[Hpn] FW: None Dare Call It Treason

coh coh@sfo.com
Mon, 22 Jan 2001 12:51:44 -0700

From: radman <resist@best.com>
Date: Sun, 21 Jan 2001 23:32:30 -0800
To: (Recipient list suppressed)
Subject: None Dare Call It Treason

radman pull quote:

"The stark reality, and I say this with every fiber of my being, is that the
institution Americans trust the most to protect its freedoms and principles
committed one of the biggest and most serious crimes this nation has ever
seen, pure and simple, the theft of the presidency."

February 5, 2001

None Dare Call It Treason



In the December 12 ruling by the US Supreme Court handing the election to
George Bush, the Court committed the unpardonable sin of being a knowing
surrogate for the Republican Party instead of being an impartial arbiter of
the law. If you doubt this, try to imagine Al Gore's and George Bush's roles
being reversed and ask yourself if you can conceive of Justice Antonin
Scalia and his four conservative brethren issuing an emergency order on
December 9 stopping the counting of ballots (at a time when Gore's lead had
shrunk to 154 votes) on the grounds that if it continued, Gore could suffer
"irreparable harm," and then subsequently, on December 12, bequeathing the
election to Gore on equal protection grounds. If you can, then I suppose you
can also imagine seeing a man jumping away from his own shadow, Frenchmen no
longer drinking wine.

From the beginning, Bush desperately sought, as it were, to prevent the
opening of the door, the looking into the box, unmistakable signs that he
feared the truth. In a nation that prides itself on openness, instead of the
Supreme Court doing everything within its power to find a legal way to open
the door and box, they did the precise opposite in grasping, stretching and
searching mightily for a way, any way at all, to aid their choice for
President, Bush, in the suppression of the truth, finally settling, in their
judicial coup d'état, on the untenable argument that there was a violation
of the Fourteenth Amendment's equal protection clause, the Court asserting
that because of the various standards of determining the voter's intent in
the Florida counties, voters were treated unequally, since a vote
disqualified in one county (the so-called undervotes, which the voting
machines did not pick up) may have been counted in another county, and vice
versa. Accordingly, the Court reversed the Florida Supreme Court's order
that the undervotes be counted, effectively delivering the presidency to

Now, in the equal protection cases I've seen, the aggrieved party, the one
who is being harmed and discriminated against, almost invariably brings the
action. But no Florida voter I'm aware of brought any action under the equal
protection clause claiming he was disfranchised because of the different
standards being employed. What happened here is that Bush leaped in and
tried to profit from a hypothetical wrong inflicted on someone else. Even
assuming Bush had this right, the very core of his petition to the Court was
that he himself would be harmed by these different standards. But would he
have? If we're to be governed by common sense, the answer is no. The reason
is that just as with flipping a coin you end up in rather short order with
as many heads as tails, there would be a "wash" here for both sides, i.e.,
there would be just as many Bush as Gore votes that would be counted in one
county yet disqualified in the next. (Even if we were to assume, for the
sake of argument, that the wash wouldn't end up exactly, 100 percent even,
we'd still be dealing with the rule of de minimis non curat lex, the law
does not concern itself with trifling matters.) So what harm to Bush was the
Court so passionately trying to prevent by its ruling other than the real
one: that he would be harmed by the truth as elicited from a full counting
of the undervotes?

And if the Court's five-member majority was concerned not about Bush but the
voters themselves, as they fervently claimed to be, then under what
conceivable theory would they, in effect, tell these voters, "We're so
concerned that some of you undervoters may lose your vote under the
different Florida county standards that we're going to solve the problem by
making sure that none of you undervoters have your votes counted"? Isn't
this exactly what the Court did?

Gore's lawyer, David Boies, never argued either of the above points to the
Court. Also, since Boies already knew (from language in the December 9
emergency order of the Court) that Justice Scalia, the Court's right-wing
ideologue; his Pavlovian puppet, Clarence Thomas, who doesn't even try to
create the impression that he's thinking; and three other conservatives on
the Court (William Rehnquist, Sandra Day O'Connor and Anthony Kennedy)
intended to deodorize their foul intent by hanging their hat on the anemic
equal protection argument, wouldn't you think that he and his people would
have come up with at least three or four strong arguments to expose it for
what it was, a legal gimmick that the brazen, shameless majority intended to
invoke to perpetrate a judicial hijacking in broad daylight? And made sure
that he got into the record of his oral argument all of these points?  Yet,
remarkably, Boies only managed to make one good equal protection argument,
and that one near the very end of his presentation, and then only because
Justice Rehnquist (not at Boies's request, I might add) granted him an extra
two minutes. If Rehnquist hadn't given him the additional two minutes, Boies
would have sat down without getting even one good equal protection argument
into the record.

