By responding to some of our comments, you have now one-upped yourself over Grover Norquist. I know, I know, that's not such a high bar...

Anyway, we appreciate you taking the time to read and reply to our comments. The give-and-take makes a big difference; it makes this a discussion, not a lecture.

Thank you.

Re: Or, as Justice O’Connor likes to say, “Bush would have won anyway.” O’Connor’s point is based on the so-called media recount, which is widely – and wildly – misinterpreted as leading to the definite conclusion that Bush would have won anyway. The media recount says no such thing. By the way, O’Connor is not in the habit of regretting anything, including her vote on Bush v. Gore. But she was sure disappointed by the Bush presidency.

"Media" count or not, I have to agree, I'm afraid. Had the Supreme Court refused to intervene Florida's votes would have been decided in either the Florida state legislature or else the House of Representatives. Both were controlled by the GOP. Hence, a Bush victory. I do agree that the Supreme Court's decision was wrong and that the disputed vote should have been decided by either Florida or the House as the Constitution requires.

Rick,It's not your fault - it's the 5 justices' - who hijacked the 14th Amendment & used it steal the the election for Bush - fault.

Agreed -- but after the Florida legislature decided it (I don't think it would have made its way to the House of Representatives), post-election an equal protection argument would still have driven it to SCOTUS.

And at that point -- assuming the Republican Florida legislature had given the election to Bush -- the Court would have decided against hearing the case on the grounds that it constituted a "political question."

Would you have liked that outcome better?

Thanks oleeb- for saying what needed to be said

I stand with you.

Be Well,

Dr.Rick Lippin
http://medicalcrises.blogspot.com

The media and the rioting RNC proxies at the election boards in Florida contributed to the frenzied thinking that something had to be done immediately or the US government would fall. Of course that wasn't the case and there was plenty of time for the process to work its way up to SCOTUS without their grabbing jurisdiction. SCOTUS is a Republican bastion but they could have looked much less partisan. History will not look upon them kindly for that major blunder.

The really frustrating thing is that if all of Florida's votes had been recounted Gore would have probably have taken the electoral votes for the state.

But that set the stage for all that followed. We would not have DailyKos we would not have TPM we would not have had a wave election in 2006 and we would not know right out the threat to the Constitution that we are dealing with, the war against the Republi-fascist extremists.

So on some level I'm glad we're having this fight. It's going to be a long fight but you have to look at it like the American Civil War, at some point the cultural clash was going to erupt and at least now we can fight it and start the urgent work of saving our planet as soon as its over.

There were 175,000 votes overall that were so-called “spoiled ballots.” About two-thirds of the spoiled ballots were over-votes; many or most of them would have been write-in over-votes, where people had punched and written in a candidate’s name. And nobody looked at this, not even the Florida Supreme Court in the last decision it made requiring a statewide recount. Nobody had thought about it except Judge Terry Lewis, who was overseeing the statewide recount when it was halted by the U.S. Supreme Court. The write-in over-votes have really not gotten much attention. Those votes are not ambiguous. When you see Gore picked and then Gore written in, there’s not a question in your mind who this person was voting for. When you go through those, they’re unambiguous: Bush got some of those votes, but they were overwhelmingly for Gore.

The Battle for Florida (University Press of Florida, 2005), looks at the twilight of democracy in Ancient Greece and draws disturbing parallels with the institutions in Florida and the nation during the 2000 election and up until today deHaven-Smith interview

Florida did not had a fair election in 2000,
did not have a fair election in 2004,
and will not have a fair election in 2008!

Remember, Florida has a Republican Governor, A Republican Legislature,
and mostly Republican Mayors and City Councils. There is not a Florida Law,
Ordinance, County, City or State that probably has not or will not be broken
when it stands in the way of what a politician and his supporters wants to achieve!

There is no Democracy to be found!

-----------------------------------------------
Today, are we searching for I deals or Ideals?
-Thinking

It is true that Justice Scalia has thought about leaving at times; in my opinion, he likes the job less than any of his colleagues (except Souter).

really?? so you don't think thomas is being truthful when he claims that he'd: 'rather be a small business owner like my grandfather'?

Re: Florida did not had a fair election in 2000,
did not have a fair election in 2004,
and will not have a fair election in 2008!

I have lived in Florida since 2003. I am not aware of any major problems in 2004. And the state has cleaned up its act considerably for 2008: electronic voting is on the way out (paper trails will be required) and most felons will now have their voting rights restored when their sentences are complete.

Re: Remember, Florida has a Republican Governor

True, but a very differnet kind of Republican-- almost a liberal relative to today's GOP.

