# Did Sandra Day O'Connor ruin her legacy with Bush vs Gore? **URL:** \ **Category:** Great Debates\ **Created:** [November 25, 2010, 3:25pm UTC](https://boards.straightdope.com/t/did-sandra-day-oconnor-ruin-her-legacy-with-bush-vs-gore/561878 "2010-11-25T15:25:48Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [November 26, 2010, 6:31pm UTC](https://boards.straightdope.com/t/did-sandra-day-oconnor-ruin-her-legacy-with-bush-vs-gore/561878/41 "2010-11-26T18:31:02Z")
> [@Bricker](#): > > But since you generally agree with that analysis, and since that analysis fails to answer the question I asked, I’ll ask you again: do you disagree with both the finding of EP violation and the remedy proposed, or just the remedy? It doesn’t fail to answer the question you asked. It discusses how that sort of equal protection analysis hasn’t been used in the past for this. But yes, I disagree with both, but the remedy moreso, and even moreso, the stay of counting coupled with the remedy (You’re barred from conducting the recount, and seperately, because you stopped, there’s no way for you to conduct the recount by the deadline), not to mention the question of standing. Bush isn’t a Florida voter, and he doesn’t suffer direct harm if there are discrepancies in recounting procedures across counties. My fundamental problem with the case is that it wasn’t a federal question. The Constitution leaves the picking of electors up to the states, and Florida law has recount proceedures in place, and a question about them is up to the state courts, and absent a clear equal protection violation (Florida saying that it will only recount white people’s votes), the Supremes should have stayed out of it. And as for the 7-2 nonsense, even the 2 justices who sided with the majority on the equal protection question said that it shouldn’t have gotten to the court (“the court should not have reviewed . . .this case”-Souter; “whether, under Florida law, Florida could or could not take further action is obviously a matter for Florida courts, not this Court, to decide.”- Breyer) ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [November 26, 2010, 6:39pm UTC](https://boards.straightdope.com/t/did-sandra-day-oconnor-ruin-her-legacy-with-bush-vs-gore/561878/42 "2010-11-26T18:39:27Z")
> [@Captain\_Amazing](#): > > Bush isn’t a Florida voter, and he doesn’t suffer direct harm if there are discrepancies in recounting procedures across counties. Right, but Scalia disagreed in writing the stay: > [@](#): > > The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. IOW, a finding that Gore actually won would harm Bush’s legitimacy when the Court made him President anyway. :rolleyes: “Military” ballots, btw, is a cute euphemism for. for the most part, “absentee ballots _postmarked after Election Day_”. Even those who innocently claim that it’s only Democrats’ iniquity in trying to have them invalidated can state the problem there if they so desire. ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [November 26, 2010, 7:36pm UTC](https://boards.straightdope.com/t/did-sandra-day-oconnor-ruin-her-legacy-with-bush-vs-gore/561878/43 "2010-11-26T19:36:48Z")
> [@septimus](#): > > Poorly phrased. He tried to invalidate those absentee military votes _which did not meet legal qualifications._ > > I’m sure you knew this. On the SDMB, do we really need to mischaracterize simple facts, for partisan purpose? > > Since you’ve given the _Know-Nothing right-wing view_ on those absentee ballots, let me quote a [left-wing view](http://www.wsws.org/articles/2000/dec2000/mili-d01.shtml): You posted a quote from “World Socialist Website” and expect to be taken seriously? Gore’s running mate even objected to the tactic of going after military votes. ---
**Author:** ![Guinastasia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guinastasia/32/5751_2.png) [@Guinastasia](https://boards.straightdope.com/u/Guinastasia)\ **Post date:** [November 26, 2010, 8:10pm UTC](https://boards.straightdope.com/t/did-sandra-day-oconnor-ruin-her-legacy-with-bush-vs-gore/561878/44 "2010-11-26T20:10:31Z")
> [@ElvisL1ves](#): > > Wouldn’t that be a sexist, even condescending, view to take, rather than considering her legacy to be what she actually did with the job she was given? What matters more? Okay, perhaps to say that that was her REAL legacy, yes. But I do think it was a certainly an important part – the first female on the Supreme Court in its 200 year history? I’d say that’s definitely something to mention. Perhaps it’s not the ONLY thing, no. But it’s an important part, just as you can’t talk about Thurgood Marshall’s and not mention that he was the first black to be appointed to the Supreme Court – they’re important milestones in our history. ---
