Incredible. Simply Incredible.

George W. Bush stole the election of 2000, with the help of the US Supreme Court.

Nothing new you say? You already knew that? I suspect you did, but, like me, never bothered to dig down into the minutiae of the legal proceedings to fully understand the rationale of the Supreme Court when they stopped the vote counting and handed the presidency to Bush. However, Vincent Bugliosi’s recent book on the Prosecution of George W. Bush for Murder, which I reviewed here, directed me to a previous book he published back in early 2001, entitled The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose Our President. That book was an expansion and supplement to a article he published in The Nation almost immediately after the Supreme Court decision. His contention is that the five Justices (Rehnquist, Scalia, Thomas, O’Connor and Kennedy) who held for Bush, in effect installing him in the US Presidency, committed criminal acts in violation of their sworn obligation to uphold the laws of the land and the Constitution.

After reading the current book which accuses George Bush of murder, one might be tempted to accuse Bugliosi of seeing criminality behind every  individual governmental action by officials he doesn’t agree with, and frankly, I wasn’t convinced that those five justices actually committed any crimes. I don’t think there is a statute on the books that even proscribes such a crime, and Bugliosi freely admits this. No one in their right minds, in over 200 years of jurisprudence would have expected the Supreme Court to do what it did, much less write a proscriptive statute to ensure that it didn’t. But reading this book convinced me that those justices indeed intentionally sought, and found a way, to thwart the clear intent of the voters, at least as that intent was shaping up in the vote recount process after the election, and did so in furtherance of  obvious partisan interests.

To my thinking,  Bugliosi is warranted in his hyperbole. Some evidence, albeit circumstantial:

  • Sandra Day O’Connor had made it clear, long before the election results and the litigation known as Bush v. Gore showed up in her chambers, that she wanted to retire, soon, but only if a Republican was in office to name her successor.
  • In the guise of ensuring that the will of the people be reflected in the election, presumably by ensuring that all votes be counted, the Supreme Court decision, to the contrary, halted the vote count while it was in progress, and ordered that the votes not be counted.
  • This occurred despite the fact that at the time that the vote was halted, George Bush’s lead had been narrowed down to 157 votes (out of almost 6,000,000 cast), from a previous tally of over 1700, with over 9000 undervotes still to be counted (those with evidence of clear intentions but that had not been counted by the machines – remember hanging and pregnant chads?), and with Gore gaining votes with every recount. The handwriting was on the wall.
  • Scalia issued a temporary stay pending the Court’s ultimate decision, stopping the recount, despite the fact that all parties were under the impression (mistaken, according to Bugliosi) that there was a hard and fast deadline for the certification of the votes, and the counties doing the recount had indicated that they could finish the recount in time.
  • Scalia justified the stay of the recount on the basis that it would irreparably harm Bush, “by casting a cloud on what he claims is the legitimacy of his election.” In effect, rather than take the neutral position normally taken in an election contest that the election was not to be presumed, Scalia assumed Bush had been elected, and any recount would threaten it. No similar concern for Gore’s election was stated.
  • The final Supreme Court decision was partially based on the fact that because the recount could not be completed in time, it would not proceed. Again, in classic bootstrapping fashion, the court stopped the recount, then used that fact to justify why it shouldn’t proceed.
  • The Justices issued a per curiam decision, when per curiam decisions are almost always issued when the court is unanimous, or when the decision is merely procedural, or noncontroversial and unimportant, and there is no need for extensive written rationale. This decision was split, 5-4, and none of the Justices had the courage to sign the opinion. Per curiam means “by the Court”, so in effect, the decision was made to look like the court speaking as a whole, when it clearly wasn’t.
  • The Court based its decision on an Equal Protection argument, one it had previously rejected three weeks earlier when Bush appealed the decision to a more limited recount ordered by the lower courts.
  • The Justices who voted for Bush are ardent strict constructionists and states rightists who almost always vote in favor of deferral to the actions of the states. The state of Florida had a well articulated election statute, that the Florida Supreme Court had interpreted, and found that a statewide recount should, and was authorized by statute to, proceed. These five conservative, Republican Justices did a compete philosophical 180° turn, jumping in and refusing to defer to the interpretation of the highest court of that state.
  • Finally, to add a little icing to the cake, in taking this unprecedented action of ordering that the votes of the citizens of the State of Florida not be counted,  and that the election as certified by the clearly biased Secretary of State Katherine Harris (she campaigned for Bush, she was a delegate to the Republican convention, and she was the co-chair of the Bush campaign in Florida – she should have recused herself from the process as her Governor, Jeb Bush, rightly did) be accepted without further recount, the court held that this case would have no precedential value to future elections, that the ruling would apply only to this case, however in all similar future cases, the “litigants should refer to previous decisions of this court”, not this one. As Bugliosi points out,