=== But again: had the Court refused to hear the case it would have been decided in either the Florida state legislature or the US House, and in either case it's simply fantasy to imagine that Gore would have been elected by either of those GOP-dominated bodies. ===

You don't need a smoking gun to know that the Republicans stole the election of 2000 and they were working long and hard to do so on many levels. Had the vote count in Florida been honest, and had any one of the many dirty tricks the Republicans engaged in not taken place Gore clearly would have won the election.

Thus, in my opinion and the opinion of many, many others, all the haggling over the minutae of how votes would have been counted, whether Florida's legislature or the US House would have decided the election is beside the point and a distraction---though there's plenty of evidence to suggest that Gore would, indeed, have won a recount as ordered by the Florida Supreme Court. Had the Republicans not believed that were the case they would not have gone to the extraordinary length of manipulating the Supreme Court to put the fix in and the five would not have acted illegally to put an end to the counting of votes. Go back and read the decision and you will remember how obvious this was.

But the bottom line is that the coup was completed by the 5 Supreme Court justices who behaved as Judges do in a banana republic--not in the United States of America. And, unsurprisingly, the banana repbublic judges handed us a tin horn dictator who has behaved no differently than a Somoza, Noriega or dozens of other latin American tyrants. Our economy and currency are no longer as strong and stable as they were prior to 2000, our national security apparatus is used in the same ways as in banana republics, and our tax dollars are treated as the spoils of victory to be distributed to cronies and friends of the dictator.

I repeat, for all the reasons stated above, the 5 should be behind bars and I'll add so should Bush, Cheney and all their key henchmen. The current junta was installed, not elected. They have never been legitimate.

Sadly our population has such a poor understanding of the Constitution and the underlying principles that support our democracy they don't know they can rise up and throw off this yoke and they have every right to do so. They don't think of that as an option. The panic among the elites to have the Supreme Court act with such lightning speed was because they were afraid the people might actually awake from their slumber and refuse to accept the new tyrant if they didn't put a lid on it quickly.

It galls me and many others that good and admirable people such as Mr. Toobin do not call this crime what it was in plain english, let alone the corporate media that sets the tone and ground rules for how such issues will be talked about on the airwaves and in print. Non-fascists should all call this crime what it was regardless of what the mainstream calls for, otherwise the entire issue is framed as just a temporary bump in the otherwise perfectly functioning democratic system we live in--certainly not something any of us need to spend a lot of time on. We need to just get over it as Scalia says. Why? Would our forefathers just get over it? Our foremothers? I think not.

The problem with all this is that we all know that framing what happened in the way it has been framed by the corporate media is a lie and that our system has been hijacked by the most lawless and criminal gang of thugs ever to hold power in the history of our nation. That's why I cannot help but to insist on the truth when it comes to the coup the 5 justices took part in.

Hear Hear I couldn't agree more -the real problem was that these 5 undermined the constitution and they got away with it and very few americans noticed. (though I completely disagree that if a full recount had been done, as was loooking more and more likely, that Bush would still have won and that is why they couldn't let t get that far).
bornagaindem

Gore would also have ended the drought in the West and taken all the calories out of beer, I'm sure. The man is a god! Except in Tennessee.

Well, we know that Gore was online with Clinton in seeing Terrorism and Al Quaeda as a number one priority.

Bush considerably downgraded terrorism as a priority and cut support and manpower.

We know that Gore would probably have ordered reprisals when it was clear that Al Quaeda was behind the Cole Bombing.

Bush chose to ignore the Cole bombing so as not to provoke Al Quaeda.

Clinton finished his term with a plan to take the war to Al Quaeda, Gore would have probably followed through on that plan.

Bush ignored that plan.

Gore would not have ignored the Hart Rudman Report, which included measures to strengthen airport security and cockpit doors, but would have probably sought to implement them. Possibly in time.

Bush shelved the Hart-Rudman report and started the process all over again.

Gore would probably not have ignored the August 17 briefing.

Bush ignored the August 17 briefing and continued his vacation.

So, on all the evidence, there seems to be a very good possibility that 9/11 might not have happened at all under Gore. That instead, because of increased priority, increased focus and attention, pro-active security measures, and a general lack of negligence, there is a real chance that 9/11 would have been intercepted or considerably reduced.

Of course, we can never know for sure.

One thing we do know for sure:

On 9/11 Bush crapped his pants and ran for cover, partly it was because he was untested, unchallenged and unprepared, and partly because that's his standard MO.

Al Gore would not have, as he had seen crisis and combat in Vietnam, and in government.

As for Iraq... Well, the invasion of Iraq and subsequent occupation seems to be profoundly a Bush thing. It's difficult to imagine any other President being stupid enough to get into it. Certainly two previous Presidents had deliberately dodged that bullet, and Gore was on line for the decision of Clinton to dodge it.

