Balkinization  

Wednesday, May 07, 2008

On not getting over it

Andrew Koppelman

A few days ago, Justice Antonin Scalia, asked again about the charge of partisanship in the Supreme Court’s decision in Bush v. Gore to hand the presidency to George W. Bush, declared, “Get over it. It’s so old by now.” I’d like to examine the logic of this epigram, which has become something of a mantra among the decision’s defenders.


Yesterday, John McCain said:


“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. Assured of lifetime tenures, these judges show little regard for the authority of the president, the Congress, and the states. They display even less interest in the will of the people. And the only remedy available to any of us is to find, nominate, and confirm better judges.”


McCain went on to explain what kind of judges he had in mind: “I will look for people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist -- jurists of the highest caliber who know their own minds, and know the law, and know the difference.” Rehnquist, of course, cast the deciding vote in Bush v. Gore.


Geoff Stone points out that McCain offers a strange portrait of these three judges, who have in fact been aggressively activist. But I wish someone would ask McCain whether Bush v. Gore was an example of the kind of judicial restraint that he was calling for. Before that decision, I had thought it would be uncontroversial that the selection of the President was a question that should be decided democratically. (One of the more depressing results of the decision was the rush of conservative law professors, many of whom are self-styled originalists and advocates of restraint, to defend the decision. One can easily imagine what they would have said had the Court engaged in such contortions on behalf of Democrats. The dishonesty or self-deception of the Bush v. Gore majority is perhaps understandable: by reaching the result they did, they got something tangible that they badly wanted, a Republican president. But what, exactly, do scholars gain by mortifying their intellects in this way? They are worse than political hacks. They are public relations flacks for political hacks.)


Consider more closely the call to “get over it.” It calls on the listener to stop thinking about the dubious decision, to put it behind him and move on.

There are times when “get over it” is kind and friendly advice. If I was talking to a close friend whose child had died a year earlier, for example, I would do what I could to help him get over it, and might even tell him that that’s what he needs to do.


The same words, though, would have a very different resonance if I were the one who had killed the child. Then it would not only be hideously inappropriate; it would be positively odious, showing a remarkable moral obtuseness. It might seem like a strained comparison. But I hope it isn’t too impolite to notice that tens of thousands of parents, here and in Iraq, actually have buried their children (casualty counts here, here and here) because the Court, in its wisdom, decided that the man who had been rejected by a margin of half a million Americans, and who might well have lost the election if the Florida vote count had been allowed to proceed, ought to be president – and that man then recklessly plunged the country into an unnecessary and disastrous war.


The other problem is that “Get over it. It’s so old by now.” isn't even accurate. More Americans and Iraqis are going to die next week because of the Court’s astonishing abuse of its power. It would be nice if it were so old. But it’s not. So if you’ll forgive me, I’m not planning to get over it.



Comments:

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
 

Mr. McCain's remedy is not the only one Supreme Court Justices can be impeached. That it has never been done, does not mean it cannot. I think the majority who voted to give Florida to Bush by stopping the vote count should be impeached.

Joe Walker
 

Brett, thanks for the link. Only problem, it reduces your allegations to rubble.

Republicans alleged political pressure led to the change, but Dion - a Republican - flatly denied the charge. ...

"These chad marks didn't get on the ballot by osmosis," said Democratic attorney Charles Lichtman, who added the voter's choice was obvious on many of the ballots that have thus far been thrown out. "The only way they could have occurred is with a stylus in a voting booth."

Secretary of State Katherine Harris has said she won't accept any manual recount totals, but the Florida Supreme Court ruled Friday that she cannot certify election results until it holds a hearing Monday.


Florida election law evidently places discernible voter intent above any other consideration. Properly, I would say. So if an arbitrary rule (two corner chads) resulted in ballots with obviously discernible voter intent being thrown out then that is a breach of the law and the FL supreme court was justified in stepping between Katherine Harris and the effort to count all valid ballots.
 

Take a look at "A Layman's Guide to Bush vs. Gore" http://www.iknowwhatyoudidlastelection.com/bush-supreme-court.htm

There was a television program a few months ago where a small group of former employees were interviewed about their experiences while handling the paper that was to be supplied for the punch voting in south Florida. The paper was defective and deliberately so to bring about defective results on the ballots.
Rejected paper rolls were returned. A supervisor from the head office came down to approve the paper when the person in charge refused to.
On September 12, 2001, the NYT ran the result of a count that proved Gore had won the election in Florida despite the tens of thousands of mostly minority votes that were never counted or included. How can we get over that?
 

