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Context of 'February 20, 1997: Supreme Court Affirms Right of Anti-Abortion Protesters to Confront Patients, Medical Personnel'

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Deputy Attorney General William Rehnquist is sworn in as an associate justice of the Supreme Court, replacing the retiring John Harlan. Rehnquist was active in the Arizona Republican Party, and became well-known in the state as a conservative activist who, among other things, opposed school integration. Rehnquist befriended fellow Phoenix attorney Richard Kleindienst, who, after becoming attorney general under Richard Nixon, brought Rehnquist into the Justice Department. Rehnquist faced little difficulty in his confirmation hearings in the Democratically-led Senate Judiciary Hearings. [Oyez (.org), 9/3/2005] Rehnquist may have perjured himself during those hearings. He was confronted with charges that, as a Republican Party attorney and poll watcher, he had harassed and challenged minority voters in Arizona during the 1962, 1964, and 1966 elections. Rehnquist swore in an affidavit that the charges were false, even though the evidence available to the Senate showed Rehnquist did take part in such activities, which were legal in Arizona at the time. (Rehnquist will again deny the charges in 1986, when he is nominated for chief justice—see September 26, 1986). Former Nixon White House counsel John Dean will observe: “After reading and rereading his testimony, it appears to me that what he was really saying to the Senate [in 1971] was that he was not quite sure himself of his behavior, but he could not bring himself to tell the truth. Thus, his blanket 1971 denial forced him to remain consistent to that denial in 1986, and since his blanket denial was a lie, he had to continue lying. His false statement to Congress in 1971 was a crime, but the statute of limitations had passed. His false statement to Congress in 1986, however, was pure perjury.” [Dean, 2007, pp. 129-137]

Entity Tags: US Supreme Court, John Dean, Richard Kleindienst, William Rehnquist, John Harlan, US Department of Justice

Timeline Tags: Civil Liberties

The Supreme Court rules in INS v. Chadha that Congress has no right to issue what it calls “legislative vetoes,” essentially provisions passed by Congress giving the executive branch specific powers but with Congress reserving the right to veto specific decisions by the executive branch if it does not approve of the decisions made by the executive. Congress had relied on such “legislative vetoes” for years to curb the expanding power of the president. The Court strikes down hundreds of these “legislative vetoes” throughout federal law. Congress quickly schedules hearings to decide how to respond to the Court’s ruling. White House attorney John Roberts (see September 29, 2005), a young, fast-rising conservative, is one of a team of lawyers assigned to review the administration’s upcoming testimony before Congress. Some of the lawyers want to push Congress to place independent agencies such as the Federal Trade Commission (FTC) and Food and Drug Administration (FDA) under White House control—part of the evolving “unitary executive” theory of presidential power (see April 30, 1986). Roberts writes: “With respect to independent agencies… the time may be ripe to reconsider the existence of such entities, and take action to bring them back within the executive branch.… I agree that the time is ripe to reconsider the Constitutional anomaly of independent agencies… More timid souls may, however, desire to see this deleted as provocative.” [Savage, 2007, pp. 256-257]

Entity Tags: Reagan administration, Food and Drug Administration, Federal Trade Commission, John G. Roberts, Jr, US Supreme Court

Timeline Tags: Civil Liberties

Young White House attorney John Roberts (see September 29, 2005), an advocate of expanded presidential powers (see June-July 1983), is selected to respond to a letter from retired Supreme Court Justice Arthur Goldberg. The former justice is commenting on the Reagan administration’s decision to unilaterally invade the tiny Caribbean island nation of Grenada. Goldberg wrote that President Reagan probably did violate the Constitution by sending troops to Grenada without Congressional approval, and in that sense has left himself open to impeachment. However, he added, the invasion had succeeded in establishing democracy in that nation. Therefore Reagan’s actions should be compared to those of President Abraham Lincoln during the Civil War, because, like Lincoln, he “acted in good faith and in the belief that this served our national interest” (see April 12 - July 1861). Drafting the letter for Reagan’s signature, Roberts thanks Goldberg for his defense of Reagan but insists that the invasion was perfectly legal. The president, Roberts writes, has “inherent authority in international affairs to defend American lives and interests and, as commander in chief, to use the military when necessary in discharging these responsibilities.” [Savage, 2007, pp. 257]

Entity Tags: Reagan administration, John G. Roberts, Jr, Arthur Goldberg, Ronald Reagan

Timeline Tags: Civil Liberties

Young conservative White House lawyer John Roberts (see September 29, 2005), an advocate of expanded presidential powers (see June-July 1983 and October 1983), advises senior Reagan officials that the White House should challenge the 1978 Presidential Records Act. To Roberts’s mind, the law goes much too far in requiring that presidential papers be considered government property and should, with some exceptions, be released to the public 12 years after a president leaves office. The law infringes on the right of a president to keep information secret, Roberts argues. Later, he will argue that the 12-year rule is far too brief and, as it would “inhibit the free flow of candid advice and recommendations within the White House,” is unconstitutional. [Savage, 2007, pp. 258]

Entity Tags: Reagan administration, John G. Roberts, Jr, Presidential Records Act

Timeline Tags: Civil Liberties

Young conservative White House lawyer John Roberts (see September 29, 2005), an advocate of expanded presidential powers (see June-July 1983 and October 1983), expands on his previous argument that the president’s papers and documents should remain secret and unavailable to the public (see February 13, 1984). Roberts writes that the Reagan administration should oppose a bill pending in Congress that would make the National Archives a separate agency, independent of the White House. Roberts writes that the “legislation could grant the archivist [the head of the National Archives] some independence from presidential control, with all the momentous constitutional consequences that would entail.” Others in the White House disagree with Roberts, and the administration does not oppose the bill. Roberts suggests that President Reagan attach a signing statement to the bill making it clear that Reagan has the power to fire the archivist if he/she tries to disobey the White House in releasing a presidential document. [Savage, 2007, pp. 258]

Entity Tags: National Archives and Records Administration, Reagan administration, John G. Roberts, Jr

Timeline Tags: Civil Liberties

According to former Reagan Justice Department official Terry Eastland, writing in his 1992 book Energy in the Executive, the process of selecting Antonin Scalia as a Supreme Court Justice begins now, well before anyone knows there will be a vacancy for him. Attorney General Edwin Meese asks his assistant attorney general, William Bradford Reynolds, to advise him in preparing a nominee, “just in case.” Reynolds assembles a team of Justice Department officials, who examine about twenty possible choices, mostly federal judges, focusing primarily on conservative judicial philosophy. Two individuals stand out: Robert Bork and Scalia. Eastland writes, “Neither was ranked over the other; both were regarded as the best available, most well-qualified exponents of Reagan’s judicial philosophy.” Both are seen as powerful and influential legal figures. When Chief Justice Warren Burger announces his decision to retire from the bench, Reynolds advises Meese to choose Justice William Rehnquist to replace Burger as Chief Justice (see September 26, 1986), and to choose either Bork or Scalia to replace Rehnquist. Reagan makes the final decision: Scalia. [Dean, 2007, pp. 133]

Entity Tags: Robert Bork, Edwin Meese, William Rehnquist, Antonin Scalia, Terry Eastland, US Department of Justice, William Bradford Reynolds

Timeline Tags: Civil Liberties

William Rehnquist.William Rehnquist. [Source: US Department of Justice]Associate Justice William Rehnquist becomes Chief Justice of the Supreme Court. A strict conservative, Rehnquist will oversee the transformation of the Court from a middle-of-the-road, sometimes left-leaning instrument into a conservative entity dominated by the “axis” of Rehnquist, Antonin Scalia (see September 26, 1986), and Clarence Thomas (see July 2-August 28, 1991). [Legal Times, 9/5/2005]
False Testimony? - According to former Nixon White House counsel John Dean, writing in his 2007 book Broken Government, Rehnquist is the first true conservative fundamentalist to be appointed to the Court, “and he would set a pattern for other fundamentalists who found it necessary to make their way through the confirmation process by deception.” Dean, and others, have alleged that Rehnquist lied to the Senate both in his 1971 appointment to the Court as an associate judge (see January 7, 1972) and in his 1986 hearings for becoming chief justice. Dean will write that Rehnquist’s testimony during both sets of Senate confirmations hearings was “conspicuously false,” and in 1986 he committed “pure perjury.” In both sets of hearings, Rehnquist was embarrassed by a 1952 memo he had written while clerking for then-Justice Robert Jackson, in which Rehnquist had urged Jackson not to vote in support of the Brown v. Board of Education verdict that overturned the “separate but equal” clause that allowed for state-sponsored segregation. Although it is clear Rehnquist was stating his own pro-segregationist views, he apparently lied to the Senate over this memo as well, claiming that the memo was written to reflect Jackson’s own views and not his own. Dean will write, “It was an absurd contention, and a defamation of the dead justice for which he worked.” Law professor Laura Ray will observe in 1996: “With the [top] seat on the Supreme Court almost in his grasp, Rehnquist may well have retreated from an uncomfortable position taken almost twenty years earlier in the only way that seemed open to him. That such a step might tarnish the reputation of Justice Jackson years after his death does not seem to have been a concern.” [Dean, 2007, pp. 129-137]

Entity Tags: Robert Jackson, William Rehnquist, US Supreme Court, Clarence Thomas, John Dean, Laura Ray, Antonin Scalia

Timeline Tags: Civil Liberties

Robert Bork.Robert Bork. [Source: National Constitution Center]The controversial nomination of conservative judge Robert Bork to the Supreme Court is defeated in the US Senate. Bork is denied a seat on the Court in a 58-42 vote, because his views are thought to be extremist and even some Republicans vote against him.
'Right-Wing Zealot' - Bork, nominated by President Reagan as one of the sitting judges who most completely reflects Reagan’s judiciary philosophy (see 1985-1986), is characterized even by administration officials as a “right-wing zealot.” Reagan also wants a nominee to placate the hard right over their disaffection caused by the brewing Iran-Contra scandal. However, to make him more palatable for the majority of Americans, Reagan officials attempt to repackage Bork as a moderate conservative. Senate Judiciary Committee member Edward Kennedy (D-MA) attacks Bork’s political philosophy, saying before the committee hearings: “[In Bork’s America] women would be forced into back alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is the—and is often the only—protector of the individual rights that are the heart of our democracy.… No justice would be better than this injustice.” Kennedy’s words provoke complaint, but the characterization of Bork is based on his lengthy record of court verdicts and his large body of judicial writings.
Racial Equality Issues - Although there is no evidence to suggest that Bork is himself a racist, former Nixon White House counsel John Dean will write that “his positions on civil rights were an anathema to all who cared about equality in America.” Constitutional law professor Herman Schwartz will write in 2004, “Bork condemned the Fourteenth Amendment’s Equal Protection Clause decisions outlawing the poll tax (to him it was just ‘a very small tax’), the decision establishing the one-person, one-vote principle, abolishing school segregation in the District of Columbia, barring courts from enforcing racially restrictive housing covenants, preventing a state from sterilizing certain criminals or interfering with the right to travel, and prohibiting discrimination against out-of-wedlock children…. Bork’s hostility to governmental action on behalf of minorities did not stop with his critique of court action. In 1963 he criticized a section of the proposed Civil Rights Act of 1964 that required white businesses to serve blacks as resting on a principle of ‘unsurpassed ugliness.’”
Ready to Fight - The Reagan administration understands that Bork’s nomination is opposed; on July 1, the day of his announced nomination, the media reports that Reagan will try to ensure Bork’s confirmation by waging an “active campaign.” Even Senate-savvy James Baker, Reagan’s chief of staff, is uncertain about Bork’s chances at being confirmed, and further worries that even if Bork wins the fight, the cost to Reagan’s political capital will be too high.
His Own Worst Enemy - Conservatives Justice Department official Terry Eastland will later say Senate Democrats sabotage Bork’s chances at faring well in the confirmation hearings, even positioning his table to ensure the least favorable angles for Bork on television. However, the public’s opinion of Bork is unfavorable, and Dean will write: “[I]t was not the position of his chair in the hearing room that made Bork look bad, but rather his arrogance, his hubris, and his occasional cold-bloodedness, not to mention his equivocations and occasional ‘confirmation conversions,’ where he did what no one else could do. He made himself a terrible witness who did not appear to be truthful.” The confirmation conversions even surprise some of his supporters, as Bork abandons his previous stances that the First Amendment only applies to political speech, and the Fourteenth Amendment’s equal protection clause does not apply to women. The Senate Judiciary Committee passes Bork’s nomination along to the full Senate, where Bork is defeated 58-42.
The Verb 'To Bork' - In 2007, Dean will write, “Bork’s defeat made him both a martyr and a verb,” and quotes conservative pundit William Safire as writing that “to bork” someone means to viciously attack a political figure, particularly by misrepresenting that figure in the media. [Dean, 2007, pp. 137-143]

Entity Tags: Herman Schwartz, US Department of Justice, Gregory Peck, Edward M. (“Ted”) Kennedy, US Supreme Court, William Safire, Ronald Reagan, James A. Baker, Senate Judiciary Committee, Terry Eastland, Robert Bork, John Dean

