Bush electors."

If the US citizenry knew the contents of the Constitution and history, they would have known that the first instance of a "tied" election was Jefferson-Burr. And they, knowing the contents of the Constitution, took the matter not to the UNELECTED SC, but instead -- as stipulated in the Constitution -- to Congress for DEMOCRATIC resolution there.

"That would have meant that two sets of electors from Florida -- one for Bush, one for Gore -- would each elect its candidate and the House of Representatives, controlled by the Republicans, would have selected the Bush electors."

During the 1960 election, the first set of electors fro HI were for Nixon. Then, as result of recounts, the state sent a second set of electors -- for JFK. Congress accepted the latter without any "crisis" or problem.

And Nixon exercised his right by suing in 16 states (all being thrown out) up to and including the day before JFK was inaugurated.

There was no "crisis": there was a sitting president -- Clinton -- who was taking care of business, therefore there was sufficient time to resolve the issue in accordance with the Constitution and Jefferson-Burr precendent.

All the rest is smoke and distortion-mirrors.

What most burns my ass is that the majority of law professors preferred to masticate over the [non-existent] "merits" of Bush[it] v. Gore while saying nothing whatsoever about the Constitution giving exclusive authority to resolve such disputes to the most democratic branch: Congress.

They, and the media, are who actually settled the election, by not rasing hell about the law, instad of calmly and tenuredly and "academic freedom"ly discussing those no-existent merits.

"Under this scenario, Bush would still have ended up being President."

And? It would have been by required means to the end, rather than by subversion of the Constitution to achieve not only the exact same end, but also to establish Constitutional subversion as acceptable alternative.

"But there was a reasonable chance that the people would have undertaken to make the choice of President one for the people by enacting an amendment, just as happened when the Constitution was amended to make Senators democratically elected."

The Republican-controlled Congress was about to suggest an Amendment which would have ensured that another abortion such as Bush[it] v. Gore couldn't happen, becuase it was so egregiously wrong in that same instance.
 

"So Eric, while, yes, this is a new instance that we can consider separate of previous ones, no, it isn't a stretch to talk about "those advocates of 'get over it.'" There are many more than two data points.

"# posted by PMS_Chicago"

The "Get over it" dodge began at latest on 12/12/2000.

And it's sole and entire intent has all along been to divert from scrutiny of both the process and the lawless SC "decision" to appoint the SC 5's choice of candidate: those they most identified with: the loser who has since proved himself to be, yes, and incontestably, a LOSER.

It was already clear that Bushit destroyed everything he touched. And he has not betrayed that history.
 

Some political actor will in the end have to make a decision. It may be the U.S. Supreme Court, it may be the Congress....

It should have been Congress. It's been spelled out for two centuries exactly how Congress deals with the situation.

It was a grotesque novelty for the Court to perform this task.

Members of the House have to return to the People to answer for their actions, not speed away in the dark of night in their limousines, secure in the knowledge that they would face no consequences. . . .

# posted by Davis X. Machina

Exactly right. And where were the law professors? Getting their rocks off discussing the "merits" of the abortion, insted of holding the Constitution up to the TeeVee cameras.

They were complicit in the subversion. Even Toobin: during the "battle" he had Gore's people state their position. Then he had Bushit's people state their position.

Each side made assertions as to the FL law. Toobin DID NOT provide the essential third alternative view: THE ACTUAL TEXT OF THE RELEVANT LAW. Had he done so, the viewer would have readily seen that Bushit's people were asserting that the law was exactly opposite what the law actually was.

Thank you, "liberal" media and law professors for avoiding the law along with the Bushit criminal enterprise that subverted it, and thus ratifying the theft as if actually legitimate.
 

"Arne, you seem to be standing the events in Florida on their head. It wasn't Bush who went to court to have the pre-established election rules changed, it was Gore. Starting with depriving the Secretary of State of her legal discretion as to whether to accept late recounts.

