Skip

The Path to Florida
September 23, 2004 7:37 PM   Subscribe

The Path to Florida A long Vanity Fair article (part one and part two, both PDFs) about the experiences and reactions of US Supreme Court clerks during the 2000 election and Bush v. Gore [PDFs hosted at SCOTUSblog; via Intel Dump]
posted by kirkaracha (11 comments total)

 
I really enjoyed the article and the insights it gave behind the doors of the Supreme Court. Obviously the fact that the former law clerks for the dissenting Justices really wanted their voices heard reflected in the article but I would've liked to hear from the law clerks on the other side of the decision. I wonder if they would've similarly discribed the dissenting Justices as putting politics ahead of sound jurisprudence. I would've also liked a deeper legal explanation about why they thought the decision was unsound, but overall it was a fascinating article.
posted by gyc at 10:14 PM on September 23, 2004


Thanks for this in-depth article. Not being an American, I had no clear understanding of what the hell went on in Florida in your last federal elections, I only recall hanging chads and all that rubbish. I just wonder how balanced an article this is? Would a fair and reasonable Republican voter accept this version of events?
posted by Onanist at 3:26 AM on September 24, 2004


The dissenting opinions in Bush v. Gore are actually quite readable and concise.

Stevens - This one even contains the phrase "wholly without merit."

Souter -- "The State Supreme Court was therefore required to define it, and in doing that the court looked to another election statute, §101.5614(5), dealing with damaged or defective ballots, which contains a provision that no vote shall be disregarded “if there is a clear indication of the intent of the voter as determined by a canvassing board.” The court read that objective of looking to the voter’s intent as indicating that the legislature probably meant “legal vote” to mean a vote recorded on a ballot indicating what the voter intended."

Ginsberg -- "Surely the Constitution does not call upon us to pay more respect to a federal administrative agency’s construction of federal law than to a state high court’s interpretation of its own state’s law."

Breyer -- "Despite the reminder that this case involves “an election for the President of the United States,” ante, at 1 (Rehnquist, C. J., concurring), no preeminent legal concern, or practical concern related to legal questions, required this Court to hear this case, let alone to issue a stay that stopped Florida’s recount process in its tracks."
posted by Space Coyote at 4:01 AM on September 24, 2004


Shorter version:

An election stolen and democracy died.
With a whimper.
posted by nofundy at 5:04 AM on September 24, 2004


Onanist: I only recall hanging chads and all that rubbish. I just wonder how balanced an article this is? Would a fair and reasonable Republican voter accept this version of events?

I think it is significant that you can look high and low and you won't find a single Rightwing lawyer defending the decision. Not a single one -- NOT ONE -- will go on record marveling at the sound and proper application of law. They may valiantly try to justify it on other grounds, but there is almost universal agreement that the decision itself was a garbled and partisan bastardization of the principles of "equal protection". The fact that it was limited to Gore V Bush pretty much proves that.
posted by RavinDave at 9:07 AM on September 24, 2004



I think it is significant that you can look high and low and you won't find a single Rightwing lawyer defending the decision. Not a single one -- NOT ONE -- will go on record marveling at the sound and proper application of law.


I'm wondering if anyone has read this book. It sounds like some of the great legal minds in the book do defend the Bush v. Gore decision.
posted by gyc at 12:15 PM on September 24, 2004


I hate to pick nits here, but we don't have federal elections—electing the electors is done in a state election. Actually, that fact alone makes the SCOTUS wrong—they didn't have jurisdiction; it stopped with the Supreme Court of Florida, because the elections were subject to Florida law, and the highest interpretation of Florida law cannot come from SCOTUS, but rather from Florida's Supreme Court.
posted by oaf at 12:19 PM on September 24, 2004


the decision itself was a garbled and partisan bastardization of the principles of "equal protection".

which even Scalia seemed to admit at one time, i.e. the "this is a piece of shit" statement.

Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires

oh my, Antonin!

great read. thanks for the find. the only time i've really worked like a bloody bastard at my job was from October-December 2000, so i missed a lot of this the first time, and the snarky information from the clerks is fantastic.

quite embarrassing for my undergraduate alma mater, btw: Rehnquist, O'Connor (stanford law), and Kennedy (undergrad) are bad. O'Connor makes decisions based on "gut feelings"?!?!?! Breyer makes up for it a bit, but still quite embarrassing for stanford u.

on preview: good point, oaf. that was the most shocking part of the article to me:

James Baker, the Bush team's consigliere, issued a public threat after the Florida Supreme Court's maddening decision. If necessary, he implied, Florida's leading Republican legislator, incoming House Speaker Tom Feeney, would take matters into his own hands. What Feeney, proposed, on Tuesday, November 21, was to vote in a slate of electors pledged to George W. Bush, no matter what. Since both the state House and Senate were Republican-dominated, he could pass a bill to do that.

it seems like the public backlash would hopefully never allow such a thing, but the threat is completely offensive yet unsurprising.
posted by mrgrimm at 12:45 PM on September 24, 2004


gyc ...

I wouldn't rely on that book too much. It includes (2) pro-Bush conservative points of view (Charles Fried & Steven Calabresi), but as I said ... their support was less not so much laudatory praise over a Solomonesque decision as it was a meek "Well, golly. It all worked out in the end, let's change the subject."

Here's a "National Review" article that pretty much makes my point:

"The fact that many of the contributors here indulge in just that kind of exaggeration is not surprising. [ ... ] What is surprising, though, is the tepid defense of the opinion offered by the conservatives. Although this volume was never intended to provide a point-counterpoint match-up of Bush and Gore supporters, the conservatives who weigh in here do not attempt to tackle the most difficult arguments posed by the pro-Gore camp. For example, Fried, a former solicitor general under Reagan, argues that Bush v. Gore is not the extraordinary exercise of conservative judicial will that some in the pro-Gore camp have asserted. It is simply one of the "large number of important Supreme Court decisions on which reasonable minds might differ." Fried's argument is correct as far as it goes, and elegantly stated, but it only cuts through the rhetoric of the pro-Gore side, not the legal arguments, and only succeeds in getting us back as far as the starting point.

Calabresi, the other conservative commentator here, does not address the decision itself at any length. Perhaps surprisingly, Calabresi, who served in the White House and Justice Department under Reagan and Bush I, believes that the Supreme Court was without jurisdiction to decide what was fundamentally a political question.

[ ... ] In one respect, however, it might not be so surprising to find no real conservative defense of Bush v. Gore here. Conservatives have always had good reason to be ambivalent about the majority opinion, because it reached a politically desirable result but on grounds that even many conservatives consider questionable."


Hell, even Robert Bork expressed grave misgivings about the decision, though he certainly danced a jig over the results.

The bottom line is that the Rightwing legal establishment KNEW it was shit law, but turned a blind eye because their guy won; the worst type of intellectual dishonesty.
posted by RavinDave at 1:02 PM on September 24, 2004


hate to pick nits here, but we don't have federal elections—electing the electors is done in a state election.

Ah yes, oops, I was unsure of what term to use there. What's the most appropriate name - Presidential elections?
posted by Onanist at 7:54 PM on September 24, 2004


The great Article III gossip blog Underneath Their Robes has a "reader's guide" to the Vanity Fair article, with identifies the law clerks and gives some other interesting tidbits of information.
posted by monju_bosatsu at 9:11 AM on September 25, 2004


« Older reminds me of energy policy   |   RIAA-friendly P2P? Newer »


This thread has been archived and is closed to new comments



Post