by
VINCENT BUGLIOSI
In
the December 12 ruling by the US Supreme Court handing the election to George
Bush, the Court committed the unpardonable sin of being a knowing surrogate for
the Republican Party instead of being an impartial arbiter of the law. If you
doubt this, try to imagine Al Gore's and George Bush's roles being reversed and
ask yourself if you can conceive of Justice Antonin Scalia and his four
conservative brethren issuing an emergency order on December 9 stopping the
counting of ballots (at a time when Gore's lead had shrunk to 154 votes) on the
grounds that if it continued, Gore could suffer "irreparable harm,"
and then subsequently, on December 12, bequeathing the election to Gore on
equal protection grounds. If you can, then I suppose you can also imagine
seeing a man jumping away from his own shadow, Frenchmen no longer drinking
wine.
From
the beginning, Bush desperately sought, as it were, to prevent the opening of
the door, the looking into the box--unmistakable signs that he feared the
truth. In a nation that prides itself on openness, instead of the Supreme Court
doing everything within its power to find a legal way to open the door and box,
they did the precise opposite in grasping, stretching and searching mightily
for a way, any way at all, to aid their choice for President, Bush, in the
suppression of the truth, finally settling, in their judicial coup d'état, on
the untenable argument that there was a violation of the Fourteenth Amendment's
equal protection clause--the Court asserting that because of the various
standards of determining the voter's intent in the Florida counties, voters
were treated unequally, since a vote disqualified in one county (the so-called
undervotes, which the voting machines did not pick up) may have been counted in
another county, and vice versa. Accordingly, the Court reversed the Florida
Supreme Court's order that the undervotes be counted, effectively delivering
the presidency to Bush.
Now,
in the equal protection cases I've seen, the aggrieved party, the one who is
being harmed and discriminated against, almost invariably brings the action.
But no Florida voter I'm aware of brought any action under the equal protection
clause claiming he was disfranchised because of the different standards being
employed. What happened here is that Bush leaped in and tried to profit from a
hypothetical wrong inflicted on someone else. Even assuming Bush had this
right, the very core of his petition to the Court was that he himself would be
harmed by these different standards. But would he have? If we're to be governed
by common sense, the answer is no. The reason is that just as with flipping a
coin you end up in rather short order with as many heads as tails, there would
be a "wash" here for both sides, i.e., there would be just as many
Bush as Gore votes that would be counted in one county yet disqualified in the
next. (Even if we were to assume, for the sake of argument, that the wash
wouldn't end up exactly, 100 percent even, we'd still be dealing with the rule
of de minimis non curat lex--the law does not concern itself with
trifling matters.) So what harm to Bush was the Court so passionately trying to
prevent by its ruling other than the real one: that he would be harmed by the
truth as elicited from a full counting of the undervotes?
And
if the Court's five-member majority was concerned not about Bush but the voters
themselves, as they fervently claimed to be, then under what conceivable theory
would they, in effect, tell these voters, "We're so concerned that some
of you undervoters may lose your vote under the different Florida county
standards that we're going to solve the problem by making sure that none
of you undervoters have your votes counted"? Isn't this exactly what the
Court did?
|
Gore's
lawyer, David Boies, never argued either of the above points to the Court.
Also, since Boies already knew (from language in the December 9 emergency order
of the Court) that Justice Scalia, the Court's right-wing ideologue; his
Pavlovian puppet, Clarence Thomas, who doesn't even try to create the
impression that he's thinking; and three other conservatives on the Court
(William Rehnquist, Sandra Day O'Connor and Anthony Kennedy) intended to
deodorize their foul intent by hanging their hat on the anemic equal protection
argument, wouldn't you think that he and his people would have come up with at
least three or four strong arguments to expose it for what it was--a legal
gimmick that the brazen, shameless majority intended to invoke to perpetrate a
judicial hijacking in broad daylight? And made sure that he got into the record
of his oral argument all of these points? Yet, remarkably, Boies only managed to
make one good equal protection argument, and that one near the very end of his
presentation, and then only because Justice Rehnquist (not at Boies's request,
I might add) granted him an extra two minutes. If Rehnquist hadn't given him
the additional two minutes, Boies would have sat down without getting even one
good equal protection argument into the record.
