Courts Pretending Bush v. Gore Never Happened (NYT)

[kpete]

Has Bush v. Gore Become the Case That Must Not Be Named?

By ADAM COHEN
Published: August 15, 2006

At a law school Supreme Court conference that I attended last fall, there was a panel on “The Rehnquist Court.” No one mentioned Bush v. Gore, the most historic case of William Rehnquist’s time as chief justice, and during the Q. and A. no one asked about it. When I asked a prominent law professor about this strange omission, he told me he had been invited to participate in another Rehnquist retrospective, and was told in advance that Bush v. Gore would not be discussed.

The ruling that stopped the Florida recount and handed the presidency to George W. Bush is disappearing down the legal world’s version of the memory hole, the slot where, in George Orwell’s “1984,” government workers disposed of politically inconvenient records. The Supreme Court has not cited it once since it was decided, and when Justice Antonin Scalia, who loves to hold forth on court precedents, was asked about it at a forum earlier this year, he snapped, “Come on, get over it.”

There is a legal argument for pushing Bush v. Gore aside. The majority opinion announced that the ruling was “limited to the present circumstances” and could not be cited as precedent. But many legal scholars insisted at the time that this assertion was itself dictum — the part of a legal opinion that is nonbinding — and illegitimate, because under the doctrine of stare decisis, courts cannot make rulings whose reasoning applies only to a single case.

more at:
http://www.nytimes.com/2006/08/15/opinion/15tues4.html?ex=1313294400&en=687375003b802612&ei=5090&partner=rssuserland&emc=rss

[sweetheart]

1. "Come on, get over it."

All bank robbers should be able to say as much.

[Libby2]

9. Thanks K&R

[Dob Bole]

58. What does that mean?

Sorry, I've just seen the phrase used more than once and do not understand it.

DB

[Raster]

61. Kicked and Recommended

[Nabia2004]

12. It turns my stomach

Criminal and a mockery of our justice system.

[Gregorian]

21. The whole thing was a political orchestration from the beginning.

This makes me sick too. We got the same urge from this piece of garbage.


I'm infuriated. This takes the debate out of it. But where were the legal minds back then, on such a basic piece of the argument!

[lisainmilo]

41. and the orchestration continues

These are scary times....not wondering if we are entering into a full police state. Bush is planning to take direct control over the National Guard.
http://www.washingtonpost.com/wp-dyn/content/article/2006/08/13/AR2006081300606.html

[sweetheart]

66. indeed its revolting

These wretched fools have disgraced us all, and they have the tesicles to suggest we should be thankful.
We'll see how that lead kite flies come november, voting machine fraudsters or no.

[nolabels]

88. The wimps have no testicles and need their punk ass bitch slapped

I see no sign strength from of any of these mealy mouth worms.


The crooks always want to rewrite the history books, their problems now though are more than tenfold. Their rotten cheating books are getting to be much too out of date. Back tracking with every move is not a winning strategy


On edit: this includes you and your carcass, you brave little lurker x(

[spanone]

16. He should say that to the parents of the dead soldiers.

Fuckwad.

[wryter2000]

28. I'm waiting to use that one -- "get over it"

I almost did on a freeper-type after Ahnuld lost big in his special election. F-type was wailing about the election going the wrong way.

This year, if we take back Congress, I'm going to be loaded with "get over its" for all of them. :mad:

[yorkiemommie1]

40. me, too !

i'm already using, " I told you so! "

[davekriss]

36. SCOTUS actually means, after Bush v. Gore...

...the Supreme Comedy of the United States, as in Scalia and Thomas are two intellectual clowns, Rehnquist always a thug, Kennedy and O'Conner just members of our Vichy France capitulating with the enemy.

December 12 2000 was nothing more than the completion of a bloodless coup, where a radical right regime seized power and governs, not for the People, but for themselves. I have less faith in this years election than most (I will be pleasantly surprised if we win a majority in the House -- so surprised I will in fact be dancing on the rooftops singing the Star Spangled Banner at the top of my lungs! -- but, considering the ruthlessness with which this Regime seized and retains power, I don't see them giving up lightly).

[WilliamPitt]

2. If anyone elver asks you what was wrong with Bush v. Gore...

...it is that one element - the removal of the case from the entire realm of jurisprudence - which seals the deal. You can get bogged down in arguments over Equal Protection, or whether a partisan court should be deciding elections, or whether the recount was fulsome enough to fulfill the requirements of democracy.

You can do that, or you can focus on this one aspect. Upon making this ruling, the majority decided that this case could not be used as precedent in any other cases, at any point, under any circumstances, ever.

This is unique.

ALL of American law - every single decision made in every single court - is based upon precedent. Lawyers craft their arguments based upon previous decisions, using those decisions as the basis for why the judge in front of them should decide in their favor. That's it. That's all of it.

Think on this: Santa Clara v. Southern Pacific Railroad established the concept of corporate personhood, i.e. that decision gave 14th Amendment rights to corporations. But corporate personhood was not actually established as a bedrock reality until the first case came along that successfully used Santa Clara as precedent.

For me, the fact that the majority decided that Bush v. Gore cannot ever be used as precedent is the canary in the coalmine, an undeniable indication that this was the biggest crap decision we've seen in 200 years. My God, even Dred Scott was able to stand as precedent in other cases.

Not Bush v. Gore.

[hobbit709]

5. Every lawyer I know had the same reaction

to that decision.:wtf: :wtf: :wtf: :wtf: :wtf:

[Marnieworld]

10. And that's when I knew

That a bloodless coup occurred. I still believed we were in a democracy until Dec. 12,2000. I still believed that the people in cable news actually told me the truth. But when, on that night, they all swallowed the ruling whole, despite the obviously illegitimate caveat, and started to call Bush "president-elect" with glee and relief, I knew something was seriously wrong with the country. All that has happened began with this acceptance. There is blood on all of their hands.

