One of the interesting observations in this article
is that the judicial system
has become highly politicized. Judges nowadays, especially those on
the Right, can be expected to protect people they have a political
connection to, even if they contradict legal precedent in doing so. My
impression is that this might have always been the case to some extent,
but as of late it has gotten much worse. The Supreme Court is not immune.
I am reminded of the case of Supreme Court Justice
Thomas was mentored by Senator Danforth of Missouri, and the Danforth
family is closely tied to ownership of the Ralston Purina Company. Thomas,
prior to his controversial selection to the Court (despite sexual harrassment
charges) was so bold as to not recuse himself from a trial in which he awarded
$10 million to Purina in a dispute with Alpo over dog food. Type the following
into Google.com to see what I am talking about:
"Clarence Thomas" Purina
It turns out that the Right managed to get the
Reagan Administration, when
selecting new judges, to appoint mostly judges who were members of the
conservative Federalist Society (www.fed-soc.org) -- according to a
Republican no less, special prosecutor Lawrence Walsh. Prof. Francis
Boyle has studied this; he can be reached at email@example.com. Another
source for information on the selection of right-wing judges (and the
filibustering of liberal and moderate appointees) is the Judicial
Selection Project of the Alliance for Justice. They can be reached at firstname.lastname@example.org.
The Alliance wrote an extensive analysis of the
Federalist Society and
related legal projects of the Right. This report can be ordered from
the AFJ web site at http://afj.org/pubs.html. The report is called:
ACCESS TO JUSTICE
Justice for Sale: Shortchanging the Public Interest for Private Gain (1993) 94 pp.,$15.00
Analysis of efforts by major corporations and foundations to elevate profits and private wealth
over social justice and individual rights as the cornerstones of American jurisprudence.
You all are encouraged to do additional research
on the Federalisit Society
and post the results to RWWATCH.
in order to receive RWWATCH,
about 5 messages per week covering right-wing research.
December 3, 2000
The Courts & the Count
By Robert Parry
During the Iran-contra investigation, Lawrence
Walsh likened the Reagan-Bush
federal judges in Washington to “the strategic reserve of an embattled army.”
When President Reagan's guys were under the gun,
the Reagan-Bush judges
searched for some legal excuse to jump into the trenches.
At a crucial moment of the Iran-contra scandal,
for example, tough law-and-order
appeals court judges Laurence H. Silberman and David Sentelle both appointed
by Ronald Reagan suddenly went soft on criminals and carved out a broad new
legal right for defendants relating to grants of limited immunity.
The defendant who benefited from this new liberal
legal construction was Oliver North.
Silberman and Sentelle overturned North's conviction on three Iran-contra felonies.
Editor's note: Sentelle was a top cock hunter, firing Fiske to hire Hardon Kenny
The surprising intervention of the U.S. Supreme Court in the Florida
underscores again Walsh’s observation. When the going gets tough for conservative
politicians, the conservative jurists in the federal courts get going.
In this case, the high court’s conservative “strict constructionists,”
sputter with rage at the idea of federal intervention in a state legal dispute, seem
determined to throw out a recount in Broward County that produced a net
gain of 567 votes for Vice President Al Gore.
A ruling favorable to Texas Gov. George W. Bush could exclude those
ballots and boost Bush's tally from 537 votes to a more respectable 1,104 votes.
That could help Bush survive any additional recounts that might be included
in the Florida total.
The fear among Bush's team about a fuller recount makes more sense following
new study by the Miami Herald that surveyed the state's 5,885 precincts and
concluded that Gore probably would have won Florida by a 23,000-vote margin, but
for various flaws in the voting system and tabulations. [Miami Herald, Dec. 2, 2000]
If the Miami Herald is correct, then Bush appears to be heading to the
not only as the first national popular-vote loser in more than a century but also as the
voters' runner-up in the decisive state of Florida.
With Bush's holding such a dubious claim on the presidency, enter the U.S. Supreme Court.