This
was Boies's belated argument: "Any differences as to how this standard [to
determine voter intent] is interpreted have a lot less significance in terms of
what votes are counted or not counted than simply the differences in machines
that exist throughout the counties of Florida." A more powerful way to
make Boies's argument would have been to point out to the Court the reductio
ad absurdum of the equal protection argument. If none of the undervotes
were counted because of the various standards to count them, then to be
completely consistent the Court would have had no choice but to invalidate the
entire Florida election, since there is no question that votes lost in some
counties because of the method of voting would have been recorded in others
utilizing a different method.1 [Footnotes on page 7] How
would the conservative majority have gotten around that argument without
buckling on the counting of the undervotes? Of course, advice after a mistake
is like medicine after death. And as we shall see, no matter what Boies argued,
the five conservative Justices had already made up their minds. But it would
have been delightful to see how these Justices, forced to stare into the
noonday sun, would have attempted to avoid a confrontation with the truth.
The Court majority, after
knowingly transforming the votes of 50 million Americans into nothing and
throwing out all of the Florida undervotes (around 60,000), actually wrote that
their ruling was intended to preserve "the fundamental right" to
vote. This elevates audacity to symphonic and operatic levels. The Court went
on to say, after stealing the election from the American people, "None are
more conscious of the vital limits on its judicial authority than are the
members of this Court, and none stand more in admiration of the Constitution's
design to leave the selection of the President to the people." Can you
imagine that? As they say, "It's enough to drive you to drink."
What makes the Court's decision
even more offensive is that it warmly embraced, of all the bitter ironies, the
equal protection clause, a constitutional provision tailor-made for blacks that
these five conservative Justices have shown no hospitality to when invoked in
lawsuits by black people, the very segment of the population most likely to be
hurt by a Bush administration. As University of Southern California law
professor Erwin Chemerinsky noted: "The Rehnquist Court almost never uses
equal protection jurisprudence except in striking down affirmative action
programs [designed to help blacks and minorities]. I can't think of a single
instance where Scalia or Thomas has found discrimination against a racial
minority, or women, or the aged, or the disabled, to be unconstitutional."
Varying methods to cast and
count votes have been going on in every state of the union for the past two
centuries, and the Supreme Court has been as silent as a church mouse on the
matter, never even hinting that there might be a right under the equal
protection clause that was being violated. Georgetown University law professor
David Cole said, "[The Court] created a new right out of whole cloth and
made sure it ultimately protected only one person--George Bush." The
simple fact is that the five conservative Justices did not have a judicial leg
to stand on in their blatantly partisan decision. In a feeble, desperate effort
to support their decision, the Court cited four of its previous cases as legal
precedent, but not one of them bears even the slightest resemblance to Bush
v. Gore. In one (Gray v. Sanders), the state of Georgia had a system
where the vote of each citizen counted for less and less as the population of
his or her county increased. In another (Moore v. Ogilvie), the
residents of smaller counties in Illinois were able to form a new party to
elect candidates, something residents of larger counties could not do. Another
(Reynolds v. Sims) was an apportionment case, and the fourth (Harper
v. Virginia) involved the payment of a poll tax as a qualification for
voting. If a first-year law student ever cited completely inapplicable
authority like this, any thoughtful professor would encourage him not to waste
two more years trying to become a lawyer. As Yale law professor Akhil Reed Amar
noted, the five conservative Justices "failed to cite a single case that,
on its facts, comes close to supporting its analysis and result."
If the Court majority had been
truly concerned about the equal protection of all voters, the real equal
protection violation, of course, took place when they cut off the counting of
the undervotes. As indicated, that very act denied the 50 million Americans who
voted for Gore the right to have their votes count at all. It misses the point
to argue that the five Justices stole the election only if it turns out that
Gore overcame Bush's lead in the undervote recount. We're talking about the
moral and ethical culpability of these Justices, and when you do that, the bell
was rung at the moment they engaged in their conduct. What happened thereafter
cannot unring the bell and is therefore irrelevant. To judge these Justices by
the final result rather than by their intentions at the time of their conduct
would be like exonerating one who shoots to kill if the bullet misses the
victim. With that type of extravagant reasoning, if the bullet goes on and
accidentally strikes down a third party who is about to kill another, perhaps
the gunman should ultimately be viewed as a hero.
Other than the unprecedented and
outrageous nature of what the Court did, nothing surprises me more than how it
is being viewed by the legal scholars and pundits who have criticized the
opinion. As far as I can determine, most have correctly assailed the
Court for issuing a ruling that was clearly political. As the December 25 Time
capsulized it, "A sizable number of critics, from law professors to some
of the Court's own members, have attacked the ruling as...politically
motivated." A sampling from a few law professors: Vanderbilt professor
Suzanna Sherry said, "There is really very little way to reconcile this opinion
other than that they wanted Bush to win." Yale's Amar lamented that
"for Supreme Court watchers this case will be like BC and AD. For many of
my colleagues, this was like the day President Kennedy was assassinated. Many
of us [had] thought that courts do not act in an openly political
fashion." Harvard law professor Randall Kennedy called the decision
"outrageous."2
The only problem I have with
these critics is that they have merely lost respect for and confidence in the
Court. "I have less respect for the Court than before," Amar wrote.