[Selatius]

15. The funny thing is even if the Dems win in 08

You still have some of the same whackjobs who gave us Bush v. Gore sitting on the damn Court.

[racaulk]

23. Not to mention...

The two new whackjobs that are on the court because of Bush v. Gore.

:banghead:

[Supersedeas]

29. translation: we are appointing *-this is not a real legal decision

[NewYorkerfromMass]

34. From the article: "not a legal decision but a raw assertion of power"

"...There are several problems with trying to airbrush Bush v. Gore from the law. It undermines the courts’ legitimacy when they depart sharply from the rules of precedent, and it gives support to those who have said that Bush v. Gore was not a legal decision but a raw assertion of power."

[Seabiscuit]

44. Well, it was a "real legal decision", just not a formal legal opinion.

See my post #39.

[Seabiscuit]

43. You're laboring under some technical misconceptions.

This case was not "unique". It is not the first "per curiam" decision issued by the U.S. Supreme Court by a long shot. Unfortunately such decisions generally make bad law, as was the case in Bush v. Gore.

The fact that cases are based on precedent does not preclude the Supreme Court from issuing "per curiam" decisions like this one as it has from time to time through history (the unsigned brief accompanying the majority decision did cite various precedents in favor of various points raised in their arguments, so this case was based on precedents, although not a single binding precedent, as the Court had never decided a national election in this manner before; the strong dissents signed by Justices Stevens and Ginsberg are good indications of what the law really is surrounding this issue - the majority brief was disingenuous and specious in its arguments). They are rare, but not unconstitutional.

See my post #39.

[Seabiscuit]

74. Another minor point: stare decisis/precedent doesn't exist in Louisiana.

The courts of all American states except for Louisana conform to the point made that "ALL of American law - every single decision made in every single court - is based upon precedent. Lawyers craft their arguments based upon previous decisions, using those decisions as the basis for why the judge in front of them should decide in their favor. That's it. That's all of it."

That's because of two things: the principle of stare decisis/precedent discussed above is embodied in English common law, which the American colonies and early states adopted. Secondly, in the Louisana Purchase, the U.S. Government purchased the Louisana territories from France, later divided into several states including the state of Louisiana. As Louisiana was the seat of the French colonial government prior to the purchase, the U.S. Government allowed that state to retain its French system of law, based on the Napoleonic Code. It remains the law in Louisiana today.

Under the Napoleonic Code, all rules of law are embodied in codes, or statutory law passed by the state legislature. Courts in Louisiana decide cases based on their interpretation of current codes on a case-by-case basis. No court is bound by precedent or stare decisis, meaning no court has to follow the rulings of prior court decisions. Courts in each case are free to decide based only on the facts of the current case and their own interpretation of the applicable codes.

[Uncle Joe]

46. I could never figure out this equal protection fig leaf,

how can one party (Bush) have equal protection and not the other? What is so equal about that?

This has to be one of the worst decisions in history, the justice statue with the blind fold needs a nose clamp as well.

[Samantha]

80. The equal protection assertion as well as the Safe Harbor deadline

were both caveman crocks.

The claim of violation of equal protection in recounting votes not originally counted on "election day" involved the legal assertion that doing so potentially harmed the voters who actually had voted and had their votes counted that day. The "harm" would be caused in that counting the uncounted might possibly give a disparate amount of weight to that recounted vote (should the pendulum swing the other way, i.e., Gore's votes overcame Bush*s). In making that asinine assertion, the Supreme Court nullified 51 million votes (those who had voted for Gore nationally and whose votes had been counted election day) in order to "protect" the weight of the voters in Florida whose votes had been cast and counted on election day. Got it? If that sounds ludicrous, it's because it is. If I did not explain this coherently, it's because the concept itself is incoherent.

The result of this logic is that the Supreme Court protected the weight of those votes cast and counted on election day in the State of Florida over the weight of all Gore votes cast and counted nationally on election day. That was the end result.

The Safe Harbor law was passed in the days of the Pony Express. States did not get their electoral votes to be counted by Congress often because the horse carrying the votes was dispatched too late. Therefore, in order to avoid this problem, a date certain was set when the Congress had to receive the pony expressed electoral college slate. Never mind the fact this is the Information Age, and votes are counted electronically. Stick to the old Safe Harbor law and make it have undue weight as well over counting all votes ....

[MissWaverly]

63. also there was the bit about irreparable harm

recount stopped because letting it continue would cause irreparable harm to Bush, what a joke.

[never_get_over_it]

85. BINGO

that is EXACTLY THE POINT - and as my screen name indicates I'll never get over it....

[eagler]

98. We really should never get over it !

Because that SCOTUS vote and the rigged election changed the course of history and may very well have ruined this nation forever. Voting is a sacred undertaking and any attempt to subvert it is treason.

[Hubert Flottz]

3. If you haven't done so read this sometime...

The Betrayal of America by Vince Bugliosi

"What happened here is not the sunlight of democracy, but the dark and ominous shadows of totalitarianism." -- Vincent Bugliosi

http://www.geocities.com/Athens/Acropolis/2606/bugliosi.htm

I'd love to see Vince and Gonzo go at it!

[tinfoilinfor2005]

6. Amazing.

Thanks for the link.

[FrenchieCat]

69. I bought that book at the time that it came out......and was very sorry

that it was of the few books at the time dared broach the subject of the criminality of what the Supreme Court had done in selecting our President after election 2000! This occurence is what radicalized me forever in terms of both politics and the media. I realized then that our country was in danger. And unfortunately, I was right!