So it's pretty much dead certain that under Gore, no invasion of Iraq, and no series of attendant incompetence and consequences.

My two cents on the political/nonpolitical issue

From the point of view of the semantic meaning of established law/constitution, it is not entirely up for grabs. If Scalia wrote an opinion that the first amendment supports legalization of gambling, I think that would be a stretch and hard to sell.

On the other hand, there is considerable ambiguity in the constitution so that reading some part of it to apply to a current case cannot be (as Tenent would say) a slam dunk.

Given that we find ourselves having to decide current cases before the court, something other than the simple reading of the constitution's meaning is going to have to be used. The constitution does not wear its semantic meaning on its sleeve. So I agree with Toobin that something other than mythical literalism will have to be used. I don't agree that that "other" has to be politics. It can be the judges moral intuitions, or something as trivial as how the judges mood is at the time.

I am a late comer into this discussion, and have been away from this site for a bit. I am surprised that so many seem to be still weighted down with artifacts from the past. Bush v Gore was a travesty, and a primary contributing factor for much of This Nation's current woes. Still, what is past is, and will forever be, immutable.

Get over it. There are current battles that need be won for America's future. This administration is attacking with rapacity the very fount from which flows our birthright of freedom, that as axiom posits the revolutionary ideal that humans, for no other reason than their existence, possess liberties which are preeminent to legitimate state actions. A complacent citizenry has allowed the Executive and Legislature, acting in collusion, to assert that Constitutional restraints placed upon the state are somehow magically removed at The Nation's borders; to operate under rules that contradict what was the true original intent: That ALL Humans are endowed at birth, by that which they perceive as the Creative Force, with inalienable rights. There can be no equivocations; the phrases "No Person" and "In All Criminal Prosecutions" imply universality, not a bar bounded by citizenry. This assuredly encompasses state actions which strip life liberty and/or property away from even our enemies. This is the break in the barricade from which emerged the abomination that is our leviathan unleashed and unmuzzled, now loosed upon The Earth as rabid wolf amongst the sheep. Our tyrannical beast of state must again be restrained, or it will turn, and with an insatiable ravening hunger for power, devour us.

To despair over an event now over six years past, is to continue this plunge into the abyss. Just last week in a Senate vote, only Six Republicans stood as Friends of Liberty in an attempt to restore habeas corpus rights to Mr. Bush's detainees. By my count, that leaves 43 Republicans and 1 Connecticut Independent standing as clear targets of opportunity to feel the full effects of your pent up hostilities in action that can change the future positively. Our elected politicians must pay a painful price for their insolent theft of human liberty, and again be put in their proper place as representatives in a government of, by and for the people.

As to Bush v Gore; accept it as a hard learned lesson which aided in enlightenment, by exploding the myth that 1/3 of the government could be entrusted with protecting the people's liberty, and by piercing the complexity, exposing the Justices of The Supreme Court as putrescent pontificating partisans openly flaunting their fetish for black satin moo moos, who are worthy only of the same disrespect that we bestow upon all other elected and appointed governmental officials; secure in the self-evident knowledge that they cannot be trusted farther than we can swing a rope from the old oak tree in front of City Hall.

Thomas Jefferson warned:

"You seem...to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is 'boni judicis est ampliare jurisdictionem,' and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots."

Thomas Jefferson, letter to William Charles Jarvis, September 28, 1820, as published in "The Writings Of Thomas Jefferson, Definitive Edition", Albert Ellery Bergh Editor, Vol. XV, p 277

And Justice John Paul Stevens should guide:

"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."

George W. Bush, et al., Petitioners v. Albert Gore, Jr., et al., Justice John Paul Stevens Dissenting

I just wanted to add my thanks to Mr. Toobin for responding to questions.
BTW, it's considered OK to respond in the comments section, no need for a new post each time.

Actually, if Stevens, Ginsburg and Breyer leave, the court almost certainly moves to the right, as the moderate/centrist appointees the Democratic President will appoint to replace them will most likely be more moderate/centrist than they are in order to avoid a bruising confirmation hearing, which for some reason I have never been able to fathom, while the right relishes such battles, Democrats shy away from them.

(I will also go on the record as saying that I am not happy about this likelihood in advance. Maybe I will google this comment in a few years when it happens so at least I can get the pleasure of saying I told you so out of the whole thing.)

Did O'Connor really say something to the effect that

“Bush would have won anyway.” O’Connor’s point is based on the so-called media recount, “Bush would have won anyway.” based on the so-called media recount?

That's idiotic. The FL state statutes do not delegate the counting of ballots to the media. They delegated the counting of ballots to the county elections commissions.