The New York Times said the ruling appeared "openly political"
and that it "eroded public confidence in the Court." Indeed, the
always accommodating and obsequious (in all matters pertaining to the High
Court, in front of which he regularly appears) Harvard law professor Laurence
Tribe, who was Gore's chief appellate lawyer, went even further in the weakness
of his disenchantment with the Court. "Even if we disagree" with the
Court's ruling, he said, Americans should "rally around the
decision."
Sometimes the body politic is
lulled into thinking along unreasoned lines. The "conventional
wisdom" emerging immediately after the Court's ruling seemed to be that
the Court, by its political ruling, had only lost a lot of credibility and altitude
in the minds of many people. But these critics of the ruling, even those who
flat-out say the Court "stole" the election, apparently have not
stopped to realize the inappropriateness of their tepid position vis-ŕ-vis what
the Court did. You mean you can steal a presidential election and your only
retribution is that some people don't have as much respect for you, as much
confidence in you? That's all? If, indeed, the Court, as the critics say, made
a politically motivated ruling (which it unquestionably did), this is
tantamount to saying, and can only mean, that the Court did not base its
ruling on the law. And if this is so (which again, it unquestionably is), this
means that these five Justices deliberately and knowingly decided to
nullify the votes of the 50 million Americans who voted for Al Gore and to
steal the election for Bush. Of course, nothing could possibly be more serious
in its enormous ramifications. The stark reality, and I say this with every
fiber of my being, is that the institution Americans trust the most to protect
its freedoms and principles committed one of the biggest and most serious
crimes this nation has ever seen--pure and simple, the theft of the presidency.
And by definition, the perpetrators of this crime have to be denominated
criminals.
Since the notion of five Supreme
Court Justices being criminals is so alien to our sensibilities and previously
held beliefs, and since, for the most part, people see and hear, as Thoreau
said, what they expect to see and hear, most readers will find my characterization
of these Justices to be intellectually incongruous. But make no mistake about
it, I think my background in the criminal law is sufficient to inform you that
Scalia, Thomas et al. are criminals in the very truest sense of the
word.
Essentially, there are two types
of crimes: malum prohibitum (wrong because they are prohibited) crimes,
more popularly called "civil offenses" or "quasi crimes,"
such as selling liquor after a specified time of day, hunting during the
off-season, gambling, etc.; and malum in se (wrong in themselves)
crimes. The latter, such as robbery, rape, murder and arson, are the only true
crimes. Without exception, they all involve morally reprehensible conduct. Even
if there were no law prohibiting such conduct, one would know (as opposed to a malum
prohibitum crime) it is wrong, often evil. Although the victim of most true
crimes is an individual (for example, a person robbed or raped), such crimes
are considered to be "wrongs against society." This is why the
plaintiff in all felony criminal prosecutions is either the state (People of
the State of California v. _______) or the federal government (United
States of America v. _______).
No technical true crime was
committed here by the five conservative Justices only because no Congress ever
dreamed of enacting a statute making it a crime to steal a presidential
election. It is so far-out and unbelievable that there was no law, then, for
these five Justices to have violated by their theft of the election. But if
what these Justices did was not "morally reprehensible" and a
"wrong against society," what would be? In terms, then, of natural
law and justice--the protoplasm of all eventual laws on the books--these five
Justices are criminals in every true sense of the word, and in a fair
and just world belong behind prison bars as much as any American white-collar
criminal who ever lived. Of course, the right-wing extremists who have saluted
the Court for its theft of the election are the same type of people who feel it
is perfectly all right to have a mandatory minimum sentence of ten years in a
federal penitentiary for some poor black in the ghetto who is in possession of
just fifty grams of crack cocaine, even if he was not selling it. [§ 21 U.S.C.
§ 841 (b)(1)(A)(iii)]
Though the five Justices clearly
are criminals, no one is treating them this way. As I say, even those who were
outraged by the Court's ruling have only lost respect for them. And for the
most part the nation's press seems to have already forgotten and/or forgiven.
Within days, the Court's ruling was no longer the subject of Op-Ed pieces.
