Sandra Day O’Connor has some nerve. Thirteen years after upending the country, the Constitution, and the Presidential election with her vote in Bush v. Gore, she tells the Chicago Tribune :
“Maybe the court should have said, ‘We’re not going to take it, goodbye.'”
“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.”
Maybe? Probably? How did it take the woman 13 years to reach a conclusion that the whole country, both the Gore and Bush legal teams, and legal scholars knew immediately? In a lengthy, well-reasoned argument, written in 2003, Harvard’s constitutional law professor Larry Tribe concluded that the decision that awarded the Presidency to George W. Bush was not only wrong, but “unbearably” wrong. He pointed out that, at the time, both Justice Souter and Justice Breyer made clear their belief that:
“…no preeminent legal concern, or practical concern related to legal questions, required this Court to hear this case, let alone to issue a stay that stopped Florida’s recount process in its tracks.”
Not only that, but O’Connor herself had penned a previous concurring opinion, in Davis v. Bandemer, that:
“…should have counseled deference to the political process in Bush v. Gore.”
A couple of years ago, the Huffington Post reported on an account given by Former Supreme Court Justice John Paul Stevens in his memoir, Five Chiefs. The Huffington Post story said:
“He recalls bumping into Justice Stephen Breyer at a Christmas party and the two having a brief conversation about the Bush application to halt the recount by issuing a stay. ‘We agreed that the application was frivolous,’ he writes. ‘To secure a stay, a litigant must show that one is necessary to prevent a legally cognizable irreparable injury. Bush’s attorneys had failed to make any such showing.’ … He adds that no justice has ever cited the opinions that provided the basis for their ruling.”
O’Connor bears a heavy burden of responsibility for the case’s outcome. She added the fifth vote to the four reliably conservative ones that gave the Bush team a victory, took away the voters’ voice, and totally derailed the political process. And now she thinks perhaps it shouldn’t have happened because, in her words, the case, “stirred up the public” and “gave the court a less-than-perfect reputation.”
The occasion for O’Connor’s current remarks was a question and answer session with the editorial board of the Chicago Tribune. According to the newspaper, the former justice was in Chicago to promote a pet project, iCivics, “an online curriculum set up in a video game format”. Would I want O’Connor to give my kids a civics lesson? I don’t think so.
In further remarks to the Tribune, she said:
“When I go and sit in the courtroom and look at the bench and see three women, it perks me up.”
When I look at the bench, it perks me up that she isn’t one of them.