[Hubert Flottz]

93. It's a great book and I respect Vince Bugliosi's opinion above

most. Anyone who hasn't read that book should check it out. It lays everything out in language that makes what happened in 2000 easy to understand.

Powerful book...Vince took a big chance telling the truth like he did...the man is a patriot.

[zenturtle]

4. this mustn't go down the memory hole

This was always one of the most telling aspects of Bush v. Gore -- that it specifically said it couldn't be cited as precedent. What does the Supreme Court do, exactly, if not set legal precedents? It never did pass the smell test, for that reason alone. Scalia's "get over it" comment is equally telling. He knows it was a b.s. decision, and being snide about it is the only thing he's got. Hard to believe more attorneys weren't/aren't up in arms about this....

[newyawker99]

14. Hi zenturtle!!

Welcome to DU!! :toast:

[davekriss]

37. My favorite Scalia quote...

Mere factual innocence is no reason not to carry out a death sentence properly reached.
-- Supreme Court Justice Antonin Scalia, First Clinically Insane Member of the Supreme Court

Gives me goose-bumps of pride to be part of the same planet as Scalia, what a wonderful, kind, wise man he is (in a f*cking upside down universe where right is wrong, wrong is right, Bush lies are reported as truth, and we bludgeon into silence those truly concerned about peace, justice, and equality -- uh, wait, we really do all that, we live in that upside-down dystopia right NOW!!!).

:crazy: :yoiks:

[robbedvoter]

92. Here's an even better one: "Sometimes the Constitution is there

to protect us from the will of the People"
Question is: "Who is "us"?
he said that shortly after Bush vs Gore, in 2001, at Princeton (loads of protesters there)

[zeemike]

7. K&R this is important for us to know n/t

[Dhalgren]

8. The very idea that a Supreme Court Justice would respond to a

question on one of the Court's decisions with "Get over it!" Speaks volumes. All SC decisions are argued, discussed, questioned, pulled apart, and gone over the a fine-tooth-comb on a more or less continual basis. Scholars, today, write tomes dealing with 19th century maritime cases and the decisions rendered. For a SC Justice to tell someone questioning a decision to "get over it" tells you that that Justice cannot reasonably nor legally defend that decision...

[Hawkowl]

104. IMPEACH SCALIA

If the dems get control of congress in 2006, they should seriously consider impeaching Scalia. There are numerous conflict of interests that he has refused to recuse himself from. The SC needs to be reminded that they are not above the law. That there will be repercussions to illegal and unethical behavior.

[MallRat]

11. Bush v. Gore is our generation's Korematsu.

Interestingly though, it took years for legal scholars and historians to recognize what a travesty of justice the Korematsu vs. US decision really was.

In the case of Bush v. Gore, it took about 2 minutes to figure it out.

Individually, the Scalias and Thomases may be happy with the outcome. But as a body, the Supreme Court would really like people to forget that it ever happened. It was fundamentally wrong and intellectually dishonest, and they knew it at the time, as evidenced by the weak disclaimer, "limited to the present circumstances."

The SCOTUS covered itself in shame on that day. And we've been paying for it ever since.

-MR

[MrCoffee]

13. I saw Scalia speak a few years ago...and BvG was verboten.

And he came right out and told us that he would not talk about Bush v. Gore. Someone asked him during the Q&A if, in his opinion, he'd ever been wrong on a case, and he said (quite candidly) that yes he had, and went on to name the case and talk about it a little. It was not Bush v. Gore. A couple of questioners attempted to sneak Bush v. Gore in, and he adamantly refused to discuss it. He wasn't petulant or anything, just wouldn't talk about it.

[Elidor]

77. I think he should have to answer for it every day for the rest of his life

That fucking weasel has some nerve declaring he won't discuss it. Good people everywhere should shun that fascist fuck.

[mopinko]

17. hey tony

[leeroysphitz]

18. Wish I could pretend it never happened...

[deminks]

19. And what did you get for it, Big Tony? The CJ job? Ha!

Have you gotten over it?

[lonestarnot]

20. I will never forget, nor will I ever surrender!

[Solon]

22. Part of the reason is that the court itself said it shouldn't set...

precedent. This is in the record of that suit, think about it, the Supreme Court knew that the decision was a BAD decision, so much so, they basically said that it will NEVER be ruled that way again.

[confludemocrat]

24. Listen Goddamnit, even Gore pretends it never happened --and the MSM, too

shows just how gutless most of these people are in truly defending what this country is supposed to be about. This is all a conspiracy of silence agreed to by both parties it seems

[MrCoffee]

25. Why is all the rage directed at Fat Tony?

Rhenquist wrote the concurrance (which Scalia and Thomas joined), the recount was stopped under a per curiam opinion, and seven of the nine (Ginsburg and Stevens disagreed) found that the recount ordered by the SCOFla was an equal protection violation.

So why is Nino the target? I'm not defending him, I just don't know why liberals ignore the shameful way the "liberal" members of the Court embraced the conservative ideology in their dissents and focus all their ire on Scarface.

[petgoat]

26. Sounds like he's the target because he's going around speaking and

refusing to talk about it.

[MrCoffee]

27. Well, they all do that...

I also saw O'Connor and Ginsburg, and they refused to say anything substantive or at all meaningful (or in O'Connor's case, coherent) about the case. They just brushed aside questions about it. And Ginsburg had some high praise directed at her for her dissent, but she did not "say" anything about the case.

[Phredicles]

30. It is weird that no one will talk about it.

No one on the court, no one in DC in general. Seemingly everyone recognizes what happened, but no one will say it. My first thought was that people had been cowed by Sept. 11, but even before then there was very little discussion in high places after the event itself. I truly don't understand why.