Indeed, just five days after its high crime, the caption of an article by Jean
Guccione in the Los Angeles Times read, "The Supreme Court Should
Weather This Storm." The following day an AP story noted that Justice
Sandra Day O'Connor, on vacation in Arizona, had fired a hole-in-one on the
golf course.
The lack of any valid legal
basis for their decision and, most important, the fact that it is inconceivable
they would have ruled the way they did for Gore, proves, on its face,
that the five conservative Republican Justices were up to no good. Therefore,
not one stitch of circumstantial evidence beyond this is really necessary to
demonstrate their felonious conduct and state of mind. (The fact that O'Connor,
per the Wall Street Journal, said before the election that she wanted to
retire but did not want to do so if a Democrat would be selecting her
successor, that Thomas's wife is working for the conservative Heritage
Foundation to help handle the Bush transition and that Scalia's two sons work
for law firms representing Bush is all unneeded trivia. We already know,
without this, exactly what happened.) But for those who want more, let me point
out that there is no surer way to find out what parties meant than to see what
they have done. And like typical criminals, the felonious five left their
incriminating fingerprints everywhere, showing an unmistakable consciousness of
guilt on their part.
1. Under Florida statutory law,
when the Florida Supreme Court finds that a challenge to the certified result
of an election is justified, it has the power to "provide any
relief appropriate under the circumstances" (§ 102.168(8) of the Florida
Election Code). On Friday, December 8, the Florida court, so finding, ordered a
manual recount (authorized under § 102.166(4)(c) of the Florida Election Code)
of all disputed ballots (around 60,000) throughout the entire state. As a New
York Times editorial reported, "The manual recount3 was
progressing smoothly and swiftly Saturday...with new votes being recorded for
both Vice President Al Gore and Governor George W. Bush...serving the core
democratic principle that every legal vote should be counted" when, in
midafternoon, the US Supreme Court "did a disservice to the nation's
tradition of fair elections by calling a halt" to the recount. The stay
(requested by Bush), the Times said, appeared "highly
political."4
Under Supreme Court rules, a
stay is supposed to be granted to an applicant (here, Bush) only if he makes a
substantial showing that in the absence of a stay, there is a likelihood of
"irreparable harm" to him. With the haste of a criminal, Justice
Scalia, in trying to justify the Court's shutting down of the vote counting,
wrote, unbelievably, that counting these votes would "threaten irreparable
harm to petitioner [Bush]...by casting a cloud upon what he claims to be
the legitimacy of his election." [Emphasis added.] In other words,
although the election had not yet been decided, the absolutely incredible
Scalia was presupposing that Bush had won the election--indeed, had a right
to win it--and any recount that showed Gore got more votes in Florida than Bush
could "cloud" Bush's presidency. Only a criminal on the run, rushed
for time and acting in desperation, could possibly write the embarrassing words
Scalia did, language showing that he knew he had no legal basis for what he was
doing, but that getting something down in writing, even as intellectually
flabby and fatuous as it was, was better than nothing at all. (Rehnquist,
Thomas, O'Connor and Kennedy, naturally, joined Scalia in the stay order.)
The New York Times
observed that the Court gave the appearance by the stay of "racing to beat
the clock before an unwelcome truth would come out." Terrance Sandalow,
former dean of the University of Michigan Law School and a judicial
conservative who opposed Roe v. Wade and supported the nomination to the
Court of right-wing icon Robert Bork, said that "the balance of harms so
unmistakably were on the side of Gore" that the granting of the stay was
"incomprehensible," going on to call the stay "an unmistakably
partisan decision without any foundation in law."
As Justice John Paul Stevens
wrote in opposing the stay, Bush "failed to carry the heavy burden"
of showing a likelihood of irreparable harm if the recount continued. In other
words, the Court never even had the legal right to grant the stay.
"Counting every legally cast vote cannot constitute irreparable
harm," Stevens said. "On the other hand, there is a danger that a
stay may cause irreparable harm to the respondent [Gore] and, more importantly,
the public at large because of the risk that the entry of the stay would be
tantamount to a decision on the merits in favor of the applicant. Preventing
the recount from being completed will inevitably cast a cloud on the legitimacy
of the election." Stevens added what even the felonious five knew but
decided to ignore: that it is a "basic principle inherent in our
Constitution that every legal vote should be counted." From the wrongful
granting of the stay alone, the handwriting was on the wall. Gore was about as
safe as a cow in a Chicago stockyard.
