NOW YOU TELL US: Two Justices Involved In Bush Vs. Gore Decision Admit It Was Flawed

Justice John Paul Stevens; photo by Todd Heisler@The New York Times

Justice John Paul Stevens; photo by Todd Heisler@The New York Times

In one of the first seminal events of the 21st century, the presidential election of 2000 between Al Gore and George W. Bush devolved from a classic and deeply American civic event to an emotional free-for-all that left both sides bloody and battered. While the stakes are high in any presidential election, this one took on mythical status, as, for the first time in the country’s history, it was not the electorate (who voted in majority for Al Gore), it was not the electoral college (which required the mangled machinations of Florida to give its majority to Bush), it was the Supreme Court that decided who was to be the 43rd president of the United States and it wasn’t pretty.

Hanging Chad Guy; image@BurningMan

Hanging Chad Guy; image@BurningMan

The story is long and complex with characters straight out of central casting, from the bug-eyed election clerk caught on camera ogling a ballot, the pundits who made “hanging chads” part of our vernacular; the cadre of the court made up of controversial figures from both sides of the aisle; a Florida Secretary of State, Katherine Harris, who had a Michele Bachmannesque aura and was widely vilified by the press, and, of course, that seething, teeming public waiting across the country like Catholics outside a papal conclave staring upward for an illuminating puff of white smoke. When that ‘puff’ did come, with its decision that, despite irregularities, inconsistencies and a great deal of dubious ballot counting, George Bush would be our 43rd president, the uproar of rage and horror on one side, the quiet, slightly defensive cheering on the other, turned that election from something magnificent and noteworthy, as is any presidential election, into a tarnished, unforgettable moment of history that proved impossible to reconcile.

There are many to this day who believe Bush “stole the election,” who ponder how differently life in America would have been had Al Gore been awarded the prize his popular vote warranted (if not by law, then by emotion). They see the wars in Iraq and Afghanistan with their trillion dollar price tag and staggering loss of life as direct results of a hijacked election which left us with a man ill-equipped to do his job, leading to the many travesties of his administration. Of course, there are others, GOP others, who’d argue that point but they’re also the ones currently attaching the word ‘scandal‘ to every event that has even a whiff of political currency against the president.

But what about the ‘deciders’? Those men and women wrapped in black robes and the air of gravitas who put their names on the decision that changed the world. Are they still as convinced of their ‘rightness,’ of their mission and purpose, as they were then? Turns out… not so much.

Former Supreme Court Justice John Paul Stevens, one of the nine justices on the court at the time, now says the decision was “really quite unacceptable.” From Salon:

Former Supreme Court Justice John Paul Stevens said Thursday night that he’s come to the realization that the rationale behind the court’s Bush v. Gore decision that effectively decided the 2000 presidential election “was really quite unacceptable” because it differentiated between so-called “hanging chads” and “dimpled chads.” That distinction, he told a gala event for the liberal watchdog group Public Citizen in Washington, “violated the Equal Protection Clause of the Constitution.” All votes should have been considered the same way, he explained.


But he’s not the only one. Former Justice Sandra Day O’Connor stated last month that she has her own doubts about the decision. From the Huffington Post:

“It [the Supreme Court] took the case and decided it at a time when it was still a big election issue,” O’Connor told the Chicago Tribune editorial board in an interview. “Maybe the court should have said, ‘We’re not going to take it, goodbye.'”

“Obviously the court did reach a decision and thought it had to reach a decision,” she said. “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.”

It’s been noted that this more current response indicates a shift from earlier comments she made on the topic. As reported by the New Republic in July of 2011, her tone while speaking at an event in Aspen, Colorado was a bit more combative:

O’Connor was prickly and defensive about Bush v. Gore in Aspen: “It wasn’t the end of the world,” she said impatiently. “They had recounts of the votes in four counties by the press, and it did not change the outcome at all. So forget it. It’s over!”

But as prickly as O’Connor’s opinion was in 2011, Justice Stevens, for one, says he is pleased to see a more reflective attitude in recent days.

So far only one of the other justices involved in the decision has had anything to say in retrospect; that would be Antonin Scalia, the snarling and very conservative pit bull of the court. When asked by CNN’s Piers Morgan what, of all his court decisions, was the most controversial, Scalia was quick to answer; as reported by The Raw Story:

“I guess the one that created the most waves of disagreement was Bush v. Gore. That comes up all the time, and my usual response is: get over it.

He goes on to accuse Al Gore of being the real reason the case went to the Court, making the comparative point that even when Nixon thought he lost his election due to corruption in Chicago, he didn’t turn to the Court; since Al did, Scalia rationalizes, it was all his fault. Bet that’s keeping Al up nights!

“The only question in Bush v. Gore is whether the presidency would be decided by the Florida Supreme Court or the United States Supreme Court. That was the only question and that’s not a hard one.”

Scalia insisted that Gore would have lost the election anyway, even if the Florida recount had continued.

Now he’s reading tea leaves.

As for “get over it:” callous certainly, good advice, maybe… a little hard to do? Without a doubt. If we could turn back time, change the outcome, erase the mistakes and rewrite history, maybe getting over it would be easier to achieve. As it is, we are left with the ravages of the decision made and for many, that comes with destruction that will take lifetimes to “get over.”

But regardless of the futility of Monday morning quarterbacking, which at this point some 13 years, 2 wars, our worst terrorist attack, a girl named Katrina and a stock market crash later is just downright painful, there is at least some vindication in hearing from the “deciders” and realizing not all of them are convinced they made the right decision. Justice Stevens, in fact, was the one who wrote the dissenting opinion on the decision so his bona fides are clear. And though it doesn’t change the outcome, the throbbing of the wound is soothed a bit when we hear him say it was all “really quite unacceptable.”

We’ve been saying that for years; it’s nice to find someone – particularly someone involved – who agrees.



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