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.

That was the Republican allegation. They even flew in Republicam staff members from across the country, pretending to be outraged Florida voters, to hold a "Rent-A-Riot" in Miami/Dade to make such claims. But that was not demonstrated.

Nonetheless, I'd point out that "standards" for vote counting were necessarily "different" from county to county ... in part because of the fact that some counties used optical ballots, some punch cards, and absentee ballots were different from either from these. But such has been true across the county, in elections since time immemorial, and is still done. I'd not that the Rethiglicans haven't gone out and demanded that voting methods and standards be "uniform throughout the land" in the aftermath.... Maybe it's not quite as big an "equal protection" problem as they were claiming....

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.

Total bullsh*te. The Republican weren't demanding "uniform counting standards" (nor could they without risking the very result they were trying so hard to prevent). They were demanding "no recount" period (and you can see it in the court filings).

And the state-wide recounts were being done under the auspices of Judge Terry Lewis, who had the power to set the parameters for such across the state.

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....

Oh, BS. Any ballot counting is an "invitation" to ballot rigging. Which is why there's rules and procedure to make sure it's done in as fair a way as possible and practicable. Why you think the Florida recount, with the eyes of the whole world watching, would be any less "fair" than any general election that passes unremarked and unchallenged, is beyond me.

... 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.

Huh? Hate to say it, but as Ginsburg pointed out, if what the anonymous majority had found "unconstitutional" was a standard applied across the land, there would be no way to hold elections by any method (the majority insisted in advance that there was no way the recount could pass muster), and there wouldn't be a single election in this country that was ever valid.....

Cheers,
 

Brett:

From your article:

The board said Sunday it would consider the ballots with dimple, pregnant chads or otherwise questionable chads after its appellate attorney, Andrew J. Meyers, said the two-corner standard would not hold up in court.

Last week, Broward County attorney Ed Dion had argued the two-corner chad rule was legal. Since then, judges in Palm Beach and Miami-Dade made separate rulings that canvassing boards should look to see if a voter's intent could be determined, even with a questionable chad.

Republicans alleged political pressure led to the change, but Dion - a Republican - flatly denied the charge.


Cheers,
 

mattski --

Brett, thanks for the link. Only problem, it reduces your allegations to rubble.

Republicans alleged political pressure led to the change, but Dion - a Republican - flatly denied the charge. ...

"These chad marks didn't get on the ballot by osmosis," said Democratic attorney Charles Lichtman, who added the voter's choice was obvious on many of the ballots that have thus far been thrown out. "The only way they could have occurred is with a stylus in a voting booth."

Secretary of State Katherine Harris has said she won't accept any manual recount totals, but the Florida Supreme Court ruled Friday that she cannot certify election results until it holds a hearing Monday.


"Florida election law evidently places discernible voter intent above any other consideration. Properly, I would say."

That's exactly what it does, bottom line: If the voter's intent can be discerned, then it is a valid vote, and must be counted.

A measure which obviously stands to reason.

As does the fact that there cannot be a "same standard" applied to different forms of ballots. One does not look at "chad" holes in optical scanner ballot cards because there aren't any. One doesn't look at "chad" holes in hand-checked ballot choices, because there are none.

"So if an arbitrary rule (two corner chads) resulted in ballots with obviously discernible voter intent being thrown out then that is a breach of the law and the FL supreme court was justified in stepping between Katherine Harris and the effort to count all valid ballots."

Exactly. In fact, I was impressed not only by the fine detail in the FL elections law which addressed every different form of ballot, but also with the "liberality" of the case law, even though it extended back over a hundred years, as concerns the courts (1) being loathe to handle election disputes, for fear of being seen or accused of determining the outcome, and (2) bending over backwards to ensure all valid votes were counted, even if that meant an inconsequential amount of arguably invalid votes were "allowed in".

In short: I was amazed and impressed -- and heartened -- by how precise and accurate and reasonable the elections law was, including the long-standing court precedents.
 

One last time.

1. Democratic elections officials had demonstrated a willingness to change standards in mid-count in order to maximize the yield of Gore votes.

2. The Florida supreme court recount would permit elections officials to use different counting standards from one precinct to another, yes, even if they used the same voting technology.