Timeline Tags: Civil Liberties

When Supreme Court Justice Thurgood Marshall, the first and only African-American to serve on the Court, announces his retirement, the Bush administration is ready with a far more conservative replacement. President Bush himself is already under fire for previously naming a moderate, David Souter, to the Court, and Bush is determined to give his conservative base someone they can back. Although Bush had wanted to nominate an appropriately conservative Hispanic, his eventual nomination is Clarence Thomas, who is completing his first year as a judge on the DC Court of Appeals. Thomas has two qualifications that Bush officials want: like Marshall, he is African-American; unlike Marshall, he is as conservative a jurist as Antonin Scalia (see September 26, 1986) or Robert Bork (see July 1-October 23, 1987). Two of former President Reagan’s closest legal advisers, C. Boyden Gray and Lee Liberman (a co-founder of the conservative Federalist Society), privately call Thomas “the black Bork.” Bush calls Thomas “the most qualified man in the country” for the position. [New York Times, 7/2/1991; Dean, 2007, pp. 146-153] During the July 2 press conference to announce Thomas’s nomination, Bush says: “I don’t feel he’s a quota. I expressed my respect for the ground that Mr. Justice Marshall plowed, but I don’t feel there should be a black seat on the Court or an ethnic seat on the Court.” For his part, Thomas extols his upbringing as a desperately poor child in Georgia, crediting his grandmother and the nuns who taught him in Catholic schools as particular influences on his life and values. Republican senator Orrin Hatch says that opposing Thomas will be difficult: “Anybody who takes him on in the area of civil rights is taking on the grandson of a sharecropper.” [New York Times, 7/2/1991] However, the non-partisan American Bar Association’s recommendation panel splits on whether Thomas is qualified or not, the first time since 1969 the ABA has failed to unanimously recommend a nominee. Twelve panelists find Thomas “qualified,” two find him “not qualified,” and none find him “well qualified.” One senior Congressional aide calls the assessment of Thomas “the equivalent of middling.” [New York Times, 8/28/1991; Dean, 2007, pp. 146-153] In 2007, former Nixon White House counsel John Dean will write, “For the president to send a nominee to the Supreme Court with anything less than a uniformly well-qualified rating is irresponsible, but such decisions have become part of the politicization of the judiciary.” Thomas, himself a beneficiary of the nation’s affirmative action programs, opposes them, once calling them “social engineering;” he has no interest in civil rights legislation, instead insisting that the Constitution should be “color-blind” and the courts should stay out of such matters. Civil rights, women’s rights, and environmental groups are, in Dean’s words, “terrified” of Thomas’s nomination. To overcome these obstacles, the Bush administration decides on a strategy Dean calls “crude but effective… us[ing] Thomas’s color as a wedge with the civil rights community, because he would pick up some blacks’ support notwithstanding his dismal record in protecting their civil rights. [New York Times, 7/2/1991; Dean, 2007, pp. 146-153] The nomination of an African-American quells some of the planned resistance to a conservative nominee promised by a number of civil rights organizations. [New York Times, 7/2/1991] Three months later, Thomas will be named to the court after a bitterly contentious brace of confirmation hearings (see October 13, 1991).

Entity Tags: Orrin Hatch, US Supreme Court, Lee Liberman, Robert Bork, John Dean, Thurgood Marshall, David Souter, American Bar Association, Bush administration (41), Antonin Scalia, George Herbert Walker Bush, Clayland Boyden Gray, Clarence Thomas

Timeline Tags: Civil Liberties

Clarence Thomas.Clarence Thomas. [Source: AP / World Wide Photos]The Senate Judiciary Committee hearings for Supreme Court nominee Clarence Thomas begin (see July 2-August 28, 1991). Thomas is exhaustively coached by a team headed by former senator John Danforth (R-MO), whom Thomas had worked for when Danforth was attorney general of Missouri. As per his coaching, Thomas says as little as possible in response to senators’ questions, staying with generalities and being as congenial, diffident, and bland as the questions will allow. Still, some of his statements defy belief.
Abortion Rights - Thomas is well-known as an ardent opponent of abortion rights, but he claims in testimony that he has no position on the fundamental abortion case of Roe v. Wade (see January 22, 1973), even though he has disparaged the case in his own legal writings. He even claims not to have discussed the case with anyone. His sympathetic biographer Andrew Peyton Thomas (no relation) later admits that “these representations about Roe proved a laughingstock.” Even conservative stalwart Paul Weyrich, who is running a “war room” to counter any negative statements about Thomas in the press or in the hearings, says publicly that Thomas has spoken of the case in discussions between the two, and calls Thomas’s dissembling “disingenuous” and “nauseating.” Weyrich considers, and rejects, withdrawing his support for Thomas.
Comparison with Rehnquist Hearings - Author and former Nixon White House counsel John Dean will write, “[I]t was clear that Thomas was going the route that [Supreme Court Justice William] Rehnquist had traveled” (see September 26, 1986): “Say anything that was necessary to win confirmation, regardless of the conspicuousness of the lie. Regrettably, it would get worse.” The Senate Judiciary Committee splits on sending Thomas’s name to the full Senate, 7-7, therefore making no recommendation either way. But head counts show that Thomas has a narrow but solid majority of senators ready to vote him onto the bench. [Dean, 2007, pp. 146-153]

Entity Tags: US Supreme Court, William Rehnquist, Paul Weyrich, Andrew Peyton Thomas, Clarence Thomas, John C. Danforth, Senate Judiciary Committee, John Dean

Timeline Tags: Civil Liberties

In an 8-1 decision, the US Supreme Court rules that anti-abortion demonstrators have the right under the First Amendment to confront pregnant women outside health clinics and “strongly urge” them not to have abortions. The decision casts doubt on an array of city ordinances and judicial orders barring protesters from confronting doctors, nurses, and patients outside clinics. Chief Justice William Rehnquist, writing for the majority, rules that there is no “generalized right to be left alone on a public street or sidewalk.” Rather, picketing, leafleting, and loud protesting “are classic forms of speech that lie at the heart of the First Amendment.” The Court affirms that protesters have no right to physically accost or interfere with clients or providers, nor may they trespass on clinic property. They do have the right to shout and chant on public property such as sidewalks. The ruling also reaffirms a 1994 decision that created protest-free zones, sometimes called “fixed bufffer zones,” at the doors and driveways of health clinics. [Los Angeles Times, 2/20/1997]

Entity Tags: William Rehnquist, US Supreme Court

Timeline Tags: US Health Care, Domestic Propaganda, US Domestic Terrorism

Supreme Court Justice Sandra Day O’Connor, attending a Washington, DC, party and watching the news networks predict Florida, and thusly the presidency, for Democrat Al Gore, says aloud, “This is terrible.” Her husband explains that she is considering retiring from the Court, but will only do so if George W. Bush, a fellow Republican, is in office to appoint her successor. [Tapper, 3/2001]

Entity Tags: Albert Arnold (“Al”) Gore, Jr., Sandra Day O’Connor, George W. Bush

Timeline Tags: 2000 Elections

Katherine Harris.Katherine Harris. [Source: AP/Pete Cosgrove]Florida Secretary of State Katherine Harris, one of eight co-chairs of the Florida Bush election campaign and the state official ultimately in charge of election procedures, is introduced to the politics of the Florida presidential recount by a ringing telephone. She is awakened at 3:30 a.m. by a call from the Bush campaign chairman Donald Evans, who puts Governor Jeb Bush, George W. Bush’s brother, on the line. Governor Bush asks coldly, “Who is Ed Kast, and why is he giving an interview on national television?” Harris is unsure who Kast is for a moment. Kast is the assistant director of elections, whose division reports to her office. He is on television talking about the fine points of Florida election law (see 3:30 a.m. November 8, 2000), when and how manual recounts can be requested, and, most importantly, the driving concept of “voter intent”—if a ballot shows the intent of the voter to cast a vote for a candidate, then that vote will be counted. The governor does not want the media narrative to focus on recounts and voter intent, and has already tasked his general counsel with the job of getting Kast off the air as quickly as possible. (CNN “loses” Kast’s transmission in mid-sentence minutes later.) Democrats have questioned the propriety of having the Florida official with ultimate authority over elections being a state chairman for a presidential campaign before now, and in the coming days, the question will devolve into outright accusations of partisanship and impropriety. Harris has called herself “thrilled and honored” to be part of the Bush campaign, and served as a Bush delegate during the Republican National Convention. During the campaign, she often traveled around Florida representing the ticket. Representative Robert Wexler (D-FL) says of Harris: “She is clearly a partisan Republican—and there’s nothing illegal about that. And I give everyone the benefit of the doubt, expecting them to perform their public functions appropriately. But her actions will speak volumes about whether she is qualified. If she does this fairly, fine. But if she acts as an emissary for Bush to steal this election in Florida, she will delegitimize Florida’s vote count.” Harris gives some initial media interviews on November 8, and according to a 2004 Vanity Fair article, “appear[s] overwhelmed and uninformed.” She does not know what county elections supervisors have been doing, and seems unaware of the chaos surrounding the Palm Beach County “butterfly ballot” (see November 9, 2000) and other ballot disputes. The Bush campaign senses trouble and assigns Harris a “minder,” Florida Republican lobbyist Mac Stipanovich, a former campaign advisor for Jeb Bush and a close Bush ally. Stipanovich, the Vanity Fair article will observe, “appealed to Harris’s grandiosity. (Her emails replying to Bush supporters later revealed that she had begun identifying with Queen Esther, who, in the Old Testament, saved the Jews from genocide. ‘My sister and I prayed for full armour this morning,’ she wrote. ‘Queen Esther has been a wonderful role model.’) He told her that nothing less than the course of history rested on her shoulders. ‘You have to bring this election in for a landing,’ he repeated again and again.” Under Stipanovich’s tutelage, Harris quickly learns to stay on message and repeat the given talking points. Stipanovich, who remains out of sight of the media, will later describe his daily routine with Harris to documentary filmmaker Fred Silverman, saying: “I would arrive in the morning through the garage and come up on the elevators, and come in through the cabinet-office door, which is downstairs, and then in the evening when I left, you know, sometimes it’d be late, depending on what was going on, I would go the same way. I would go down the elevators and out through the garage and be driven—driven to my car from the garage, just because there were a lot of people out front on the main floor, and, at least in this small pond, knowledge of my presence would have been provocative, because I have a political background.” [Salon, 11/13/2000; Vanity Fair, 10/2004] Most importantly to the Bush campaign, Harris is a part of the campaign’s message propagation plan to insist that Bush has indisputably won the Florida election (see After 3:30 a.m. November 8, 2000).

Entity Tags: George W. Bush presidential campaign 2000, Donald L. Evans, CNN, Ed Kast, George W. Bush, Katherine Harris, Vanity Fair, John Ellis (“Jeb”) Bush, Fred Silverman, Mac Stipanovich, Robert Wexler

Timeline Tags: 2000 Elections

The Florida Supreme Court rules that Palm Beach and Broward Counties can proceed with a manual recount of ballots (see 4:30 p.m. November 14, 2000, 3:40 p.m. November 15, 2000, and Early Morning, November 16, 2000). Almost immediately, Palm Beach officials announce that they will begin that recount. The Court rules that a state judge must decide if the recount totals must be accepted. [US News and World Report, 12/13/2000; Pittsburgh Post-Gazette, 12/17/2000; Leip, 2008]

Entity Tags: County of Palm Beach (Florida), County of Broward (Florida), Florida Supreme Court

Timeline Tags: 2000 Elections

Leon County Judge Terry Lewis rules that Florida law gives Florida Secretary of State Katherine Harris, the co-chair of Florida’s Bush campaign team (see After 3:30 a.m. November 8, 2000 and After), “broad discretionary authority to accept or reject late-filed returns,” referring to recounts submitted after Harris’s November 14 deadline (see 9:14 p.m., November 15, 2000). After Lewis issues his ruling, Harris issues a statement hinting she is poised to certify the election when the absentee ballots are in by noon on November 18 (see November 18, 2000). An hour after the ruling, James Baker, representing the Bush campaign team, says George W. Bush and his running mate Dick Cheney “are understandably pleased” with Lewis’s finding. “The rule of law has prevailed,” he says. Gore campaign lawyer Warren Christopher warns against premature “partying” by Republicans, and says the campaign is taking Lewis’s ruling to the Florida Supreme Court. This afternoon, the Florida Supreme Court puts a hold on Lewis’s decision, citing a pending appeal by the Gore campaign (see 5:00 p.m. November 17, 2000). [US News and World Report, 12/13/2000; Pittsburgh Post-Gazette, 12/17/2000; Leip, 2008]

Entity Tags: Katherine Harris, County of Leon (Florida), Florida Supreme Court, James A. Baker, Richard (“Dick”) Cheney, Terry Lewis, George W. Bush, Warren Christopher

Timeline Tags: 2000 Elections

The Florida Supreme Court bars Florida Secretary of State Katherine Harris, the co-chair of Florida’s Bush campaign team (see After 3:30 a.m. November 8, 2000 and After), from rejecting all post-deadline recount tallies (see 9:14 p.m., November 15, 2000) as well as certifying George W. Bush (R-TX) as the state’s presidential winner “until further order of this court” (see 10:04 a.m. - 12:45 p.m. November 17, 2000). It sets a hearing for Monday, November 20 to hear arguments on the recount dispute. The Court says flatly, “it is NOT the intent of this order to stop the counting.” [Supreme Court of Florida, 11/17/2000 pdf file; US News and World Report, 12/13/2000; Leip, 2008] Harris is prepared to certify Bush as the winner (see Evening, November 14, 2000), which would give him the electoral votes needed to grant him the presidency (see November 9, 2000). With that no longer a possibility, James Baker, the leader of the Bush “quick response” campaign recount team (see Mid-Morning, November 8, 2000), issues a public threat: the incoming Florida speaker of the House, Republican Tom Feeney, will, if necessary, take matters into his own hands and vote in an independent slate of “electors” who would journey to Washington and vote for Bush in the US Electoral College. Because both houses of the Florida legislature are dominated by Republicans, Feeney could pass just such a bill authorizing that procedure. [Vanity Fair, 10/2004] Bush and his campaign officials harshly denounce the Court’s ruling. Bush accuses the Court of using “the bench to change Florida’s election laws and usurp the authority of Florida’s election officials,” and states that “writing laws is the duty of the legislature; administering laws is the duty of the executive branch.” However, the liberal news Web site Consortium News notes that Bush seems unaware of the duty of the judicial branch, “a fact taught to every American child in grade-school civics class—that it is the duty of the judiciary to interpret the laws. It is also the responsibility of the courts to resolve differences between parties under the law.” [Consortium News, 11/23/2000]