In yet another piece of
incriminating circumstantial evidence, Scalia, in granting Bush's application
for the stay, wrote that "the issuance of the stay suggests that a
majority of the Court, while not deciding the issues presented, believe that
the petitioner [Bush] has a substantial probability of success." But
Antonin, why would you believe this when neither side had submitted written
briefs yet (they were due the following day, Sunday, by 4 pm), nor had there
even been oral arguments (set for 11 am on Monday)? It wouldn't be because you
had already made up your mind on what you were determined to do, come hell or
high water, would it? Antonin, take it from an experienced prosecutor--you're
as guilty as sin. In my prosecutorial days, I've had some worthy opponents. You
wouldn't be one of them. Your guilt is so obvious that if I thought more of you
I'd feel constrained to blush for you.
2. When prosecutors present
their circumstantial case against a defendant, they put one speck of evidence
upon another until ultimately there is a strong mosaic of guilt. One such small
speck is that in its 5-to-4 decision handing the election to Bush, the Court's
ruling was set forth in a thirteen-page "per curiam" (Latin for
"by the court") opinion (followed by concurring and dissenting
opinions). Students of the Supreme Court know that per curiam opinions are
almost always issued for unanimous (9-to-0) opinions in relatively unimportant
and uncontroversial cases, or where Justices wish to be very brief. But as USA
Today pointed out, "Neither was the case here." Again, on the run
and in a guilty state of mind, none of the five Justices, even the brazenly
shameless Scalia, wanted to sign their name to a majority opinion of the Court
reversing the Florida Supreme Court's order to recount the undervotes. A per
curiam opinion, which is always unsigned, was the answer. It is not even known
who wrote the per curiam opinion, though it is believed to be O'Connor and/or
Kennedy, neither of whose names is mentioned anywhere in the Court's
sixty-two-page document. After they did their dirty work by casting their two
votes on the case for their favorite--two votes that overruled and rendered
worthless the votes of 50 million Americans in fifty states--O'Connor and
Kennedy wanted to stay away from their decision the way the devil stays away
from holy water. Indeed, by their per curiam opinion, it was almost as if the
felonious five felt that since their names would not be on the legally
sacrilegious opinion, maybe, just maybe, the guilt they knew they bore would be
mitigated, at least somewhat, in posterity.
3. The proof that the Court
itself knew its equal protection argument had no merit whatsoever is that when
Bush first asked the Court, on November 22, to consider three objections of his
to the earlier, more limited Florida recount then taking place, the Court only
denied review on his third objection--yeah, you guessed it, that the lack of a
uniform standard to determine the voter's intent violated the equal protection
clause of the Fourteenth Amendment. Since the Court, on November 22, felt that
this objection was so devoid of merit that it was unworthy of even being
considered by it, what did these learned Justices subsequently learn about the
equal protection clause they apparently did not know in November that caused
them just three weeks later, on December 12, to embrace and endorse it so
enthusiastically? The election was finally on the line on December 12 and they
knew they had to come up with something, anything, to save the day for their
man.
The bottom line is that nothing
is more important in a democracy than the right to vote. Without it there
cannot be a democracy. And implicit in the right to vote, obviously, is that
the vote be counted. Yet with the election hanging in the balance, the highest
court in the land ordered that the valid votes of thousands of Americans not
be counted. That decision gave the election to Bush. When Justice Thomas was
asked by a skeptical high school student the day after the Court's ruling
whether the Court's decision had anything to do with politics, he answered,
"Zero." And when a reporter thereafter asked Rehnquist whether he
agreed with Thomas, he said, "Absolutely, absolutely." Well, at least
we know they can lie as well as they can steal.
4. The Court anchored its
knowingly fraudulent decision on the equal protection clause of the Fourteenth
Amendment. But wait. Since the electors in the fifty states weren't scheduled
to meet and vote until December 18, and the Court's ruling was on December 12,
if the Court was really serious about its decision that the various standards
in the counties to determine the voter's intent violated the equal protection
clause, why not, as Justices Stevens, Souter, Ginsburg and Breyer each noted in
separate dissents, simply remand the case back to the Florida Supreme Court
with instructions to establish a uniform, statewide standard and continue the
recount until December 18? The shameless and shameful felonious five had an answer,
which, in a sense, went to the heart of their decision even more than the bogus
equal protection argument. The unsigned and anonymously written per curiam
opinion noted that under Title 3 of the United States Code, Section 5 (3 USC §
5), any controversy or contest to determine the selection of electors should be
resolved "six days prior to the meeting of the Electoral College,"
that is, December 12, and inasmuch as the Court issued its ruling at 10 pm on
December 12, with just two hours remaining in the day, the Court said,
"That date [December 12] is upon us," and hence there obviously was
no time left to set uniform standards and continue the recount. But there are a
multiplicity of problems with the Court's oh-so-convenient escape hatch. Writing
in the Wall Street Journal, University of Utah law professor Michael
McConnell, a legal conservative, pointed out that the December 12
"deadline" is only a deadline "for receiving 'safe harbor'
protection for the state's electors" (i.e., if a state certifies its
electors by that date, Congress can't question them), not a federal deadline
that must be met. New York University law professor Larry Kramer observed that
if a state does not make that deadline, "nothing happens. The counting
could continue."