Put those together, and it was perfectly reasonable to fear that partisan elections officals would vary their standard from precinct to precinct, with the aim of boosting their candidate. THAT was what the Florida supreme court refused to rule out when asked.

Republicans weren't worried about a fair recount, so much as they were expecting it to NOT be fair.
 

Brett:

One last time.

1. Democratic elections officials had demonstrated a willingness to change standards in mid-count in order to maximize the yield of Gore votes.


Oh, BS. From your own link:

"Since the start of the hand counting of the 588,000 ballots, the counters have set aside questionable ballots in an envelope just in case they needed to be reviewed."

Yes, they may have chenged the standards (after getting advice from lawyers, who pointed out what judges were saying [see my comment above[). What's the matter with doing things right the first time? And they set aside the ballots that were "questionable" so that they could be "reviewed" if necessary, if that standards needed to be changed to conform to law.

But all the evidence you have that they did this for nefarious purposes is just the screaming of a Republican Rent-A-Riot composed of Republican Congressional staffers flown in on the GOP dime. Sorry, that's not evidence.

2. The Florida supreme court recount would permit elections officials to use different counting standards from one precinct to another, yes, even if they used the same voting technology.

Huh? Since when?

I'd point out, for the brain-dead here, that the Rethuglicans demanded that the whole state recount under the auspices of a single judge -- which stood some chance of ensuring as much uniformity to the procedure as possible -- stop. What this did was to ensure that some counties (the 2.5 or so of the four that Gore had asked for, as well as the "stealth" manual recounts done in Republican-leaning counties that netted Dubya a couple hundred votes) were recounted manually, while others had no recounts done at all (despite the requirement of Fla.St. 102.166 that such be done). These results, with manual recounts (including the Volusia and Broward counts that the Rethuglicans claimed to be so concerned about) in some counties and none in others, is what the U.S. Supreme Court, in their Dubya v. Gore decision, insisted must be the official result. IOW, the U.S. Supreme Court, in pretending to find an "equal protection" violation, insisted that the actual "remedy" should have the very situation that they claimed constituted such a violation ... in spades. That is the crux of the fundamental dishonesty of the majority opinion. If they truly believed that the problem was "equal protection", rather than "a cloud upon what [Bush] claims to be the legitimacy of his election", they could not have allowed this as a "remedy".

Put those together, and it was perfectly reasonable to fear that partisan elections officals would vary their standard from precinct to precinct, with the aim of boosting their candidate. THAT was what the Florida supreme court refused to rule out when asked.

Huh? Do you have any cites for this assertion? You are, AFAIK, just totally wrong in this claim of yours.

Republicans weren't worried about a fair recount, so much as they were expecting it to NOT be fair.

You misspelled "claiming". And left out "allegedly" after the first word. They were worried about a recount. That's why they asked it be stopped, instead of asking that it be done fairly.

Cheers,
 

Brett --

"One last time."

I doubt it.

1. Democratic elections officials had demonstrated a willingness to change standards in mid-count in order to maximize the yield of Gore votes.

A. Show me your EVIDENCE for either of those ALLEGATIONS -- ESPECIALLY that which purportedly supports your attribution of motive to the Democrats.

While leaving out the well known fact that there were Republicans watching the vote count from over the shoulders of the vote-counters -- and actively challenging votes, which were then set aside for closer subsequent review.

And just as a point of Republican lie v. law: the REPUBLICANS implied that Gore was "cheating" by (1) selecting only some counties for recounts instead of the whole state, and (2) that he was "cheating" because he chose counties for recounts which had a greater population of Democrats than Republicans.

By contrast, as stands to reason, the law expressly stipulated that ANY CANDIDATE -- not ONLY REPUBLICAN CANDIDATES -- can ask for recounts in any number of counties, OR the whole state, AND THAT THE REQUEST MUST BE FULFILLED. And the law DID NOT PROHIBIT a candidate choosing to have recounts in counties which happened to be more supportive of that candidate than the other candidate.

2. The Florida supreme court recount would permit elections officials to use different counting standards from one precinct to another, yes, even if they used the same voting technology.

Now your imitating Bart by pulling self-serving bullshit out of your ass. But I'll call your bluff: Where is your EVIDENCE for that "allegation"?

And remind us again, ass: how does one apply the "SAME STANDARD" to an optical scanning voting machine which reads from cards, and to a touch-screen voting machine which doesn't require cards at all?