"But in any event, I believe we can agree that the Supreme court shouldn't have gotten involved.

"Perhaps Scalia could deflect the criticism by telling critics to "move on" instead?

"# posted by Brett"

You're correct that the SC should not have got involved. In fact, their doing so both stopped the incomplete counting -- quickly, now, before Bushit's inconsequential lead becomes loss -- and usurped the exclusive authority of Congress to resolve the dispute. Otherwise you're worng.

I was online reading the FL elections law during the battle. The FL court followed it in every detail.

And it was Bushit who ran whining to court first -- the Federal court. Three times. And each time the court dismissed his BS, without prejudice, telling him to wait until all the votes had been counted; and then, if he still falsely believed he had a beef, bring it back to the court.

And what was Bushit's effort each time? TO GET THE VOTE-COUNTING STOPPED.

It was because that court said, "We are honest, and will decide the case on the law and facts, not on your last name," Bushit then ran whining to his daddy's SC.

The first subversion of the Constitution by the SC was in accepting Bushit's BS as if an actual legal case. Meanwhile, the history of elections law in at least FL showed that the courts are loathe to get involved on such disputes -- the consistent ruling being: "This is a nonjusticiable political question -- TAKE IT TO THE LEGISLATURE". The ONLY time they are willing to get involved, and it is strict and narrow, is in disputes over which votes are legal, and which not. In a directly on point AL case, the Federal court determined that of 5 criteria required to make some 3,000 votes legal, only three were fufilled, therefore those 3,000 votes were -- obviously -- not legal, as defined not by the court, but by the applicable law.

You can go by the actual law; or you can go by the Bushit criminal enterprise's lies about the law; but you cannot reconcile the two.
 

Koppelman's initial post reads that way to me: "More Americans and Iraqis are going to die next week because of the Court’s astonishing abuse of its power."

# posted by Chris

It may only be a coincidence, the direct connection between the SC's suversion, and the Bushit criminal enterprise's subversions, but there it is.

If the SC appoints you to the office by measns of a screed reading, "You are exampt from the rule of law," are you going to act is if you aren't exempt from the rule of law? Especially if your entire prior life was an audition for that exemption?
 

When Justice O'Connor - whose husband was eager to see her retire so they could return to AZ - expressed outward disapproval of a Gore win because she felt it compelled her to stick around till another Republican could name her replacement, she was admitting that her political belief outweighed the personal.

Of course, this statement is obviously based on a false premise based on some unsourced gossip. If O'Connor did not want Gore to win because she wanted to retire, then why didn't she retire? She stayed around for six more years.

# posted by David

Because she had to wait for her replacement to be appointed.

Also: it was a REPUBLICAN who reproted her statement, and she DID NOT DENY IT.

Exactly as those named as the "Principals" committee members as having planned out the torture scheme HAVE NOT DENIED IT.

(Gee, I suppose we should be astonished into silence at the spectable of REPUBLICANS not lying for a change. Some might even argue for leniency based upon that extraordinary rarity alone.)
 

The New York Times, front page, Nov 12, 2001, has a story about the media recount of all Florida votes. The chart at the top left of the page says, "Ballot standards under strategies Gore pursued; Bush still would have won." But below that it says, "Ballot standards under which all disqualified ballots statewide would have been reexamined: Gore would have received the most votes."
 

The problem which led to Republicans being so opposed to a statewide recount was quite simple: During the 4 county recount Gore initially asked for, Democratic elections officials were openly changing the counting criteria as the count progressed, blatantly trying to "tune" the procedure in to create as many new Gore votes vs Bush votes as possible. Different counting standards were used from start to finish, and from one precinct to the next, to accomplish this.

So when the state supreme court was considering a state wide recount, Republicans pleaded for a uniform counting standard, ANY uniform counting standard. The Florida supreme court refused, creating a recount where officials were free to use different standards from precinct to precinct, or even ballot to ballot.

