...GORE 50,140,140 VOTES (49%)...BUSH 49,782, 288 (48%)...CNN, 11/28/00
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"What I'm looking for are signs of hypocrisy from the right-wing justices. Having been praised by Bush and criticized by Gore, Justices Clarence Thomas and Antonin Scalia will be hard-pressed to be objective. Together with Chief Justice William Rehnquist, Scalia and Thomas have crusaded for greater deference to the rights of states vis-à-vis the federal government. Now they're being asked to adopt the very sort of judicial activism they claim to abhor. So while this case is unlikely to determine the outcome of the election, it will go a long way toward defining Rehnquist, Scalia and Thomas in the history of jurisprudence. If they are true to their principles, they'll uphold the right of the Florida Supreme Court to interpret Florida law without meddling from Washington. But if they go the other way, History will say they were little more than results-oriented partisans, embracing or eschewing whatever legal philosophy it takes to give their right-wing patrons the power they crave...Banana Republicans in black robes." --Paul Begala, 12/1/00

Chief Justice Rehnquist " has crafted for himself a credo that will become, in effect, his legacy: The States shall have rights; the High Court shall not legislate; the High Court shall become smaller, yet in doing so, it shall wax even more powerful. And for 14 years, Rehnquistio has shored up his legitimacy by producing narrow opinions, by avoiding sweeping activism, by rolling back federal attempts to usurp state powers, by encouraging collegiality within his court, and by remaining out of sight of the shrieking villagers with their pitchforks and flaming torches. Until one day, everything threatens to come apart. With the slightest ticktock of a constitutional moment, family loyalties, blood feuds, wise ministers, betrayal, and a smartass chorus of roving journalists are howling at the gate....The court (and Rehnquist) knew it was gambling with its own legitimacy, indeed with its own legacy by taking on this case. It could have dodged the claim of being partisan by issuing a unanimous decision. It won't. It could have dodged the claim of being "activist" by refusing to take this case on the grounds of mootness, ripeness, or any number of self-abnegating Rehnquist principles. It didn't. So tonight, as we sleep, somewhere on a heath Rehnquistio wanders, muttering, "Why, why ... why?" --Dahlia Lithwick, 12/1/00

When the state's rights, anti-activist, pro-constructionist Supreme Court took on the Bush election case, observers asked "Why?" We were inclined to put the best possible face on it, thinking that the court wanted to promote national order by rubber-stamping Florida judicial authority at a time when Republican talk of a constitutional crisis and Bush attacks on the judgement of the Florida Supreme Court threatened orderly judicial review. We assumed that the Supreme Court decided that it was more important to take a unified, pro-activist stance in the name of social order than to reaffirm its general do-nothing anti-federal position. We were wrong. Based on the questions and the tone of the questions by Rehnquist, Scalia, O'Connor, and Kennedy, and the usual non-questions by Thomas, it looks like this time, and this time only, the pro-states rights court will be anti-states rights, the strict constructionist court will be not be constructionist, the anti-activist court will be activist. Why, Why, Why, indeed? What we had Friday was the strange spectacle of Ginsberg, Breyer, Stevens, and Souter asking the question more commonly asked by the conservative members of the court--What about states' rights? Why, why, and why? Based on what went on in the U.S. Supreme Court Friday, there will either be a unanimous decision by the court to do nothing or a seriously split decision to decide in favor of George W. Bush, pretty much destroying Gore's contest of the Florida votes in the court of public opinion, while also destroying any credibility the court has managed to build up over the years as an unbiased body representing the legal rights of all of the people. If the latter is to be the outcome on Monday or Tuesday, we can only wonder why in the world Scalia, Thomas, Rehnquist, and company so easily sold out their principles for the very small coin of a Bush presidency. --Politex, 12/2/00

TRANSCRIPT OF SUPREME COURT HEARING, 12/1/00

"Lito Pena is sure of his memory. Thirty-six years ago he, then a Democratic Party poll watcher, got into a shoving match with a Republican who had spent the opening hours of the 1964 election doing his damnedest to keep people from voting in south Phoenix. "He was holding up minority voters because he knew they were going to vote Democratic," said Pena. The guy called himself Bill. He knew the law and applied it with the precision of a swordsman. He sat at the table at the Bethune School, a polling place brimming with black citizens, and quizzed voters ad nauseam about where they were from, how long they'd lived there -- every question in the book. A passage of the Constitution was read and people who spoke broken English were ordered to interpret it to prove they had the language skills to vote. By the time Pena arrived at Bethune, he said, the line to vote was four abreast and a block long. People were giving up and going home. Pena told the guy to leave. They got into an argument. Shoving followed. Arizona politics can be raw. Finally, Pena said, the guy raised a fist as if he was fixing to throw a punch I said 'If that's what you want, I'll get someone to take you out of here' "