[petgoat]

32. There should have been affinity groups of corporate lawyers in the streets

on their lunch hours, chanting in their three-piece suits,
wearing power neckties as headbands, building barricades of
newspaper stands, waving their attache cases and making noise.

The "I'm going to work to change the system from within" crowd
really let us down. What a bunch of hypocrites.

[marions ghost]

48. I was under the impression

that O'Connor has called that vote a "mistake" in her career.

[MrCoffee]

50. Did she? When she spoke at our school...

she just sort of rambled on about the deliberative process, and tough decisions, and there will always be those who disagree, and didn't say a word about her total silence in the decision. It didn't make much sense. I wasn't aware that she'd ever said it was a mistake.

[marions ghost]

57. I tried

to Google this and find a reference for where I heard that Sandra said she had regrets about the Bush v Gore decision. Instead I only found 2 refs that allege it (same as I'm doing here) so I am not able to provide a link that substantiates it I'm afraid. It's possible there's a reference in the DU archives, as I know it was mentioned here. maybe somebody reading this remembers or has a clue?

Although O'Connor did some good on the court (as opposed to the extremists anyway) she really lost it with that decision to install the pResident. So when she talks about how she sees the judiciary now, her opinion doesn't carry the weight it would have had --had she not been an instrumental part of that historic travesty in 2000.

[davekriss]

38. The recount was stopped 5-4

The argument was, since their were unequal recount criteria being applied (agreed via the 7-2 decision) that could not be righted in time, then the right thing to do was sweep it all under the rug and allow an illegitimate vote count stand. Most ridiculous decision of the SCOTUS (the Supreme Comedy of the Unites States) this century.

[MrCoffee]

47. I know, but why Scalia?

I mean, why is he the target? Why not Rhenquist, Thomas, Kennedy, or O'Connor?

[davekriss]

75. Because the others did not have the audacity to say...

Mere factual innocence is no reason not to carry out a death sentence properly reached.
-- Supreme Court Justice Antonin Scalia, First Clinically Insane Member of the Supreme Court

[Usrename]

83. Volusia County, where I live, was recounted and certified.

Go figure.

They are liars too, on top of everything else. My vote was hand counted, so did I get screwed over this equal protection BS?

[davekriss]

84. We're all screwed, we're all Volusians now

Some of the handcount counted, others were stopped. For example, Dade was stopped by a bunch of paid brownshirt thugs creating a threat of violence outside the count room. (Broward had to be stopped as it would have swung the election to Gore despite the Jeb Bush/Kathleen Harris racial voter scrub.) The SCOTUS, as in the Supreme Clowns of the United States, first ruled (7-2) that unequal criteria were being applied to the vote recount, which means each individual voter was not receiving equal protection under the law. Then they ruled (5-4) that the wrong could not be righted by the required deadline, so they ordered the recount to be stopped. Those counties that completed their hand recount and got their results into Harris before the shutdown, those votes (any adjustments from initial tallies) counted. Thus the Bush margin dropped from a little over 2,000 votes down to the infamous 532 or whatever it was. The SCOTUS shutdown merely sweeped the whole mess under the rug while GWB still held on to a paper-thin lead. And thus the coup was completed.

The ruling required a repudiation of future stare decisis because, if set as precedent, then it is obvious the 2000 Florida election was in the first place (prior to recount) in gross violation of the equal protection clause. A voter in Democratic Dade or Broward was much more likely to have his vote nullified than someone in the Republican strongholds in the north. So in effect, after adjusting for the risk of nullification, a vote in Dade or Broward had a weight of 0.85 while a vote in Volusia had a weight of 0.98. (I write from memory, I acknowledge I may have a detail off a bit here and there.) In aggregate, the votes in Volusia were worth more, they were unequal to the votes in Dade and Broward, and the SCOTUS understood the criteria they were setting for the recount would bring into question the vote overall, thus no stare decisis was permitted.

Also, if Bush v. Gore could be held up as precedent, it would apply in Ohio in 2004, where again depending on the political leanings of the county you were voting in, your vote could have a weight significantly less than the 1 you thought you had, and significantly more than 1 in some Republican counties where more votes were counted than there were registered voters to cast them.

A ruthless Regime came in to power in 2000 through an engineered, bloodless coup; they consolidated that power in 2002 and 2004 (in 2002 the first Republican governor was elected in Georgia in 130 years despite trailing his Democratic rival by 9 points on election eve -- Georgia 2002 was the Diebold trial run). All this Regime needs to do is create the illusion that things are close and they will steal yet another election. The complicit monopolized major media will be more than happy to make it so. Then, between disenfranchisement, voter disinformation and intimidation, black box voting, and the lack of validating checks through use of exit polls, they will squeek out the House and Senate seats they need to retain power, followed by Bush blank checks to run more illegal wars, dismantle social security and medicare, and eat cake while the next New Orleans drowns.

hope you understand the time brother 'cause it's major, chants Paris in What Would You Do? The song includes this stark chorus:

what would you do if you knew all of the things we know
would you stand up for truth or would you turn away too?
and then what if you saw all of the things that's wrong
would you stand tall and strong, or would you turn and walk away?

[Fermezlabush]

91. Nino was the one who decided that SCOTUS would take the case

so as not to cause "irreparable harm to Bush by continuing the recount". The kangoroo court started with that out there decidion - so he deserves that extra attention.

[petgoat]

31. Bush v. Gore changed my life twice

Once by putting Bush in office and setting us on the path to
our current state of affairs.