**Author:** ![DMC](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dmc/32/18049_2.png) [@DMC](https://boards.straightdope.com/u/DMC)\ **Post date:** [November 26, 2010, 9:10pm UTC](https://boards.straightdope.com/t/did-sandra-day-oconnor-ruin-her-legacy-with-bush-vs-gore/561878/45 "2010-11-26T21:10:32Z")
> [@Bricker](#): > > But since you generally agree with that analysis, and since that analysis fails to answer the question I asked, I’ll ask you again: do you disagree with both the finding of EP violation and the remedy proposed, or just the remedy? Since we all seem to be in “ask question” mode, I have one for you, and anyone else defending SCOTUS on these decisions. Do you believe the exact same decisions would have been reached by the exact same jurists if Gore had been the one leading at the time? ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [November 26, 2010, 9:16pm UTC](https://boards.straightdope.com/t/did-sandra-day-oconnor-ruin-her-legacy-with-bush-vs-gore/561878/46 "2010-11-26T21:16:22Z")
Nice softball lob. Totally predictable answer: “Why, yes, of course, because they are people of principle who do not let partisan considerations get in the way of clear analysis.” Accompnied with the appropriate batting of big, brown, innocent eyes… ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 26, 2010, 10:09pm UTC](https://boards.straightdope.com/t/did-sandra-day-oconnor-ruin-her-legacy-with-bush-vs-gore/561878/47 "2010-11-26T22:09:32Z")
> [@Captain\_Amazing](#): > > And as for the 7-2 nonsense, even the 2 justices who sided with the majority on the equal protection question said that it shouldn’t have gotten to the court (“the court should not have reviewed . . .this case”-Souter; “whether, under Florida law, Florida could or could not take further action is obviously a matter for Florida courts, not this Court, to decide.”- Breyer) That was what I was referring to above. It doesn’t even pass the laugh test to have Souter and Breyer talking about states’ rights. They dissented in Morrison and Lopez. Do they really believe that me growing wheat on my own property is a federal matter, but the election of the President is not? They have never seen a matter that DIDN’T involve a federal question until it came to one that, if left at the state level, would let Gore get elected. And, in fairness, to have Scalia, Thomas, and Rehnquist believe that this WAS a federal question was absolute judicial dishonesty on their part as well. Every judge on SCOTUS, and the 4 in the majority of the FL Supreme Court should all be ashamed of themselves for their votes in this case. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [November 26, 2010, 11:16pm UTC](https://boards.straightdope.com/t/did-sandra-day-oconnor-ruin-her-legacy-with-bush-vs-gore/561878/48 "2010-11-26T23:16:48Z")
> [@elucidator](#): > > Nice softball lob. Totally predictable answer: “Why, yes, of course, because they are people of principle who do not let partisan considerations get in the way of clear analysis.” Accompnied with the appropriate batting of big, brown, innocent eyes… Try as hard as I might, I simply can’t imagine a scenario where Gore was holding on to a narrow lead and Justice Scalia supports an injunction to stop counting the votes because it would cause “irreparable harm” to Gore if the recount shows Bush won… ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [November 26, 2010, 11:22pm UTC](https://boards.straightdope.com/t/did-sandra-day-oconnor-ruin-her-legacy-with-bush-vs-gore/561878/49 "2010-11-26T23:22:05Z")
What other Scalia decisions make you so certain–i.e., cases where he abandoned his established (and well-known) judicial philosophy to support a partisan outcome? Since it seems so inconceivable to you that he could render a decision without regard to the political advantage it would create? Can you name a couple? ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [November 27, 2010, 5:51am UTC](https://boards.straightdope.com/t/did-sandra-day-oconnor-ruin-her-legacy-with-bush-vs-gore/561878/50 "2010-11-27T05:51:38Z")