Put those together, and it was perfectly reasonable to fear that partisan elections officals would vary their standard from precinct to precinct, with the aim of boosting their candidate. THAT was what the Florida supreme court refused to rule out when asked.

Again: where is your EVDIENCE for that out-of-your-ass lie-supporitng-SPECULATION and unevidenced attribution of motive?

Republicans weren't worried about a fair recount, so much as they were expecting it to NOT be fair.

Republicans were worried about recounts. But before that they were worried that the first counting of all valid votes might be COMPLETED. That was not COMPLETED because of their specious delays, invention of fake -- and impossible -- controversies, and implementing fear-politics of a non-existent "crisis"; and ultimately by the SC 5 -- unprecedented in our history -- STOPPING that first counting from being completed.

And here're a few other facts, just so you have a harder time spewing lies and making shit up:

None of this is rocket science:

Recall all the "safe harbor" and "drop-dead date" jabber? That the state's slates had to be into Congress before a "date-certain"? A "drop-dead" date which was the last and final and no-more-chances date by which a state's slate must be in, or else not be counted?

Well, gee: such states as CA -- because a big state with millions of voters -- and NM -- because of a REPUBLCIAN demand for recounts which delayed that state's voting tabulation with recounts -- submitted their slates to Congress
AFTER the SC's declared "drop-dead" date. And Congress -- though controlled by REPUBLICANS -- made not a peep to those states about how they submitted their slates after the so-called "drop-dead" date, therefore were SOL.

Because there is no such "drop-dead" date until the NEXT YEAR: 1/20. Between the day of voting, and the day of counting the votes in Congress -- and even after, as long as a candidate chooses to pursue a legal challenge, even if into the next administration --there is ample time to allow for counts to be completed in large states, and for recounts, without any "crisis" or other danger to the national security or the integrity of elections. It even allows time for law suits, as indicated, such as Nixon's in 1960-61.

By contrast with the "drop-dead" date LIE, not only did Congress accept those slates, even though they were submitted AFTER the so-called "drop-dead" date, but in 1960 the Congress accepted, without a whimper, the second slate from HI, even though it was submitted after the so-called "drop-dead" date.

Which means, obviously, as stands to reason, that a state can submit its slate at any time up to and including the date on which Congress counts the votes. And doubtless, in exigent circumstances, AFTER THAT date. That is because the state's rights to hold elections, and the right to vote, AND TO HAVE THOSE VOTES COUNTED, is not a RESTRICTION against the states and voters.

The only legitimate meaning that can be attributed to the so-called "drop-dead" date is that it is a "heads up" -- "Yo! States? Are you counting your votes and preparing to get them into Congress before the date on which Congress, at its leisure, convenes in order to count the votes?"

Exactly as there was no "crisis": there was a sitting president taking care of business, as would be the fact until 1/21 of the NEXT YEAR.

We are a DEMOCRATIC republic, not a REPUBLICAN republic. We don't dictate how anyone will vote, or must vote, and we don't dictate that states will get their votes in before they are counted, or else be excluded from the process.

None of which is rocket science.

When will you be READING the FL ELECTIONS LAW? -- which DIRECTLY AND SPECIFICALLY REFUTES --

1. Your out-of-your-ass BULLSHIT, AND

2. The Republican lies you repeat, AND

3. The SC 5's falsification of the facts and the law based upon that faction's unconstitutional usurpation of Congress' EXCLUSIVE authority to resolve exactly such election disputes.*

And that faction's own opinion negates itself: that they declare to be "unconstitutional" is that they also assert is the "remedy" to that "unconstitutionality".

*During the framing debates, it already being settled that there would be a single head of the executive, a president, when it came to the question of how to select a president, a delegate proposed he be selected by the Supreme Court. Madison's response: "Out of the question!"

He understood that one does not resolve democratic election disputes in a democracy by putting them into the hands of the unelected. Thus the Constitution stipulates that such shall be put into the hands of the most democratic branch -- the Congress -- so that an electorate dissatisfied with the outcome, the resolution can, at next election, throw the bums out.

The bottom line has all along been and remains, as concerns that SC faction: a person named Bush as a political candidate can not be allowed to be "damaged" by losing an election -- no other candidate in history ever having had that "equal protection"; thus, as that faction's preferred candidate, he was made an unelected political appointee, contrary to the stipulated requirements in the Constitution, in place of a legitimate, elected president, as the Constitution requires.