And again when I found out about it. I reluctantly went to see
"Fahrenheit 9/11" in 2004 after a couple of "me-decades". After
seeing it I tried to regain my equilibrium by attempting to refute
some of its allegations. The biggest fattest target seemed to
be Moore's claim that Gore got more votes in Florida. But I'd read
in the New York Times that Bush got more votes!

The story that everyone remembers is the one from May of 2001 that
announced preliminary results from the ballot study which did
indeed show that Bush got more votes. But the ballot study went
on. The results (Gore got more votes) were due to be announced in
early September of 2001, and the National Lawyers Guild was
preparing an impeachment drive against the Rehnquist, O'Connor,
Thomas, Scalia, and Kennedy when, of course, history intervened.

By the time the story actually ran in November, there were anthrax
letters floating around, we were at war in Afghanistan, and nobody
cared about petty things like hanging chads any more. The
newspaper writeups had a heavy spin on them to legitimize Bush,
saying that if the recounts Gore undertook had been completed,
Bush still would have won. Most of them buried mention of Gore's
greater numbers of votes at the bottom of the article and managed
to make that fact seem immaterial. But Michael Moore was right.

I read Dershowitz's "Supreme Injustice" and Bugliosi's "None Dare
Call it Treason" and I got real mad. I enlisted in the Kerry
campaign full time, and I started to investigate the black box
voting machines (WTF? No verifiable ballot?)and 9/11 (WTF? No
air defense for 90 minutes?) and then the Ohio election
irregularities and soon I was marching on my Senator's office and
questioning my congressional representative and leafletting and
blogging and raising funds for candidates.

And I'm getting kind of tired of it, but we've got to keep
slogging on 'cause we're losing democracy and the rule of law to
the most reckless, lawless, secretive, brazen, and corrupt regime
this country has ever seen. Most people still don't know it, but
this is nonviolent war, and we can't stop until we've won.

[StatGirl]

42. Bugliosi's "None Dare Call it Treason"

An excellent piece, and well worth re-reading: http://www.thenation.com/doc/20010205/bugliosi

[mojowork_n]

45. Very nicely expressed. Great Post.

I didn't know about the National Lawyer's Guild. Is their effort related to the drive at:

http://www.impeachnow.org/

They're listed first, on the left side of the web page under "member organizations."

BTW, My favorite reading lately has been Greg Palast's "Armed Madhouse." The stuff on Ohio and New Mexico (2004) I had already had some exposure to, through Bradblog and FreePress. But the BushCo -- Bin Laden 'Axis of Oil' expose in the first part of the book was all new.

"Nonviolent war" is as good a description as any I've seen, for the 'win at any cost/you're with us or you're against us' mentality of the Busheviks, and the agit-prop liars on the AM radio band, FoxNews, et al, who sustain them.

[Seabiscuit]

53. Yes. Very well put indeed. My experience has been the same.

[bvar22]

49. "The results (Gore got more votes) were due to be announced....

"The results (Gore got more votes) were due to be announced in
early September of 2001."

The results were to be announced ON Sept. 11th.

Things that make you go,"Hmmmm."

[petgoat]

60. Another story that was lost in the fog of war was Rummy's announcement

on 9/10/01 that the Pentagon could not account for $2.3
trillion in expenditures.

http://www.cbsnews.com/stories/2002/01/29/eveningnews/main325985.shtml

The below is from DUer Paul Thompson's timeline:

September 10, 2001: Rumsfeld Announces Defense Department Cannot Track $2.3 Trillion in Transactions

In a speech to the Department of Defense, Defense Secretary Rumsfeld announces that the Department of Defense “cannot track $2.3 trillion in transactions.” CBS later calculates that 25 percent of the yearly defense budget is unaccounted for, and quotes a long-time defense budget analyst: “ numbers are pie in the sky. The books are cooked routinely year after year.” Coverage of this rather shocking story is nearly nonexistent given the events of the next day.

In April 2002 it will be revealed that $1.1 trillion of the missing money comes from the 2000 fiscal year. Auditors won’t even quantify how much money is missing from fiscal year 2001, causing “some fear it’s worse” than 2000. The Department of the Army will state that it won’t publish a stand-alone financial statement for 2001 because of “the loss of financial-management personnel sustained during the Sept. 11 terrorist attack.”

This $1.1 trillion plus unknown additional amounts continues to remain unaccounted for, and auditors say it may take eight years of reorganization before a proper accounting can be done.

http://www.cooperativeresearch.org/searchResults.jsp?searchtext=trillion&events=on&entities=on&articles=on&topics=on&timelines=on&projects=on&titles=on&descriptions=on&dosearch=on

[Jackpine Radical]

82. Welcome to the barricades.

I've been out here since I got back from Vietnam.

[KansDem]

33. Then O'Connor has the gall to say we're slipping into a "dictatorship!"

Retired Supreme Court Justice hits attacks on courts and warns of dictatorship

RAW STORY
Published: March 10, 2006

Via NPR. Rush transcript by RAW STORY. Listen to the audio report here.

Supreme Court justices keep many opinions private but Sandra Day O’Connor no longer faces that obligation. Yesterday, the retired justice criticized Republicans who criticized the courts. She said they challenge the independence of judges and the freedoms of all Americans. O’Connor’s speech at Georgetown University was not available for broadcast but NPR’s legal affairs correspondent Nina Totenberg was there.

Nina Totenberg: In an unusually forceful and forthright speech, O’Connor said that attacks on the judiciary by some Republican leaders pose a direct threat to our constitutional freedoms. O’Connor began by conceding that courts do have the power to make presidents or the Congress or governors, as she put it “really, really angry.” But, she continued, if we don’t make them mad some of the time we probably aren’t doing our jobs as judges, and our effectiveness, she said, is premised on the notion that we won’t be subject to retaliation for our judicial acts. The nation’s founders wrote repeatedly, she said, that without an independent judiciary to protect individual rights from the other branches of government those rights and privileges would amount to nothing. But, said O’Connor, as the founding fathers knew statutes and constitutions don’t protect judicial independence, people do.--unless their right to vote or have their votes counted accurately is taken away by...the Supreme Court!