During oral arguments on Dec. 1, the Reagan-Bush judges left little
doubt that their long-held
commitment to federalism and states' rights didn’t extend to the Florida Supreme Court.
In a unanimous ruling, that state court had sought to reconcile two
laws by extending the initial deadline for certifying the vote in the presidential election.
One state law set Nov. 14 as the initial certification date while another allowed for
manual recounts that couldn’t physically be done that quickly, at least not in populous counties.
So, the state judges ruled that the right of the voters to have their
votes counted and
the recount law’s provision for a more accurate tally should be given greater weight
than the technical deadline. Noting also that the law gave some leeway in the
deadline to the secretary of state, the court allowed 12 more days for the recounts.
During that time, Broward County completed its recount awarding a net
gain of 567
votes to Gore. But the two other counties Dade and Palm Beach had more problems.
The canvassing board in populous Dade County canceled its recount on
after the Bush campaign dispatched paid demonstrators who stormed the county offices in Miami.
The protesters pounded on the walls as the cancellation was being voted.
Afterwards, they cheered their victory. The official reason given for the canceled
recount was that the canvassing board felt it still lacked enough time to complete the tally.
The day after the assault, Bush and his running mate, Dick Cheney, personally
the rioters during a celebration at a Fort Lauderdale hotel and joked with them about
their Miami action, the Wall Street Journal reported. [Nov. 27, 2000]
In Palm Beach, less violent tactics were used. Republican legal representatives
slowed the recount by lodging repeated objections.
When the Palm Beach canvassing board missed the new deadline by two
Republican Secretary of State Katherine Harris, a co-chair of the state Bush
campaign, rejected the revised tally and smilingly certified Bush the winner in Florida
and thus the next occupant of the White House.
The Gore team challenged Harris's certification in court, demanding
inclusion of the
Palm Beach ballots and the counting of the disputed ballots in Dade County.
The High Court
While the Gore challenge crept along slowly in a state circuit court,
campaign’s lawyers took aim at the Broward votes before the U.S. Supreme Court.
To the surprise of many observers who considered the Florida Supreme
decision a garden-variety case of judicial review the U.S. Supreme Court agreed
to intervene and give the case a rare expedited hearing.
Again, surprising to many observers, the court’s Republican majority
strong objections to the Florida Supreme Court’s actions during public oral
arguments on Dec. 1.
For the U.S. Supreme Court, the question of who will be the next president
insignificant, since the president fills vacancies on the court and could well determine
the court’s ideological balance years into the future. Most of the Reagan-Bush
appointees sounded like they wanted another Republican president filling those vacancies.
Gov. Bush's central legal argument against the state court’s ruling
was based on a
federal law passed in 1887 that called on states to have rules for presidential
elections in place before the vote.
Bush’s legal team argued that by extending the deadline, the Florida
Supreme Court violated
that provision. The Reagan-appointed justices on the U.S. Supreme Court picked up the theme.
“Certainly the date changed,” declared Justice Sandra Day O’Connor during
the questioning of
a lawyer for Florida's attorney general. “That is a dramatic change. The date for certification.
That is a dramatic change, the date for certification. … And it was done by the court. … And the
legislature had very clearly said, you know, seven days after, that’s the date. And it just does look
like a very dramatic change made by the Florida court.”
Justice Antonin Scalia, regarded as the most ideological conservative
on the court,
suggested that faulty balloting did not justify the postponed certification date.
“Do you know of any other elections in Florida in which recounts were
manual recounts, because of allegation that some voters did not punch the cards the
way they should have, therefore no problem with the machinery, it’s working fine, but,
you know, there were, what? Pregnant chads, hanging chads, so forth?” Scalia asked.
Justice Anthony M. Kennedy, another Reagan appointee, saw the Florida
Court’s action to postpone the certification date as akin to a decline in moral values.