The amounted to an open invitation to ballot rigging, on both sides, in which the winner would be whichever candidates' election officials were the most shameless about biased counting. THAT nightmare was the basis upon which the Supreme court found the Florida supreme court ordered recount unconstitutional, and it was something Republicans were reasonable to be afraid of.
 

During the 4 county recount Gore initially asked for, Democratic elections officials were openly changing the counting criteria as the count progressed, blatantly trying to "tune" the procedure in to create as many new Gore votes vs Bush votes as possible. Different counting standards were used from start to finish, and from one precinct to the next, to accomplish this.

Do you have any evidence for these claims, Brett?

Also, excuse me if I'm wrong about this but didn't different counties and precincts use different types of ballots and voting machines? How is a uniform standard possible under those conditions?
 

Brett --

"The problem which led to Republicans being so opposed to a statewide recount was quite simple: During the 4 county recount Gore initially asked for, Democratic elections officials were openly changing the counting criteria as the count progressed, blatantly trying to "tune" the procedure in to create as many new Gore votes vs Bush votes as possible. Different counting standards were used from start to finish, and from one precinct to the next, to accomplish this."

READ THE LAW, ass. You'd be surprised how finely detailed the FL elections law was on HOW to count physically different forms of votes in accordance with necessarilly-different criteria to accomodate those physical differences.

And that elections law had recently been amended and reenacted by the REPUBLCIAN-controlled FL legislature, and signed by the REPUBLICAN governor with the surname BUSH.

Take as example a particular form of vote: one with a box, or oval, next to each candidates name, and below those a line on which the voter could write in a candidate not on the ballot.

In a significant number of instances, the voter filled in the box, or oval, next to Gore's name, and then -- to be certain they got it right -- ALSO wrote in his name on the line.

FL eleections law is absolutely clear on the baseline: if voter intent can be discerned, then the vote MUST be counted. Republicans, in Republican counties, were DISCARDING those votes on the grounds that it couldn't be determined for whom the voter was voting.

And in Democratically-controlled counties, the REPUBLICANS were raising holy hell in order to get such votes DISCARDED.

READ THE FL ELECTIONS LAW.

In addition, as the case law decisions on point, which in FL go back over 100 years, make clear, a court will bend over backwards not to interfere in the outcome of an election, by allowing in a small amount of what MIGHT be illegal votes in order that ALL LEGAL votes are allowed in.

READ THE FL ELECTIONS LAW.

"So when the state supreme court was considering a state wide recount, Republicans pleaded for a uniform counting standard, ANY uniform counting standard."

ASS: one CANNOT have a single "uniform counting standard" when the forms of votes are from at least two differnt kinds of machines, with two different recording methods, PLUS paper ballots, etc. What they were DEMANDING was the exclusion of ALL votes which didn't fit their fraudulent demand. Actually, they were about prolonging the fake controversey they created in effort to prevent vote counting in order that Bush's lead not be superceded.

One CANNOT discern voter intent on a computer "chad" punchcard in the same way or by any "same standard" as would apply to a paper ballot, or to an electronic voting machine card.

Compare what you know about those punch cards, with the detailed description of just one form of ballot used in one form of the electronic voting machines. One CANNOT apply the same standard to BOTH. The Republican goal was not to count only legal votes; it was to PREVENT COUNTING ANY VOTES after Bush's early lead in the EARLY counting.

The wanted the counting STOPPED while Bush was ahead, end of story, end of election.

"The Florida supreme court refused, creating a recount where officials were free to use different standards from precinct to precinct, or even ballot to ballot."

BECAUSE, ass, the DIFFERENT FORMS OF THE BALLOTS, and thus the DIFFERENT CRITERIA APPLICABLE TO EACH OF THOSE DIFFERENT FORMS are O-B-V-I-O-U-S-L-Y, BY PHYSICAL NECESSITY, D-I-F-F-E-R-E-N-T.

And every one of those differences was addressed, in fine detail, in the PRE-existing FL elections law.