And then she took aim at former House GOP leader Tom DeLay. She didn’t name him, but she quoted his attacks on the courts at a meeting of the conservative Christian group Justice Sunday last year when DeLay took out after the courts for rulings on abortions, prayer and the Terri Schiavo case. This, said O’Connor, was after the federal courts had applied Congress’ onetime only statute about Schiavo as it was written. Not, said O’Connor, as the congressman might have wished it were written. This response to this flagrant display of judicial restraint, said O’Connor, her voice dripping with sarcasm, was that the congressman blasted the courts.

It gets worse, she said, noting that death threats against judges are increasing. It doesn’t help, she said, when a high-profile senator suggests there may be a connection between violence against judges and decisions that the senator disagrees with. She didn’t name him, but it was Texas senator John Cornyn who made that statement, after a Georgia judge was murdered in the courtroom and the family of a federal judge in Illinois murdered in the judge’s home. O’Connor observed that there have been a lot of suggestions lately for so-called judicial reforms, recommendations for the massive impeachment of judges, stripping the courts of jurisdiction and cutting judicial budgets to punish offending judges. Any of these might be debatable, she said, as long as they are not retaliation for decisions that political leaders disagree with.

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Gee, y'think so, Sandy? And guess who helped the Party of Neo-Con Fascists?

Are you enjoying your retirement, Sandy "I'll-not-retire-during-a-Democratic-administration" O'Connor?

Memo to the Supreme Court:
Never send a boy to do a President's job

[MrCoffee]

35. Amen! THESE are the statements that give me ulcers.

Nino can refuse to speak about it all he wants. It's comments like this, however, that cause the lining of my stomach to rot away with fury.

[Seabiscuit]

39. Stare decisis only applies to written opinions which are not "per curiam"

as was the case in Bush v. Gore.

As opposed to a formally signed "opinion", this "per curiam" *decision* was not a formal "opinion" meaning it may *not* be cited as binding precedent, as not only was it not signed, but the header states that it is a "per curiam" decision.

Such decisions are rare, but not unprecedented - they do happen from time to time in history, and it's a misunderstanding to apply the word "dictum" to a decision simply because it is a "per curiam" decision as opposed to a written opinion. The Supreme Court is the only court that may make such rulings that apply only to a single case. The "legal scholars" referenced by Adam Cohen in his NYT editorial obviously don't know constitutional law very well.

I suspect "the gang of five" responsible for this decision made it nonbinding on future cases because they knew they were going to catch hell for it down the historical line as the legal brief in support of the majority decision was disingenuous and shabbily conceived (as opposed to the vigorous dissents by Justices Stevens and Ginsberg which are soundly based on good law). They just wanted to get their man into office quick without appearing to cause a constitutional crisis. Pretty flimsy and transparent tactic, if you ask me.

They also wanted to avoid a future Supreme Court *over-ruling* Bush v. Gore on legal grounds (not factual ones). As technically it is not a binding opinion, that can never happen, as the Court only over-rules binding opinions which set precedent. As no precedent was set in Bush v. Gore, there is nothing to over-rule. The only way it could have been set aside as opposed to being over-ruled, is if a case made its way to the Supreme Court before the 2004 election (any case after that date would be considered moot and dismissed) challenging it on both factual and legal grounds. That never happened.

So we're stuck with it for all time, like it or not. Fortunately, it does *not* set precedent for future cases of its type.

This article also illustrates the fact that all things written by journalists/editors about the law should be taken with a grain of salt. They can always find some lawyer or "legal scholar" out there to support their legal misconceptions, and in my experience they are more often wrong about the law than not.

[MrCoffee]

51. See Bakke v. Regents of the University of California (per curiam)

for a good example of why per curiam opinions make lousy precedent, see the University of Michigan cases (Grutter and Bollinger (sp? on the second one?))

[Seabiscuit]

52. Yes, I'm familiar with Bakke.

Actually, the point isn't that per curiam decisions "make lousy precedent", but that by their very nature they make no precedent, and generally make bad law.

Bakke was another case where a state supreme court got it right and the U.S. Supreme Court similarly fucked it up for political reasons and like chickenshits, issued an unsigned "per curiam" decision instead of a precedent-setting formal legal opinion.

I recall that Justice Ginsberg was so angry at the "gang of five" in Bush v. Gore that she gave a press conference shortly after the decision was announced in which she called the majority "cowards" for refusing to sign their decision (thus refusing to make it a formal precedent-setting legal opinion), meaning they lacked the courage of their supposed convictions.

[Clarkie1]

59. She also signed "I dissent" instead of "respectfully dissent"

The dissenting opinions were notable for their unusually harsh treatment of the majority. Justice Ginsberg concluded her dissenting opinion with "I dissent" rather than the traditional "I respectfully dissent" which was widely viewed as a rebuke of the decision.

Justice Stevens' dissent scathingly concluded:

What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, 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.

http://en.wikipedia.org/wiki/Bush_v._Gore

[Seabiscuit]

62. Excellent points. Ginsberg and Stevens were appalled.

[MrCoffee]

71. I was just throwing an example of a per curiam out there

to help demonstrate the way a per curiam opinon confuses the law until it is finally resolved by a subsequent case.

No offense meant.

