Wednesday, October 07, 2015

Politix Update: Bush v. Gore & The Tarnished Legacy Of Sandra Day O'Connor

Should Yogi Berra's long baseball career be judged by his error in a crucial 1951 game that deprived the New York Yankees' Allie Reynolds of a no-hitter against the Boston Red Sox?  Or Dustin Hoffman's long film career judged by the 1987 cinematic bomb known as Ishtar?  Of course not.  But what about judging the long judicial career of Sandra Day O'Connor based on her casting the deciding Supreme Court vote throwing the 2000 presidential election to George W. Bush?  Absolutely. 
This question rears its ugly head yet again as the high court -- without question the most political in history and perhaps nowhere more so as with the infamous Bush v. Gore decision -- begins a new term this week.  That decision was not the court's first to be tainted by the opprobrium of politics, which have influenced too many of its decisions over the last 226 years.  But that decision was so wrongheaded, so devious, so devoid of logic and genuine constitutional underpinnings, and its consequences so far reaching, that it obscures if not altogether erases O'Connor's good works, most notably holding the dike against the campaigns to reverse Roe v. Wade and leave women's reproductive fate to the states. 
The process of undoing the moderate aspects of O'Connor's legacy, which beyond abortion extended to affirmative action and race-based legislative redistricting, has been ongoing since she retired in 2006.  So has the deepening politicization of the court, and abortion may loom large in the new term, specifically a draconian Texas law which has led to the closure of about half of the state's abortion facilities.
Justice Anthony Kennedy, who superseded O'Connor as the court's swing vote, has not struck down a restriction on abortion since 1992, and all bets are off despite his key votes upholding the constitutionality of the Affirmative Care Act and same-sex marriage in the court's two liberal lurches earlier this year.  Other important cases to be heard this term include whether California and other states can compel government employees to pay union dues, revisiting the constitutionality of the University of Texas's affirmative action program, yet another Texas case concerning whether state legislative districts can be apportioned using a count of eligible voters rather than a count of all residents, and whether religious institutions can opt out of providing contraception under Obamacare.
So unless you are a fan of conservative judicial activism as practiced by O'Connor's successor, Justice Samuel Alito, and his reactionary partners in black bathrobes, it's time to stock up on Pepcid, because the new term could be stomach churning.   
"Sandra Day O'Connor is no Ruth Bader Ginsburg. Ginsburg gave us the legal architecture of women's place in America. O'Connor, the first woman on the U.S. Supreme Court, gave us George W. Bush," is how the New York Law Review put it recently.  Vicious?  Absolutely.  Accurate?  Sadly, yes.
On December 12, 2000, the high court acted on an appeal by Bush of a unanimous Florida Supreme Court ruling that ballots cast but not counted by voting machine in the November 7 presidential election must be manually recounted.  (I wrote a succession of six versions of the main Philadelphia Daily News election story as the Florida polls closed and the lead seesawed back and forth through the night and into the morning, and the paper took the extraordinary step of printing two Extra editions, the final one declaring Bush the winner by a hair.  Lost in the uproar was the victory of Hillary Rodham Clinton over Rick Lazio for the New York Senate seat of the retiring Daniel Patrick Moynihan.)
In a bombshell decision, a narrow Supreme Court majority decided in an historic 5-4 per curiam decision that the Florida court's ruling was unconstitutional because it granted more protection to some ballots than others.  It is statistically possible -- if not likely -- that counties that went heavily for Gore would have yielded extra votes for him had a recount been allowed, but O'Connor and the other four majority justices would hear none of that despite the fact they had previously given great deference to state court decisions in close elections. (It should be noted that all of the majority justices were Republican appointees, while the Florida judges were all Democrats.)
There has been conjecture that since it takes only four votes to hear a case, O'Connor demurred but then joined in a profoundly imperious decision because she was a Bush family sycophant.
The Bush v. Gore decision followed an epic cavalcade of sideshows and chicanery, and of course opposing armies of lawyers.  There were the infamous "hanging" chads and extralegal antics by Katherine Harris, Florida's Republican secretary of state and one-woman horror show, who foot dragged through one crucial deadline after another in refusing to certify manual vote recounts. December 12 was the biggest deadline of all -- the day on which Florida was required to select electors to formally submit its choice for president to Congress. Thus, with no time left to recount votes, Bush became the de facto winner, or President Select, as a wag noted at the time, edging out Gore in Florida by a mere 543 votes and nationally in electoral but not popular votes. 
Incidentally, per curiam means that no specific judge is identified as writing an opinion, or in this instance, no member of the cowardly majority dared write an opinion with their name on it.  But Justice John Paul Stevens did not hesitate to speak out, proclaiming in a powerful dissent that "one thing . . . 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."
Having revisited Bush v. Gore in headache-inducing detail in researching this column, I concede that under alternative scenarios, the best the Supreme Court could have done was pick a different side to feel that it had been robbed.  That obscures but does not change a very big reality: A vote recount unfettered by deadlines possibly -- if not likely -- would have resulted in a Gore presidency. 
Although it is a bit like playing a version of the What If Hitler Invaded England? game, a Gore presidency would have had its own burdens and problems, probably including the 9/11 attacks and a war in Afghanistan, although not a war in Iraq and the enormous consequences it wrought at home and globally.  Oh, and John Roberts would not have replaced Chief Justice William Rehnquist nor Alito have replaced O'Connor.  Nor would we have had the Harriet Miers debacle because Gore, despite his own moments of hubris, would not have nominated a staggering lightweight whose only claim to fame was that she kept Bush supplied with red, white and blue M&M candies.
In the years since Bush v. Gore, O'Connor has sounded less like a conservative with moderate tendencies than a moderate with liberal tendencies.
"Gosh, I step away for a couple of years and there's no telling what's going to happen," she said in one public appearance.  What has soured her is the hard-right course her beloved Supreme Court has taken.  She also has been privately critical of the Bush presidency, notably the pandering surrounding the case of brain-damaged Terri Schiavo and the attempts to overrule her husband's wishes at a time when O'Connor's own husband was succumbing to Alzheimer's disease. 
O'Connor has continued to defend her pivotal role in handing the presidency to Bush at events ranging from law-school convocations to private gatherings, while noting that Bush v. Gore gave the court "a less than perfect reputation.  And she has been outspoken in her opposition to the Citizens United ruling because of its corrosive effect on politics, specifically how unlimited campaign contributions further corrupt the process of electing judges. 
It is not difficult to imagine that O'Connor, as someone who packed so much gravitas and integrity (okay, Bush v. Gore excepted) into her legal career, and in the end who I cannot help but admiring, has been tormented by the consequences of her deciding vote and retiring prematurely, let alone squandering what legal analyst Jeffrey Toobin calls "the most precious gift" any justice can proffer to their successor.  That is bequeathing their seat to a worthy successor, which David Souter and John Paul Stevens did in forestalling their retirements until the election of Barack Obama.  The result was Ruth Bader Ginsburg and Sonia Sotomayor, two fine justices, becoming the second and third women to join the court. 
Then in 2013, O'Connor ripped open the long festering Bush v. Gore wound, noting in an interview with the Chicago Tribune editorial board that the court "took the case and decided it at a time when it was still a big election issue.  It turned out the election authorities in Florida hadn’t done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day." 
Incredibly, O'Connor then added:
"Maybe the court should have said, 'We're not going to take it, goodbye.' " 
Maybe, just maybe.  But it is way too late for what-ifs.

Politix Update is an irregular compendium written by veteran journalist Shaun Mullen, for whom the 2016 presidential campaign is his (gasp!) 12th since 1968.  Click here  for an index of previous Politix Updates.

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