Justice Stevens observed in his
dissent that 3 USC § 5 "merely provides rules...for Congress to follow
when selecting among conflicting slates of electors. They do not prohibit a
state from counting...legal votes until a bonafide winner is determined. Indeed,
in 1960, Hawaii appointed two slates of electors and Congress chose to count
the one appointed on January 4, 1961, well after the Title 3 deadlines" of
December 12 and 18. Thus, Stevens went on to say, even if an equal protection
violation is assumed for the sake of argument, "nothing prevents the
majority...from ordering relief appropriate to remedy that violation without
depriving Florida voters of their right to have their votes counted."
But even if December 12 were
some kind of actual deadline, nothing was sillier during this whole election
debate than the talking heads on television, many of whom were lawyers who
should have known better, treating the date as if it were sacrosanct and set in
stone (exactly what the Supreme Court majority, on the run and trying to defend
their indefensible position, said). In the real world, mandatory dates always
have an elliptical clause attached to them, "unless there is just cause
for extending the date." I cannot be accused of hyperbole when I say that
perhaps no less than thousands of times a day in courthouses throughout the
country, mandatory ("shall") dates to do this or that (file a brief,
a motion, commence a trial, etc.) are waived by the court on the representation
of one party alone that he needs more time. If extending the December 12 (or
the December 18 date, for that matter)5 deadline for a few days for
the counting of votes to determine who the rightful winner of a presidential
election is does not constitute a sufficient cause for a short extension of
time, then what in the world does? No one has said it better than columnist
Thomas Friedman: "The five conservative Justices essentially ruled that
the sanctity of dates, even meaningless ones, mattered more than the sanctity
of votes, even meaningful ones. The Rehnquist Court now has its legacy: In
calendars we trust." In other words, to Scalia and his friends, speed was
more important than justice. More important than accuracy. Being the
strong-armed enforcer of deadlines, even inconsequential ones, was more
important to these five Justices than being the nation's protector and guardian
of the right to vote.
What could be more infuriating
than Chief Justice Rehnquist, who knew he was setting up a straw man as
counterfeit as the decision he supported, writing that the recount "could
not possibly be completed" in the two hours remaining on December 12? The
Supreme Court improperly stops the recounting of the votes from Saturday
afternoon to Tuesday, December 12, at 10 pm, then has the barefaced audacity to
say that Gore ran out of time? This type of maddening sophistry is enough, as
the expression goes, to piss off a saint. How dare these five pompous asses do
what they did?
It should be noted that the
recount that commenced on Saturday morning, December 9, was scheduled to
conclude by 2 pm that Sunday, and the vote counters were making excellent
progress. For example, as reported in the December 10 New York Times,
for the 9,000 Miami-Dade County ballots being counted, eight county court
judges counting 1,000 ballots an hour, had, by midday Saturday, "gone
through more than a third of the ballots [when Scalia stepped in], and expected
to finish by nightfall." So the Court's extending the deadline to December
18 would have provided ample time for the Florida Supreme Court to promulgate a
uniform standard, finish the vote-counting in a day or so, and even allow for
judicial review. As Justice Ruth Bader Ginsburg observed concerning this last
point, "Notably, the Florida Supreme Court has produced two substantial decisions
within twenty-nine hours of oral argument." Justice Breyer wrote that the
alleged equal protection "deficiency...could easily be remedied." But
that's assuming the felonious five wanted a remedy. They did not. All of the
above are further indicia of their guilty state of mind.
5. If there are two sacred
canons of the right-wing in America and ultraconservative Justices like Scalia,
Thomas and Rehnquist, it's their ardent federalism, i.e., promotion of states'
rights (Rehnquist, in fact, wrote in his concurring opinion about wanting,
wherever possible, to "defer to the decisions of state courts on issues of
state law"), and their antipathy for Warren Court activist judges. So if
it weren't for their decision to find a way, any way imaginable, to appoint
Bush President, their automatic predilection would have been to stay the hell
out of Florida's business. The fact that they completely departed from what
they would almost reflexively do in ninety-nine out of a hundred other cases is
again persuasive circumstantial evidence of their criminal state of mind.