[Seabiscuit]

72. I understood. No offense taken at all. I appreciated your input.

[Clarkie1]

55. Interesting. Thanks for the info.

Still, this would not preclude citing the case in cases involving equal protection of voting rights, would it? Seems to me to have equal protection, all voting systems need to be equally verifiable and accurate.

[Seabiscuit]

56. The case may of course be cited as nonbinding authority, but not as

binding legal precedent. Any argument in any future opinion that may be made citing only Bush v. Gore, however, would be mere dictum, and could not of itself form the basis for a final decision. It could be used as persuasive authority in connection with other precedents, however, to illustrate how wrong it is to interfere with a state's election laws providing for vote recounts to proceed to completion.

There are plenty of equal protection/voting rights cases on the books that can be used without a Bush v. Gore. See Justice Stevens' dissent in Bush v. Gore, for example.

I agree with your proposition about voting systems, and there is precedent for that. It is one of the foundations for the arguments being made in cases currently pending against Diebold, one of which was recently filed by Robert F. Kennedy, Jr.'s law firm.

[Clarkie1]

54. Facinating. Ironically Bush v. Gore could lead to fairer voting practices

under a more democratic interpretation of the equal protection clause. I hope this controversy doesn't go away, civil rights activists should keep bringing the decision up and NOT let it be buried.

[Rex]

64. “Come on, get over it.”

HAHAHA! Scalia is nothing more than an over-glorified sack of shit. Bush vs Gore nullifies any smarts this man can claim or be defended by.

Tony Scalia is nothing more than a bloated piece of shit, now flaking in the wind! :rofl:

[MrCoffee]

67. I respectfully dissent.

Say what you will about Scalia's politics (which suck ass, IMHO), or his judicial philosophy (which is utterly WRONG, IMHO), but the man is a brilliant jurist who is one of the most consistent members of the Court you will EVER find. His decisions are rational, well-grounded, and thoroughly in-line with his judicial philosophy.

Using BvG to attack Scalia is misguided, I think, because the same exact attack can be used against Ginsburg and Stevens (who is just below Harry Blackmun in my personal SCOTUS parthenon). Intellectual dishonesty and pure partisan posturing was not the sole provence of the conservative justices in that case. It was an anomaly in that the four liberal members of the Court were screaming "State's Rights! The Feds shouldn't interfere!"; that is just as bad, JUST AS BAD, as the three conservatives (the only ones with the stones to put their names on it, anyway), saying the State court couldn't handle the decision and needed Big Brother's help. Ginsburg attacked NAACP ex rel Patterson just as adamantly as Rhenquist defended its use.

My point is that liberals (and yes, I like to think of myself as a liberal) ignore the simple truth behind BvG...it WAS an anomaly, and all nine justices bankrupted themselves.

And I still don't know why it's all Fat Tony's fault.

[Rex]

87. I blame them all, but what can one expect of political appointees?

Who said I just blamed Tony, they all suck! I just like making fun of him more, seems to not take it well. LOL.

[ThoughtCriminal]

65. Equal Protection should have supported recount

The ruling is also self-contradicting. The only way to provide equal protection for voters who's votes were not counted by inferior equipment would have been to have a statewide recount that corrected the under-votes and loose chad ballots. Instead, the ruling gave greater protection to voters who used other equipment.

[Zorra]

68. "The Supreme Court’s highly partisan resolution of the 2000 election

was a severe blow to American democracy"...

And, if there is any justice in this world, the corrupt judges that voted to pass this resolution will someday be disbarred, imprisoned, and be historically remembered as a national shame.

[MrCoffee]

70. Bush v. Gore Strengthened Article III

The fact that the country did not fall into anarchy and violence indicates (in my admittedly inferior mind) that Article III was strengthened by the decision. The rule of law won the day.

Feel free to tear me a new one now.

[Pooka Fey]

73. Get OVER IT ???!!!

[Bluebear]

76. THIS ruling is Sandra Day O'Connor's legacy.

Plain and simple.

[City Lights]

79. Yes it is.

And I sent her a nasty letter after the decision came down telling her so.

[RestoreGore]

78. Congress Did Not Uphold Their Oath!

It was the duty of Congress to challenge the electors of Florida in the Congressional chambers on January 6, 2001. That is because the electors of Florida were not elected in accordance with Florida state law. In Florida, electors are not to be selected after election day, which is exactly what the state of Florida did. Their electoral votes should have been discounted, and under the Constitution had they been challenged as they should have been, Al Gore would have been President of the United States. Instead, Congress chose to ignore the law and their duty, and it has led to what we face today.

The Twelfth Amendment to the Constitution provides that candidates for President and Vice-President with the greatest number of votes are elected, "if such number be a majority, of the whole number of Electors appointed." However, the number of Electors appointed does not include those appointed in violation of law as Florida's were. As 3 U.S.C. § 6 points out, appointments are only valid if done pursuant to State Law and the U.S. Constitution. If a state's electoral slate is not "lawfully certified," no electors are lawfully appointed, and any votes cast by them may be rejected by Congress. 3 U.S.C. § 15. If Congress rejected the Florida electoral votes as not certified according to law, the election of the President and Vice-President would have been determined by whomever received a majority of the 513 appointed electors lawfully certified and appointed.

Congress had the legal right and duty to intervene because the slate of Electors sent to the Electoral College by the State of Florida was certified outside the "safe harbor" set by 3 U.S.C. § 5. This code section, which ordinarily precludes Congressional inquiry into a State's conclusive determination of an election controversy, does so only if a "final determination" is made prior to December 12, 2000 and if the election challenge is resolved pursuant to "laws enacted prior to the day fixed for the appointment of the electors." 3 U.S.C. § 5.