This was Boies's belated argument: "Any differences as to how this standard
[to determine voter intent] is interpreted have a lot less significance in
terms of what votes are counted or not counted than simply the differences
in machines that exist throughout the counties of Florida." A more powerful
way to make Boies's argument would have been to point out to the Court the
reductio ad absurdum of the equal protection argument. If none of the
undervotes were counted because of the various standards to count them, then
to be completely consistent the Court would have had no choice but to
invalidate the entire Florida election, since there is no question that
votes lost in some counties because of the method of voting would have been
recorded in others utilizing a different method.1 [Footnotes on page 7] How
would the conservative majority have gotten around that argument without
buckling on the counting of the undervotes? Of course, advice after a
mistake is like medicine after death. And as we shall see, no matter what
Boies argued, the five conservative Justices had already made up their
minds. But it would have been delightful to see how these Justices, forced
to stare into the noonday sun, would have attempted to avoid a confrontation
with the truth.

The Court majority, after knowingly transforming the votes of 50 million
Americans into nothing and throwing out all of the Florida undervotes
(around 60,000), actually wrote that their ruling was intended to preserve
"the fundamental right" to vote. This elevates audacity to symphonic and
operatic levels. The Court went on to say, after stealing the election from
the American people, "None are more conscious of the vital limits on its
judicial authority than are the members of this Court, and none stand more
in admiration of the Constitution's design to leave the selection of the
President to the people." Can you imagine that? As they say, "It's enough to
drive you to drink."

What makes the Court's decision even more offensive is that it warmly
embraced, of all the bitter ironies, the equal protection clause, a
constitutional provision tailor-made for blacks that these five conservative
Justices have shown no hospitality to when invoked in lawsuits by black
people, the very segment of the population most likely to be hurt by a Bush

As University of Southern California law professor Erwin Chemerinsky noted:
"The Rehnquist Court almost never uses equal protection jurisprudence except
in striking down affirmative action programs [designed to help blacks and
minorities]. I can't think of a single instance where Scalia or Thomas has
found discrimination against a racial minority, or women, or the aged, or
the disabled, to be unconstitutional."

Varying methods to cast and count votes have been going on in every state of
the union for the past two centuries, and the Supreme Court has been as
silent as a church mouse on the matter, never even hinting that there might
be a right under the equal protection clause that was being violated.
Georgetown University law professor David Cole said, "[The Court] created a
new right out of whole cloth and made sure it ultimately protected only one
person, George Bush." The simple fact is that the five conservative Justices
did not have a judicial leg to stand on in their blatantly partisan
decision. In a feeble, desperate effort to support their decision, the Court
cited four of its previous cases as legal precedent, but not one of them
bears even the slightest resemblance to Bush v. Gore. In one (Gray v.
Sanders), the state of Georgia had a system where the vote of each citizen
counted for less and less as the population of his or her county increased.
In another (Moore v. Ogilvie), the residents of smaller counties in Illinois
were able to form a new party to elect candidates, something residents of
larger counties could not do. Another (Reynolds v. Sims) was an
apportionment case, and the fourth (Harper v. Virginia) involved the payment
of a poll tax as a qualification for voting. If a first-year law student
ever cited completely inapplicable authority like this, any thoughtful
professor would encourage him not to waste two more years trying to become a
lawyer. As Yale law professor Akhil Reed Amar noted, the five conservative
Justices "failed to cite a single case that, on its facts, comes close to
supporting its analysis and result."

If the Court majority had been truly concerned about the equal protection of
all voters, the real equal protection violation, of course, took place when
they cut off the counting of the undervotes. As indicated, that very act
denied the 50 million Americans who voted for Gore the right to have their
votes count at all. It misses the point to argue that the five Justices
stole the election only if it turns out that Gore overcame Bush's lead in
the undervote recount.  We're talking about the moral and ethical
culpability of these Justices, and when you do that, the bell was rung at
the moment they engaged in their conduct. What happened thereafter cannot
unring the bell and is therefore irrelevant. To judge these Justices by the
final result rather than by their intentions at the time of their conduct
would be like exonerating one who shoots to kill if the bullet misses the
victim. With that type of extravagant reasoning, if the bullet goes on and
accidentally strikes down a third party who is about to kill another,
perhaps the gunman should ultimately be viewed as a hero.