Entity Tags: Tom Feeney, Florida Supreme Court, Katherine Harris, George W. Bush presidential campaign 2000, George W. Bush, James A. Baker, Consortium News, US Electoral College

Timeline Tags: 2000 Elections

The Florida Supreme Court hears recount arguments from both the Gore and Bush presidential campaigns regarding whether Florida Secretary of State Katherine Harris, the co-chair of Florida’s Bush campaign team (see After 3:30 a.m. November 8, 2000 and After), should consider hand-recounted ballots before she certifies results of the presidential election (see 5:00 p.m. November 17, 2000). Bush lawyers argue that the Court is “without power” to decide which ballots should or should not be tallied. At 9:45 p.m. November 21, the Court unanimously rules that the manual recounts can continue and that Harris must accept those totals in the final results (see 10:04 a.m. - 12:45 p.m. November 17, 2000). The Court rules that the deadline for certifying the election is either 5:00 p.m. November 26, a Sunday, or November 27, at Harris’s discretion. Harris’s staff is caught by surprise by the ruling, downloading it off the Internet instead of receiving a copy from the Court; Harris’s plan to certify George W. Bush as president is blocked. Democratic presidential candidate Al Gore welcomes the ruling, saying that both he and Bush should plan their transitions in case either is certified. [Supreme Court of Florida, 11/21/2000 pdf file; US News and World Report, 12/13/2000; Pittsburgh Post-Gazette, 12/17/2000; Leip, 2008] The Court says in its ruling that “the right of the people to cast their vote is the paramount concern overriding all others.” Campaign observers have said that if the Florida high court’s ruling went the other way, Gore would concede the election. Some of Gore’s senior campaign advisors reportedly told Gore to stop further challenges if the Florida court decision went in Bush’s favor. [Guardian, 11/22/2000] Bush campaign representatives level charges that the Gore campaign is attempting to “steal” the election. Bush campaign attorney James Baker calls the Supreme Court’s ruling “unjust.” Governor Marc Racicot (R-MT), who has emerged in recent days as an influential Bush campaign spokesman, threatens “some extraordinary” measures to overcome the effects of the Court’s ruling (see 9:00 a.m. and after, November 22, 2000). [Guardian, 11/23/2000]

Entity Tags: Marc Racicot, Katherine Harris, George W. Bush, George W. Bush presidential campaign 2000, Al Gore presidential campaign 2000, James A. Baker, Florida Supreme Court

Timeline Tags: 2000 Elections

The Bush presidential campaign files a petition in the US Supreme Court, asking the Court to review the Florida Supreme Court’s ruling that Florida can continue manual recounts, and that those new recount tallies be included in the final election results (see November 20-21, 2000). Bush lawyers argue that the Supreme Court effectively rewrote Florida election law in mandating the recount tallies be counted, by essentially changing the law after the election had occurred; they also argue that Florida judges have no jurisdiction or legal authoritiy to order Florida Secretary of State Katherine Harris (see After 3:30 a.m. November 8, 2000 and After) to consider manually recounted votes. Both arguments are considered somewhat abstruse and technical. The Bush campaign also claims, with little legal backing, that to recount the votes violates constitutional guarantees of due process and equal protection. Gore lawyers say that the matter is up to the state courts, and is not a federal matter warranting the involvement of the US Supreme Court. The Court agrees to hear the case, and sets the hearing date for December 1, 2000. [Supreme Court of the United States, 11/22/2000 pdf file; Certiorari Granted, 11/24/2000 pdf file; Guardian, 11/25/2000; US News and World Report, 12/13/2000; Pittsburgh Post-Gazette, 12/17/2000; Vanity Fair, 10/2004; Leip, 2008] “We believe we stand on both strong political and legal ground for fighting beyond Sunday,” says Gore campaign adviser Ron Klain. After the Court agrees to hear the case, Harris, the co-chair of Florida’s Bush campaign team, says she is ready to certify the election for George W. Bush tomorrow night regardless of the outcome of the Supreme Court hearing. “The Department of State is prepared for the earliest contingency, which would be certification Sunday evening,” her chief of staff Ben McKay says. “This will be done publicly regardless of the outcome, which is, of course, unknown at this time.” [Guardian, 11/25/2000] Many Court observers, and some of the justices themselves, are surprised that the case is being heard. The Bush petition for certiorari, or for the Court to take the case, comes to Justice Anthony Kennedy, whose task it is to consider emergency motions from Florida, Georgia, and Alabama. Kennedy pushes his colleagues to take the case, arguing that the Court is the true and ultimate arbiter of such matters, though he concedes that the Bush petition is legally questionable. The Court’s conservative bloc—Antonin Scalia, Clarence Thomas, Sandra Day O’Connor (see After 7:50 p.m. November 7, 2000), and Chief Justice William Rehnquist—agree to hear the case. (Court rules mandate that the consent of four justices, not a majority, is enough to hear a case.) The case is to be expedited in a way far different from the usual sedately paced Court proceedings. The sudden urgency has Court clerks scrambling to change their Thanksgiving plans and contacting the justices they work for. The clerks for the four liberal justices, David Souter, John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer, are dismayed by the entire situation. “We changed our minds every five minutes about whether the fix was in,” one clerk later recalls. The liberal clerks find it almost impossible to believe that any Court justice would consider interceding in what is by constitutional definition an executive and legislative matter. Justice Stevens is not convinced of his conservative colleagues’ restraint, and begins drafting a dissent from what he fears will be a majority opinion granting Bush the election. The early draft focuses on the reasons why the Court should have never accepted the case. [Vanity Fair, 10/2004]

Entity Tags: Florida Supreme Court, David Souter, Ben McKay, Antonin Scalia, Anthony Kennedy, Albert Arnold (“Al”) Gore, Jr., William Rehnquist, US Supreme Court, Stephen Breyer, Sandra Day O’Connor, Ron Klain, Clarence Thomas, Ruth Bader Ginsburg, Katherine Harris, George W. Bush presidential campaign 2000, George W. Bush, John Paul Stevens

Timeline Tags: 2000 Elections

A photograph of the Republican operatives mobbing the Miami-Dade elections offices. Those identified in the photograph include Thomas Pyle, Garry Malphrus, Rory Cooper, Kevin Smith, Steven Brady, Matt Schlapp, Roger Morse, Duane Gibson, Chuck Royal, and Layna McConkey.A photograph of the Republican operatives mobbing the Miami-Dade elections offices. Those identified in the photograph include Thomas Pyle, Garry Malphrus, Rory Cooper, Kevin Smith, Steven Brady, Matt Schlapp, Roger Morse, Duane Gibson, Chuck Royal, and Layna McConkey. [Source: Pensito Review]Miami-Dade County election officials vote unanimously to halt the county’s manual recount of presidential ballots (see November 7, 2000 and Before 10:00 a.m. November 19, 2000), saying the county does not have enough time to complete its recount by the November 26 deadline. Instead, they vote to recount only 10,750 “undervotes,” ballots that don’t clearly indicate a presidential choice. The decision costs Democratic candidate Al Gore a 157-vote gain from the halted recount process. That evening, a Florida State appeals court denies a motion by Democrats to force Miami-Dade County to restart the manual recount. [US News and World Report, 12/13/2000; Pittsburgh Post-Gazette, 12/17/2000; Leip, 2008]
Opposing Beliefs - The next day, the Florida Supreme Court will also refuse to order Miami-Dade to restart the recount (see 2:45 p.m. November 23, 2000). Press reports say that the decision “dramatically reverse[s] the chances of Al Gore gathering enough votes to defeat George W. Bush.” Gore’s senior campaign advisor William Daley calls the recounts “mandatory” and calls for “the rule of law” to be upheld. For his part, Bush says: “I believe Secretary Cheney and I won the vote in Florida (see After 3:30 a.m. November 8, 2000). And I believe some are determined to keep counting in an effort to change the legitimate result.” In light of the Miami-Dade decision, the Bush campaign’s chief legal advisor James Baker invites the Republican-controlled Florida Legislature to unilaterally declare Bush the victor, saying, “One should not now be surprised if the Florida legislature seeks to affirm the original rules.”
Agitators Disrupt Recount Proceedings - The recount proceedings are disrupted and ultimately ended by a mob of Republicans, some local and some bussed and flown in from Washington by the Bush campaign. The agitators are protesting outside the Miami-Dade County election offices, shouting and attempting to interfere with the proceedings of the canvassing board. Republicans have accused a Democratic lawyer of stealing a ballot. [Guardian, 11/23/2000; Guardian, 11/25/2000]
Rioters Made Up of Republican Staffers, Others - Democrats accuse Republican protesters of intimidating the Miami-Dade County officials into stopping the recount. Democratic vice-presidential candidate Joe Lieberman says the demonstrations in Miami have been orchestrated by Republicans “to intimidate and to prevent a simple count of votes from going forward.” Six Democratic members of the US Congress demand the Justice Department investigate the claims, saying that civil rights have been violated in “a shocking case of undermining the right to vote through intimidation and threats of violence.” Jenny Backus, a spokeswoman for the Democratic National Committee (DNC), says, “The Republicans are out of control,” and accuses them of using paid agitators to “create mob rule in Miami.” [Guardian, 11/25/2000] Later investigations show that the “spontaneous protests” by Republican protesters were far more orchestrated and violent than generally reported by the press at the time. Investigative journalist Robert Parry will write that the protests, called the “Brooks Brothers Riot” because of the wealthy, “preppie” makeup of the “protesters,” helped stop the recount, “and showed how far Bush’s supporters were ready to go to put their man in the White House.” He will write that the protests should be more accurately termed a riot. At least six of the rioters were paid by the Bush recount committee, payments documented in Bush committee records only released to the IRS in July 2002 (see July 15, 2002). Twelve Republican staffers will later be identified in photographs of the rioters. The six who can be confirmed as being paid are: Bush staffer Matt Schlapp from Austin, Texas; Thomas Pyle, a staff aide to House Majority Whip Tom DeLay (R-TX); DeLay fundraiser Michael Murphy; Garry Malphrus, House majority chief counsel to the House Judiciary Subcommittee on Criminal Justice; Charles Royal, a legislative aide to Representative Jim DeMint (R-SC); and former Republican House staffer Kevin Smith. Another Republican is identified as Doug Heye, a staffer for Representative Richard Pombo (R-CA). At least three of the rioters—Schlapp, Malphrus, and Joel Kaplan—will later join the Bush White House. Many of the rioters were brought in on planes and buses from Washington as early as mid-November, with promises of expenses payments. On November 18, 2000, the Bush campaign told activists, “We now need to send reinforcements” to rush to Florida. “The campaign will pay airfare and hotel expenses for people willing to go.” Many of the respondents are low-level Republican staffers from Congress. “These reinforcements… added an angrier tone to the dueling street protests already underway between supporters of Bush and Gore,” Parry will write. Quoting ABC reporter Jake Tapper, Parry will write, “The new wave of Republican activists injected ‘venom and volatility into an already edgy situation.’” Signifying the tone, before the Miami riot, Brad Blakeman, Bush’s campaign director of advance travel logistics, screamed down a CNN correspondent attempting to interview a Democratic Congressman: “This is the new Republican Party, sir! We’re not going to take it anymore!” [Consortium News, 11/27/2000; Consortium News, 8/5/2002; Vanity Fair, 10/2004] Some of the local protesters are summoned to the Miami-Dade electoral offices by angry broadcasts over radio stations with largely Cuban-American audiences; over these radio stations, listeners hear Bush campaign lawyer Roger Stone, coordinating the radio response, say that the recounts intend to disenfranchise Hispanic voters. Republican operatives coordinate the protests by shouting orders through megaphones. [Consortium News, 11/24/2000; Center for American Progress, 12/9/2010] Cuban-Americans voted heavily for Bush in the November 7 election. [Tapper, 3/2001]
Details of the Riot; Staffers Assaulted and Beaten - After learning that the Miami-Dade County canvassing board was beginning to examine 10,750 disputed ballots that had not previously been counted, US Representative John Sweeney (R-NY) issues the order to “Shut it down!” (Sweeney is coordinating his efforts with a local Cuban congressman who himself is coordinating the Cuban-American mob response.) Brendan Quinn, the executive director of the New York Republican Party, tells some two dozen Republican operatives outside the Miami-Dade County election offices to storm the room on the 19th floor where the canvassing board is meeting. Tapper later writes: “Emotional and angry, they immediately make their way outside the larger room in which the tabulating room is contained. The mass of ‘angry voters’ on the 19th floor swells to maybe 80 people,” including many of the Republican activists from outside Florida, and joined by local protesters. As news organizations videotape the scene, the protesters reach the board offices and begin shouting slogans such as “Stop the count! Stop the fraud!” “Three Blind Mice!” and “Fraud, fraud, fraud!” and banging on doors and walls. The protesters also shout that a thousand potentially violent Cuban-Americans are on the way. Official observers and reporters are unable to force their way through the shouting crowd of Republican operatives and their cohorts. Miami-Dade spokesman Mayco Villafena is physically assaulted, being pushed and shoved by an unknown number of assailants. Security officials, badly outmanned, fear the confrontation will swell into a full-scale riot. Miami-Dade elections supervisor David Leahy orders the recounts stopped, saying, “Until the demonstration stops, nobody can do anything.” (Although board members will later insist that they were not intimidated into stopping, the recounts will never begin again. Leahy will later say: “This was perceived as not being an open and fair process. That weighed heavy on our minds.”) Meanwhile, unaware of the rioting, county Democratic chairman Joe Geller stops at another office in search of a sample ballot. He wants to prove his theory that some voters had intended to vote for Gore, but instead marked an adjoining number indicating no choice. He finds one and leaves the office. Some of the rioters spot Geller with the sample ballot, and one shouts, “This guy’s got a ballot!” Tapper will later write: “The masses swarm around him, yelling, getting in his face, pushing him, grabbing him. ‘Arrest him!’ they cry. ‘Arrest him!’ With the help of a diminutive DNC [Democratic National Committee] aide, Luis Rosero, and the political director of the Miami Gore campaign, Joe Fraga, Geller manages to wrench himself into the elevator.” Rosero stays behind to attempt to talk with a reporter, and instead is kicked and punched by rioters. A woman shoves Rosero into a much larger man in what Tapper will later theorize was an attempt to start a fight between Rosero and the other person. In the building lobby, some 50 Republican protesters and activists swarm Geller, surrounding him. Police escort Geller back to the 19th floor in both an attempt to save him from harm and to ascertain what is happening. The crowd attempts to pull Geller away from the police. Some of the protesters even accost 73-year-old Representative Carrie Meek (D-FL). Democratic operatives decide to leave the area completely. When the mob learns that the recounts have been terminated, they break forth in lusty cheers.
After-Party - After the riots, the Bush campaign pays $35,501.52 for a celebration at Fort Lauderdale’s Hyatt Regency, where the rioters and campaign officials party, enjoy free food and drink, receive congratulatory calls from Bush and Dick Cheney, and are serenaded by Las Vegas crooner Wayne Newton, singing “Danke Schoen,” German for “thank you very much.” Other expenses at the party include lighting, sound system, and even costumes.
Media Reportage - Bush and his campaign officials say little publicly about the riot. Some press outlets report the details behind the riots. The Washington Post later reports that “even as the Bush campaign and the Republicans portray themselves as above the fray,” national Republicans actually had joined in and helped finance the riot. The Wall Street Journal tells readers that Bush offered personal words of encouragement to the rioters after the melee, writing, “The night’s highlight was a conference call from Mr. Bush and running mate Dick Cheney, which included joking reference by both running mates to the incident in Miami, two [Republican] staffers in attendance say.” The Journal also observes that the riot was led by national Republican operatives “on all expense-paid trips, courtesy of the Bush campaign.” And, the Journal will note, the rioters went on to attempt to disrupt the recounts in Broward County, but failed there to stop the proceedings. The Journal will write that “behind the rowdy rallies in South Florida this past weekend was a well-organized effort by Republican operatives to entice supporters to South Florida,” with DeLay’s Capitol Hill office taking charge of the recruitment. No similar effort was made by the Gore campaign, the Journal will note: “This has allowed the Republicans to quickly gain the upper hand, protest-wise.” And the Journal will write that the Bush campaign worked to keep its distance from the riots: “Staffers who joined the effort say there has been an air of mystery to the operation. ‘To tell you the truth, nobody knows who is calling the shots,’ says one aide. Many nights, often very late, a memo is slipped underneath the hotel-room doors outlining coming events.” But soon, media reports begin echoing Bush campaign talking points, which call the “protests” “fitting, proper,” and the fault of the canvassing board: “The board made a series of bad decisions and the reaction to it was inevitable and well justified.” The Bush campaign says the mob attack on the elections office was justified because civil rights leader Jesse Jackson had led peaceful, non-violent protests in favor of the recounts in Miami the day before. The campaign also insists that the protests were spontaneous and made up entirely of local citizens. On November 26, Governor Marc Racicot (R-MT), a Bush campaign spokesman, will tell NBC viewers: “Clearly there are Americans on both sides of these issues reflecting very strong viewpoints. But to suggest that somehow this was a threatening situation, in my view, is hyperbolic rhetoric.”
Effect of the Riot - According to Parry, the riot, broadcast live on CNN and other networks, “marked a turning point in the recount battle. At the time, Bush clung to a lead that had dwindled to several hundred votes and Gore was pressing for recounts (see November 20-21, 2000). The riot in Miami and the prospects of spreading violence were among the arguments later cited by defenders of the 5-to-4 US Supreme Court ruling (see 9:54 p.m. December 12, 2000)… that stopped a statewide Florida recount and handed Bush the presidency. Backed by the $13.8 million war chest, the Bush operation made clear in Miami and in other protests that it was ready to kick up plenty of political dust if it didn’t get its way.” In the hours after the riot, conservative pundits led by Rush Limbaugh will engage in orchestrated assaults on the recount process as fraudulent and an attempt by the Gore campaign to “invent” votes. No one is ever charged with any criminal behaviors as a result of the riot. [Consortium News, 11/24/2000; Washington Post, 11/27/2000; Village Voice, 12/19/2000; Consortium News, 8/5/2002; Vanity Fair, 10/2004; Center for American Progress, 12/9/2010]