> [@Stratocaster](#): > > What other Scalia decisions make you so certain–i.e., cases where he abandoned his established (and well-known) judicial philosophy to support a partisan outcome? Since it seems so inconceivable to you that he could render a decision without regard to the political advantage it would create? Can you name a couple? Well, it’s fun reading Scalia’s abortion cases with, for instance, _Gonzales v Oregon_ (whether the fedral givernment can remove the license of a doctor who precribes a drug that assists in assisted suicide, legal in Oregon through a referendum). In _Casey_, he criticizes the majority, saying > [@](#): > > by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish [of the abortion debate]. But in _Gonzales_ > [@](#): > > The fact that many in Oregon believe that the boundaries of ‘legitimate medicine’ should be extended to include assisted suicide does not change the fact that the overwhelming weight of authority (including the 47 States that condemn physician-assisted suicide) confirms that they have not yet been so extended. In _Ayotte_, “The touchstone for any decision about remedy is legislative intent.” In _Gonzales_, > [@](#): > > Even assuming, however, that the principal concern of the CSA is the curtailment of ‘addiction and recreational abuse,’ there is no reason to think that this is its exclusive concern. . .We have repeatedly observed that Congress often passes statutes that sweep more broadly than the main problem they were designed to address. Not to mention _Morrison_ v _Raisch_ ---
**Author:** ![godix](https://avatars.discourse-cdn.com/v4/letter/g/278dde/32.png) [@godix](https://boards.straightdope.com/u/godix)\ **Post date:** [November 27, 2010, 6:24am UTC](https://boards.straightdope.com/t/did-sandra-day-oconnor-ruin-her-legacy-with-bush-vs-gore/561878/51 "2010-11-27T06:24:02Z")
> [@DMC](#): > > Since we all seem to be in “ask question” mode, I have one for you, and anyone else defending SCOTUS on these decisions. > > Do you believe the exact same decisions would have been reached by the exact same jurists if Gore had been the one leading at the time? I dunno about who was in the lead, I have only your word that was actually a factor in the decision. I would like to believe that if Bush were pushing to only recount votes that would likely be favorable to him, which suing to not count other votes that are unlikely to be favorable to him, then the courts would have stepped in and smacked him around for it. But Bush didn’t do that, Gore did, so he’s the one who got bitchslapped for it. Honestly, it’s astounding all the partisan crap can be slung around now, a decade later, on this. Yes or no, should all the votes have been looked at and counted under the same standards state wide? If you say yes, you agree with what the Bush legal team argued and SCOTUS decided. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [November 27, 2010, 6:51am UTC](https://boards.straightdope.com/t/did-sandra-day-oconnor-ruin-her-legacy-with-bush-vs-gore/561878/52 "2010-11-27T06:51:25Z")
> [@godix](#): > > Honestly, it’s astounding all the partisan crap can be slung around now, a decade later, on this. Yes or no, should all the votes have been looked at and counted under the same standards state wide? If you say yes, you agree with what the Bush legal team argued and SCOTUS decided. No, you don’t.In fact, the side that argued for a recount under a consistant standard was Gore’s, in the event that the Court decided there was an equal protection violation. The Bush campaign didn’t propose a remedy. And the court, with the exception and Breyer and Souter didn’t decide to remand the case back to Florida to establish a statewide standard; They ruled that no recount at all should be allowed because the date of the decision was the safe harbor date. ---
**Author:** ![septimus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/septimus/32/410_2.png) [@septimus](https://boards.straightdope.com/u/septimus)\ **Post date:** [November 27, 2010, 7:30am UTC](https://boards.straightdope.com/t/did-sandra-day-oconnor-ruin-her-legacy-with-bush-vs-gore/561878/53 "2010-11-27T07:30:27Z")
> [@Magiver](#): > > > [@septimus](#): > > > > Poorly phrased. He tried to invalidate those absentee military votes _which did not meet legal qualifications._ > > > > I’m sure you knew this. On the SDMB, do we really need to mischaracterize simple facts, for partisan purpose? > > > > Since you’ve given the _Know-Nothing right-wing view_ on those absentee ballots, let me quote a _left-wing view_: > > You posted a quote from “World Socialist Website” and expect to be taken seriously? Gore’s running mate even objected to the tactic of going after military votes. So you still don’t acknowledge that you mischaracterized a simple fact? _I_ will not take _you_ seriously, anymore. ---
