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Election 2000 Dissent

"One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law. I respectfully dissent."
Justice John Paul Stevens

"In sum, the Court's conclusion that a constitutionally adequate recount is impractical is a prophecy the Court's own judgment will not allow to be tested. Such an untested prophecy should not decide the Presidency of the United States. I dissent."
Justice Ruth Bader Ginsburg

"The election of 2000 was not stolen. It was expropriated."
Hendrik Hertzberg, former presidential speechwriter

"We had a constitutional crisis, and it was Bush v. Gore. History will not be kind."
David Kairys, Temple University

"There is really very little way to reconcile this opinion other than that they wanted Bush to win."
Suzanna Sherry, Vanderbilt University

"They have ... made it impossible for citizens of the United States to sustain any kind of faith in the rule of law as something larger than the self-interested political preferences of William Rehnquist, Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Sandra Day O'Connor."
Jeffrey Rosen, legal scholar

"But we should also insist that there be no confirmation for Scalia-like champions of the right-wing agenda. The Supreme Court has hurt its own reputation by wrongly intervening to ensure the victory of George W. Bush. Those who abhor what the Court did should say so and say so loudly and clearly."
Randall Kennedy, Harvard University

"But if it comes down for justices to the 14th amendment and the promise of equal protection, one can only hope for the sake of the country that they consider how not counting all the votes mirrors too closely the habits of heart and mind that brought us slavery and segregation--the original sins of our nation that the equal protection clause sought to repair."
Jesse Jackson and John Sweeney

"... the Court committed the unpardonable sin of being a knowing surrogate for the Republican Party instead of being an impartial arbiter of the law. ... [The Court searched] mightily for a way, any way at all, to aid their choice for president, Bush, in the suppression of the truth, finally settling, in their judicial coup d'État, on the untenable argument that there was a violation of the Fourteenth Amendment's equal protection clause ..."
Vincent Bugliosi

"The Supreme Court should not have stopped the voting. I think that did more damage to the Supreme Court than anything they did. They wanted to protect themselves against having a recount declare Gore the winner before they invalidated the recount. I think it was a mistake."
Bush attorney Barry Richard

Quotes  On  The  Coup

To keep our historical memories sharp, let's review some of the more perceptive comments on the Scalia Five's judicial coup d'état. (Many of these quotes are recycled from the recent useful book Bush v. Gore : The Court Cases and the Commentary, edited by E.J. Dionne Jr. and William Kristol.)

From the legal community :

Vincent Bugliosi, author and former prosecutor : "In the December 12 ruling by the U.S. Supreme Court handing the election to George Bush, the Court committed the unpardonable sin of being a knowing surrogate for the Republican Party instead of being an impartial arbiter of the law. ... From the beginning, Bush desperately sought ... to prevent the opening of the box, the looking into the box-unmistakable signs that he feared the truth. In a nation that prides itself on openness, instead of the Supreme Court doing everything within its power to find a legal way to open the door and box, they did the precise opposite in grasping, stretching and searching mightily for a way, any way at all, to aid their choice for president, Bush, in the suppression of the truth, finally settling, in their judicial coup d'etat, on the untenable argument that there was a violation of the Fourteenth Amendment's equal protection clause." (The Betrayal of America, by Vincent Bugliosi)

Lani Guinier, Harvard University : "What began as judicial overreaching may be a clarion call for major democratic reform." ("A New Voting Rights Movement," the New York Times, December 18, 2000)

David Kairys, Temple University : "The conservative majority of five justices deviated from two types of norms. First, some of their rulings were inconsistent with settled, highly predictable rules, practices or outcomes. Second, the conservative majority justices deviated from rules, outcomes or trends that have characterized their own prior decisions. ... The feared constitutional crisis we so often head about in that tense post-election period lay ... in the judicial intervention and displacement of that process. We had a constitutional crisis, and it was Bush v. Gore. History will not be kind." ("Gore v. Bush Blues," Jurist, 5/19/01)

Pamela S. Karlan, Stanford University (published the day before the Court ruled) : "If Governor Bush is to win, ultimately, by one vote, fine. But let that one vote be cast by a Floridian, and not by a justice of the United States Supreme Court." ("The Court Casts Its Vote," the New York Times, December 11, 2000)

Randall Kennedy, Harvard University : "The U.S. Supreme Court's intervention into the presidential election was and is a scandal. ... Some critics of the Court's intervention are sidestepping the sobering reality of the situation : that the Court majority acted in bad faith and with partisan prejudice. ... But we should also insist that there be no confirmation for Scalia-like champions of the right-wing agenda. The Supreme Court has hurt its own reputation by wrongly intervening to ensure the victory of George W. Bush. Those who abhor what the Court did should say so and say so loudly and clearly. And they should demand that the Court repair its own damaged reputation. Only when that occurs should the public repose its trust in the Court, which is now unworthy of deference." ("Contempt of Court," The American Prospect, January 1, 2001)