One DOES NOT count "chad" punchholes in ballots from machines THAT DO NOT PUNCH THE BALLOT.

"The amounted to an open invitation to ballot rigging, on both sides, . . . ."

No, ass: it amounted to the court fully complying with the detailed requirments of the law -- in which every last detail of how to deal with every last detail of the DIFFERENT FORMS of ballots WAS ALREADY ADDRESSED AND STIPULATED.

"and the technical differences between the various forms of ballots."

READ THE FL ELECTIONS LAW. The LAW REQUIRED that each form of ballot be TREATED DIFFERENTLY in accordance with their DIFFERENT PHYSICAL CHARACTERISTICS. Which OBVIOUSLY stands to REASON.

You are operating from the false assumption -- and REPUBLICAN LIE --implying that all the ballots were identical in form and detail in every inch of every county in the state.

"in which the winner would be whichever candidates' election officials were the most shameless about biased counting."

R-E-A-D T-H-E F-L L-A-W. The court did exactly as the law stipulated, down to the proper treatent of the different forms of ballots. Again: one does not deal with a "chad" puncard THE SAME as one deals with a computer card on which the voter WRITES because the SAME STANDARD CANNOT apply.

"THAT nightmare was the basis upon which the Supreme court found the Florida supreme court ordered recount unconstitutional, and it was something Republicans were reasonable to be afraid of."

No: the SC STOPPED the counting BEFORE IT HAD BEEN COMPLETED EVEN ONCE. Then it usurpred the exclusive authority of Congress by accepting Bushit's bogus "case". And then it did so again when it applied the equal protection clause to CANDIDATE BUSH ONLY.

The SC 5 said, in essence, it would be damaging to Bush to actually LOSE an election; and that he not be damaged -- no other candidate being so protected -- was paramount over the votes of the voters, the electoral system, the rule of law, the Constitution itself.

One does not discern voter intent from a paper ballot in the same way as one discerns voter intent from a "chad" punchcard; nor does one discern voter intent from those in the same way as one does from a computer card on which the voter writes. To insist that that be done nonetheless is the ultimate forced imposition of self-serving anti-intellectaul illusion -- that illusion being a knowing LIE.

READ THE FL ELECTIONS LAW.
 

mattski --

During the 4 county recount Gore initially asked for, Democratic elections officials were openly changing the counting criteria as the count progressed, blatantly trying to "tune" the procedure in to create as many new Gore votes vs Bush votes as possible. Different counting standards were used from start to finish, and from one precinct to the next, to accomplish this.

"Do you have any evidence for these claims, Brett?"

Sure he does: the unbiased assertions by James Baker and the Republican as substitute for and on the absence of the actual requirements of the actual law HE hasn't read, and even the "liberal" Toobin did not provide to the teevee viewer as standard and measure against which to compare the assertions from BOTH partisan sides.

"Also, excuse me if I'm wrong about this but didn't different counties and precincts use different types of ballots and voting machines? How is a uniform standard possible under those conditions?"

Bingo!

And knowing that, the REPUBLICAN-controlled FL legislature stipulated, in fine detail, in the PRE-existing FL Elections statute they enacted, and which was signed by REPUBLICAN governor Bush, how each differnt form of ballot was to be counted, as the means of discerning voter intent from each different form of ballot is different for each form of ballot.

The baseline being: whether one can discern voter intent.

Simple reason readily accepts that as obvious and proper. Those who haven't bothered to READ the law, or who avoid doing so because they approve the outcome, would rather perpetuate the SUCCESSFUL REPUBLICAN lies against the actual law, and ignore the law altogether, up to and including the lawless Bush[it] v. Gore, which was based upon nothing more substantial than the SC 5's usurpation of Congress' EXCLUSIVE authority to address and resolve exactly such election disputes.
 

Well, you got me there, it was actually Broward county I was thinking of.

http://www.phillyburbs.com/election2000/news/1120broward.htm