And squirts like you continue to defend that thoroughgoing multifaceted serial anti-Constitutionalism against the interests not only of your country, but also -- as matters have devolved directly from that subversion -- against your own interests.

A defense and support of blatant daytime thuggery will increase blatant daytime thuggery: Bushit publicly admits violating the law, and the rights of US citizens, by use of warrantless wiretapping -- and says he will continue to do so. And he publicly admits that he approved the use of the most depraved of war crimes: torture.

And STILL you brown-shirt squirts don't "get it": YOU are the ultimate target of the thugs you support and defend against Constitution, laws, and your own country and interests.
 

The main point from Bush v. Gore is this: The American People have no Constitutional Right to elect the President of the United States. Contrary to popular myth, that job falls exclusively upon the Electoral College. The Electoral College's role is to alter the popular vote, as it did in 2000.

The point Scalia really wants you to forget is this: The Electoral College is unconstitutional and a violation of the Declaration of Independence. The North supposedly won the Civil War. At the time, slavery was constitutional. But, it violated the Declaration (All Men are created equal). The Civil War was about reconstituting the government to conform with the Declaration of Independence. Four score and seven years ago was July 4th, 1776, the date of the Declaration -- not the date of the Cionstitution.

After the Civil War, all states had to include the Declaration in their State Constitutions once admitted. However, there is no mention of abolishing the Electoral College in favor of the popular vote anywhere in Bush v. Gore. And Scalia wants it that way. The Electoral College is nothing more than a relic of slavery. To be really free, we must eliminate the Electoral College and conform to the Declaration and the popular vote. This can only be done by a civil lawsuit. The last time this issued came up was during the Civil War. We don't want history to repeat itself. The election was never "stolen". You have no right to elect the President. Once you understand this basic fact, you can deal with the problem.
 

mkriley --

The main point from Bush v. Gore is this: The American People have no Constitutional Right to elect the President of the United States. Contrary to popular myth, that job falls exclusively upon the Electoral College.

True but beside the point.

The Electoral College's role is to alter the popular vote, as it did in 2000.

It's role is not to "alter" the vote. It's role is to be a check against "excessive" democracy.

The point Scalia really wants you to forget is this: The Electoral College is unconstitutional and a violation of the Declaration of Independence.

The "Declaration of Independence" has never been law, let alone plan of gov't -- which is why the same Congress that passed that propaganda document (and "The Tory Act") began framing the "Articles of Confederaion," which latter, being between "Declaration" and Constitution, prevents the conflation of "Declaration" with Constitution.

As do the circumstances concerning each: the "Declaration" was intended to foment "revolution". The Constitution, framed and ratified after the "revolution" was over and done with, was at simplest to firmly establish gov't, which included the stipulated prohibition against "revolution".

The North supposedly won the Civil War. At the time, slavery was constitutional. But, it violated the Declaration (All Men are created equal).

Again, the "Declaration" was never and has never been law, therefore cannot be violated.

There is a sequence of events which changed the realities and the Founders view: the "Declaration, of 1776, was intended in part to stir up opposition to the crown. The "Articles," also 1776(-77), were intended to establish gov't. The latter didn't work, so the Constitution -- framed and ratified after the "revolution" was concluded -- was not only to replace the "Articles" but also to firmly establish gov't. Thus the contradiction: the "Declaration" sorta called for "revolution," while the Constitution, to the contrary, stipulates one of the purposes of the militia to be "suppress Insurrections".

The Civil War was about reconstituting the government to conform with the Declaration of Independence.

The Civil War was about southern states seceding and conforming themselves to the Confederate constitution, which was a rewrite of the US Constitution to add express prohibitions against laws and amendments to that Constitution which would adversely affect the institution of slavery.

Four score and seven years ago was July 4th, 1776, the date of the Declaration -- not the date of the Cionstitution.

Again, the "Declaration" had a different -- even contrary -- purpose than the Constitution. And wasn't law to begin with.

After the Civil War, all states had to include the Declaration in their State Constitutions once admitted.

No they were not, else the "Declaration" would appear in all state constitutions -- which it does not do.

However, there is no mention of abolishing the Electoral College in favor of the popular vote anywhere in Bush v. Gore.

So?

And Scalia wants it that way.

And so do I -- one doesn't rush willy-nilly in making such a radical change in the Constitution as equal and opposite reaction to such as Scalia. One instead impeaches Scalia. The fault is not the Constitution, it is the SC 5.

The Electoral College is nothing more than a relic of slavery.