Other than the unprecedented and outrageous nature of what the Court did,
nothing surprises me more than how it is being viewed by the legal scholars
and pundits who have criticized the opinion. As far as I can determine, most
have correctly assailed the Court for issuing a ruling that was clearly
political. As the December 25 Time capsulized it, "A sizable number of
critics, from law professors to some of the Court's own members, have
attacked the ruling as...politically motivated." A sampling from a few law
professors: Vanderbilt professor Suzanna Sherry said, "There is really very
little way to reconcile this opinion other than that they wanted Bush to
win." Yale's Amar lamented that "for Supreme Court watchers this case will
be like BC and AD. For many of my colleagues, this was like the day
President Kennedy was assassinated. Many of us [had] thought that courts do
not act in an openly political fashion." Harvard law professor Randall
Kennedy called the decision "outrageous." 2

The only problem I have with these critics is that they have merely lost
respect for and confidence in the Court. "I have less respect for the Court
than before," Amar wrote.  The New York Times said the ruling appeared
"openly political" and that it "eroded public confidence in the Court."
Indeed, the always accommodating and obsequious (in all matters pertaining
to the High Court, in front of which he regularly appears) Harvard law
professor Laurence Tribe, who was Gore's chief appellate lawyer, went even
further in the weakness of his disenchantment with the Court. "Even if we
disagree" with the Court's ruling, he said, Americans should "rally around
the decision."

Sometimes the body politic is lulled into thinking along unreasoned lines.
The "conventional wisdom" emerging immediately after the Court's ruling
seemed to be that the Court, by its political ruling, had only lost a lot of
credibility and altitude in the minds of many people. But these critics of
the ruling, even those who flat-out say the Court "stole" the election,
apparently have not stopped to realize the inappropriateness of their tepid
position vis-ŕ-vis what the Court did. You mean you can steal a presidential
election and your only retribution is that some people don't have as much
respect for you, as much confidence in you? That's all? If, indeed, the
Court, as the critics say, made a politically motivated ruling (which it
unquestionably did), this is tantamount to saying, and can only mean, that
the Court did not base its ruling on the law. And if this is so (which
again, it unquestionably is), this means that these five Justices
deliberately and knowingly decided to nullify the votes of the 50 million
Americans who voted for Al Gore and to steal the election for Bush. Of
course, nothing could possibly be more serious in its enormous
ramifications. The stark reality, and I say this with every fiber of my
being, is that the institution Americans trust the most to protect its
freedoms and principles committed one of the biggest and most serious crimes
this nation has ever seen, pure and simple, the theft of the presidency. And
by definition, the perpetrators of this crime have to be denominated

Since the notion of five Supreme Court Justices being criminals is so alien
to our sensibilities and previously held beliefs, and since, for the most
part, people see and hear, as Thoreau said, what they expect to see and
hear, most readers will find my characterization of these Justices to be
intellectually incongruous. But make no mistake about it, I think my
background in the criminal law is sufficient to inform you that Scalia,
Thomas et al. are criminals in the very truest sense of the word.
Essentially, there are two types of crimes: malum prohibitum (wrong because
they are prohibited) crimes, more popularly called "civil offenses" or
"quasi crimes," such as selling liquor after a specified time of day,
hunting during the off-season, gambling, etc.; and malum in se (wrong in
themselves) crimes.

The latter, such as robbery, rape, murder and arson, are the only true
crimes. Without exception, they all involve morally reprehensible conduct.
Even if there were no law prohibiting such conduct, one would know (as
opposed to a malum prohibitum crime) it is wrong, often evil. Although the
victim of most true crimes is an individual (for example, a person robbed or
raped), such crimes are considered to be "wrongs against society." This is
why the plaintiff in all felony criminal prosecutions is either the state
(People of the State of California v. _______) or the federal government
(United States of America v. _______).

No technical true crime was committed here by the five conservative Justices
only because no Congress ever dreamed of enacting a statute making it a
crime to steal a presidential election. It is so far-out and unbelievable
that there was no law, then, for these five Justices to have violated by
their theft of the election. But if what these Justices did was not "morally
reprehensible" and a "wrong against society," what would be? In terms, then,
of natural law and justice, the protoplasm of all eventual laws on the
books, these five Justices are criminals in every true sense of the word,
and in a fair and just world belong behind prison bars as much as any
American white-collar criminal who ever lived. Of course, the right-wing
extremists who have saluted the Court for its theft of the election are the
same type of people who feel it is perfectly all right to have a mandatory
minimum sentence of ten years in a federal penitentiary for some poor black
in the ghetto who is in possession of just fifty grams of crack cocaine,
even if he was not selling it. [§ 21 U.S.C. § 841 (b)(1)(A)(iii)]

Though the five Justices clearly are criminals, no one is treating them this
way. As I say, even those who were outraged by the Court's ruling have only
lost respect for them. And for the most part the nation's press seems to
have already forgotten and/or forgiven. Within days, the Court's ruling was
no longer the subject of Op-Ed pieces. Indeed, just five days after its high
crime, the caption of an article by Jean Guccione in the Los Angeles Times
read, "The Supreme Court Should Weather This Storm." The following day an AP
story noted that Justice Sandra Day O'Connor, on vacation in Arizona, had
fired a hole-in-one on the golf course.

