Damned if You Do, Damned if You Don't
The Florida Supreme Court's Dilemma
by Tamara Baker
Wednesday, Dec. 13, 2000 -- Saint Paul, MN (AmpolNS) -- The seven justices of the Florida Supreme Court tried to write a Scalia-proof decision when they originally authorized (but not mandated) the counting of dimpled chads. They really did, you know. That's why, instead of setting a mandatory statewide standard, they left the decision of which chad standards to use up to the various Florida county canvassing boards.
But it turns out that they needn't have bothered. Scalia had the fix in from the get-go, no matter what.
In what is the supreme (pardon the pun) irony of the misbegotten and illegitimate ruling handed down by Tony the Fixer (two of whose sons work for law firms employed by the Bush team) and seconded by Clarence Thomas (whose wife is employed by the far-right Heritage Foundation in picking out transition team members for the Thief from Kennebunkport), the Republican majority argued that the Florida Supreme Court's very determination NOT to 'legislate from the bench' was what made Scalia decide to vacate and remand the decision.
Oh, and by the way: Scalia made sure that he burned up enough time getting the fix in to convince even the wavering O'Connor and Kennedy that the Florida canvassing boards couldn't get a count done on time, so let's go ahead and prevent them from restarting the count. Nyah-nyah!
Scalia must have done the remand order first, back when he was still pretending that he might rule fairly and allow the count to restart. That one was a 7-2 split in Scalia's favor. But then, THEN, he sprang the second, critical half of his fix on the SCOTUS: "Oh, by the way, we're not gonna let them restart the count we forced them to stop because they won't have time to finish -- even though it was my very action on Saturday afternoon, plus my delaying tactics, that caused them to short of time."
How pissed off were the sane judges at Tony the Fixer's blatant game-playing? Read Justice Stevens' dissent, which was signed by the other three sane justices: it actually used the word 'cynical' to describe Scalia's fixery. This, my friends, is the SCOTUS equivalent of Stevens publicly calling Scalia a dishonest, lying, doubledealing cheat.
In point of fact, Scalia's decision is, as was pointed out in the LA Times by Stanford University law professor Pamela Karlan, former clerk to Justice Harry A. Blackmun, internally contradictory.Professor Karlan noted that one part of the Scalia decision stated that the right to vote is "fundamental." But, she continued, in the end, the Scalia majority "denied that fundamental right by saying that the recount could not be completed by Dec. 12."
"If the right to vote is fundamental, the desire to have it done by Dec. 12 cannot trump that fundamental right," she said. "I have never before seen the U.S. Supreme Court say that a state's desire for speed trumps a fundamentalconstitutional right."
Well, hey, it's not surprising that Scalia would essentially tell the black and Jewish voters of Florida to drop dead. As the New York Daily News' Jim Dwyer said, Scalia really doesn't believe that voting is a right that all Americans share:
During oral arguments two weeks ago, he took shots at the Florida courts, which had said the most fundamental right in a democracy is the vote.
No way, Scalia said.
"There is no right of suffrage under Article II," he declared.
In plain English, he said that the citizens have no constitutional right to vote for President. His reason is that the Constitution places that power in the hands of the state legislatures, although he did not mention that all 50 state legislatures submit the question to a popular vote. (Some transcripts of the Supreme Court session attributed this remark to Rehnquist, but Scalia apparently was the actual speaker.)
All right, Democrats. Here's the situation now:
We cannot, EVER, depend on Republicans to do the right thing. As far as I can see, there have been only two (2) Republicans that have behaved fairly and honorably throughout this whole post-election ramrod. One is Steven Kirsch, founder of InfoSeek and the man who kept Gore's legal fight going with donations totalling $500,000, because he knew, as did everyone else in the country, that Gore won Florida and the election. The other is Senator Chuck Hagel. He has been the ONLY GOP elected official at ANY level who has publically, and loudly, insisted that Florida needed to be recounted.
As for the others? Well, Jennifer Dunn and Christine Todd Whitman, both alleged 'GOP moderates' have gone on record as saying that the GOP would find a way to keep the Florida ballots from seeing the light of day for at least the next eight years, in direct and arrogant defiance of Florida's 'sunshine laws'.
Oh, yes: Shortly after they said this, Tony the Fixer, in conjunction with his Saturday Afternoon Vote Massacre, order the 'sequestering' of the Florida ballots, which effectively locks them away from the light of free inquiry.
It will be instructive to see if he keeps them sequestered even after his Crown Prince, the Thief from Kennebunkport, is anointed on January 20. Jesse Jackson has already said that he's sending PUSH down to do their own recount, which they will, assuming Scalia coughs up the ballots, have finished well before that date. It might just be worth going to http://www.westernunion.com and spending $9.95 to urge Tony the Fixer to get his grimy mitts off the voice of the people.
Free the ballots! Count the vote!