by NewKid » Sat Feb 25, 2006 5:09 pm
This from the Vanity Fair article on Bush v. Gore in the Supreme Court:<br><br><!--EZCODE QUOTE START--><blockquote><strong><em>Quote:</em></strong><hr>The clerks for the liberal justices watched the events unfold with dismay. To them, the only hopeful sign was Kennedy’s skepticism about Bush’s chances. “We changed our minds every five minutes about whether the fix was in,” one clerk remembers.<hr></blockquote><!--EZCODE QUOTE END--><br><br>snip<br><br><!--EZCODE QUOTE START--><blockquote><strong><em>Quote:</em></strong><hr> Convinced the majority would reverse the Florida court, they began drafting a dissent even before the case was argued in court. It was long—about 30 pages—and elaborate, written principally by Justice Stevens, then 80, the most senior of the would-be dissenters and, largely by default, the Court’s most liberal member, even though a Republican, President Gerald R. Ford, had appointed him. With the assistance of Justices Stephen Breyer, David Souter, and Ruth Bader Ginsburg, Stevens laid out why the Court should never have accepted the case.<hr></blockquote><!--EZCODE QUOTE END--><br><br>snip<br><br><!--EZCODE QUOTE START--><blockquote><strong><em>Quote:</em></strong><hr>At a dinner on November 29, attended by clerks from several chambers, an O’Connor clerk said that O’Connor was determined to overturn the Florida decision and was merely looking for the grounds. O’Connor was known to decide cases on gut feelings and facts rather than grand theories, then stick doggedly with whatever she decided. In this instance, one clerk recalls, “she thought the Florida court was trying to steal the election and that they had to stop it.” Blithely ignorant of what view she actually held, the Gore campaign acted as if she were up for grabs. In fact, the case would come down to Kennedy.<hr></blockquote><!--EZCODE QUOTE END--><br><br>snip<br><br><!--EZCODE QUOTE START--><blockquote><strong><em>Quote:</em></strong><hr>It was unusual, then, for a conservative clerk to visit the chambers of a justice on the other side. But that is what Kevin Martin, a clerk for Scalia, did on November 30 when he stopped by Stevens’s chambers. Martin had gone to Columbia Law School with a Stevens clerk named Anne Voigts; he thought that connection could help him to bridge the political divide and to explain that the conservative justices had legitimate constitutional concerns about the recount. But to two of Voigts’s co-clerks, Eduardo Penalver and Andrew Siegel, Martin was on a reconnaissance mission, trying to learn which grounds for reversing the Florida court Stevens would consider the most palatable. They felt they were being manipulated, and things quickly turned nasty. “Fuck off!” Martin finally told them before storming out of the room. (O’Connor clerks paid similar exploratory visits to various chambers, but those ended more amicably.)<hr></blockquote><!--EZCODE QUOTE END--><br><br>snip<br><br><!--EZCODE QUOTE START--><blockquote><strong><em>Quote:</em></strong><hr>Sure enough, the Bush campaign asked the Court to stay the decision and halt the recount. In a highly unusual move, Scalia urged his colleagues to grant the stay immediately, even before receiving Gore’s response. Gore had been narrowing Bush’s lead, and his campaign expected that by Monday he would pull ahead. But Scalia was convinced that all the manual recounts were illegitimate. He told his colleagues such recounts would cast “a needless and unjustified cloud” over Bush’s legitimacy. It was essential, he said, to shut down the process immediately. The clerks were amazed at how baldly Scalia was pushing what they considered his own partisan agenda.<hr></blockquote><!--EZCODE QUOTE END--><br><br>snip<br><br><!--EZCODE QUOTE START--><blockquote><strong><em>Quote:</em></strong><hr>[S]o eager was the majority to stop the recount, one clerk recalls, that Stevens had to plead for more time to complete his dissent. What he wrote—that “counting every legally cast vote cannot constitute irreparable harm”—so provoked Scalia that, as eager as he was to halt the recount, he delayed things by dashing off an angry rejoinder, largely reiterating what he’d told the justices the previous night. “Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires,” he argued, forecasting that a majority of the Court would ultimately rule in Bush’s favor on the merits.