The Electoral College is a "relic" of the Framers' concern about "excessive" democracy, against which it is a check.

To be really free, we must eliminate the Electoral College and conform to the Declaration and the popular vote.

The "Declaration" is not a legal document, a law -- it is a propaganda screed.

This can only be done by a civil lawsuit.

The Constitution stipulates only one way to alter the Constitution: by means of Amendment.

The last time this issued came up was during the Civil War.

BS.

. . . . The election was never "stolen". You have no right to elect the President.

Those two premises are exclusive of each other. The latter is true; but the election was stolen nonetheless, as the vote-count outcome directly related to the state's slate of Electors to the Electoral College.

Once you understand this basic fact, you can deal with the problem.

Once you learn the difference between that which is law, and that which is not, and that which is legal authority, and that which is not, you might begin to find your way into the realm of the actual histories, and realities that are factual and relevant.

Simply put:

1. The "Declaration," which was not law to begin with, calls for "revolution". By contrast, the Constitution prohibits it.

2. The only means by which to alter the Constitution is by Amendment. A "civil suit" cannot accomplish that.

3. The purpose of the Electoral College is as a check against "excessive" democracy, with which "danger" the Framers were concerned.

4. If there's a case to be made against the Electoral College, you've not done that.
 

jnagarya:

Suggest you research the foundation of the Republican party. It was founded on the premise that the Declaration is the true Constitution. Reference Lincoln's Gettysburg Address. What you say is without foundation. Are you suggesting that those who gave their lives in the North during the Civil War died for nothing? Try saying that at Arlington. Again, 4 score and 7 = the DECLARATION -- not the Constitution. Slavery is still legal under the Constitution. Dred Scott was never overturned by the Supreme Court.

This nonsense about excessive democracy is pathetic. Please name the "Electors" in your state, and when you "elected" them to represent you. When do they vote? Why is it in secret?

5 members of the Supreme Court appointed Bush. 5 people who we did not elect. 5 people who meet behind closed doors.

Finally, it is true that the People do not have the authority to elect the President. Why then, is there so much hoopla over the election and why does the media hood-wink the public into thinking they have a legal right to elect the President?

A good book on the subject is "Bush v. Gore", Wm. Kristol and E,J. Dionne [sic]. Nowhere is there any substantive debate on the legality of the Electoral College. That alone should make you think something rotten is going on.
 

Check out this link for another understanding of the history behind the Electoral College, "original intent" and the Declaration.

http://www.stateaction.org/blog/?p=470

Another site for consideration is:

http://www.nationalpopularvote.com/

My polling shows that people [mistakenly] think their vote for President counts. Moreover, they [mistakenly] think their vote is equal (from state to state). Many do not know that the 3/5th clause makes "some people more equal than others".

Notice we do not celebrate "Constitution Day" but do celebrate Independence Day. There is a very reason for this.

http://en.wikipedia.org/wiki/United_States_Declaration_of_Independence

Try posting some facts instead of hyperbole
 

"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."

"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.'"

Just as it's helpful to read Scalia's full CBS interview, it's also helpful to read Koppelman's full post.

In context, what I read isn't that Presidential performance determine whether the Supremes made the right decision.

Rather, I believe Koppelman argues that if you believe the Supremes made the wrong decision, regardless of the results, then if separately you don't care for the results, it is fair to lay some blame for the results at the feet of the Supremes; and, since those results are recent and ongoing, it is also reasonable to criticize the "get over it" right wing mantra that purports to defend the decision, albeit not, shall we say, on the merits.
 

JPK: "I believe Koppelman argues that if you believe the Supremes made the wrong decision, regardless of the results, then if separately you don't care for the results, it is fair to lay some blame for the results at the feet of the Supremes..."

That seems to be a fair characterization of Koppelman's argument, but I think it's also pretty weak: "Bush has turned out to be a terrible president, so the Supreme Court was more wrong." I don't think the quality of Bush's presidency has anything at all to do with the quality of the Court's reasoning or what it should be blamed for. If you don't like Bush v. Gore, fine, explain what you think was wrong about it. And if you don't like the Iraq war, fine, explain what you don't like about that. But connecting the two like this, as if the Bush v. Gore majority were evalutating the presidential candidates on the basis of their ability to be good presidents, just seems silly. If it were otherwise, "Bush has been a good president, so the Supreme Court's decision wasn't so bad" would be a proper form of argument.
 