Jamin Raskin, American University : "Quite demonstrably the worst Supreme Court decision in history, Bush v. Gore changes everything in American law and politics. The Rehnquist Court has destroyed any moral prestige still lingering from the Warren Court's brief but passionate commitment to civil rights in the middle of the last century. Now the court has returned to its historic conservative role, rushing to aid the political party of property and race privilege in a debased partisan way, torturing out of the Equal Protection Clause new rules to assure the power of one political faction." ("Bandits in Black Robes," Washington Monthly, 3/01)

Jeffrey Rosen, George Washington University : " By not even bothering to cloak their willfulness in legal arguments intelligible to people of good faith who do not share their views, these four vain men and one vain woman have not only cast a cloud over the presidency of George W. Bush. They have, far more importantly, made it impossible for citizens of the United States to sustain any kind of faith in the rule of law as something larger than the self-interested political preferences of William Rehnquist, Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Sandra Day O'Connor. ... The unsigned per curiam opinion ... is a shabby piece of work." ("The Supreme Court Commits Suicide," The New Republic online, December 14, 2000)

Cass Sunstein, University of Chicago : "By discrediting itself, the Supreme Court that decided Bush v. Gore helped to draw new attention to the importance of the franchise, and to the ideals of self-government and political equality."("What We'll Remember in 2050," Chronicle of Higher Education, January 5, 2000)

Scott Turow, author and attorney : "The court's decision ... to stay the hand count of undervote ballots was the most overtly politicized action by a court that I have seen in 22 years of practicing law. It was an act of judicial lawlessness. ... It deviated so far from governing legal principles that Terrance Sandalow, a conservative legal scholar and former dean of the University of Michigan Law School, was quoted calling the decision 'incomprehensible' and 'an unmistakably partisan decision without any foundation in law.'" ("A Brand New Game : No Turning Back from the Dart the Court Has Thrown," the Washington Post, December 17, 2000)

From other prominent commentators :

Eric Foner, Columbia University : "First, the Electoral College should be abolished. ... Second, the Florida fiasco should lead to the reform of voting procedures. ... Bush v. Gore may galvanize demands for genuine equality of participation in the democratic process. ... Equally difficult to accept at face value is the majority's disdain for the principle of federalism these very Justices have trumpeted for the past several years. Like the South before the Civil War, which believed in states' rights but demanded a fugitive-slave law that overrode the North's judicial and police machinery, today's majority seems to view constitutional principles as remarkably malleable when powerful interests are at stake. The next time this Court turns down an appeal by a death-row inmate on the grounds that federalism requires it to respect local judicial procedures, the condemned plaintiff may well wonder why his claims do not merit the same consideration of those of the Republican candidate for President." ("Partisanship Rules, The Nation, 1/1/01)

Jesse Jackson and John Sweeney : "There are lots of reasons for the Supreme Court to let the count continue--deference to the Florida courts' interpretation of Florida law and the sanctity of the right to vote and have that vote counted among them. But if it comes down for the justices to the 14th amendment and the promise of equal protection, one can only hope for the sake of the country that they consider how not counting all the votes mirrors too closely the habits of heart and mind that brought us slavery and segregation -- the original sins of our nation that the equal protection clause sought to repair." ("Let the Count Continue," the Washington Post, 12/12/00)

Mary McGrory, columnist for the Washington Post : "The Supreme Court decision to elect George W. Bush is a travesty." ("Supreme Travesty of Justice," the Washington Post, 12/14/00)

And lastly, even from a conservative scholar :

John J. DiIulio Jr., now heading George W. Bush's faith-based initiatives office : "There was even, I suppose, a time when conservatives would rather have lost a close, hotly-contested presidential election, even against a person and a party from whom many feared the worst, than advance judicial imperialism, diminish respect for federalism, or pander to mass misunderstanding and mistrust of duly elected legislative leaders. If there ever was such a time, it has now passed. ..." ("Equal Protection Run Amok : Conservatives Will Come to Regret the Court's Rationale for Bush v. Gore," The Weekly Standard, 12/25/00)

"Having Justice Antonin Scalia speak on ethics is like having a prostitute speak on sexual abstinence."
Vincent Bugliosi

"We already know the moral bankruptcy and the destitution of character of these five Justices. They have proven that. But if we Americans meekly allow what the Court did to stand, without demonstrating our absolute outrage, what does that say about our character? I think history is going to be harsh not just on the Supreme Court but on the American people for allowing this to happen without marching in the streets. History will say we should have been in the streets."
Vincent Bugliosi, The Nation, published to the Web Nov. 15, 2001

"The president barely got elected with the help of the Supreme Court."
New Hampshire GOP gubernatorial candidate Gordon Humphrey, at a recent candidate forum quoted in the Concord Monitor, Nov. 11, 2001


None Dare Call It Treason


How  many  judges  does  it  take  to  destroy  a  Democracy?   -   5

"When the cops join the robbers, we have a problem.
When the courts help the robbers, we have a crisis.
When our highest court becomes complicit in the robbery, we have a disaster."

Alan M. Dershowitz


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