6. Perhaps nothing Scalia et al.
did revealed their consciousness of guilt more than the total lack of legal
stature they reposed in their decision. Appellate court decisions, particularly
those of the highest court in the land, all enunciate and stand for
legal principles. Not just litigants but the courts themselves cite prior
holdings as support for a legal proposition they are espousing. But the Court
knew that its ruling (that differing standards for counting votes violate the
equal protection clause) could not possibly be a constitutional principle cited
in the future by themselves, other courts or litigants. Since different methods
of counting votes exist throughout the fifty states (e.g., Texas counts dimpled
chads, California does not), forty-four out of the fifty states do not have
uniform voting methods, and voting equipment and mechanisms in all states
necessarily vary in design, upkeep and performance, to apply the equal
protection ruling of Bush v. Gore would necessarily invalidate virtually
all elections throughout the country.
This, obviously, was an
extremely serious problem for the felonious five to deal with. What to do? Not
to worry. Are you ready for this one? By that I mean, are you sitting down,
since if you're standing, this is the type of thing that could affect your
physical equilibrium. Unbelievably, the Court wrote that its ruling was " limited
to the present circumstances, for the problem of equal protection in
election processes generally presents many complexities." (That's pure,
unadulterated moonshine. The ruling sets forth a very simple, noncomplex
proposition--that if there are varying standards to count votes, this violates
the equal protection clause of the Fourteenth Amendment.) In other words, the
Court, in effect, was saying its ruling "only applied to those future
cases captioned Bush v. Gore. In all other equal protection voting
cases, litigants should refer to prior decisions of this court." Of the
thousands of potential equal protection voting cases, the Court was only
interested in, and eager to grant relief to, one person and one person only,
George W. Bush.6 Is there any limit to the effrontery and
shamelessness of these five right-wing Justices? Answer: No. This point number
six here, all alone and by itself, clearly and unequivocally shows that the
Court knew its decision was not based on the merits or the law, and was solely
a decision to appoint George Bush President.
Conservatives, the very ones who
wanted to impeach Earl Warren, have now predictably taken to arguing that one
shouldn't attack the Supreme Court as I am because it can only harm the image
of the Court, which we have to respect as the national repository for, and
protector of, the rule of law, the latter being a sine qua non to a structured,
nonanarchistic society. This is just so much drivel. Under what convoluted
theory do we honor the rule of law by ignoring the violation of it (here, the
sacred, inalienable right to vote of all Americans) by the Supreme Court? With
this unquestioning subservience-to-authority theory, I suppose the laws of the
Third Reich--such as requiring Jews to wear a yellow Star of David on their
clothing--should have been respected and followed by the Jews. Blacks should
have respected Jim Crow laws in the first half of the twentieth century.
Naturally, these conservative exponents of not harming the Supreme Court, even
though the Court stole a federal election disfranchising 50 million American
citizens, are the same people who felt no similar hesitancy savaging the
President of the United States not just day after day, but week after week,
month after month, yes, even year after year for having a private and
consensual sexual affair and then lying about it. And this was so even though
the vitriolic and never-ending attacks crippled the executive branch of
government for months on end, causing incalculable damage to the office of the
presidency and to this nation, both internally and in the eyes of the world.
Indeed, many of them are delighted to hound and go after the President even
after he leaves office.
These five Justices, by their
conduct, have forfeited the right to be respected, and only by treating them
the way they deserve to be treated can we demonstrate our respect for the rule
of law they defiled, and insure that their successors will not engage in
similarly criminal conduct.
Why, one may ask, have I written
this article? I'll tell you why. I'd like to think, like most people, that I
have a sense of justice. In my mind's eye, these five Justices have gotten away
with murder, and I want to do whatever I can to make sure that they pay dearly
for their crime. Though they can't be prosecuted, I want them to know that
there's at least one American out there (and hopefully many more because of
this article) who knows (not thinks, but knows) precisely who they are. I want
these five Justices to know that because of this article, which I intend to
send to each one of them by registered mail, there's the exponential
possibility that when many Americans look at them in the future, they'll be
saying, "Why are these people in robes seated above me? They all belong
behind bars." I want these five Justices to know that this is America, not
a banana republic, and in the United States of America, you simply cannot get
away with things like this.