The lack of any valid legal basis for their decision and, most important,
the fact that it is inconceivable they would have ruled the way they did for
Gore, proves, on its face, that the five conservative Republican Justices
were up to no good. Therefore, not one stitch of circumstantial evidence
beyond this is really necessary to demonstrate their felonious conduct and
state of mind. (The fact that O'Connor, per the Wall Street Journal, said
before the election that she wanted to retire but did not want to do so if a
Democrat would be selecting her successor, that Thomas's wife is working for
the conservative Heritage Foundation to help handle the Bush transition and
that Scalia's two sons work for law firms representing Bush is all unneeded
trivia. We already know, without this, exactly what happened.) But for those
who want more, let me point out that there is no surer way to find out what
parties meant than to see what they have done.

And like typical criminals, the felonious five left their incriminating
fingerprints everywhere, showing an unmistakable consciousness of guilt on
their part.

1. Under Florida statutory law, when the Florida Supreme Court finds that a
challenge to the certified result of an election is justified, it has the
power to "provide any relief appropriate under the circumstances" (§
102.168(8) of the Florida Election Code). On Friday, December 8, the Florida
court, so finding, ordered a manual recount (authorized under § 102.166(4)©
of the Florida Election Code) of all disputed ballots (around 60,000)
throughout the entire state. As a New York Times editorial reported, "The
manual recount3 was progressing smoothly and swiftly Saturday...with new
votes being recorded for both Vice President Al Gore and Governor George W.
Bush...serving the core democratic principle that every legal vote should be
counted" when, in midafternoon, the US Supreme Court "did a disservice to
the nation's tradition of fair elections by calling a halt" to the recount.
The stay (requested by Bush), the Times said, appeared "highly political."4

Under Supreme Court rules, a stay is supposed to be granted to an applicant
(here, Bush) only if he makes a substantial showing that in the absence of a
stay, there is a likelihood of "irreparable harm" to him. With the haste of
a criminal, Justice Scalia, in trying to justify the Court's shutting down
of the vote counting, wrote, unbelievably, that counting these votes would
"threaten irreparable harm to petitioner [Bush]...by casting a cloud upon
what he claims to be the legitimacy of his election." [Emphasis added.] In
other words, although the election had not yet been decided, the absolutely
incredible Scalia was presupposing that Bush had won the election, indeed,
had a right to win it, and any recount that showed Gore got more votes in
Florida than Bush could "cloud" Bush's presidency. Only a criminal on the
run, rushed for time and acting in desperation, could possibly write the
embarrassing words Scalia did, language showing that he knew he had no legal
basis for what he was doing, but that getting something down in writing,
even as intellectually flabby and fatuous as it was, was better than nothing
at all. (Rehnquist, Thomas, O'Connor and Kennedy, naturally, joined Scalia
in the stay order.)

The New York Times observed that the Court gave the appearance by the stay
of "racing to beat the clock before an unwelcome truth would come out."
Terrance Sandalow, former dean of the University of Michigan Law School and
a judicial conservative who opposed Roe v. Wade and supported the nomination
to the Court of right-wing icon Robert Bork, said that "the balance of harms
so unmistakably were on the side of Gore" that the granting of the stay was
"incomprehensible," going on to call the stay "an unmistakably partisan
decision without any foundation in law."

As Justice John Paul Stevens wrote in opposing the stay, Bush "failed to
carry the heavy burden" of showing a likelihood of irreparable harm if the
recount continued. In other words, the Court never even had the legal right
to grant the stay.

"Counting every legally cast vote cannot constitute irreparable harm,"
Stevens said. "On the other hand, there is a danger that a stay may cause
irreparable harm to the respondent [Gore] and, more importantly, the public
at large because of the risk that the entry of the stay would be tantamount
to a decision on the merits in favor of the applicant. Preventing the
recount from being completed will inevitably cast a cloud on the legitimacy
of the election." Stevens added what even the felonious five knew but
decided to ignore: that it is a "basic principle inherent in our
Constitution that every legal vote should be counted." From the wrongful
granting of the stay alone, the handwriting was on the wall. Gore was about
as safe as a cow in a Chicago stockyard.