Bush supporters in Florida celebrate Katherine Harris’s decision to certify Bush as the winner of the 2000 election.Bush supporters in Florida celebrate Katherine Harris’s decision to certify Bush as the winner of the 2000 election. [Source: Salon]Florida Secretary of State Katherine Harris, the co-chair of Florida’s Bush campaign team (see After 3:30 a.m. November 8, 2000 and After), certifies George W. Bush (R-TX) the winner of Florida’s presidential election, though according to a Florida Supreme Court ruling she can choose to accept recount tallies through November 27 (see November 20-21, 2000). She chooses not to do so. Harris says Bush has a 537-vote lead. Her totals are: Bush, 2,912,790; Vice President Al Gore (D-TN), 2,912,253. The totals include none of the recounted ballots from either Palm Beach or Miami-Date Counties, both of which did not complete their recounts by Harris’s deadline (see 9:00 a.m. and after, November 22, 2000 and 2:45 p.m. November 26, 2000). Ongoing legal actions by both parties keep the election in doubt. Regardless, Governor Jeb Bush, George W. Bush’s brother, signs the Certificate of Ascertainment designating 25 Florida electors pledged to George W. Bush and transmits the document to the National Archives as required by Title 3, US Code, Section 6. Three days later, a Florida legislative committee will recommend a special session to name the state’s 25 representatives to the Electoral College, where they will presumably cast their votes for Bush. [US News and World Report, 12/13/2000; Pittsburgh Post-Gazette, 12/17/2000; Leip, 2008] If Bush is indeed the winner of the Florida presidential election, he has enough electoral votes to assume the presidency (see November 9, 2000). The Gore campaign refuses to accept Harris’s certification, and says it will ask Florida courts to order recounts of thousands of disputed votes. Gore’s running mate Joe Lieberman says, “This evening, the secretary of state of Florida has decided to certify what—by any reasonable standard—is an incomplete and inaccurate count of the votes cast in the state of Florida.” The Gore campaign is working out details of what will be a formal “contest” of the results, and will ask a state judge to order court-appointed “special masters” to complete interrupted recounts of about 2,000 uncounted votes in Palm Beach County and 10,700 uncounted votes in Miami-Dade County. They also want an inquiry into the Nassau County returns, where Gore officials believe Bush was wrongly credited with some 51 votes, and are considering challenging the legality of Palm Beach’s controversial “butterfly ballots.” Gore’s chief lawyer David Boies says: “We’re preparing contest papers that will be filed Monday, as early in the day as we can get them done. Until these votes are counted, this election cannot be over.” Republicans intend to use Harris’s ruling to publicly pressure Gore into conceding the election, pressure the Gore campaign says it is prepared to combat. Miami-Dade County, expected to yield enough votes in a recount to swing the election in favor of Gore, called off its recount under pressure from Republican protesters and due to time constraints (see 9:00 a.m. and after, November 22, 2000). [Salon, 11/25/2000; Guardian, 11/27/2000; Guardian, 11/28/2000] Investigative reporter Robert Parry will later write that Harris deliberately allowed Nassau County to throw out its recounted figures that gave Gore the 51 votes. [Consortium News, 8/5/2002] A brief furor ensues when some media outlets mistakenly report that 500 absentee ballots “not previously counted” were discovered in Broward County. The story is not true. [Salon, 11/25/2000] According to state law, it is only now that Gore can ask for a statewide recount. [Vanity Fair, 10/2004] Former President Jimmy Carter tells a reporter: “More than two weeks will remain before Florida’s 25 electors will have to be named, and then two more months before a new president will be sworn into office. We must not sacrifice speed for accuracy in deciding who has been chosen by the voters to take that oath.” [Salon, 11/25/2000]

Entity Tags: Al Gore presidential campaign 2000, Florida Supreme Court, Albert Arnold (“Al”) Gore, Jr., County of Miami-Dade (Florida), County of Broward (Florida), George W. Bush, County of Palm Beach (Florida), Katherine Harris, Robert Parry, James Earl “Jimmy” Carter, Jr., George W. Bush presidential campaign 2000, Joseph Lieberman, John Ellis (“Jeb”) Bush

Timeline Tags: 2000 Elections

The clerks for the four liberal justices at the Supreme Court—John Paul Stevens, Stephen Breyer, David Souter, and Ruth Bader Ginsburg—continue their speculation as to whether the Court will actually attempt to decide the presidential election ((see November 20-21, 2000 and November 22-24, 2000), especially in light of Florida’s recent attempt to certify George W. Bush as the winner (see 7:30 p.m. November 26, 2000). At a November 29 dinner attended by clerks from several justices, a clerk for Justice Sandra Day O’Connor tells the group that O’Connor is determined to overturn the Florida Supreme Court’s decision to go ahead with manual recounts of election ballots (see 3:00 p.m., November 16, 2000). One clerk recalls the O’Connor clerk saying, “she thought the Florida court was trying to steal the election and that they had to stop it.” O’Connor has the reputation of deciding an issue on her “gut,” then finding legal justifications for supporting her decision. Unbeknownst to anyone outside the Court, O’Connor has already made up her mind. Gore lawyers in particular will spend endless hours trying to craft arguments to sway her vote, when the actual case will come down to Justice Anthony Kennedy, who originally wanted to accept the case. Many clerks of both liberal and conservative justices have little respect or regard for Kennedy. They consider him, according to a 2004 Vanity Fair article, “pompous and grandiloquent.” They believe he fills his office with elaborate, expensive decorations and trappings, including an elaborate chandelier, to give the idea of his power and importance. “The clerks saw his public persona—the very public way in which he boasted of often agonizing over decisions—as a kind of shtick, a very conspicuous attempt to exude fairness and appear moderate, even when he’d already made up his mind,” according to the Vanity Fair article. Conservative clerks suspect Kennedy of untoward liberal leanings, and have taken steps to ensure that the clerks he receives are ideologically sound. One liberal clerk later explains the conservative justices’ reasoning, saying, “The premise is that he can’t think by himself, and that he can be manipulated by someone in his second year of law school.” By now, Kennedy is surrounded by clerks from the hard-right Federalist Society. “He had four very conservative, Federalist Society white guys, and if you look at the portraits of law clerks on his wall, that’s true nine times out of 10,” another liberal law clerk will recall. “They were by far the least diverse group of clerks.” The conservative and liberal clerks do not socialize with one another as a rule, so it is unusual when, a day after the clerk dinner, Kevin Martin, a clerk for conservative justice Antonin Scalia, visits Stevens’s chambers. Martin went to Columbia Law School with Stevens’s clerk Anne Voigts, and he wants to see if he can explain to her the conservatives’ judicial point of view. However, two other Stevens clerks, Eduardo Penalver and Andrew Siegel, believe Martin is on some sort of reconnaissance mission, attempting to find out what grounds Stevens will cite to argue against overturning the Florida decision. Penalver and Siegel believe Martin is trying to manipulate Voigts, and Martin, after telling them to “F_ck off!” storms out of Stevens’s chambers. Clerks from O’Connor’s staff pay similar visits to other liberal justices, though these conversations do not end so contentiously. [Vanity Fair, 10/2004] O’Connor said to partygoers when the news networks announced the election for Al Gore, “This is terrible” (see After 7:50 p.m. November 7, 2000).

