http://fathom.lib.uchicago.edu/1/777777122240/This is a long analysis...but the essential part of this illegal decision by the Gang of Five is below...their decision in Bush v Gore has no standing in legal precendent, and was, in fact, unconstitutional...this decision made a mockery of our democracy, the ramifications of which were felt for 8 years of the worst president this country has ever had. No, the ramifications are still being felt...a big FU to five of the smallest legal minds in history - Scalia, Thomas, Rehnquist, Kennedy and O'Connor.
___________________________________
Third, the majority's five-to-four decision not to remand the case to enable Florida to conduct a constitutionally appropriate recount with a more specific definition of "intent of the voter" has been attacked by almost everyone. The majority asserted that because the Florida legislature may have intended to take advantage of the "safe harbor" provision of federal law, which required a selection of electors by December 12--the date of the Supreme Court's decision, there was simply no time left for any further recount.
There is virtually no one who will defend this conclusion as a matter of law. Even as respected a conservative legal scholar as Michael McConnell has strongly chastised the Court on this count, noting that although the Florida legislature could theoretically have adopted such a statute, in fact it never did so. How, then, can one explain the refusal of these five Justices to remand the case to Florida for a further recount consistent with their interpretation of the Equal Protection Clause? Some of the Court's most fervent apologists have argued that these Justices, in a burst of noble pragmatism, did the nation a service by putting an end to a controversy that was threatening to spin out of control. Frankly, I would have been more impressed with these particular Justices' nobility if the consequence of their decision had been to install as president the Democratic candidate for the job.
But, in the actual circumstances presented, I find this argument wishful, at best. There was, in fact, no political crisis facing the nation. There was no social unrest, no paralysis of government, no lack of discipline in foreign affairs, no instability in the financial markets, no crisis in consumer confidence, no stockpiling of goods. Perhaps there was too much C-SPAN, but that hardly threatens the Republic. Surely, there was no more of a crisis facing the nation during the Bush/Gore post-election dispute than there was during the abortive attempt to impeach the President. But no one called that to a halt to avoid a "crisis."
Would a further recount have been messy? You bet. There were all sorts of things that could have gone wrong after December 12 both in Florida and in Congress, and not many that could have gone right. But was this a constitutionally legitimate reason for the Supreme Court of the United States to halt the recount of legal votes in Florida? No.
The plain and simple fact is that if this matter could not have been finally resolved in Florida prior to the convening of the Electoral College, the appropriate forum for determining the outcome of the presidential election was Congress, the politically accountable branch of government and the branch that is expressly charged both by the Constitution and by federal law with this responsibility. No one has given this authority to the Supreme Court of the United States.
After the Hayes-Tilden election of 1876, the nation enacted legislation to deal with precisely this sort of controversy, and carefully reserved to Congress the responsibility to resolve contested presidential elections. As Senator Sherman noted in introducing this legislation in 1886, Congress expressly contemplated and rejected a role for the Supreme Court in such controversies:
"It has been proposed," Senator Sherman explained, that in the event of a dispute about the legitimacy of Electors,
. . . the matter should be referred to the Supreme Court. But . . . we ought not to mingle our great judicial tribunal with political questions. It would be a very grave fault indeed to refer such questions, in which the people of the country were aroused, and about which their feelings were excited, to this great tribunal, which after all has to sit upon the life and property of all the people of the United States. It would tend to bring that court into public odium . . . .
In Bush v. Gore, the five-member majority ignored not only this wisdom, but the law itself. Their decision to prevent Florida from counting what the Court itself accepted as "legal votes" under state law may have been pragmatic, but it was not lawful.
Printer-friendly format
Email this thread to a friend
Bookmark this thread
(1000+ posts)
Send PM |
Profile |
Ignore
