“The endorsement of that (Bush) position by the majority of this court can only lend credence to the most cynical appraisal of the work of judges throughout the land.”
—U.S. Supreme Court Justice John Paul Stevens
It is hardly possible to imagine a worse end. Not because we will end up with the installation of the puppet prince, who was actually rejected by the people.
We could live with that; we’ve had semimorons and hacks in the office before, and at least one other fraudulency, as he was called, Rutherford B. Hayes, who got the job when a Republican Congress intervened to steal it for him in 1876. But that was a long time ago, when the office was weaker, the nation far less important, and it would never have occurred to any president to style himself “leader of the free world.”
But never before has the Supreme Court (one is tempted to say “former” Supreme Court) befouled itself in such a way, moving blatantly and zestfully to steal the election for ideological reasons, with Antonin Scalia gleefully crowing his intentions in advance. The irony: They didn’t even have to do this. The fix was in anyway for George W.
Here’s what would have happened if the right-wingers on the high court had been true to their own ideology and sent the case back to Florida. Almost certainly, the hand count would have shown Al Gore winning. So eventually a slate of Gore electors would have sent in 25 electoral votes for the vice president. But the Republican Florida Legislature had, in a purely Stalinist move, announced it was going to appoint Bush electors no matter who won.
When something like that happens, Congress has to pick the slate of electors approved by the governor. Gee ... which do you think First Brother Jeb would have chosen?
So Bush would have won in the end. Why wasn’t that good enough for the Supremes? Well, as scaly Scalia actually said, Bush might have suffered “irreparable injury” if the recount continued, mainly because lots of people would have realized he really lost Florida. Old Jeb’s career, already tarnished by the whole “Flori-duh!” saga, would have been even deeper in doo-doo if he was the point man signing off on hijacking the presidency.
Thankfully, he had a corrupt court to do it for him. I don’t use the word corrupt lightly. Consider: Scalia has a son working in Ted Olson’s firm, the main Bush lawyer arguing before the court. Helen Thomas reported last week that Sandra Day O’Connor, the deciding vote, left a dinner party on Election Night, upset that Gore was winning; she wants to retire, but only if a right-wing president can name her replacement.
How deep the corruption runs is best illustrated by the reasoning the majority used to reverse the Florida court. These five justices — William Rehnquist, aka “Nixon’s Revenge,” Scalia, his pet dog Clarence Thomas, Anthony Kennedy and O’Connor — are normally strong for states’ rights. Justice Ruth Bader Ginsburg said as much.
“The ordinary principle that dictates its (this case’s) proper resolution: Federal courts defer to state high courts’ interpretations of their state’s own law.” You can bet that if somebody brought a women’s-rights or child-labor case from some Southern state to these bozos, the Supremes wouldn’t give them the time of day.
Naturally, this was different. It was a near thing, though. Incidentally, one of the most common media misrepresentations has been to talk of “conservatives” and “liberals” on the current Supreme Court. Yo! There are no “liberals” left! They are all dead and gone, notwithstanding a Florida Republican lawyer’s astonishingly snotty mock-accidental referral to Stevens as “Justice (William) Brennan.” Brennan, one of the court’s last liberals, has been gone since 1990. There are now only traditional moderate conservatives and right-wing ideologues. Stevens, the most vehemently opposed to the legal coup d’etat, is a solid conservative appointed by Gerald R. Ford, criticized at the time for moving the court to the right.
True, President Clinton did get to appoint two moderately conservative justices, Ginsburg and Stephen Breyer, who were joined in dissent by the quietly decent David Souter, appointed by none other than Bush minor’s father. “The court should not have (taken) this case,” he wrote, “and should not have stopped Florida’s attempt to recount.” But the honest were outvoted. Actually, to be fair, there was a case to be made for Bush. It is that the recount standards were so muddy and subjective, and that these ballots had been handled so many times, no one could really tell what was a vote. There is truth in that, even though many poor, minority and otherwise likely Democratic voters were clearly disenfranchised by everything from broken machines to confusing ballots and police intimidation.
What the justices might fairly have done, therefore, is 1) order a statewide hand-count under court-appointed observers of every vote in Florida, or 2) declare the Florida process hopelessly tainted and throw its presidential vote out. Why wouldn’t they do that? Trouble was, the former might lead to a Gore victory; the latter certainly would. They weren’t going there. So now we have our first president by judicial fiat. Does that mean George W. Bush is an illegitimate president? Absolutely.
What can we do about it? Immediately, not much. Except, don’t forget — ever. Mark Levine, a California attorney, has an idea: Democrats in the U.S. Senate can block, via filibuster, the appointment of any federal judge. He thinks they ought to refuse any appointments to the Supreme Court until a president can be democratically elected in 2004.
Meantime, settle back in the shade of the shrub. What a country. Jack Lessenberry opines weekly for the Metro Times. E-mail firstname.lastname@example.org
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