"Party leaders told him not to get physical, but this was the second straight election in which Republicans had sent out people to intellectually rough up the voters. The project even had a name: Operation Eagle Eye. Pena had a group of 20 iron workers holed up in a motel nearby. He dispatched one who grabbed Bill and hustled him out of the school....Pena went on to serve 30 years in the Arizona State Legislature. Stevens became a prosperous and well-regarded lawyer in Phoenix and helped Sandra Day O'Connor get her start in law. The guy Pena remembers tossing out of Bethune School prospered, too. Bill Rehnquist, now better known as William H. Rehnquist, chief justice of the Supreme Court of the United States, presided yesterday over a case that centers on whether every vote for president was properly recorded in the state of Florida. In his confirmation hearings for the court in 1971, Rehnquist denied personally intimidating voters and gave the explanation that he might have been called to polling places on Election Day to arbitrate disputes over voter qualifications. Fifteen years later, three more witnesses, including a deputy U.S. attorney, told of being called to polling places and having angry voters point to Rehnquist as their tormentor. His defenders suggested it was a case of mistaken identity. " --Dennis Roddy, 12/2/00

"Justice Rehnquist is not qualified to discharge the preeminent responsibility of this office. His statements and actions throughout his career shed significant doubt on his commitment to equal justice under the law, his adherence to ethical standards, and his credibility. His record on the Supreme Court places him outside the mainstream of American jurisprudence. True, the Senate confirmed Justice Rehnquist in 1971. But, near the end of the Judiciary Committee's examination of Mr. Rehnquist in 1971, we received allegations that he had challenged minority voters in Phoenix in the early 1960's. We were unable to investigate those allegations fully then. And, after the Committee had reported Mr. Rehnquist's nomination in 1971, the infamous school segregation memo surfaced. Mr. Rehnquist denied in writing that the memo supporting school segregation stated his views, but he was never cross-examined on this issue. Based on the current record, the Senate would probably reject Mr. Rehnquist if he were before us as a first-time nominee to the Supreme Court. ... Justice Rehnquist's entire legal career shows a persistent hostility to the rights of minority citizens....Mr. Rehnquist's hostility to minorities is further shown by his actions in Phoenix, while in private practice. In the 1960's, he publicly opposed a Phoenix public accommodations ordinance, and he publicly challenged a plan to end school segregation in Phoenix, stating that "we are no more dedicated to an integrated society than a segregated society." Moreover, in the early 1960's, he led a Republican Party ballot security program designed to disenfranchise minority voters. The Committee has received sworn testimony from numerous credible witnesses that, as part of his involvement in the ballot security program, Mr. Rehnquist personally challenged the eligibility of minority voters. Justice Rehnquist has categorically denied this. But, none of these witnesses had anything to gain by misrepresenting the truth. In his 15 years on the Supreme Court, Justice Rehnquist has compiled a record of consistent opposition to individual rights in all areas--minority rights, women's rights, religious liberties, rights of the poor, rights of aliens, and rights of children....We could cite further instances where he has ruled against illegitimate children and the separation between Church and State.

" Imagine what America would be like if Justice Rehnquist's cramped and narrow view of the Constitution had prevailed in the critical years since World War II. The schools of America would still be segregated. Millions of citizens would be denied the right to vote under scandalous apportionment laws. Women would be condemned to be second class citizens....The Chief Justice of the United States must have the highest ethical standards....The applicable ABA Code of Judicial Conduct required disqualification if a judge's impartiality might reasonably be questioned because of the judge's involvement in the matter prior to his coming to the bench. The public record indicates that Assistant Attorney General Rehnquist was heavily involved in the development of the policy of surveillance of civilians by the Army. In testimony before the Ervin Committee, he made a direct statement of how he would rule, and he was involved in the development of this policy from the beginning, in 1969. Throughout all of these issues, which raise serious concerns about Justice Rehnquist's fairness and openmindedness and commitment to equal justice, runs a thread of evasiveness that casts doubt on his credibility. From the Jackson memo to the voter harassment to the Tatum case, we see a pattern of explanations by Justice Rehnquist that are contradicted by others or are misleading or do not ring true. It is not a pattern worthy of the Chief Justice of the United States....Justice Rehnquist is outside the mainstream of American constitutional law and American values, and he does not deserve confirmation." --Compiled and written by the staff of the [Senate] Republican Policy Committee, 9/17/86

FLORIDA ELECTION UPDATE...Everything you want to know is here

Barbara Ehrenreich has a wonderful essay about how she will always remember where she was and what she was doing the day she realized, fully and finally, that then-President Reagan was, um, not fully tethered to reality at key points. You know how these things go: the political spinning and sloganeering stops being meaningless background noise and begins to sound vaguely sinister; you begin to notice a few dark suspicions voiced by a few of the more iconoclastic pundits; suddenly you're reading the papers or watching TV or surfing the web and you encounter some small detail that hits you with the full force of revelation: "Holy Smoke, that man is a danger to society."

