I’ve seen Sandra Day O’Connor a few times since she’s retired from the Supreme Court. For some reason, she always seems to be in the airport at the same time I am!
I think she made a horrible decision in deciding Bush vs Gore. Every time I think or see her, the first thing I think of is that decision.
Still, prior to Bush vs Gore, I thought she was a very reasonable and moderate judge. I certainly didn’t agree with every decision, but none of them enraged me. I never thought of her as an right wing rubber stamp (Scalia), a moron (Thomas), or having delusions of Godhood (Rehnquist).
Will O’Connor’s legacy be tarnished by the inexcusable Bush vs Gore decision? Right now, I think so. Perhaps in 50 years, she’ll be seen differently and her entire career can be evaluated.
What exactly was the horrible decision?
Part of Bush v. Gore was that a state having different criteria for what constitutes a vote depending on the county is a violation of the equal protection clause. So a dimpled chad in doesn’t count in Volusia County but does in Miami-Dade County? I gotta say that any system where you did or did not vote (i.e. your intent) based on the county you’re from is messed up. This ruling was 7-2.
So I guess you are saying the remedy part was horrible. My question is what law do you give priority to. Fla state law put a deadline on turning in the vote certifications. Harris as Sec’y of State could have granted an extension but didn’t claiming the extension was for natural disaster or other unavoidable issues. Was it partisan? Sure as hell was but no more than the grandstanding that the Palm Beach County canvassing board pulled. I still remember their outdoor conferences and that lady with the shrill vote announcing that “they” could come down to arrest her for counting vote to huge applause. SCOTUS had to give priority to one of all of the conflicting laws. Under the Constitution, the state legislature has final authority over the selection of electors. I remember that there was even talk that the Fla legislature could pass a bill appointing the electors and it would (probably) be Constitutional. According to SCOTUS, the Fla legislature gave overiding priority to having electors chosen by the safe-harbor time. ASSUMING that is true (and you could argue that if you want) then with less than 24 hours left before the deadline, SCOTUS was absolutely correct.
Also, do you account for all of the Republicans in the panhandle that didn’t vote because the media erroneously announced their polls closed and hour too early? If your attitude is “fuck 'em they should know.” then do you hold that Democrats
should know how to punch out a chad and check it? Plus the absentee ballot contaversy, how would you have ruled and what would your rationale be using US and Fla Contitution and Fla state law?
I think O’Connor’s legacy cannot possibly be tainted by a single case, in that her legacy will be her schizophrenic lack of consistency, her lack of a clear judicial philosophy.
It was a terrible intrusive decision. But this court is extremely “activist” and reaching to get the results they want is what they do. They should have bounced it back to Florida who should have resumed the recount. Which Gore would have won.
I have read that she regrets making the decision.
Oddly enough, so what? You’re falling into the same partisan trap that O’Connor did, considering that it was only about winning and not about democracy. The basic principle of democracy is that elections are decided by votes, and that the counting be done, according to Florida law for example, according to the “clear intent of the voter”. She and several other Justices put their partisan interests above that principle, and showed they knew it by trying to prevent their ruling being used as a precedent.
The Taney court made many other rulings than Dred Scott*, but that isn’t what defines it in history. The Rehnquist court is likewise defined by the intellectually corruption of its own signature ruling.
O’Connor had the chance to uphold Constitutional principle, and decided that being able to have a Republican president appoint her replacement upon retirement was more important. That defines her tenure and her life for history. She’ll have to live with the damage she caused to the republic and its Constitution just as must as the rest of us do, and she already has to live with knowing it. But her failure to address that in public demonstrates the same cowardice that caused her to make the decision in the first place.
Because they had different technologies with different reliabilities in place - that was the fundamental equal protection problem. Equal protection in the face of differing degrees of violation of it obviously requires differing degrees of corrective measures. O’Connor, her colleagues, and anti-democracy partisans made the argument, still commonly accepted, that those different corrective measures were themselves the basic EP problem, not a solution to the *actual *underlying EP problem.
And that’s without getting into the propriety of the federal courts intervening in a state matter before the state courts could address it themselves. Factions who normally purport to revere states’ rights and limited federal government somehow overlooked that too in the interest of partisan advantage.
Ummmm . . . they did. It was remanded back to the Fla SC where they could have ruled (had Gore pursued it) that the legislature did not intend for the safe harbor deadline to be the overriding concern.
But let’s say that the Legislature did say that it is their primary concern is safe-harbor, then wouldn’t FlaSC overturning that and ordering a recount be judicial activism and/or unconstitutional?
That’s an interesting notion of a consistent judicial philosophy, one that steadfastly splits the difference regardless of the constitutional issue under discussion. Always siding with the litigant whose name started earlier alphabetically would be equally consistent, I’ll grant it, and just as much a testament to an unrelenting judicial vision.
The whole process took them over a time limit imposed by Florida to do the recount. The Supremes put a hold on ballot counting while they made their decision. Why? They should have continued with the recount, it did not have any impact on the Supreme Court process at all.
I always thought that Bush v. Gore was a horrible piece of judicial activism that overruled another horrible piece of judicial activism (the earlier FL Supreme Court ruling). So, in the end, the right thing was done, but I think that every judge involved in that case should be embarrassed. The 4 FL judges who did everything to help Gore win, the 4 dissenting judges on SCOTUS who all of a sudden believed in states’ rights, and the 5 majority justices who felt that the 14th amendment protected one rich white man against another rich white man in a Presidential race.
IIRC, Gore only wanted the undervotes counted in the four Dem counties. Bush wanted a full statewide recount thinking that the undervotes in strong GOP counties would balance out.
I think it turned out that (and this is a WAG on my part) that the overwhelming majority of the undervotes were older, poorer, uneducated people who didn’t know how to operate a fucking simple voting machine, in other words, the core of the Democratic party.
So even in strong GOP counties, when you throw in the undervotes, they are overwhelmingly Dem. Four counties didn’t give Gore enough, but the whole state would have.