Entity Tags: Eduardo Penalver, Anthony Kennedy, Anne Voigts, Andrew Siegel, Albert Arnold (“Al”) Gore, Jr., David Souter, US Supreme Court, Vanity Fair, Sandra Day O’Connor, George W. Bush, Florida Supreme Court, Federalist Society, Antonin Scalia, Kevin Martin, John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer

Timeline Tags: 2000 Elections, Civil Liberties

Democrats for the presidential campaign of Al Gore file papers in the Florida Supreme Court asking the Court to order an immediate hand recount of some 14,000 disputed “undervote” ballots in two heavily Democratic Florida counties, Miami-Dade and Palm Beach (see November 28 - December 2, 2000). Any delay, the Gore lawyers argue, would make it a “virtual impossibility” to resolve the issue by the December 12 deadline for presidential certification. On December 1, the Court will reject the request. [Supreme Court of Florida, 12/1/2000 pdf file; US News and World Report, 12/13/2000; Leip, 2008]

Entity Tags: County of Miami-Dade (Florida), County of Palm Beach (Florida), Al Gore presidential campaign 2000

Timeline Tags: 2000 Elections

The US Supreme Court hears oral arguments on the Bush presidential campaign’s challenge on constitutional grounds of Florida Supreme Court’s ruling on selective manual recounts (see November 20-21, 2000). The case is Bush v. Palm Beach Canvassing Board. Throngs of protesters surround the Supreme Court building. Inside, the justices’ questions indicate that they are divided on the legality of the Florida high court’s intervention, and some justices seem to think that Florida courts should resolve the issue. Justice Anthony Kennedy says, “We’re looking for a federal issue.” Justice Stephen Breyer asks, “What’s the consequence of our going one way or the other now in this case?” Observers will later describe Laurence Tribe, an experienced Supreme Court litigator representing the Gore campaign, as listless and flat, while Theodore Olson, arguing the Bush campaign’s case, is “more impressive.” Chief Justice William Rehnquist and Justice Antonin Scalia give the impression that they believe the Florida Supreme Court encroached on the Florida legislature’s bailiwick. Justices Kennedy and Sandra Day O’Connor (see After 7:50 p.m. November 7, 2000 and (November 29, 2000)) express their irritation with the Gore arguments. When the arguments are over, the justices meet in chambers for the usual conference. At one end of the argument is Scalia, who wants to overturn the Florida decision and in essence award George W. Bush the election, and at the other, Justice John Paul Stevens, who wants the Court to stay out of the case altogether. Neither justice can command a majority among the other seven. Rehnquist begins drafting a ruling asking the Florida high court to clarify its ruling, to cite the state constitution in its decision (which the Bush team had argued would have been improper), or under state law (which the Bush team had found arguably permissible). All nine justices eventually sign onto Rehnquist’s opinion. A 2004 Vanity Fair article will observe: “The unanimity was, in fact, a charade; four of the justices had no beef at all with the Florida Supreme Court, while at least four others were determined to overturn it. But this way each side could claim victory: the liberal-to-moderate justices had spared the Court a divisive and embarrassing vote on the merits, one they’d probably have lost anyway. As for the conservatives, by eating up Gore’s clock—Gore’s lawyers had conceded that everything had to be resolved by December 12—they had all but killed his chances to prevail, and without looking needlessly partisan in the process. With the chastened Florida court unlikely to intervene again, the election could now stagger to a close, with the Court’s reputation intact, and with Bush all but certain to win.” On December 4, in a setback for the Gore campaign, the Court unanimously sets aside the Florida Supreme Court ruling and remands for clarification the Florida Supreme Court’s decision. [Supreme Court of the United States, 12/4/2000; US News and World Report, 12/13/2000; Pittsburgh Post-Gazette, 12/17/2000; Vanity Fair, 10/2004; Leip, 2008]

Entity Tags: George W. Bush, Antonin Scalia, Anthony Kennedy, Albert Arnold (“Al”) Gore, Jr., Al Gore presidential campaign 2000, Florida Supreme Court, William Rehnquist, Sandra Day O’Connor, US Supreme Court, County of Palm Beach (Florida), Laurence Tribe, John Paul Stevens, Theodore (“Ted”) Olson, George W. Bush presidential campaign 2000, Vanity Fair, Stephen Breyer

Timeline Tags: 2000 Elections

Leon County, Florida, Judge N. Saunders Sauls rules against the Gore campaign in the recount issue (see November 28 - December 2, 2000), saying that manual recounts in Miami-Dade and Palm Beach Counties are not warranted, and the Nassau County vote totals should stand. Sauls also refuses to block Florida’s certification of George W. Bush as the Florida presidential winner (see 7:30 p.m. November 26, 2000). The London Guardian calls the ruling a “crushing blow” to Al Gore’s chances of winning the disputed election. Sauls rules that there is “no credible statistical evidence and no other competent substantial evidence” to establish a reasonable probability that Gore might win if granted a hand recount of the undervotes. “This court… concludes the evidence does not establish any illegality, dishonesty, improper influence, coercion, or fraud in the balloting and counting processes,” Sauls rules. The ruling also restores Bush’s 930-vote lead that existed before recount numbers were taken into account (see November 18, 2000). After Saul’s ruling, Gore’s lead attorney David Boies says the campaign will appeal the ruling to the Florida Supreme Court, and that the campaign had always assumed the case would end up in that court. “What has happened today is that we have moved one step closer to having this finally resolved,” he tells reporters, but admits that in this instance, “They won, we lost.” Boies notes that after the incredible effort expended to bring over a million ballots to Sauls’s courtroom, the judge never looked at them. “The ballots were the best evidence of the intents of the voters,” Boies says. “This was the first court in an election contest where the court has refused to look at the ballots.” The Florida high court will hear the appeal on December 7. [Circuit Court of the Second Judicial Circuit, In and For Leon County, Florida, 12/4/2000 pdf file; Guardian, 12/5/2000; US News and World Report, 12/13/2000; Pittsburgh Post-Gazette, 12/17/2000; Leip, 2008]

Entity Tags: Florida Supreme Court, Albert Arnold (“Al”) Gore, Jr., Al Gore presidential campaign 2000, County of Leon (Florida), County of Palm Beach (Florida), George W. Bush presidential campaign 2000, N. Saunders Sauls, George W. Bush, County of Miami-Dade (Florida)

Timeline Tags: 2000 Elections

David Boies.David Boies. [Source: BBC]The Florida Supreme Court hears arguments from both the Gore and Bush presidential campaigns in Al Gore’s appeal of a ruling that rejected his campaign’s request to mandate recounts in three Florida counties (see 9:00 a.m. November 30, 2000 and After). Bush campaign lawyer Barry Richard argues that there is no “evidence to show that any voter was denied the right to vote” and calls the Gore campaign’s contest “a garden-variety appeal.” Gore lawyer David Boies contends that while time is running out, “the ballots can be counted” before the December 12 deadline for naming electors. In a 4-3 decision, the Court reverses the decisions of Judge N. Saunders Sauls (see 4:43 p.m. December 4, 2000), ordering recounts of “undervotes” in Miami-Dade and Palm Beach counties as well as all other Florida counties that have not yet manually recounted undervotes. “Undervotes” are noted on ballots that were not recorded by voting machines as making a choice for president. The Court also directs the lower court to add 168 votes from Miami-Dade and 215 votes from Palm Beach to Gore’s state totals, narrowing the George W. Bush lead to a mere 154 votes. London’s Guardian observes, “That margin could easily be overturned with a recount of the disputed ballots which mainly came from Democratic precincts in Miami-Dade.” Perhaps 45,000 undervotes statewide remain to be counted. Bush campaign attorney James Baker says the Court’s ruling may “disenfranchise Florida’s votes in the Electoral College.” Congressional Democrats Richard Gephardt (D-MO) and Tom Daschle (D-SD) release a joint statement calling for a “full, fair, and accurate vote count,” and saying there is “more than enough time to count ballots cast but never counted.” Within hours, Bush lawyers ask the US Supreme Court for an emergency stay of the decision, which will be granted (see December 8-9, 2000). [Supreme Court of Florida, 12/8/2000 pdf file; Guardian, 12/9/2000; US News and World Report, 12/13/2000; Pittsburgh Post-Gazette, 12/17/2000; Leip, 2008] The Court decision is also seen as something of a repudiation of the Supreme Court’s earlier decision for clarification (see 10:00 a.m. December 1 - 4, 2000). Clerks for the Supreme Court justices are now certain that their Court will decide the presidential election. Justice Antonin Scalia, the most implacable of the conservative justices determined to overturn the Florida high court and give the election to Bush, wants to grant the Bush request for a stay even before receiving the Gore lawyers’ response, a highly unusual request that is not granted. He argues that the manual recounts are in and of themselves illegitimate, and says the recounts will cast “a needless and unjustified cloud” over Bush’s legitimacy. It is essential, he says, to shut down the process immediately. Clerks for both the liberal and conservative justices are amazed, and some appalled, at how bluntly Scalia is pushing what appears to be a partisan agenda. [Vanity Fair, 10/2004]

Entity Tags: David Boies, Barry Richard, Antonin Scalia, Al Gore presidential campaign 2000, County of Palm Beach (Florida), US Supreme Court, Richard Gephardt, The Guardian, N. Saunders Sauls, Tom Daschle, James A. Baker, George W. Bush presidential campaign 2000, Florida Supreme Court, County of Miami-Dade (Florida)

Timeline Tags: 2000 Elections

The Bush campaign seeks stays in the Florida Supreme Court, the Eleventh Circuit Court of Appeals, and the US Supreme Court regarding the acceptance of 43,852 “undervote” recounts in Florida counties. Most importantly, the Bush campaign also asks the US Supreme Court for a writ of certiorari, which would declare its candidate the winner of the Florida presidential election. Both the Florida Supreme Court and Eleventh Appeals Court refuse to issue the stay. Most observers believe that if the recounts are completed and their vote totals tabulated, Democrat Al Gore will win enough votes to win Florida, and thusly become president. Currently Republican George W. Bush has a mere 193-vote lead (see December 7-8, 2000), and recount totals from Miami-Dade County alone are expected to give Gore more than this amount. One example of the problematic situation in Florida is with Duval County, which includes the city of Jacksonville, where claims of massive African-American disenfranchsement and discrimination (see November 7, 2000) have already tainted the balloting. Duval has 4,967 undervotes, but they are mixed in with 291,000 others, all stored in boxes in a vault. The all-Republican electoral board, as seen on national television, has begun examining ballots, but as The Guardian observes, “with such painstaking reluctance to proceed, it amounted to an effective filibuster.” Democratic spokeswoman Jenny Backus tells reporters, “What we’ve heard is that they’re going to try to slow this down by every means they can.” However, the US Supreme Court issues the requested stay and the undervote tabulation stops. The Court does not issue the requested writ of certiorari. [Supreme Court of the United States, 12/8/2000 pdf file; Supreme Court of the United States, 12/9/2000 pdf file; Guardian, 12/10/2000; Pittsburgh Post-Gazette, 12/17/2000; Leip, 2008] The divide among the nine US Supreme Court justices is plain. The five conservative justices, led by Antonin Scalia, have since December 4 been circulating memos among themselves and their clerks, bouncing various arguments off one another in what the liberal justices’ clerks feel is an attempt to audition and solidify their arguments in favor of overturning the Florida high court’s decision and giving the presidency to Bush. The four liberal justices, led by John Paul Stevens, have long felt that the Court had no business being involved in the issue, that it was instead up to the Florida judiciary and legislature to settle the matter. Stevens, writing the anticipated dissent for the minority, has to ask the majority for more time to complete his dissent, so eager are they to issue their ruling. When Scalia sees in Stevens’s dissent the line that says, “counting every legally cast vote cannot constitute irreparable harm”—a direct rebuke to Scalia’s earlier argument that the Florida recounts would do “irreparable harm” to a Bush presidency—Scalia inadvertently delays the proceedings to write his own angry rejoinder, which reads in part, “Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.” Scalia’s nakedly partisan stance discomfits even some of the other conservative justices’ clerks and angers the liberal clerks. “The Court had worked hard to claim a moral high ground, but at that moment he pissed it away,” one later recalls. “And there was a certain amount of glee. He’d made our case for us to the public about how crassly partisan the whole thing was.” After Scalia finishes his rejoinder, the Court issues its stay, stopping all further recounts. Gore himself, unaware of the arguments and partisanship dividing the Court, still holds out hope that one of the conservatives—O’Connor or Anthony Kennedy, perhaps (see After 7:50 p.m. November 7, 2000 and (November 29, 2000))—can be reached. “Please be sure that no one trashes the Court,” he admonishes his staffers. Gore decides to have campaign lawyer David Boies instead of Laurence Tribe argue the campaign’s case in the upcoming arguments, perhaps hoping that Boies, more moderate than the outspokenly liberal Tribe, might win some support from either Kennedy or O’Connor. Boies has also been representing Gore in Florida, and can presumably reassure the justices of the fundamental fairness of what is happening there. The liberal clerks have no such illusions. What hopes they have now are pinned on the press. One has heard a rumor that the Wall Street Journal is preparing to publish a story reporting that O’Connor had been overheard at a dinner party expressing her opposition to a Gore presidency; that report, the clerks hope, might force O’Connor to recuse herself from the decision and tie the court at 4-4. However, O’Connor has no such intention. Gore’s lawyers, aware of O’Connor’s statements, consider asking her to recuse herself, but decide instead to restrain themselves in hopes that she will, according to a 2004 Vanity Fair article, “now lean toward them to prove her fairness.” [Vanity Fair, 10/2004]

Entity Tags: County of Miami-Dade (Florida), Wall Street Journal, County of Duval (Florida), Anthony Kennedy, Albert Arnold (“Al”) Gore, Jr., Al Gore presidential campaign 2000, US Supreme Court, The Guardian, John Paul Stevens, Laurence Tribe, George W. Bush presidential campaign 2000, George W. Bush, Sandra Day O’Connor, Florida Supreme Court, Jenny Backus, Antonin Scalia, David Boies

Timeline Tags: 2000 Elections

Florida Judge Terry Lewis orders that Florida counties complete their manual recounts by 2:00 p.m. December 10. Lewis’s ruling comes in the wake of the Florida Supreme Court ordering immediate “undervote” recounts (see December 7-8, 2000). Before Lewis’s deadline can be reached, the US Supreme Court will issue a stay of the Florida high court’s ruling (see December 8-9, 2000), rendering Lewis’s deadline moot. [US News and World Report, 12/13/2000]

Entity Tags: Florida Supreme Court, Terry Lewis, US Supreme Court

Timeline Tags: 2000 Elections

As per a Florida Supreme Court ruling (see December 7-8, 2000), Florida counties begin a statewide manual recount of “undervote” ballots before the US Supreme Court issues a stay halting the recounts (see December 8-9, 2000). [Leip, 2008]