That seems to be a fair characterization of Koppelman's argument, but I think it's also pretty weak: "Bush has turned out to be a terrible president, so the Supreme Court was more wrong."

That seems a good criticism. That argument on the face of it seems silly. But an only slightly different argument seems, well, arguable: Bush turned out to be a terrible President, so if well before that happened you believed Bush v. Gore was wrongly decided, you can now also regret the horrible consequences that turned out to follow a wrong decision.

I don't think the quality of Bush's presidency has anything at all to do with the quality of the Court's reasoning or what it should be blamed for.

We can agree on the former but will have to disagree on the latter.

...as if the Bush v. Gore majority were evalutating the presidential candidates on the basis of their ability to be good presidents

Yes, it's almost as if, isn't it? Or some other unpublished basis. Some legal folks find the published reasoning so strange that they end up in the realm of such admittedly conspiracy theories. I'm conveniently free from qualifications for evaluating the Court's reasoning, so I make no assertion about the Court's motivations.

If it were otherwise, "Bush has been a good president, so the Supreme Court's decision wasn't so bad" would be a proper form of argument.

Not only would be, it is.

"The Supreme Court therefore made the right decision" would be improper.

But "the consequences of a wrong decision fortunately turned out to be OK" is proper and plain.

For example, I make home care decisions for my pets. Some decisions I later discover were wrong. But most of those end up having no serious consequences (an advantage of sticking with mainstream care and hewing to "first do no harm"). It is proper and a good thing always and everywhere to say OK, I made the wrong decision, and I'm glad no disaster ensued. That doesn't make the decision right, and it would be entirely improper to claim it did, but to claim it makes a wrong decision not so bad, sure.

However it seems to me we're wandering far afield from the main thrust of Koppelman's post: Scalia's "it's so old, get over it" defense of the Court's decision. I submit that defense is heinous and improper whether you believe Bush v. Gore was rightly or wrongly decided. If you believe rightly, then age does not improve the quality of the decision. If you believe wrongly, then age does not make it less wrong, and the results of the decision happen to be present, recent, and ghastly; all too regrettably not old.

I find that a fair criticism of Scalia's comments to CBS, and add my own observation that I must have missed the erudition here that one associates with a person in his position. I have my own guess why Scalia's comments come across as typical right wing nonsense: it is that they are typical right wing nonsense. I'm sure there are other possibilities.
 

mkriley --

jnagarya:

Suggest you research the foundation of the Republican party. It was founded on the premise that the Declaration is the true Constitution.


Suggest you read the actual history, legal and otherwise, of the period covering roughly the "Declaration" through ratification of the Constitution and Bill of Rights, instead of substituting crackpot lunatic fringe ideological bunk therefor. Until then you won't have the least clue as to which direction you must turn in order to find reality.

Reference Lincoln's Gettysburg Address. What you say is without foundation.

What I'm saying is based directly upon years of study not only of the secondary history, but also the primary legal history.

That a president cites, or cites to, an historical document which was not law to begin with does not automagically transform whatever the document into law.

Are you suggesting that those who gave their lives in the North during the Civil War died for nothing?

Total non-sequitur. (Did they actually give their lives "in the North"? Or were they Northerners who gave their lives in the South?)

Try saying that at Arlington.

Don't be putting words in my mouth, ass -- and then threatening to police my freedom of speech to prevent my saying that which you put into my mouth.

Again, 4 score and 7 = the DECLARATION -- not the Constitution.

It is a reference to the "Declaration". That does not transform the "Declaration" into that it has never been: law.

Slavery is still legal under the Constitution. Dred Scott was never overturned by the Supreme Court.

You are a looney.

Slavery was abolished by the 13th Amendment to the Constitution. The Constitution is the supreme -- HIGHEST -- law in the land. SC decisions, including Dred Scott, are SUBORDINATE to the Constitution. Dred Scott was rendered null-and-void by that amending of the Constitution.

This nonsense about excessive democracy is pathetic.

Then it should be real easy for you to go beyond merely characterizing it as "pathetic" to actually refuting it. Problem being, you can't refute it, first because you don't know the actual history, and second because the actual history is against you.

When will you be reading THE WORDS OF THE FOUNDERS on the issue? I'd recommend you read The Federalist for that view, but you'd doubtless mistake that for being law.

Please name the "Electors" in your state, and when you "elected" them to represent you. When do they vote? Why is it in secret?