I, of course, remember exactly where I was and what I was doing the day I realized that George W. Bush never did, in any meaningful moral, intellectual, or practical sense, leave the third grade. I was comfortably ensconced at my desk on a dark March afternoon in Iowa, sipping a cup of strong black coffee generously laced with Jameson's--it was, after all, St. Patrick's Day--reading an interview with Bush in the New York Times. The Shrub had just emerged from South Carolina as the Republican nominee-apparent, and was busy trying to scrape the redolent remains of his tactics against McCain off the soles of his shoes. The interviewer mildly observed that having McCain in the race had certainly improved voter turnout, surely in itself an admirable thing. "Then how come he didn't win?" retorted Bush.

Having spent a fair amount of time around small children in this lifetime--having been, actually, a small child myself once--it wasn't particularly hard for me to understand what Bush was saying here: "Finders keepers, losers weepers. So what's your so-called point, dude?" It was simply, I realize now, that I had not yet really accepted what should have been obvious by then, what might have been obvious if some small part of my Midwestern English Teacher's soul hadn't refused, simply, to believe it: that a major-party candidate for President of the United States was incapable of understanding the suggestion that how one wins is as important as whether one wins, and its corollary thought, that how one loses often renders insignificant the fact that one lost at all. To Dubya, the permanent third-grader, winning erases the past. Winning a Monopoly game by knocking your little sister's pieces off the board works just as well as winning the grown-up way. Losing because you refuse to engage in the same creepy tactics as your opponent is still losing, a matter for simple contempt. Larger issues like voter cynicism and turnout and fair process are, like "insurance," just "Washington terms." The whole point is winning.

It has not, therefore, surprised me in the slightest to see Bush, The Man Who Trusts The People, arguing that we really ought to trust the machines instead. Or that Bush, The Man Who Believes in Tort Reform, has run to court at the first opportunity. Or that Bush, The Uniter Not a Divider, is accusing the other side of, among other things, being "unpatriotic" and anti-military by challenging some unpostmarked ballots. Or that Bush, The Man Who Is Running On His Texas Record, is distorting the facts of a vote-counting law he signed in order to make the process sound sinister. Or that Bush, The Man Who Would Bring Honor and Integrity to Washington, sees no conflict of interest in having his cousin call the election for him on a major TV network, or having his tireless campaigner certify the election for him without bothering with such niceties as finishing the counting of votes. As Bush undoubtedly sees it, all those campaign slogans were things he promised to do if he won. He hasn't won quite yet, so we can't hold him to rules that don't apply until afterwards. If we want Honor in the White House, we first have to let him win by any ugly means necessary.

This is the man who, by all credible accounts, drank, drove, partied, snorted, chased "pussy" and went AWOL until he was forty, at which point he piously gave up alcohol and expected the past to therefore disappear. He is now prepared to sue, stonewall, demonize, delay, mud-sling and cheat his way to a technical victory--moral victories being for weenies--in the expectation that once he wins, he will hear "Hail to the Chief" sung with a straight face by a grateful citizenry, the method of the victory conveniently forgotten. Like every other schoolyard bully, Bush always believes that everything will be fine once he gets his way. Like his moral and political soul-mates, the House Impeachment Managers, Bush cannot comprehend the possibility that the public turns queasy when an election looks to be overturned on a technicality. Most Americans didn't really care that Clinton lied about having an affair, and they don't care that some arbitrary deadline has passed in the state of Florida. Democrat or Republican or Other, most Americans actually see a bigger picture than that, at least the ones who have firmly and permanently left third grade behind. The only picture Bush sees is his own, and that fact has been obvious at least since St. Patrick's Day. If the mainstream media is still trying to figure it out on Christmas, we will have to wonder what grade they're stuck in.

Holy Smoke, the man is a danger to society. The last President we had with this carefree an attitude toward "ratfucking" an election thought that bugging offices and wiretapping phones was just normal political behavior, justified by the necessity of winning. I remember where I was when he was forced to resign. Of course, Bush probably doesn't--1974 would have fallen in the midst of his "I was too drunk to remember" years. -- Doris in DC, 11/23

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