Entity Tags: US Supreme Court, Florida Supreme Court

Timeline Tags: 2000 Elections

An artist’s rendition of the nine Court justices hearing oral arguments in the ‘Bush v. Gore’ case.An artist’s rendition of the nine Court justices hearing oral arguments in the ‘Bush v. Gore’ case. [Source: Authentic History]The US Supreme Court begins hearing oral arguments in the lawsuit Bush v. Gore on the Florida recounts and election results. The Bush campaign has challenged the legality of a Florida Supreme Court ruling mandating the recounting of “undervote” ballots (see December 7-8, 2000). Bush lawyers argue that manual recounts violate the Constitution’s mandate of equal protection. Gore lawyers argue that the overriding issue is the importance of counting each vote cast. By the afternoon, the public is hearing the arguments via audiotapes. Justice Antonin Scalia, one of the Court’s most hardline conservatives, drew criticism when he said in an earlier opinion that the majority of the Court believed that George W. Bush had “a substantial probability of success,” a conclusion disputed by other justices such as John Paul Stevens. Scalia now says that he is inclined to vote in favor of Bush because, he says, “the counting of votes that are of questionable legality does in my view threaten irreparable harm [to Bush]” (see December 8-9, 2000). [Guardian, 12/11/2000; US News and World Report, 12/13/2000; Pittsburgh Post-Gazette, 12/17/2000; Leip, 2008]
Kennedy Determines that 'Equal Protection' Is Key to Reversing Florida Decision - Al Gore’s lawyers, led by David Boies, believe that one of the Bush team’s arguments is flawed: the idea that the Florida Supreme Court exceeded its bounds restricts one appellate court far more than another appellate court is willing to condone. Unbeknownst to the Gore lawyers, Justice Anthony Kennedy agrees with the Gore team on this issue. Kennedy has no intention of finding in favor of the Gore position, but he does want the other four conservatives on the bench to come together behind the Bush argument that using different standards for ballot evaluation in different counties violates the equal-protection clause of the Constitution, an argument that most of the justices, litigants, and clerks have not considered up until now. As a practical matter, enforcing a single standard of ballot evaluation among the disparate Florida counties would be virtually impossible. And the Court under the leadership of Chief Justice William Rehnquist has, until now, been reluctant to interpret the equal-protection clause except in the narrowest of circumstances. Neither the Bush nor the Gore lawyers had given that argument a lot of attention, but it will prove the linchpin of the Court’s majority decision. As oral arguments proceed, and Kennedy pretends to not understand why this is a federal argument, clerks for the liberal justices find themselves sourly amused at Kennedy’s pretense. “What a joke,” one says to another. When Kennedy cues Bush lawyer Theodore Olson that he is interested in the equal protection clause as an argument—“I thought your point was that the process is being conducted in violation of the equal-protection clause, and it is standardless”—Olson quickly pivots and begins building his case under that rubric. Liberal justices Stephen Breyer and David Souter use the equal-protection argument to suggest that the best and simplest solution is simply to remand the case back to the Florida Supreme Court and ask it to set a uniform standard. Breyer has been working for days to convince Kennedy to join the four liberals in sending the case back to Florida, and for a time during the oral arguments, believes he may have succeeded. The liberal clerks have no such hopes; they believe, correctly, that Kennedy is merely pretending to consider the option. “He probably wanted to think of himself as having wavered,” one clerk later says. A brief private chat with Scalia and his clerks during oral arguments may have swayed Kennedy back into the fold, assuming he is wavering at all.
Demands for Identical Standards among All Florida Counties - Justice Sandra Day O’Connor (see After 7:50 p.m. November 7, 2000 and (November 29, 2000)) rails at Boies over the idea that the 67 counties cannot all have the same standards of ballot evaluation, and shows impatience with Boies’s explanation that for over 80 years, the Florida courts have put the idea of “voter intent” over identical ballot identification standards. [Vanity Fair, 10/2004]

Entity Tags: David Souter, David Boies, Anthony Kennedy, Albert Arnold (“Al”) Gore, Jr., Al Gore presidential campaign 2000, William Rehnquist, US Supreme Court, Sandra Day O’Connor, Stephen Breyer, Theodore (“Ted”) Olson, George W. Bush, George W. Bush presidential campaign 2000, John Paul Stevens, Florida Supreme Court, Antonin Scalia

Timeline Tags: 2000 Elections

The US Supreme Court issues a ruling in Bush v. Gore (see December 11, 2000) that essentially declares George W. Bush (R-TX) the winner of the Florida presidential election, and thusly the winner of the US presidential election (see Mid-to-Late November 2000). The decision in Bush v. Gore is so complex that the Court orders that it not be used as precedent in future decisions. The 5-4 decision is split along ideological lines, with Justices Sandra Day O’Connor (see After 7:50 p.m. November 7, 2000 and (November 29, 2000)) and Anthony Kennedy, two “moderate conservatives,” casting the deciding votes. In the per curium opinion, the Court finds: “Because it is evident that any recount seeking to meet the Dec. 12 date will be unconstitutional… we reverse the judgment of the Supreme Court of Florida ordering the recount to proceed.… It is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work.” The decision says that the recounts as ordered by the Florida Supreme Court suffer from constitutional problems (see December 7-8, 2000). The opinion states that differing vote-counting standards from county to county and the lack of a single judicial officer to oversee the recount violate the equal-protection clause of the Constitution. The majority opinion effectively precludes Vice President Al Gore from attempting to seek any other recounts on the grounds that a recount could not be completed by December 12, in time to certify a conclusive slate of electors. The Court sends the case back to the Florida Supreme Court “for further proceedings not inconsistent with this opinion.” Four justices issue stinging dissents. Justice John Paul Stevens writes: “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.” Justice Stephen G. Breyer adds that “in this highly politicized matter, the appearance of a split decision runs the risk of undermining the public’s confidence in the court itself.” [Per Curiam (Bush et al v. Gore et al), 12/12/2000; US News and World Report, 12/13/2000; Pittsburgh Post-Gazette, 12/17/2000; Leip, 2008]
Drafting Opinions - After oral arguments concluded the day before, Chief Justice William Rehnquist said that if they were to remand the case back to Florida, that order must go out immediately in light of the approaching deadline for certification of results; Stevens quickly wrote a one-paragraph opinion remanding the case back to Florida and circulated it, though with no real hope that it would be adopted. The five conservative justices are determined to reverse the Florida decision. For the rest of the evening and well into the next day, December 12, the justices work on their opinions. Stevens prepares the main dissent, with the other three liberal justices preparing their own concurrences. Stevens and Justice Ruth Bader Ginsburg find no support whatsoever for the equal-protection argument, and say so in their writings. Justices Breyer and David Souter give the idea some weight; Souter says that the idea of uniform standards is a good one, but these standards should be created and imposed by the Florida judiciary or legislature. Stopping the recounts solves nothing, he writes. It soon becomes apparent that neither Kennedy nor O’Connor share Rehnquist’s ideas on the jurisdiction of the Florida court, and will not join him in that argument. Kennedy writes the bulk of the majority opinion; as predicted, his opinion focuses primarily on the equal-protection clause of the Constitution. The liberal justices and clerks find Kennedy’s reasoning that stopping the recounts is the only way to ensure equal protection entirely unconvincing. Anthony Scalia circulates a sealed memo complaining about the tone of some of the dissents, asking that the dissenters not call into question the Court’s credibility. (His memo prompts Ginsburg to remove a footnote from her dissent commenting on Florida’s disenfranchised African-American voters; some of the liberal clerks see the incident as Ginsburg being bullied into compliance by Scalia. Subsequent investigations show that thousands of legitimate African-Americans were indeed disenfranchised—see November 7, 2000.) Kennedy sends a memo accusing the dissenters of “trashing the Court,” and says that the dissenters actually agree with his equal-protection argument far more than they want to admit. When he has a line inserted into his opinion reading, “Eight Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy,” some of Stevens’s clerks angrily telephone Kennedy’s clerks and accuse them of misrepresenting Stevens’s position. They demand that the line be removed. Kennedy refuses, and Stevens rewrites his opinion so that he is no longer associated with the position. Kennedy is forced to rewrite the statement to say that “seven,” not “eight” justices agree with his position. One of Stevens’s clerks, Eduardo Penalver, tells Kennedy clerk Grant Dixton that what Kennedy had done was disgusting and unprofessional. Breyer and his clerks are also unhappy about Kennedy’s assertion, but take no action. The line prompts many in the media to claim, falsely, that the decision is a 7-2 split and not a 5-4. The main document, a short unsigned opinion halting the recounts, is written by Kennedy. Two portions are particularly notable: Kennedy’s assertion that the ruling applies only to Bush, and not to future decisions; and that the Court had only reluctantly accepted the case. “That infuriated us,” one liberal clerk later recalls. “It was typical Kennedy bullsh_t, aggrandizing the power of the Court while ostensibly wringing his hands about it.” Rehnquist, Scalia, and Justice Clarence Thomas join the decision, though Scalia is unimpressed with Kennedy’s writing and reasoning. Reportedly, he later calls it a “piece of sh_t,” though he will deny making the characterization.
Lack of Consensus - The lack of consensus between the conservative justices is relatively minor. Among the four liberal justices, though, it is quite pronounced—though all four wish not to end the recounts, only Stevens has a strong position and has stayed with it throughout the process. Souter, Ginsburg, and Breyer were far less certain of their opposition, and resultingly, their dissents, unlike the impassioned Stevens dissent, are relatively pallid. Some of the liberal clerks say that the four’s lack of consensus helped the solid conservative majority stay solid: “They gave just enough cover to the five justices and their defenders in the press and academia so that it was impossible to rile up the American people about these five conservative ideologues stealing the election.”
Final Loss - Gore, reading the opinion, finally realizes that he and his campaign never had a chance with the five conservative justices, though they had hoped that either O’Connor or Kennedy would join the four liberals (see (November 29, 2000)). He congratulates his legal team, led by David Boies, and commends it for making it so difficult for the Court to justify its decision. Some reports will circulate that Souter is depressed over the decision, with Newsweek reporting that he later tells a group of Russian judges that the decision was “the most outrageous, indefensible thing” the Court had ever done. He also reportedly says that had he had “one more day,” he could have convinced Kennedy to turn. However, Souter will deny the reports, and those who know him will say that such comments would be out of character for him. For her part, O’Connor will express surprise that anyone could be angry over the decision. As for Scalia, some Court observers believe that his open partisanship during the process will cost him any chance he may have had to be named chief justice. [Vanity Fair, 10/2004]

Entity Tags: David Souter, William Rehnquist, David Boies, Anthony Kennedy, Albert Arnold (“Al”) Gore, Jr., Al Gore presidential campaign 2000, US Supreme Court, Stephen Breyer, Ruth Bader Ginsburg, Clarence Thomas, George W. Bush presidential campaign 2000, George W. Bush, Florida Supreme Court, John Paul Stevens, Grant Dixton, Sandra Day O’Connor, Eduardo Penalver

Timeline Tags: 2000 Elections, Civil Liberties

Supreme Court Chief Justice William Rehnquist (see September 26, 1986), 80, dies after a ten-month battle with thyroid cancer. He will be replaced by John Roberts (see September 29, 2005), who formerly clerked for him. Rehnquist’s term as Chief Justice marked a “sea change” in the direction of the Court. Former Clinton solicitor general Walter Dellinger says: “It is quite clear that there are three dominant chief justices of American history, and they are John Marshall, Earl Warren, and William H. Rehnquist. I think that there’s just no question that he’s of enormous historical importance.” Conservative law professor and former Reagan Justice Department official Douglas Kmiec, a co-founder of the Federalist Society, says that Rehnquist presided over a “sea change” in the Court, taking it sharply to the right. [National Public Radio, 7/20/2005; Legal Times, 9/5/2005; Dean, 2007, pp. 129-137]

Entity Tags: William Rehnquist, US Supreme Court, Walter Dellinger, John G. Roberts, Jr, Douglas Kmiec, John Marshall, Earl Warren

Timeline Tags: Civil Liberties

John Roberts.John Roberts. [Source: In These Times]John Roberts is approved by the Senate to become the new chief justice of the US Supreme Court, replacing the recently deceased William Rehnquist (see September 5, 2005). Roberts, who once clerked for Rehnquist while Rehnquist was an associate justice, also served in the Reagan Justice Department and as an associate counsel to then-President Reagan. He was deputy solicitor general in the first Bush administration. George W. Bush appointed him to the DC Circuit Court in 2001. [White House, 9/29/2005] Roberts was originally nominated to succeed the retiring Sandra Day O’Connor, but when Rehnquist died, Bush quickly withdrew the nomination for associate justice and refiled Roberts’s name for chief justice.
Characteristics and History - Roberts appeals to conservatives for a number of reasons; he has a powerful legal intellect, is soft-spoken, personable, and telegenic, and has not been outspoken about his views on issues like abortion and the right to privacy. Law professor Stephen Wermiel, who knows Roberts well, said in July that Roberts is not “somebody who… comes off as gruff or overbearing, which some people will recall was a factor in the [Robert] Bork hearings in 1987” (see July 1-October 23, 1987). Wermiel called Roberts’s nomination “a stroke of brilliance on the White House’s part.” One area of controversy surrounds Roberts’s work with Governor Jeb Bush of Florida during the bitterly contested 2000 presidential election, where Roberts helped construct the strategies used in the Bush v. Gore case that awarded George W. Bush the presidency. Another is Roberts’s membership in the Federalist Society, an organization of conservative activist judges, lawyers, and legal thinkers. A third is his advocacy, during his time with the first Bush administration, for scrapping decades of law providing for the separation of church and state in order to allow prayer in public schools. [National Public Radio, 7/20/2005] Four days before President Bush nominated him to the Court, Roberts voted in favor of upholding the Bush administration’s assertions about its wartime powers in the case of Hamdan v. Rumsfeld (see June 30, 2006), ruling that Bush need not consult Congress before setting up military commissions, and ruling that Bush is not bound by the strictures of the Geneva Convention. Liberals are unhappy with his stance against abortion, his representation as a private attorney of corporate mining interests seeking to dodge environmental regulations and of businesses trying to evade affirmative action requirements, as well as his attempts to curb environmentalists’ efforts to save endangered species. In 2007, reporter Charlie Savage will write that while progressives and liberals busily attacked Roberts for his positions on various “hot-button” issues, “[a]lmost lost amid the hubbub was” Roberts’s “unwavering commitment to the [expansion of] presidential power,” dating back to his 1980-81 clerkship under Rehnquist and his tenure as a White House lawyer under Ronald Reagan (see June-July 1983, October 1983, February 13, 1984, and May 16, 1984). [Savage, 2007, pp. 251-255]
Quick Confirmation - The Senate agreed to expedite Roberts’s confirmation process in order to allow him to preside over the next session of the Supreme Court in October, and so gave its members little time to peruse his record. Roberts sailed through the Senate Judiciary Committee hearings, and is confirmed by a 78-22 vote. Roberts hit a brief snag when he divulged that he had met with Attorney General Alberto Gonzales just six days before hearing oral arguments in the Hamdan case, had met with Vice President Cheney and a select coterie of top White House officials while considering his verdict, and had met with Bush for the president’s final approval on the Court nomination the same day that he handed down his favorable ruling. Though 22 Democrats vote against his confirmation, because Roberts’s ascension to the Court does not change the ideological balance among the nine justices (Roberts is replacing the equally conservative Rehnquist), Senate Democrats decided not to filibuster his nomination. [Dean, 2007, pp. 154-155; Savage, 2007, pp. 252]