Irrelevant, as your underlying lunacy renders every assertion flowing therefrom invalid.

5 members of the Supreme Court appointed Bush. 5 people who we did not elect. 5 people who meet behind closed doors.

Irrelevant to the issue of the Electoral College, as (1) they are not the Electoral College, and (2) the Constitution gives exclusive authority to resolve such election disputes to Congress, not to the SC.

And not to the Electoral College.

Finally, it is true that the People do not have the authority to elect the President.

The people have the authority, under our REPRESENTATIVE form of gov't, to elect the president indirectly, via the Electoral College, exactly as your REPRESENTATIVE in Congress REPRESENTS your interests in your behalf.

And if your REPRESENTATIVE doesn't bring home the brand of pork you demand, you elect someone else as REPRESENTATIVE who will.

Why then, is there so much hoopla over the election . . . .

What "hoople"?

. . . . and why does the media hood-wink the public into thinking they have a legal right to elect the President?

Who in the media is even TALKING ABOUT ANY of these issues?

A good book on the subject is "Bush v. Gore", Wm. Kristol and E,J. Dionne [sic].

You mean, of course, that you agree with it, even though neither of its authors is educated in law, one is himself a looney, and the book itself isn't law.

Nowhere is there any substantive debate on the legality of the Electoral College.

There's no sane debate on the "legality"/"constitutionality" of the Electoral College because it is a nonissue in those terms, as it was incorporated in the original text of the Constitution by those who actually debated and wrote the Constitution.

Clue: the same Founders who wrote the "Declaration" -- and knew what they meant by it -- were the same Founders who framed the Constitution, and then the Billl of Rights. It's real simple:

The "Declaration" was a "Declaration of Independence" from Britain -- not a "Declaration of Independence" from the "United Colonies of America" -- which simply listed all the "reasons" for that "Declaration of Independence" from Britain. It had no application to the "United Colonies of America" beyond the fact that it was a "Declaration of Indepdence" by those Colonies essentially sent by mail to King George III in Britain.

Once that goal -- independence from Britain -- was achieved, the "Declaration" had no more relevance to the "revolution," or to the independence of the "United Colonies of America" because they were now independent of Britain, and the "revolution" was over. Ended.

Subsequently, the same Founders framed the Constitution, which from the outset included the Electoral College.

That alone should make you think something rotten is going on.

Not debating a non-issue means "something rotten is going on"? Put down your non-law screeds and pick up your meds.
 

Chris --

JPK: "I believe Koppelman argues that if you believe the Supremes made the wrong decision, regardless of the results, then if separately you don't care for the results, it is fair to lay some blame for the results at the feet of the Supremes..."

"That seems to be a fair characterization of Koppelman's argument, but I think it's also pretty weak: "Bush has turned out to be a terrible president, so the Supreme Court was more wrong." I don't think the quality of Bush's presidency has anything at all to do with the quality of the Court's reasoning or what it should be blamed for. If you don't like Bush v. Gore, fine, explain what you think was wrong about it. And if you don't like the Iraq war, fine, explain what you don't like about that. But connecting the two like this, as if the Bush v. Gore majority were evalutating the presidential candidates on the basis of their ability to be good presidents, just seems silly. If it were otherwise, "Bush has been a good president, so the Supreme Court's decision wasn't so bad" would be a proper form of argument."

One can also factor in that O'Connor, who thought it was terrible that Gore won, and then participated in appointing the unelected Bushit, subsequently was aghast (but not apologetic, being Republican) at the disaster her pat-him-on-the-head-good-little-Georgie turned out to be for the world, the US, and the Republican party.

And for the SC. She thought he wouldn't appoint anti-Roe zealots!? Was she senile? Or was she all along stupidly low in intelligence? Was she also all along a Republican?

As for the fact that the SC 5 was knowingly wrong on the law; were, that is, lawless: that needs no reference to the disaster that resulted to show the wrong of it.

And though the disaster which coincidentally resulted can stand on its own lack of merit as concerns the disaster it is and has produced, that lawlessly appointed disaster has no grounds on which to attempt to skuttle away from the lawlessness which appointed it.

And I hope that's more perfectly circular than the SC 5's bogus circularity

Still, I think the SC 5 deserves all the blame it can be handed for the lawless result of its lawlessness, to ensure that the stain of it all remains directly related, directly connected, and prominently and permanently nailed with a bright and shining 30-pieces-of-silver-stake through the heart of its place in history.
 

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