**Author:** ![godix](https://avatars.discourse-cdn.com/v4/letter/g/278dde/32.png) [@godix](https://boards.straightdope.com/u/godix)\ **Post date:** [November 27, 2010, 8:01am UTC](https://boards.straightdope.com/t/did-sandra-day-oconnor-ruin-her-legacy-with-bush-vs-gore/561878/54 "2010-11-27T08:01:47Z")
> [@Captain\_Amazing](#): > > No, you don’t.In fact, the side that argued for a recount under a consistant standard was Gore’s, in the event that the Court decided there was an equal protection violation. The Bush campaign didn’t propose a remedy. And the court, with the exception and Breyer and Souter didn’t decide to remand the case back to Florida to establish a statewide standard; They ruled that no recount at all should be allowed because the date of the decision was the safe harbor date. Hmm, lets take another look at what exactly I said: “Honestly, it’s astounding all the partisan crap can be slung around now, a decade later, on this. Yes or no, should _ **ALL** _the votes have been looked at and counted under the same standards state wide? If you say yes, you agree with what the Bush legal team argued and SCOTUS decided.” If I was attempting to describe Gores position, that sentence would have read “Yes or no, should ONLY A FEW VOTES have been looked at and counted while attempting to discard any vote that wasn’t for a Democrat?” ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [November 27, 2010, 1:46pm UTC](https://boards.straightdope.com/t/did-sandra-day-oconnor-ruin-her-legacy-with-bush-vs-gore/561878/55 "2010-11-27T13:46:47Z")
> [@Captain\_Amazing](#): > > Well, it’s fun reading Scalia’s abortion cases with, for instance, _Gonzales v Oregon_ (whether the fedral givernment can remove the license of a doctor who precribes a drug that assists in assisted suicide, legal in Oregon through a referendum). In _Casey_, he criticizes the majority, saying But in _Gonzales_ > > In _Ayotte_, “The touchstone for any decision about remedy is legislative intent.” In _Gonzales_, > > Not to mention _Morrison_ v _Raisch_ Sorry, can you explain why you think these cases represent a partisan departure from his judicial philosophy? They well may, but I’m not seeing it. I’ll read the opinions when I have a chance. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [November 27, 2010, 5:52pm UTC](https://boards.straightdope.com/t/did-sandra-day-oconnor-ruin-her-legacy-with-bush-vs-gore/561878/56 "2010-11-27T17:52:09Z")
> [@Stratocaster](#): > > Sorry, can you explain why you think these cases represent a partisan departure from his judicial philosophy? They well may, but I’m not seeing it. I’ll read the opinions when I have a chance. They represent, I think, at least, contradictory arguments. In _Casey_, he’s opposed to the decision in _Roe_, and again in _Casey_, to try to establish a national standard for the acceptability of abortion, where, if the laws were left up to state control, that would soon end the debate, because each state would be able to shape its own abortion laws. In _Gonzales_, he rejects the argument that assisted suicide should be left up to the states, saying that the desire by the people of Oregon to allow it is irrelevant because it isn’t allowed by the rest of the country. In _Ayotte_, he says that a statute has to be read narrowly, focusing on the legislative intent of the drafters. In _Gonzales_, he says that even though the primary intent of the drafters of the CCA was to combat drug addiction and illegal drug abuse, there’s no reason to think they also weren’t concerned about doctors helping people kill themselves, even though they didn’t talk about it. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [November 27, 2010, 5:56pm UTC](https://boards.straightdope.com/t/did-sandra-day-oconnor-ruin-her-legacy-with-bush-vs-gore/561878/57 "2010-11-27T17:56:49Z")
> [@godix](#): > > If I was attempting to describe Gores position, that sentence would have read “Yes or no, should ONLY A FEW VOTES have been looked at and counted while attempting to discard any vote that wasn’t for a Democrat?” That wasn’t Gore’s position, just like “count every ballot” wasn’t Bush’s position. Stop misrepresenting what positions the two sides took. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [November 27, 2010, 7:36pm UTC](https://boards.straightdope.com/t/did-sandra-day-oconnor-ruin-her-legacy-with-bush-vs-gore/561878/58 "2010-11-27T19:36:27Z")