Entity Tags: US Department of Justice, Stephen Wermiel, Senate Judiciary Committee, Federalist Society, George W. Bush, Charlie Savage, John G. Roberts, Jr, US Supreme Court

Timeline Tags: Civil Liberties

Harriet Miers.Harriet Miers. [Source: Harpers.org]After President Bush successfully places conservative judge John Roberts as chief justice of the Supreme Court (see September 29, 2005), he names White House counsel and personal friend Harriet Miers to replace the retiring Sandra Day O’Connor on the Court.
Firestorm of Criticism - The media reacts adversely to this; Miers is said to be insufficiently qualified for the position and to have been chosen because of her loyalty to Bush. Her nomination is further derailed by opposition from hard-line conservatives, who do not believe she is conservative enough in her beliefs, particularly on abortion. Miers is certainly a weak choice from most viewpoints—she has no constitutional law experience and lacks a reputation as a strong legal thinker. She has never been a judge, nor even published an academic law journal article. Even conservative stalwart Robert Bork, who is still a center of controversy from his failed Court nomination (see July 1-October 23, 1987), calls Miers’s nomination “a disaster on every level.” When a letter Miers had written Bush for his birthday in 1997 is published in the media—in which Miers gushed over Bush in breathless, almost schoolgirlish prose, calling him “cool!” and “the best governor ever!”—the derision hits a fever pitch. When she submits a questionnaire to the Senate Judiciary Committee listing her background and qualifications for the job, a questionnaire almost devoid of pertinent and specific information, the ranking members of the committee threaten to have her do it over, a humiliation she avoids by withdrawing her name from consideration.
Trumped-Up Dispute over Executive Privilege - The Senate asks to see Miers’s White House memos to judge the quality of her legal work, and the White House refuses, citing executive privilege. Many view the dispute as a trumped-up conflict designed to allow the Bush administration to save what little face it can in the debacle; neoconservative columnist Charles Krauthammer had suggested engineering just such a “conflict” to stage “irreconcilable differences over documents” that would allow the Bush White House to withdraw Miers’s nomination over the issue.
Withdrawal - Miers indeed asks Bush to withdraw her nomination, and Bush cites the documents dispute in announcing the decision to pull Miers from consideration: “It is clear that senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House—disclosures that would undermine a president’s ability to receive candid counsel,” Bush says. “Harriet Miers’s decision demonstrates her deep respect for this essential aspect of the Constitutional separation of powers—and confirms my deep respect and admiration for her.” Bush settles on another nominee, Samuel Alito, to replace O’Connor (see October 31, 2005 - February 1, 2006). [Savage, 2007, pp. 262-266; Dean, 2007, pp. 155]
Staunch Advocate for Expanded Executive Power - In 2007, reporter and author Charlie Savage will write that, in his view, the Bush administration chose Miers for a simple reason: she is a staunch advocate for the continued expansion of presidential power. “Miers… could be counted on to embrace Bush’s expansive view of presidential powers,” he will write. Miers is quite loyal to Bush “and, through him, the institution he represented.” Miers’s adoration of Bush on a personal level would further guarantee her “solid support for any presidential claim of power that might come before the Court,” he will write. “Like Roberts before her, she was an executive branch lawyer who identified with the task of defending the prerogatives of the president.” On the questionnaire she submits to the Senate Judiciary Committee, Miers writes that as White House counsel, she has gained significant constitutional experience in “presidential prerogatives, the separation of powers, executive authority, and the constitutionality of proposed regulations and statutes.… My time serving in the White House, particularly as counsel to the president, has given me a fuller appreciation of the role of the separation of powers in maintaining our constitutional system. In that role, I have frequently dealt with matters concerning the nature and role of the executive power.” [Savage, 2007, pp. 265-267]

Entity Tags: US Supreme Court, John G. Roberts, Jr, Sandra Day O’Connor, Samuel Alito, Senate Judiciary Committee, Harriet E. Miers, Charlie Savage, George W. Bush, Bush administration (43), Charles Krauthammer, Robert Bork

Timeline Tags: Civil Liberties

President Bush, stung by the opposition from both left and right that derailed his nomination of Harriet Miers for the Supreme Court (see October 3-27, 2005), nominates appeals court judge Samuel Alito to the Court to replace the retiring Sandra Day O’Connor. [Dean, 2007, pp. 155-157]
Staunch Advocate of Expanding Presidential Power - Alito has impeccable credentials, especially in contrast to the widely derided Miers. He is a graduate of Yale Law School, a long-time member of the conservative Federalist Society, and has years of decisions behind him as an appellate court judge. He is a product of the Reagan-era Justice Department. Bush calls him “one of the most accomplished and respected judges in America.” He is a powerful anti-abortion advocate, and a staunch supporter of granting ever more power to the executive branch, especially at the expense of the legislative and judicial branches. During his time in the Reagan Justice Department, he worked on a project to “increase the power of the executive to shape the law.” In 2000 he called the “unitary executive theory” (see April 30, 1986) the “gospel according to the OLC,” the Justice Department’s Office of Legal Counsel, where he worked for four years, and said he was firmly committed to advancing that theory. [Savage, 2007, pp. 267-271]
Bland Facade at Hearings - Alito receives a unanimous “well qualified” assessment from the American Bar Association, and the Bush administration expects that his nomination will sail through the Senate confirmation hearings as quickly and painlessly as did Bush’s previous choice for the Court, John Roberts (see September 29, 2005). The hearings are more contentious than Bush would like, and former Nixon White House counsel John Dean will say in 2007 that Alito’s performance before the Judiciary Committee “only served to confirm that the entire process has become little more than a great charade.” Senator Edward Kennedy (D-MA), one of the longest-serving members of the committee, observes that the Bush administration believes—correctly—that it can nominate radical right-wing extremists to the Court virtually at will, “as long as their views were not well known,” and adds, “[T]he current White House [has] turned the effort to hide nominees’ views into an art form.” Like Roberts, Alito presents a bland, non-confrontational facade to the committee (see January 9-13, 2006), refusing to take a personal stance on any issue and giving the impression that, as Kennedy will say after Alito and Roberts begin their service on the Court, he would be “as neutral as a baseball umpire.… The men who promised to be neutral umpires look more and more like loyal members of the president’s team.” [Dean, 2007, pp. 155-157]
Party-Line Confirmation - After an attempt by Senators Kennedy and John Kerry (D-MA) to filibuster Alito’s confirmation fails, the Senate confirms Alito’s ascension to the Court by a near-party line 58-42 vote, the closest such vote since Clarence Thomas’s (see October 13, 1991). Senator Orrin Hatch (R-UT) condemns what he calls the “very bitter partisanship” over Alito’s nomination, and accuses Democrats of playing politics: “When you have a man who has the decency, the legal ability and the capacities that Judge Alito has treated this way, I think it’s despicable.” Alito, whose hardline conservative beliefs are sufficiently masked during the hearings, replaces the far more moderate O’Connor, who before her retirement made up the “moderate center” of the Court with Justices Anthony Kennedy and David Souter. Now Alito joins Thomas, Roberts, and Antonin Scalia to form a hard-right conservative bloc on the Court which, when joined by center-right conservative Kennedy, forms a nearly unshakable conservative majority. [CNN, 2/1/2006]
Overturning Roe? - Many believe that Alito gives the Court the fifth vote it needs to finally overturn the landmark abortion case Roe v. Wade (see January 22, 1973), a longtime goal of social conservatives that would go far to make abortions illegal in the US. [Slate, 10/31/2005]

Entity Tags: Orrin Hatch, Sandra Day O’Connor, Samuel Alito, John Dean, US Supreme Court, John G. Roberts, Jr, John Kerry, George W. Bush, Clarence Thomas, Anthony Kennedy, David Souter, Edward M. (“Ted”) Kennedy, Harriet E. Miers, Antonin Scalia

Timeline Tags: Civil Liberties

Supreme Court Chief Justice John Roberts (see September 29, 2005) has his first opportunity to name a judge to the secret Foreign Intelligence Surveillance Court. Judge James Robertson has resigned from the court in protest of the administration’s warrantless wiretapping program (see December 21, 2005). Roberts chooses as his replacement Judge Robert Bates, who voted to dismiss the General Accounting Office’s lawsuit attempting to force Vice President Cheney to release documents surrounding his energy task force (see May 10, 2005). [Savage, 2007, pp. 262]

Entity Tags: John G. Roberts, Jr, Robert Bates, Foreign Intelligence Surveillance Court, US Supreme Court, James Robertson

Timeline Tags: Civil Liberties

Salim Ahmed Hamdan in 1999.Salim Ahmed Hamdan in 1999. [Source: Pubic domain via the New York Times]In the Hamdan v. Rumsfeld case, the Supreme Court rules 5-3 to strike down the Bush administration’s plans to try Guantanamo detainees before military commissions. Ruling in favor of detainee Salim Ahmed Hamdan (see November 8, 2004), the Court rules that the commissions are unauthorized by federal statutes and violate international law. Writing for the majority, Justice John Paul Stevens says, “The executive is bound to comply with the rule of law that prevails in this jurisdiction.” The opinion throws out each of the administration’s arguments in favor of the commissions, including its assertion that Congress had stripped the Supreme Court of the jurisdiction to decide the case. One of the major flaws in the commissions, the Court rules, is that President Bush unilaterally established them without the authorization of Congress. [New York Times, 6/30/2006] During the oral arguments three months before, Hamdan’s lawyer, Neal Katyal, told the Court: “The whole point of this [proceeding] is to say we’re challenging the lawfulness of the tribunal [the military commissions] itself. This isn’t a challenge to some decision that a court makes. This is a challenge to the court itself, and that’s why it’s different than the ordinary criminal context that you’re positing.” [Savage, 2007, pp. 274-275]
Major Defeat for Bush Administration - Civil libertarian and human rights organizations consider the ruling a shattering defeat for the administration, particularly in its assertions of expansive, unfettered presidential authority. Bush says in light of the decision, he will work with Congress to “find a way forward” to implement the commissions. “The ruling destroys one of the key pillars of the Guantanamo system,” says Gerald Staberock, a director of the International Commission of Jurists. “Guantanamo was built on the idea that prisoners there have limited rights. There is no longer that legal black hole.” The ruling also says that prisoners held as “enemy combatants” must be afforded rights under the Geneva Conventions, specifically those requiring humane treatment for detainees and the right to free and open trials in the US legal system. While some form of military trials may be permissible, the ruling states that defendants must be given basic rights such as the ability to attend the trial and the right to see and challenge evidence submitted by the prosecution. Stevens writes that the historical origin of military commissions was in their use as a “tribunal of necessity” under wartime conditions. “Exigency lent the commission its legitimacy, but did not further justify the wholesale jettisoning of procedural protections.” [New York Times, 6/30/2006] In 2007, author and reporter Charlie Savage will write, “Five justices on the Supreme Court said Bush had broken the law.” [Savage, 2007, pp. 275]
Hardline Conservative Justices Dissent - Stevens is joined by Justices David Souter, Stephen Breyer, and Ruth Bader Ginsburg. Justice Anthony Kennedy issues a concurring opinion. Dissenting are Justices Samuel Alito, Antonin Scalia, and Clarence Thomas. Thomas, in a dissent signed by Scalia and Alito, calls the decision “untenable” and “dangerous.” Chief Justice John Roberts recused himself from the case because of his participation in a federal appeals court that ruled in favor of the administration (see November 8, 2004).
Not Charged for Three Years - Hamdan is a Guantanamo detainee from Yemen, captured in Afghanistan in November 2001 and taken to Guantanamo in June 2002. He is accused of being a member of al-Qaeda, in his function as driver and bodyguard for Osama bin Laden. He was not charged with a crime—conspiracy—until mid-2004. [New York Times, 6/30/2006]

Entity Tags: Samuel Alito, US Supreme Court, Salim Ahmed Hamdan, Stephen Breyer, Ruth Bader Ginsburg, John G. Roberts, Jr, Al-Qaeda, Antonin Scalia, Bush administration (43), Center for Constitutional Rights, Anthony Kennedy, John Paul Stevens, David Souter, International Commission of Jurists, Gerald Staberock, Geneva Conventions, Clarence Thomas