<br><br>Even some of the justices voting with Scalia squirmed at how publicly he’d acknowledged the divisions within the Court. To the liberal clerks, what he had written was at least refreshing in its candor. “The Court had worked hard to claim a moral high ground, but at that moment he pissed it away,” one recalls. “And there was a certain amount of glee. He’d made our case for us to the public about how crassly partisan the whole thing was.” Scalia’s opinion held up release of the order for an hour. Finally, shortly before three o’clock, the Court granted the stay. No more votes would be counted. Oral arguments were set for the following Monday, December 11.<hr></blockquote><!--EZCODE QUOTE END--><br><br>snip<br><br><!--EZCODE QUOTE START--><blockquote><strong><em>Quote:</em></strong><hr>But to the liberal clerks it was all over. They placed their dwindling hopes not on anything that would happen in the Court on Monday, but on the press. The brother of a Ginsburg clerk, who covered legal affairs for The Wall Street Journal, had learned that the paper would soon report how, at a party on Election Night, O’Connor was overheard expressing her dismay over Gore’s apparent victory. Once that information became public, the liberal clerks felt, O’Connor would have to step aside. When, on the night before the Court convened, she sent out a sealed memo to each of her colleagues, those clerks hoped this had actually come to pass. In fact, she was merely stating that she, too, felt the Florida Supreme Court had improperly usurped the state legislature’s power. Gore’s lawyers, who also knew about O’Connor’s election-night outburst, toyed briefly with asking her to step aside. But they demurred, hoping instead that she would now lean toward them to prove her fairness. Things were that bleak.<hr></blockquote><!--EZCODE QUOTE END--><br><br>snip<br><br><!--EZCODE QUOTE START--><blockquote><strong><em>Quote:</em></strong><hr>As the drafts began circulating, tempers began to fray. In an unusual sealed memo—an unsuccessful attempt to avoid the clerks’ prying eyes—Scalia complained about the tone of some of the dissents. He was, he confessed, the last person to criticize hard-hitting language, but never had he, as the dissenters were now doing, urged the majority to change its decision based on its impact on the Supreme Court’s credibility. He charged that his opponents in the case were inflicting the very wounds to the Court that they had supposedly decried. As Jeffrey Toobin first reported, he objected in particular to what he called the “Al Sharpton footnote” in Ginsburg’s dissent: her comment on Florida’s disenfranchised black voters. Whether out of timidity, collegiality, or affection—Scalia was her closest friend on the Court—Ginsburg promptly took it out. “It was the most classic example of what kind of bully Scalia is,” says one clerk, who called Scalia’s complaint “an attempt to stifle legitimate discourse worthy of Joe McCarthy.” As for Ginsburg, this clerk says her response “showed a lack of courage.”<hr></blockquote><!--EZCODE QUOTE END--><br><br>snip<br><br><!--EZCODE QUOTE START--><blockquote><strong><em>Quote:</em></strong><hr>Rehnquist, along with Scalia and Thomas, joined in the decision, but Scalia, for one, was unimpressed. Whether or not one agrees with him, Scalia is a rigorous thinker; while the claim that the Florida Supreme Court overstepped its bounds had some superficial heft to it, the opinion on equal-protection was mediocre and flaccid. “Like we used to say in Brooklyn,” he is said to have told a colleague, “it’s a piece of shit.” (Scalia denies disparaging the majority opinion; the other justices would not comment for this article.)<hr></blockquote><!--EZCODE QUOTE END--><br><br>snip<br><br><!--EZCODE QUOTE START--><blockquote><strong><em>Quote:</em></strong><hr>Ultimately, only the five justices in the majority know how and why they decided the case as they did and whether they did it in good or bad faith. Perhaps even they don’t know the answer. An insider was asked if the five would pass a lie-detector test on the subject. “I honestly don’t know,” this insider replies. “People are amazing self-kidders.”<hr></blockquote><!--EZCODE QUOTE END--><br><br><!--EZCODE LINK START--><a href="http://www.makethemaccountable.com/articles/The_Path_To_Florida.htm" target="top">www.makethemaccountable.com/articles/The_Path_To_Florida.htm</a><!--EZCODE LINK END--><br><br><br><br><br><br> <p></p><i></i>