At a minimum, I believe that the
Court's inexcusable ruling will severely stain its reputation for years to
come, perhaps decades. This is very unfortunate. As Justice Stevens wrote in
his dissent: "Although we may never know with complete certainty the
identity of the winner of this year's presidential election, the identity of
the loser is perfectly clear. It is the nation's confidence in [this Court] as
an impartial guardian of the rule of law." Considering the criminal
intention behind the decision, legal scholars and historians should place this
ruling above the Dred Scott case (Scott v. Sandford) and Plessy v.
Ferguson in egregious sins of the Court. The right of every American
citizen to have his or her vote counted, and for Americans (not five unelected
Justices) to choose their President was callously and I say criminally
jettisoned by the Court's majority to further its own political ideology. If
there is such a thing as a judicial hell, these five Justices won't have to
worry about heating bills in their future. Scalia and Thomas in particular are
not only a disgrace to the judiciary but to the legal profession, for years
being nothing more than transparent shills for the right wing of the Republican
Party. If the softest pillow is a clear conscience, these five Justices are in
for some hard nights. But if they aren't troubled by what they did, then we're
dealing with judicial sociopaths, people even more frightening than they
already appear to be.
The Republican Party had a good
candidate for President, John McCain. Instead, it nominated perhaps the most
unqualified person ever to become President, and with the muscular, thuggish
help of the Court, forced Bush down the throats of more than half the nation's
voters. As Linda Greenhouse wrote in the New York Times, when Rehnquist
administers the presidential oath of office to Bush on January 20, for the
first time in our nation's history the Chief Justice will not just be a prop in
the majestic ceremony but a player. Rehnquist will be swearing in someone he
made sure would be President. Obscenity has its place in a free and open
society, but it's in the seedy, neon-light part of town, not on the steps of
the nation's Capitol being viewed by millions of Americans on television
screens throughout the land.
That an election for an American
President can be stolen by the highest court in the land under the deliberate
pretext of an inapplicable constitutional provision has got to be one of the
most frightening and dangerous events ever to have occurred in this country.
Until this act--which is treasonous, though again not technically, in its
sweeping implications--is somehow rectified (and I do not know how this can be
done), can we be serene about continuing to place the adjective
"great" before the name of this country?
FOOTNOTES
1.
A total of 3,718,305 votes were cast in the Florida election under the
Votomatic punch-card system, and 2,353,811 votes were cast under the
optical-scan system. The percentage of votes not picked up using the punch-card
system was 3.92 percent, the rate under the more modern optical-scan system
being only 1.43 percent. Put in other terms, for every 10,000 votes cast, the
punch-card system resulted in 250 more nonvotes than the optical-scan system. Siegel
v. LePore, No. 00-15981. See also Ford Fessenden, "No-Vote Rates
Higher in Punch-Card Counts," New York Times, December 1.
2.
The ruling was so bad that it was very difficult to find even conservative
legal scholars who supported it, and when the few who attempted to do so
stepped up to the plate, their observations were simply pathetic. University of
California, Berkeley, law professor John Yoo, a former law clerk for Thomas,
wrote that "we should balance the short-term hit to the court's legitimacy
with whether...it was in the best interest of the country to end the electoral
crisis." Translation: If an election is close, it's better for the Supreme
Court to pick the President, whether or not he won the election, than to
have the dispute resolved in the manner prescribed by law. Pepperdine Law
School's Douglas Kmiec unbelievably wrote that "the ruling of the US
Supreme Court was not along partisan or ideological lines," and that its
ruling "protected our cherished democratic tradition with a soundly
reasoned, per curiam voice of restraint." I won't dignify this with a
translation.
3.
Actually, not a recount since the Votomatic machines, for whatever reason,
never did detect the votes on these particular ballots. The manual count would
be examining these ballots for the first time to see if, as provided for
under § 101.5614(5) of the Florida Election Code, there was a "clear
indication of the intent of the voter." One example: The stylus punches a
clear hole in the paper ballot, but the chad is still attached (hanging) by one
or more of its four sides. In that situation the Votomatic machine frequently
does not detect the vote, though the intent of the voter could not be any
clearer.
4.
Earlier in the day, the conservative-leaning US Court of Appeals for the
Eleventh Circuit in Atlanta voted 8 to 4 to deny Bush's companion attempt to
have that court stop the recount.
5.
In fact, L. Kinvin Wroth, dean of the Vermont Law School and an expert on the
Electoral College, said that "a recount could have gone on right up to the
last day of Congress' joint session" on January 6, when the votes of the
College were counted in Congress.
6.
And this, mind you, in an election in which Bush was leading in Florida by only
a few hundred votes while losing the popular vote nationwide to Gore by, at
last count, 539,000 votes.