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

The announcement that Supreme Court Justice David Souter is retiring is already sparking a tremendous fundraising effort among conservative opposition groups, according to the Congressional Quarterly. “This is a nuclear weapon for the conservatives out there,” says conservative fundraiser Dan Morgan. “When you do fundraising, there’s an emotional component in this, and boy the emotion is there magnified times 100.” President Obama is expected to choose a replacement for Souter who is somewhat left of center, a choice that will be portrayed by right-wing groups as a threat to their positions on abortion, gun rights, gay marriage, and property rights, among other “hot-button” social and legal issues (see May 26, 2009). The upshot: lots of money gathered to oppose Obama’s prospective nominee. “Although Souter may be a more difficult case to make as his voting record is center-left, it does open the door for discussion of who, and how left a replacement, President Obama may choose,” says veteran Republican fundraiser Linus Catignani. “It also gives clarity to the power of the presidency and generates lots of chatter regarding the fact that Obama may make up to four replacements in short order. That obviously paints a very scary picture for many conservatives.” Catignani says that when conservative Justices John Roberts and Samuel Alito (see September 29, 2005 and October 31, 2005 - February 1, 2006) were nominated, Republican fundraisers used them as touchstones for their efforts to gather money—that time in the interest of promoting and defending the nominees. Democrats used their nominations to raise funds in opposition, much as Republicans are doing now, and Democrats will use the nomination to raise funds in defense of Obama’s nominee. Souter’s replacement will energize and invigorate a flagging and dispirited conservative base, says former Democratic National Committee Chairman Steve Grossman. “This can be a catalyst properly handled that can get people back into a sense of stakeholdership.” It can also be used to energize Democrats to fund efforts to thwart the Republicans’ own efforts to derail the nomination. Morgan says: “The Supreme Court is great. That’s going to be mail, that’s going to be phone calls. The clients I work with are in meetings already. There are letters being written already.” [Congressional Quarterly, 5/1/2009]

Entity Tags: Linus Catignani, Barack Obama, David Souter, Sonia Sotomayor, Dan Morgan, Steve Grossman, US Supreme Court

Timeline Tags: Civil Liberties

Atlantic columnist Ta-Nehisi Coates lambasts law professor Jeffrey Rosen for his recent analysis of prospective Supreme Court nominee Sonia Sotomayor (see May 4, 2009). Citing Rosen’s line, “I haven’t read enough of Sotomayor’s opinions to have a confident sense of them, nor have I talked to enough of Sotomayor’s detractors and supporters, to get a fully balanced picture of her strengths,” Coates responds: “Rosen is attacking Sotomayor’s ability to do the necessary intellectual heavy-lifting, while explicitly neglecting to do any of his own. In this instance, his piece reads like a burglar’s brief against rampant criminality. Authored mid-robbery, no less.” She also slams her Atlantic colleague Marc Ambinder’s criticisms of Sotomayor (see May 5, 2009), noting, “You don’t get to be the ‘respectable intellectual center’ and then practice your craft in the gossip-laden, ignorant muck.” [Atlantic Monthly, 5/5/2009] Former civil litigator Glenn Greenwald joins Coates in criticizing the early attacks on Sotomayor. Greenwald calls Rosen’s reliance on anonymous sources to attack Sotomayor’s character and professional conduct “shoddy, irresponsible, and… intellectually irresponsible,” and cites several instances where Rosen’s reporting has been countered by sources willing to go on the record. Greenwald writes of his amazement at how quickly Sotomayor has been “transformed in conventional wisdom, largely as a result of Rosen’s piece, into a stupid, shrill, out-of-her-depth Puerto Rican woman who is being considered for the Supreme Court solely due to anti-merit, affirmative action reasons.” Greenwald writes that he twice faced Sotomayor in court, and found her “extremely perceptive, smart, shrewd, and intellectually insightful.” She could be forceful, “at times unpleasantly so,” he recalls, and remembers being dressed down by her for a “substantial procedural mistake” he committed, but notes that such behavior by judges “is the opposite of uncommon.” Greenwald writes that behavior usually characterized as “tough,” “forceful,” and “authoritative” by white males is often reworked into characterizations of “domineering” and “egotistical” when the same behaviors are exhibited by women. Greenwald also notes that Rosen was one of the strongest media voices in favor of the nomination of conservative jurist John Roberts (see September 29, 2005) to the Court. [Salon, 5/5/2009] Less than a month later, Sotomayor will be nominated to the Court (see May 26, 2009).

Entity Tags: Glenn Greenwald, Sonia Sotomayor, Ta-Nehisi Coates, US Supreme Court, Marc Ambinder, Jeffrey Rosen

Timeline Tags: Domestic Propaganda

Tom Goldstein, a veteran lawyer who maintains the Supreme Court-focused, nonpartisan “SCOTUSblog,” writes that Supreme Court nominee Sonia Sotomayor (see May 26, 2009) will be the focus of caricatures and character attacks from the right, just as Justices Samuel Alito (see October 31, 2005 - February 1, 2006) and John Roberts (see September 29, 2005) were from the left. Goldstein’s assessment is echoed by ABC’s “The Note,” an influential daily political newsletter. Goldstein, who has argued cases before the Court over 20 times, writes that barring some serious revelation of ethical violations, Sotomayor is almost guaranteed to be confirmed by the Senate, but before that, she will be subjected to attacks from what he calls “committed ideologues.” Few “mainstream Republican politicians will vocally join the criticism,” he predicts. In a political sense, it would be disastrous for Republicans to mount serious opposition to a Hispanic woman, or Latina. “To Hispanics, the nomination would be an absolutely historic landmark,” Goldstein writes. “It really is impossible to overstate its significance. The achievement of a lifetime appointment at the absolute highest levels of the government is a profound event for that community, which in turn is a vital electoral group now and in the future.” Such attacks would comprise “a strategy that risks exacting a very significant political cost among Hispanics and independent voters generally, assuming that the attacks aren’t backed up with considerable substance.” The attacks will come from any of four major areas, Goldstein predicts. [Tom Goldstein, 5/26/2009]
Attacks Led by Conservatives outside Congress - ABC’s Jonathan Karl agrees. He writes: “At the start, Senate Republicans will likely make innocuous statements about the need to thoroughly review her record, but make no mistake, GOP leaders, with a big assist from outside conservative groups, will wage a vigorous campaign against this nomination.… Senate Republicans don’t expect to defeat the Sotomayor nomination. But they hope to raise enough questions about the nomination to make it a tough vote for Democratic senators in more conservative states. They will also use the confirmation battle as an opportunity to motivate a demoralized Republican base” (see May 1, 2009). [ABC News, 5/26/2009]
Attacks on Sotomayor's Intellect - The first series of attacks, Goldstein writes, will focus on the claim that she “is not smart enough for the job.” He writes that this is a powerful line of argument with an equally strong potential for backlash, so it will be handled carefully and obliquely. Unfortunately for this position, he writes, “Sotomayor is in fact extremely intelligent.” She graduated at the top of her class at Princeton, and her judicial opinions “are thorough, well-reasoned, and clearly written. Nothing suggests she isn’t the match of the other Justices.” Goldstein’s predictions are reflected in a number of public columns and commentaries (see May 26, 2009, May 26, 2009, May 29, 2009, and May 31, 2009).
'Liberal Ideologue and Judicial Activist' - The second line of attack will be purely ideological, focusing on the claim that she is a “liberal ideologue” and a “judicial activist.” While Sotomayor would be on the left of the Court, Goldstein writes, she is hardly a radical liberal. She is very similar to the man she is slated to replace, Justice David Souter, as a moderate, centrist liberal. Her appellate opinions as reviewed by the Court put her squarely with the left-center wing of the current Court. Karl writes, “They will call her an ‘activist’ judge intent on making law from the bench, not interpreting law.” Their predictions are reflected in a number of public columns and commentaries (see May 26, 2009, May 26, 2009, May 26, 2009, May 26, 2009, May 28, 2009, May 28, 2009, May 29, 2009, May 29, 2009, and June 3, 2009).
Intolerant of Positions Contrary to Her Own - The third wave of attack will claim, Goldstein writes, that she is intolerant of positions with which she disagrees. Proponents of this line of attack will focus on a decision she wrote that upheld affirmative action laws to the detriment of white firefighters, on a panel appearance in which she acknowledged that appellate judges sometimes make public policy, and a speech where she talked about the role her gender and ethnicity played in her decision-making. They will also focus, Karl notes, on a 2002 speech where she said the sex and ethnic origin of a judge can affect their decisions. Sotomayor said, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life” (see October 26, 2001). “These reeds are too thin for that characterization to take hold,” Goldstein writes. The public “is easily able to accept a judge’s recognition of the lawmaking effects of her decisions and the influences of her background. There just isn’t any remotely persuasive evidence that Judge Sotomayor acts lawlessly or anything of the sort.” Goldstein’s predictions are reflected in a number of public columns and commentaries (see May 26, 2009, May 26, 2009, May 29, 2009, and June 3, 2009). [ABC News, 5/26/2009; Tom Goldstein, 5/26/2009]
Personality Characteristics - The fourth wave of attacks will characterize her as, Goldstein writes, “gruff and impersonable,” based on some excerpts from oral arguments and a few anonymous criticisms voiced in the “Almanac of the Federal Judiciary.” Sotomayor can easily quash these attacks with a few well-turned statements in the public eye. From his own experiences arguing cases before the Court, Goldstein believes Sotomayor is similar in demeanor and temperment to Justices Roberts, Souter, and Antonin Scalia. Goldstein’s predictions are reflected in a number of public columns and commentaries (see May 27, 2009. May 29, 2009, and June 3, 2009).
Missed Line of Attack - Neither Goldstein nor Karl write about the direct attacks on Sotomayor’s race and gender that some conservatives will launch (see May 26, 2009, May 26, 2009, May 27, 2009, May 28, 2009, May 28, 2009, May 28, 2009. May 29, 2009, June 2, 2009, June 3, 2009, and June 5, 2009). Goldstein’s own analysis of Sotomayor’s rulings will thoroughly disprove the allegations of racial bias (see May 29, 2009).
Conclusion - Goldstein concludes, “All in all… her easy confirmation seems assured.” [Tom Goldstein, 5/26/2009]

Entity Tags: David Souter, Sonia Sotomayor, Jonathan Karl, US Supreme Court, Thomas Goldstein, ABC News

Timeline Tags: Domestic Propaganda

After meeting with Supreme Court nominee Sonia Sotomayor (see May 26, 2009), Senator Lindsey Graham (R-SC) says he has fundamental questions about her judicial philosophy and temperament, and adds he will likely not vote to confirm her to the high court. “I was very direct,” he tells reporters of his conversation with Sotomayor. “I have to decide how to play this game, quite frankly. If I use the same standard that Senator [Barack] Obama used, then I would not vote for you, quite frankly.” Graham is referring to votes cast by then-Senator Obama against Justices John Roberts (see September 29, 2005) and Samuel Alito (see October 31, 2005 - February 1, 2006) in which Graham asserts that Obama voted against them on ideological grounds. “He used a standard, I think, that makes it nearly impossible for a person from the opposite party to vote for the nominee,” Graham says. Many political observers feel that Graham is something of a bellwether of Republican sentiment; a former judge advocate general officer, Graham is considered one of the better legal minds in the party, and his opinion carries great weight with his colleagues. Other Republicans may follow his lead in coming out in public opposition to the nominee. Graham says he asked Sotomayor about her “wise Latina” comment (see October 26, 2001), but refuses to say how she responded. Graham also says he has questions about her temperament, saying that while she was friendly in the meeting, he cannot ignore other lawyers’ negative assessments of her personality (see May 4, 2009). “I think she does have the intellectual capacity to do the job,” Graham says. “But there’s a character problem. There’s a temperament problem that they—during the time they’ve had to be a judge, that they were more of an advocate than an impartial decider of the law. And I’ve got to find out, in my own mind” about her temperament. [Politico, 6/3/2009] On Fox News, Graham contradicts his earlier assessment, saying that Sotomayor has “sterling character.” [Think Progress, 6/3/2009]

Entity Tags: US Supreme Court, Lindsey Graham, Sonia Sotomayor

Timeline Tags: Domestic Propaganda

Legatus logo.Legatus logo. [Source: ProLife Dallas (.org)]Former President George W. Bush is honored by Legatus, a Florida-based Catholic group for business and civic leaders, for his opposition to reproductive rights during his presidency. Bush receives the “Cardinal John J. O’Connor Pro-Life Award,” named for the famously anti-abortion Catholic leader. The organization notes Bush’s opposition to stem-cell research, his executive order banning the use of federal funds for abortions (see November 5, 2003), his appointment of anti-abortion advocates to the Supreme Court (see October 31, 2005 - February 1, 2006 and September 29, 2005), and his designation of January 18, 2009 as “National Sanctity of Human Life Day.” The award is given at a private meeting in Dana Point, California. The event is only open to members of Legatus and their guests, and the registration fee is $1,475 per person. A Legatus official tells a reporter: “His appearance is going to be a private appearance on behalf of our organization. He will be delivering remarks for us and all of that will be a private presentation.” Event chairperson Kathleen Eaton says: “I’ve been speaking to a number of Legatus chapters about the summit, and people are really excited. It’s been a rough year on a number of fronts and they really need this shot in the arm. They want to come together to pray and learn more about what the church is saying on different issues.” Local pro-choice and peace groups mount a protest; one organizer, Sharon Tipton, tells a reporter: “Over one million Iraqi people have been killed, mostly women and children. Bush is responsible for over 5 million new orphans, and we just found out that Bush is receiving a pro-life award? This is outrageous!” [Catholic News Agency, 1/8/2010; Orange County Weekly, 2/3/2010]

Entity Tags: Sharon Tipton, Legatus, George W. Bush, Kathleen Eaton

Timeline Tags: US Health Care

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