Sad
End to a Sad Saga, by Tom M. (12/13/2000)
I
have just finished reading the per curium,
concurrent, and dissenting opinions in Bush II.
It leaves me sadder than I ever expected to
be--and I am one of those who subscribes to the
theory that the winner of this election, and his
party, will be the long-term loser in 2002 and
2004. The court's opinion, paradoxically, lends
assistance to this outcome. I should be cheered
as to the Congress and the Whitehouse.
But I
am left with a foreboding more serious that that.
The Supreme Court of the United States has
conducted itself admirably in the aftermath of
its Dred Scott decision, but nothing lasts
forever. It has taken politically sensitive
cases, and resolved them so that they have been
accepted with equanimity--objections an griping
of the losing side notwithstanding. This time,
the court over-reached, and it saddens me to see
that we have persons on the bench who so
blatantly place ideology over jurisprudence, and
political result over precedent.
The
per curium opinion, hinging on "equal
protection," is superficially appealing to
people innocent of knowledge of past cases in
which case justices Scalia, Rehnquist, and Thomas
have found to lack merit. The equal protection
argument is buttressed in the first instance by
reliance on the testimony of a recount
"monitor" who testified that different
standards were used by difference panels in the
same county.
Iirc,
this witness was a Republican observer who had
been a witness in a previous case, in which there
was voter fraud, in which he declined to testify
on grounds of the fifth amendment.
[A
footnote on equal protection: It is beyond
dispute that there arevotes which, under the most
conservative standard which would permit the
counting of a punch card ballot which the machine
did not count, that will not be counted absent a
hand recount. The court's opinion, in essence, is
that these clearly countable votes should not be
counted because yet some other county would count
not only these ballots, but others that would not
be counted in the first county, and because this
county would count as valid votes, ballots which
would not have been counted in some third county.
But that is not a denial of equal protection that
is of concern to the plurality.}
There
is no record here of any substance. The court has
never entertained a vote count case before in its
history. I doubt that any of these justices has
ever had to run for election. Yet, on such a
scant record, and on such a short schedule, they
have selected the Pres. of the US. I guess the
concept of ripeness is, for the time being, a
dead letter.
The ultimate indicia of the intellectual
dishonesty of this opinion is its statement near
the end that "Seven Justices of the Court
agree there are constitutional problems with the
recount ordered by the Florida Supreme Court, ...
[t]he only disagreement is as to the
remedy." [citing the dissents of Souter and
Breyer.] This is a blatant attempt to
transmogrify a 5-4 plurality opinion into a 7-2
consensus. What did Souter and Breyer actually
say?
Souter: "The Court should not have reviewed
either [Bush I] or this case, and should not have
stopped Florida's attempt to count all undervote
ballots."
Breyer: "The Court was wrong to take this
case. It was wrong to grant a stay. It should now
vacate that stay and permit the Florida Supreme
Court to decide whether the present recount
should resume."
Yeah, Souter and Breyer are only quibbling about
the remedy.
--
TJ
Discouraged. Not even cheered by the irony of
states' rights boosters Scalia, Rehnquist and
Thomas being at the forefront of this. However,
I'll be cheered by the fact that even if DL's
radio show fails, I'll have a treasure trove of
hypocrisy to mock in the years to come.
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