This wasn't just some "misunderstandng" to be swept under the rug. This was a breaking of the law that resulted in what we now live in. I firmly believe since it was then Congress's duty to challenge these electors and they did not thus violating the Constitution, it is then their duty to now make it right in a manner that is Constitutionally lawful and commensurate with a specific relief for the people of America, and the candidate denied the office he was elected to.

Our PAC tried to hold Congress accountable for this crime, and our petition to that effect is still on our site. And while we know because of the corrupted system we have that we will not see justice for this crime, our petition will still be sent to the Subcommittee on the Constitution at year's end, and Congress will know this crime has not been forgotten.

http://www.patriotsforgore.com

[Seabiscuit]

81. Very enlightening. Only one problem:

Bush already completed the term of office he was "elected" to in 2000. We can't remove him from an office term he is no longer serving.

He's currently serving the term he was "elected" to in 2004.

[RestoreGore]

97. Yes, and this is sad and tragic...

And the main reason why he needs to be impeached. His entire tenure as a pretend president has been illegitimate. What is even more sad and tragic is that the majority of Americans out here don't seem to care. Our PAC reviewed various Constitutional methods to seek to have Al Gore's stolen term restored, but alas, I suppose it is just not meant to be. However as I wrote in my post above, our petition will still go out at the end of the year to let them know that we have not forgotten.

I also thank you for calling it enlightened. It is surely a far cry from the names I was called by Gore supporters when I started my PAC to do this... crackpot was actually the name thrown at me besides nuts and moonbatty... that sure tells me how far our Democracy has fallen when a man can have a Presidential term stolen from him (regardless of what people may think about his actions or inactions regarding it) and people think it is batty to seek to restore it via the Constitution that was shred to hand it to Bush. At least I know in my heart and soul that I never gave up.

[Seabiscuit]

99. You are not only enlightened but also very courageous. Kudos! n/t

[Peggy Day]

86. I will never respect the SC again.

I used to think they were the greatest, now I can hardly talk about it without extreme bitterness. It was a coup. They are undeserving of any respect.

[GeorgeGist]

89. Bush v Gore will always be a HUGH black mark...

on SCOTUS. At least, for those who care more about the Constitution than politics.

[Fermezlabush]

90. Name also shows it was Jr who sued - against the MSM narrative

based on the "liberal" profile (you know, we'd rather sue Al Quaeda than fight them as Bush said)
Whenever you see two names at the top of a case - the first one is the Plaintiff - the one who brought the case to the court.

[tomp]

94. and according to bugliosi bush did not have standing to sue.

bush was not a florida voter. equal protection in this case would only apply to someone whose vote was in question, i.e., a florida voter.

as i understand it, standing is supposed to be the first thing considered by the court. upon a nanosecond of reflection, the court would have seen that bush did not have standing. at best, they should have rejected the case and waited for the inevitable refiling by a floridian, but that would have allowed voting to continue.

[liam_laddie]

95. Another allegation about Fat Tony's...

background is in "Votescam:The Stealing of America" by James and Kenneth Collier,
ISBN: 0-9634163-0-8, which book starts its voyage with election shenanigans in FL...in 1970!
In late 1985-early 1986, Tony, then a judge on the DC Circuit Court, apparently intervened,
probably illegally, certainly unethically, in one of the Colliers' key election fraud cases, causing
the brothers' case to be dismissed.
Chapter 13, "Full Circle" is the epi-center; pg 257-on make for some useful insights into
Tony's rise. Fucker...

[Zambero]

96. Bush v. Gore is analagous to Stalin in the USSR

Stalin decimated his own people, while BvG decimated democracy as we know it. And subsequent attempts were made to downplay the evil consequences of both. De-Stalinization was the Soviet Union's way of eradicating Stalin and his atrocities from the historic record, as a form of official denial. Sweeping Bush v. Gore under the rug is also a form of convenient denial. It's a bit difficult to just "get over it" in Justice Scalia's self-serving words, when arbitrary rulings on the state and federal level -- based on partisan considerations -- alters the course of history, for the worse. Those associated with these decisions remain fully accountble for their acts. There is no collective amnesia here. Just ask Katherine Harrris.

[Coes]

100. Could and should have been Gore,

but no, the world ended up with that Bush dude.

:insertverymadsmileyhere:

[Seabiscuit]

101. Bottom Line: Al Gore is our President. He would have won a second term

in 2004 as well.

Bush is pretender.

9/11 never would have happened under Al Gore's watch. He would have utilized the intelligence services of Richard Clark and others to prevent it (and would have shot down the planes immediately once they were in the air if they had ever managed to take off with those 'quedas on board) and we wouldn't have some criminal, moronic bent-out-of-shape pretzeldent squawking "war on terror... 9/11... Iraq WMDs... war on terror... Iraq WMDs... 9/11... war on terror" for the past four years.

Kerry's race never would have occurred had justice been done.

Al Gore absolutely deserves to be restored to his rightful place in the White House in 2008 for 8 YEARS!

He has nobly wandered in the wilderness for far too long.

To his credit, he already has a #1 bestselling book and probable Oscar award winning film under his belt.

GORE/FEINGOLD 2008!!!!!!!!!!!!!!!!

[yellowdogmi]

102. This doesn't really surprise me.

That ruling should have resulted in the impeachment of all of the justice's involved for shirking their responsibilities to the constitution. I hope that it is not too late to do just that. Maybe that should be the next step for Mr. Conyers and Mr. Feingold. Just a thought from a bomb throwing pissed off citizen.

[Seabiscuit]

103. Well, not impeach all - just the "gang of 5" and one of them is dead and

the other just retired.

There are two more now to target.

Kennedy for the short-term has appeared to switch sides.

The original 4 dissenters are still there, bless them.