Of the thousands of 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.

Incredible. Simply incredible.

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10 thoughts on “Incredible. Simply Incredible.

  1. Thanks. That’s site is short, but impartial, and confirmed everything Bugliosi explained. However, it misleadingly states that the decision was 7-2, because Breyer and Souter, writing separately, concurred in the rationale of the Equal Protection argument, however they dissented in the result, meaning that that voted to let the votes be counted, provided that a standard could be fashioned that applied equally across the recount process. Bugliosi notes that the “standard” argument was wrong, because there actually was a standard in place. The majority simply ignored it. The vote was actually 5-4 to stop the recount.

    The problem was primarily those butterfly ballots, used only in a few counties. They misleadingly placed the punch holes both to the right and left of various candidates names. Pat Buchanan’s hole was sandwiched in between Gore’s and Bush’s, however his name was to the right of the punch holes, while the other two were to the left. Many voters indicated that they voted for Buchanan mistakenly, when they intended to vote for either Bush or Gore. Buchanan got far more votes in those counties than any poll had previously indicated.

    Additionally, the machines that were used to read the ballots had not been cleaned out of chads in 8 years. When they get that way, even the manufacturer of the machines recommends hand counting.

  2. Land of the free and home of the brave.

    Only when the Republiconservatives are finally all good. Like good Indians used to be in the old West.

  3. Had this happened in Guatemala, or Zimbabwe, or Myanmar, we would call an episode such as this a coup de’tat. I find it curious that conservatives keep insisting that us liberals are undermining the Constitution, that liberal judges keep inventing things that are not in the Constitution.

  4. I believe it’s the same logic as when someone who farts immediately complains and points at someone for blame. I think it’s time the Democrats stood up and told the Republicans, “if you smelled it, you dealt it!”

  5. SI theres so much much craziness afoot that I almost hate to revisit the issue. I’m OK with remembering it for what it was, But it’s too late to say much about the FISA vote, let alone what happened in 2000.

    We have all of the knowledge we need on the general issue of political corruption at the highest levels. We either do something about it or we don’t. I vote “don’t” because doing something about it would have to be pretty radical. There’s no mechanism within the structure for changing this.

    Did you hear? Karl Rove will thumb his nose at Congress (again) today. You know that photoshopped picture of Rove being hauled off in handcuffs? It won’t happen. What’s the lesson?

  6. It’s too late to do anything about Bush and Cheney now. They’re home free and have been so ever since Pelosi uttered the words, “off the table.”

  7. I’m reading Bugliosi’s book, Prosecution of George W. Bush for murder, right now (thanks to your previous post). So far, its great; engrossing, informative and very factual. This one also sounds like a good one, but, I think it will depress me. I can’t believe that a president in this country is so surrounded by corruption, lawlessness and scandal, and yet, nothing is done. And people don’t seem to care, but, people will still go on and on about how disgraceful what Bill Clinton did was. So, torture okay, ignoring the constitution okay, spying on Americans okay, putting innocent American citizens in the brig for years based on mistaken info okay, but, a blow job..just disgraceful.

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