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.