In yet another piece of incriminating circumstantial evidence, Scalia, in
granting Bush's application for the stay, wrote that "the issuance of the
stay suggests that a majority of the Court, while not deciding the issues
presented, believe that the petitioner [Bush] has a substantial probability
of success." But Antonin, why would you believe this when neither side had
submitted written briefs yet (they were due the following day, Sunday, by 4
pm), nor had there even been oral arguments (set for 11 am on Monday)? It
wouldn't be because you had already made up your mind on what you were
determined to do, come hell or high water, would it? Antonin, take it from
an experienced prosecutor, you're as guilty as sin. In my prosecutorial
days, I've had some worthy opponents. You wouldn't be one of them. Your
guilt is so obvious that if I thought more of you I'd feel constrained to
blush for you.

2. When prosecutors present their circumstantial case against a defendant,
they put one speck of evidence upon another until ultimately there is a
strong mosaic of guilt. One such small speck is that in its 5-to-4 decision
handing the election to Bush, the Court's ruling was set forth in a
thirteen-page "per curiam" (Latin for "by the court") opinion (followed by
concurring and dissenting opinions). Students of the Supreme Court know that
per curiam opinions are almost always issued for unanimous (9-to-0) opinions
in relatively unimportant and uncontroversial cases, or where Justices wish
to be very brief. But as USA Today pointed out, "Neither was the case here."
Again, on the run and in a guilty state of mind, none of the five Justices,
even the brazenly shameless Scalia, wanted to sign their name to a majority
opinion of the Court reversing the Florida Supreme Court's order to recount
the undervotes. A per curiam opinion, which is always unsigned, was the
answer. It is not even known who wrote the per curiam opinion, though it is
believed to be O'Connor and/or Kennedy, neither of whose names is mentioned
anywhere in the Court's sixty-two-page document. After they did their dirty
work by casting their two votes on the case for their favorite, two votes
that overruled and rendered worthless the votes of 50 million Americans in
fifty states, O'Connor and Kennedy wanted to stay away from their decision
the way the devil stays away from holy water. Indeed, by their per curiam
opinion, it was almost as if the felonious five felt that since their names
would not be on the legally sacrilegious opinion, maybe, just maybe, the
guilt they knew they bore would be mitigated, at least somewhat, in

3. The proof that the Court itself knew its equal protection argument had no
merit whatsoever is that when Bush first asked the Court, on November 22, to
consider three objections of his to the earlier, more limited Florida
recount then taking place, the Court only denied review on his third
objection, yeah, you guessed it, that the lack of a uniform standard to
determine the voter's intent violated the equal protection clause of the
Fourteenth Amendment. Since the Court, on November 22, felt that this
objection was so devoid of merit that it was unworthy of even being
considered by it, what did these learned Justices subsequently learn about
the equal protection clause they apparently did not know in November that
caused them just three weeks later, on December 12, to embrace and endorse
it so enthusiastically? The election was finally on the line on December 12
and they knew they had to come up with something, anything, to save the day
for their man.

The bottom line is that nothing is more important in a democracy than the
right to vote.  Without it there cannot be a democracy. And implicit in the
right to vote, obviously, is that the vote be counted. Yet with the election
hanging in the balance, the highest court in the land ordered that the valid
votes of thousands of Americans not be counted. That decision gave the
election to Bush. When Justice Thomas was asked by a skeptical high school
student the day after the Court's ruling whether the Court's decision had
anything to do with politics, he answered, "Zero." And when a reporter
thereafter asked Rehnquist whether he agreed with Thomas, he said,
"Absolutely, absolutely." Well, at least we know they can lie as well as
they can steal.

4. The Court anchored its knowingly fraudulent decision on the equal
protection clause of the Fourteenth Amendment. But wait. Since the electors
in the fifty states weren't scheduled to meet and vote until December 18,
and the Court's ruling was on December 12, if the Court was really serious
about its decision that the various standards in the counties to determine
the voter's intent violated the equal protection clause, why not, as
Justices Stevens, Souter, Ginsburg and Breyer each noted in separate
dissents, simply remand the case back to the Florida Supreme Court with
instructions to establish a uniform, statewide standard and continue the
recount until December 18? The shameless and shameful felonious five had an
answer, which, in a sense, went to the heart of their decision even more
than the bogus equal protection argument. The unsigned and anonymously
written per curiam opinion noted that under Title 3 of the United States
Code, Section 5 (3 USC § 5), any controversy or contest to determine the
selection of electors should be resolved "six days prior to the meeting of
the Electoral College," that is, December 12, and inasmuch as the Court
issued its ruling at 10 pm on December 12, with just two hours remaining in
the day, the Court said, "That date [December 12] is upon us," and hence
there obviously was no time left to set uniform standards and continue the
recount. But there are a multiplicity of problems with the Court's
oh-so-convenient escape hatch. Writing in the Wall Street Journal,
University of Utah law professor Michael McConnell, a legal conservative,
pointed out that the December 12 "deadline" is only a deadline "for
receiving 'safe harbor' protection for the state's electors" (i.e., if a
state certifies its electors by that date, Congress can't question them),
not a federal deadline that must be met. New York University law professor
Larry Kramer observed that if a state does not make that deadline, "nothing
happens. The counting could continue."