“In fact, we can change the rules after the game; it’s not important. Popular culture,”
Chief Justice William Rehnquist, who was elevated to the top judicial
job by Reagan,
also staked out a position on Bush’s side. He criticized the Florida Supreme Court
for citing the Florida Constitution as a factor in its decision, rather than strictly
confining its legal reasoning to statutory provisions.
“That is a real problem, it seems to me, under Article II [of the state
because in fact there is no right of suffrage under Article II. There’s a right of suffrage
in voting for the legislature, but Article II makes it very clear that the legislature can
itself appoint the electors” for president, Rehnquist said.
“Who would have thought that the legislature was leaving open the date
by the court?” chimed in O’Connor. “Who would have thought that?”
Scalia added, “I just find it implausible that they [the state legislators]
the Florida Supreme Court to interpose the Florida Constitution between what they
enacted by statute and the ultimate result of the election.”
Justice Clarence Thomas, a conservative appointee of President George
Bush, sat silently, but normally hews closely to Scalia’s positions.
While oral arguments do not always reflect how the court will ultimately
Reagan-Bush justices appeared to have at least a 5-4 majority to side with Gov.
Bush and toss out Gore's Broward County votes.
On a more political level, the Reagan-Bush justices on the U.S. Supreme
had fired warning shots across the bow of the Florida Supreme Court.
The oral arguments made clear that the U.S. Supreme Court is prepared
intervene if it feels that the Florida Supreme Court, dominated by Democratic
appointees, is asserting itself too strongly in determining the outcome of the presidential race.
To date, the Florida Supreme Court has ruled in ways that have favored
and hurt both Gore
and Bush. On Dec. 1, for instance, the court rejected a citizens’ lawsuit in Palm Beach County
seeking a revote because of confusion caused by the illegally designed “butterfly” ballot.
The ballot, with two rows of candidates rather than one vertical list,
may have cost Gore about
10,000 votes, when many elderly Jewish voters mistakenly voted for Reform Party candidate
Pat Buchanan or accidentally voided their ballots by voting for Gore and Buchanan.
Throughout the post-election legal disputes, the Florida Supreme Court
has stressed as its
overriding principle that the right of voters to have their votes counted trumps technical legal provisions.
Now, the message from what appears to be a majority of the U.S. Supreme
that technical legal provisions should have supremacy.
Ironically, the one case that could most clearly erase Gov. Bush’s 537-vote
the official Florida tallies is the one in Seminole County that turns on a legal technicality.
There, local Democrats complain that county officials violated state
election law by giving rejected
Republican absentee ballot applications to Republican Party officials so they could fill in missing data,
while similarly flawed applications from Democrats and others were tossed aside.
Florida’s strict absentee ballot law seems to prohibit outsiders from
altering information on absentee
forms, though the county officials argue that the changes were merely technical revisions.
As a remedy for the allegedly illegal preference given to Republicans,
the Democrats want nearly
5,000 votes taken away from Bush’s column, a change that would tip the election to Gore.
So, in Seminole County, the Bush camp is arguing that technical legal
provisions should not
prevent ballots from being counted, a seemingly contradictory stance from
its position before the U.S. Supreme Court.
If the Bush legal argument from the high court were to be applied to
case, the notion that pre-election laws are chiseled in stone might come crashing
down on Gov. Bush’s foot.
If a technical deadline is so important that votes cast for Gore must
be thrown out in Broward,
doesn’t if follow that a technical violation on ballots for Bush should be discarded in Seminole?
Is it fair to change the rules of the game for some and not for others?
Cynics, however, might expect that the Reagan-Bush appointees on the
U.S. Supreme Court
simply would search out a whole new set of cherished constitutional legal principles.
Those new principles would explain why technical election-law provisions
precedence when they help George W. Bush win the White House, but should be set
aside if they help Al Gore.
[In the 1980s, Robert Parry broke many of the Iran-contra stories for The Associated Press and Newsweek. ]