> [@Bricker](#): > > That’s not what happened. Fox – and every other network – first called the election in Florida for Gore. > > So I assume you’d now like to explore how much of an effect that had in helping Gore? Or is your view that it’s of interest only if it goes the other way? Especially (as I’ve mentioned before) it was announced AN HOUR BEFORE the polls closed in the Republican-strong panhandle. But of course all of the Gore supporters ignore the stories of Republican that were going to vote for Bush but they erroneously thought the election was over. Any answer to that? ---
**Author:** ![godix](https://avatars.discourse-cdn.com/v4/letter/g/278dde/32.png) [@godix](https://boards.straightdope.com/u/godix)\ **Post date:** [November 27, 2010, 7:58pm UTC](https://boards.straightdope.com/t/did-sandra-day-oconnor-ruin-her-legacy-with-bush-vs-gore/561878/59 "2010-11-27T19:58:34Z")
> [@Captain\_Amazing](#): > > That wasn’t Gore’s position, just like “count every ballot” wasn’t Bush’s position. Stop misrepresenting what positions the two sides took. Gore requested a hand recount in four counties. The Gore camp had protested ~2400 ballots from overseas as invalid because of various issues, including lacking postmarks, missing info, etc. Florida state law and the Florida Supreme Court, not Gore, mandated a full recount of the entire state. SCOTUS decision was based on that there were different standards of recounting being used from county to county. For example, some counties were hand recounting like Gore requested them to while the rest of the state was recounting in other ways. IIRC a few counties weren’t even recounting at all, although that was supported by neither Bush or Gore. To defend Gore’s position, you have to somehow justify the fact he was arguing that some votes should be counted differently, and on little more basis than what party was likely to benefit. Because like it or not, that is exactly what Gore’s position was. So I repeat: Yes or no, should **all** the votes have been looked at and counted under the **same standards state wide**? If you say yes, you agree with what the Bush legal team argued and SCOTUS decided." ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [November 27, 2010, 8:07pm UTC](https://boards.straightdope.com/t/did-sandra-day-oconnor-ruin-her-legacy-with-bush-vs-gore/561878/60 "2010-11-27T20:07:49Z")
> [@Captain\_Amazing](#): > > They represent, I think, at least, contradictory arguments. In _Casey_, he’s opposed to the decision in _Roe_, and again in _Casey_, to try to establish a national standard for the acceptability of abortion, where, if the laws were left up to state control, that would soon end the debate, because each state would be able to shape its own abortion laws. That seems very “Scalia-like.” > [@](#): > > In _Gonzales_, he rejects the argument that assisted suicide should be left up to the states, saying that the desire by the people of Oregon to allow it is irrelevant because it isn’t allowed by the rest of the country. I don’t think that’s what he said. He argued that the AG had the authority to determine if assisted suicide was a “legitimate medical purpose.” I don’t see the conflict that you do. Someone who believes that when the Constitution and Federal law is silent, it’s up to the states to craft their social policy (e.g., abortion law) is not contradicting himself when he does perceive a legitimate executive authority that restricts the states. > [@](#): > > In _Ayotte_, he says that a statute has to be read narrowly, focusing on the legislative intent of the drafters. In _Gonzales_, he says that even though the primary intent of the drafters of the CCA was to combat drug addiction and illegal drug abuse, there’s no reason to think they also weren’t concerned about doctors helping people kill themselves, even though they didn’t talk about it. Isn’t Scalia an “intent” guy for Constitutional questions, but a “text” guy for statutes? This seems consistent with that. The plain text of the CSA does not say “only if this relates to drug abuse,” it says that there are banned substances, when those substances are not used for a “legitimate medical purpose.” He is dismissing the notion that this could only be regarding drug addiction, right? Since the text of the law doesn’t say that. Seems like a narrow reading to me, in that sense. And, again, back to my real question: These inconsistencies you perceive, do you think they’re partisan? [Previous page](https://boards.straightdope.com/t/did-sandra-day-oconnor-ruin-her-legacy-with-bush-vs-gore/561878.md?page=2) [Next page](https://boards.straightdope.com/t/did-sandra-day-oconnor-ruin-her-legacy-with-bush-vs-gore/561878.md?page=4)