Justice Stevens observed in his dissent that 3 USC § 5 "merely provides
rules...for Congress to follow when selecting among conflicting slates of
electors. They do not prohibit a state from counting...legal votes until a
bonafide winner is determined. Indeed, in 1960, Hawaii appointed two slates
of electors and Congress chose to count the one appointed on January 4,
1961, well after the Title 3 deadlines" of December 12 and 18. Thus, Stevens
went on to say, even if an equal protection violation is assumed for the
sake of argument, "nothing prevents the majority...from ordering relief
appropriate to remedy that violation without depriving Florida voters of
their right to have their votes counted."

But even if December 12 were some kind of actual deadline, nothing was
sillier during this whole election debate than the talking heads on
television, many of whom were lawyers who should have known better, treating
the date as if it were sacrosanct and set in stone (exactly what the Supreme
Court majority, on the run and trying to defend their indefensible position,
said). In the real world, mandatory dates always have an elliptical clause
attached to them, "unless there is just cause for extending the date." I
cannot be accused of hyperbole when I say that perhaps no less than
thousands of times a day in courthouses throughout the country, mandatory
("shall") dates to do this or that (file a brief, a motion, commence a
trial, etc.) are waived by the court on the representation of one party
alone that he needs more time. If extending the December 12 (or the December
18 date, for that matter)5 deadline for a few days for the counting of votes
to determine who the rightful winner of a presidential election is does not
constitute a sufficient cause for a short extension of time, then what in
the world does? No one has said it better than columnist Thomas Friedman:

"The five conservative Justices essentially ruled that the sanctity of
dates, even meaningless ones, mattered more than the sanctity of votes, even
meaningful ones. The Rehnquist Court now has its legacy: In calendars we
trust." In other words, to Scalia and his friends, speed was more important
than justice. More important than accuracy. Being the strong-armed enforcer
of deadlines, even inconsequential ones, was more important to these five
Justices than being the nation's protector and guardian of the right to

What could be more infuriating than Chief Justice Rehnquist, who knew he was
setting up a straw man as counterfeit as the decision he supported, writing
that the recount "could not possibly be completed" in the two hours
remaining on December 12? The Supreme Court improperly stops the recounting
of the votes from Saturday afternoon to Tuesday, December 12, at 10 pm, then
has the barefaced audacity to say that Gore ran out of time? This type of
maddening sophistry is enough, as the expression goes, to piss off a saint.
How dare these five pompous asses do what they did?

It should be noted that the recount that commenced on Saturday morning,
December 9, was scheduled to conclude by 2 pm that Sunday, and the vote
counters were making excellent progress. For example, as reported in the
December 10 New York Times, for the 9,000 Miami-Dade County ballots being
counted, eight county court judges counting 1,000 ballots an hour, had, by
midday Saturday, "gone through more than a third of the ballots [when Scalia
stepped in], and expected to finish by nightfall." So the Court's extending
the deadline to December 18 would have provided ample time for the Florida
Supreme Court to promulgate a uniform standard, finish the vote-counting in
a day or so, and even allow for judicial review.  As Justice Ruth Bader
Ginsburg observed concerning this last point, "Notably, the Florida Supreme
Court has produced two substantial decisions within twenty-nine hours of
oral argument." Justice Breyer wrote that the alleged equal protection
"deficiency...could easily be remedied." But that's assuming the felonious
five wanted a remedy. They did not. All of the above are further indicia of
their guilty state of mind.

5. If there are two sacred canons of the right-wing in America and
ultraconservative Justices like Scalia, Thomas and Rehnquist, it's their
ardent federalism, i.e., promotion of states' rights (Rehnquist, in fact,
wrote in his concurring opinion about wanting, wherever possible, to "defer
to the decisions of state courts on issues of state law"), and their
antipathy for Warren Court activist judges. So if it weren't for their
decision to find a way, any way imaginable, to appoint Bush President, their
automatic predilection would have been to stay the hell out of Florida's
business. The fact that they completely departed from what they would almost
reflexively do in ninety-nine out of a hundred other cases is again
persuasive circumstantial evidence of their criminal state of mind.

6. Perhaps nothing Scalia et al. did revealed their consciousness of guilt
more than the total lack of legal stature they reposed in their decision.
Appellate court decisions, particularly those of the highest court in the
land, all enunciate and stand for legal principles. Not just litigants but
the courts themselves cite prior holdings as support for a legal proposition
they are espousing. But the Court knew that its ruling (that differing
standards for counting votes violate the equal protection clause) could not
possibly be a constitutional principle cited in the future by themselves,
other courts or litigants. Since different methods of counting votes exist
throughout the fifty states (e.g., Texas counts dimpled chads, California
does not), forty-four out of the fifty states do not have uniform voting
methods, and voting equipment and mechanisms in all states necessarily vary
in design, upkeep and performance, to apply the equal protection ruling of
Bush v. Gore would necessarily invalidate virtually all elections throughout
the country.

This, obviously, was an extremely serious problem for the felonious five to
deal with.

What to do? Not to worry. Are you ready for this one? By that I mean, are
you sitting down, since if you're standing, this is the type of thing that
could affect your physical equilibrium. Unbelievably, the Court wrote that
its ruling was " limited to the present circumstances, for the problem of
equal protection in election processes generally presents many
complexities." (That's pure, unadulterated moonshine. The ruling sets forth
a very simple, noncomplex proposition, that if there are varying standards
to count votes, this violates the equal protection clause of the Fourteenth
Amendment.) In other words, the Court, in effect, was saying its ruling
"only applied to those future cases captioned Bush v.  Gore. In all other
equal protection voting cases, litigants should refer to prior decisions of
this court." Of the thousands of potential equal protection voting cases,
the Court was only interested in, and eager to grant relief to, one person
and one person only, George W. Bush.6 Is there any limit to the effrontery
and shamelessness of these five right-wing Justices?  Answer: No. This point
number six here, all alone and by itself, clearly and unequivocally shows
that the Court knew its decision was not based on the merits or the law, and
was solely a decision to appoint George Bush President. Conservatives, the
very ones who wanted to impeach Earl Warren, have now predictably taken to
arguing that one shouldn't attack the Supreme Court as I am because it can
only harm the image of the Court, which we have to respect as the national
repository for, and protector of, the rule of law, the latter being a sine
qua non to a structured, nonanarchistic society.

This is just so much drivel. Under what convoluted theory do we honor the
rule of law by ignoring the violation of it (here, the sacred, inalienable
right to vote of all Americans) by the Supreme Court? With this
unquestioning subservience-to-authority theory, I suppose the laws of the
Third Reich, such as requiring Jews to wear a yellow Star of David on their
clothing, should have been respected and followed by the Jews. Blacks should
have respected Jim Crow laws in the first half of the twentieth century.
Naturally, these conservative exponents of not harming the Supreme Court,
even though the Court stole a federal election disfranchising 50 million
American citizens, are the same people who felt no similar hesitancy
savaging the President of the United States not just day after day, but week
after week, month after month, yes, even year after year for having a
private and consensual sexual affair and then lying about it. And this was
so even though the vitriolic and never-ending attacks crippled the executive
branch of government for months on end, causing incalculable damage to the
office of the presidency and to this nation, both internally and in the eyes
of the world. Indeed, many of them are delighted to hound and go after the
President even after he leaves office.

These five Justices, by their conduct, have forfeited the right to be
respected, and only by treating them the way they deserve to be treated can
we demonstrate our respect for the rule of law they defiled, and insure that
their successors will not engage in similarly criminal conduct. Why, one may
ask, have I written this article? I'll tell you why. I'd like to think, like
most people, that I have a sense of justice. In my mind's eye, these five
Justices have gotten away with murder, and I want to do whatever I can to
make sure that they pay dearly for their crime. Though they can't be
prosecuted, I want them to know that there's at least one American out there
(and hopefully many more because of this article) who knows (not thinks, but
knows) precisely who they are. I want these five Justices to know that
because of this article, which I intend to send to each one of them by
registered mail, there's the exponential possibility that when many
Americans look at them in the future, they'll be saying, "Why are these
people in robes seated above me? They all belong behind bars." I want these
five Justices to know that this is America, not a banana republic, and in
the United States of America, you simply cannot get away with things like

At a minimum, I believe that the Court's inexcusable ruling will severely
stain its reputation for years to come, perhaps decades. This is very
unfortunate. As Justice Stevens wrote in his dissent: "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 [this Court] as an impartial guardian of the rule
of law." Considering the criminal intention behind the decision, legal
scholars and historians should place this ruling above the Dred Scott case
(Scott v. Sandford) and Plessy v. Ferguson in egregious sins of the Court.
The right of every American citizen to have his or her vote counted, and for
Americans (not five unelected Justices) to choose their President was
callously and I say criminally jettisoned by the Court's majority to further
its own political ideology. If there is such a thing as a judicial hell,
these five Justices won't have to worry about heating bills in their future.
Scalia and Thomas in particular are not only a disgrace to the judiciary but
to the legal profession, for years being nothing more than transparent
shills for the right wing of the Republican Party. If the softest pillow is
a clear conscience, these five Justices are in for some hard nights. But if
they aren't troubled by what they did, then we're dealing with judicial
sociopaths, people even more frightening than they already appear to be.

The Republican Party had a good candidate for President, John McCain.
Instead, it nominated perhaps the most unqualified person ever to become
President, and with the muscular, thuggish help of the Court, forced Bush
down the throats of more than half the nation's voters. As Linda Greenhouse
wrote in the New York Times, when Rehnquist administers the presidential
oath of office to Bush on January 20, for the first time in our nation's
history the Chief Justice will not just be a prop in the majestic ceremony
but a player.  Rehnquist will be swearing in someone he made sure would be
President. Obscenity has its place in a free and open society, but it's in
the seedy, neon-light part of town, not on the steps of the nation's Capitol
being viewed by millions of Americans on television screens throughout the

That an election for an American President can be stolen by the highest
court in the land under the deliberate pretext of an inapplicable
constitutional provision has got to be one of the most frightening and
dangerous events ever to have occurred in this country.  Until this act,
which is treasonous, though again not technically, in its sweeping
implications, is somehow rectified (and I do not know how this can be done),
can we be serene about continuing to place the adjective "great" before the
name of this country?


1. A total of 3,718,305 votes were cast in the Florida election under the
Votomatic punch-card system, and 2,353,811 votes were cast under the
optical-scan system. The percentage of votes not picked up using the
punch-card system was 3.92 percent, the rate under the more modern
optical-scan system being only 1.43 percent. Put in other terms, for every
10,000 votes cast, the punch-card system resulted in 250 more nonvotes than
the optical-scan system. Siegel v. LePore, No. 00-15981. See also Ford
Fessenden, "No-Vote Rates Higher in Punch-Card Counts," New York Times,
December 1.

2. The ruling was so bad that it was very difficult to find even
conservative legal scholars who supported it, and when the few who attempted
to do so stepped up to the plate, their observations were simply pathetic.
University of California, Berkeley, law professor John Yoo, a former law
clerk for Thomas, wrote that "we should balance the short-term hit to the
court's legitimacy with whether...it was in the best interest of the country
to end the electoral crisis." Translation: If an election is close, it's
better for the Supreme Court to pick the President, whether or not he won
the election, than to have the dispute resolved in the manner prescribed by
law. Pepperdine Law School's Douglas Kmiec unbelievably wrote that "the
ruling of the US Supreme Court was not along partisan or ideological lines,"
and that its ruling "protected our cherished democratic tradition with a
soundly reasoned, per curiam voice of restraint." I won't dignify this with
a translation.

3. Actually, not a recount since the Votomatic machines, for whatever
reason, never did detect the votes on these particular ballots. The manual
count would be examining these ballots for the first time to see if, as
provided for under § 101.5614(5) of the Florida Election Code, there was a
"clear indication of the intent of the voter." One example: The stylus
punches a clear hole in the paper ballot, but the chad is still attached
(hanging) by one or more of its four sides. In that situation the Votomatic
machine frequently does not detect the vote, though the intent of the voter
could not be any clearer.

4. Earlier in the day, the conservative-leaning US Court of Appeals for the
Eleventh Circuit in Atlanta voted 8 to 4 to deny Bush's companion attempt to
have that court stop the recount.

5. In fact, L. Kinvin Wroth, dean of the Vermont Law School and an expert on
the Electoral College, said that "a recount could have gone on right up to
the last day of Congress' joint session" on January 6, when the votes of the
College were counted in Congress.

6. And this, mind you, in an election in which Bush was leading in Florida
by only a few hundred votes while losing the popular vote nationwide to Gore
by, at last count, 539,000 votes.

*Vincent Bugliosi successfully prosecuted 105 out of 106 felony jury trials
as a Los Angeles deputy district attorney, including twenty-one murder
convictions without a single loss. His prosecution of Charles Manson was the
basis for his true-crime bestseller, Helter Skelter (Bantam). He is also the
author of Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder
(Island). Copyright © Vincent Bugliosi, January 3, 2001.


**In accordance with Title 17 U.S.C. section 107,
this material is distributed without charge or profit
to those who have expressed a prior
interest in receiving this type of information for
non-profit research and educational purposes only.**

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