Who's rewriting history?

[pecunium]

Antonin Scalia (of whom I am not fond, mostly because I think him either a sham, or a hypocrite. A clever thinker, but at some level a fake) has said the reason the Court had to interfere with Florida's State Laws, and he had to take part in a case at odds with his entire judicial history; which had a decision at odds with his past history, as written in opinions both under his name and with his concurrance, as well as being and oddity, in that it was specifically (again, against his express philosophy, as stated in public) it had no precedential standing, as well as being decided on issues the appellant didn't raise, and which weren't explored in argument (mostly because the justices had shown a strong tendency in recent years to discount such claims, but this one time they not only decided it was a big deal, but four of them (four, out of five) voted in a way diametrically opposed to their past history on the issue was because Gore made them.

Yep, it was all Gore's fault, ""The election was dragged into the courts by the Gore people. We did not go looking for trouble." He said that at the Time Warner Center last night.

Now, putting aside the entire, "lookng for trouble," thing (and the conflict of interest one might suppose from Thomas having a daughter (IIRC) who worked for Bush, and O' Connor saying that now he was elected (before the brouhaha) that she was glad, because now she could retire) because we can't know (barring the minutes of some secret meeting where they got together and said, "How can we be rid of this troublesome democrat?"), but the first part, the part where he says Gore dragged this into the courts, I have three words.

Bush versus Gore

It's a very simple formula, the person who initiates the suit, gets named first.

Bush versus Gore

Not Gore versus Bush, but

Bush versus Gore.

So who's fault was it?

Comments

[bkmichele.livejournal.com]

I just wanted to say that even though I disagree with Scalia's opinions substantively about 90% of the time, I do have some respect for him after hearing him speak. He came to my law school in February of '04 and taught a Con Law lesson and also gave a speech at night in Balboa Park (which came complete with quacking protestors as this was during the Cheney/Scalia Huntinggate). He's intelligent, and a captivating speaker, and I have to hand it to him for actually answering questions. Students were able to ask him questions on hot issues, including Bush v. Gore and he didn't dodge a single one. Justice Ginsberg had visited the school in February '03 and apparently she refused to answer questions, always saying that there was a case in X circuit that might be before the Court in a few years and she couldn't speculate.

[fidelioscabinet.livejournal.com]

Clearly it MUST be Al Gore's fault because 1. He was born and 2. He ran for president in 2000; obviously, without those two little problems, both of which can be laid at his door, or his parents' in the first case, this wouldn't have been necessary.

I'm tired of cheap, trivial thinking. I'm just plain tired.

[lawgeekgurl.livejournal.com]

we didn't go LOOKING FOR TROUBLE? The fuck? You are on the Supreme Fucking Court, you moron, it's your job. And if you had been doing your job, you'd have decided it was inappropriate to hear, as it was a political question, and moreover one reserved to the states via the 10th Amendment.

I hate him so much. Flames...flames on the sides of my face!

[luxetumbra.livejournal.com]

I think he might be referring to the fact that Bush v. Gore was an appeal of a suit initially brought by the Gore team, Gore v. Harris.
(see the Wiki (http://en.wikipedia.org/wiki/Bush_v._Gore) for more details).

The one thing I'll never understand is why there was such a rush to judgment. Congress was only scheduled to certify the results on Jan 6, 2001 and the Electoral College was only required by the election law to cast their votes on Dec. 18. I don't see how the "safe harbor" deadline of Dec. 12 really came into play because it was obvious that the final determination as to who won Florida was still up in the air. There was at least six more days to craft a fair remedy (recounting all the votes in the state) and carry it out.

[sethg]

Scalia is literally correct, since the Gore team filed the first lawsuits in state courts. The Bush team, however, was the first side to turn it into a federal court case.

[prodigal.livejournal.com]

No, he was wrong. It's the one who petitions SCOTUS who bears the blame for SCOTUS hearing a case. And as our host pointed out, that was Bush, not Gore.

[karl-lembke.livejournal.com]

So if someone is sued, loses, and appeals, he's now considered to have started the litigation? If someone suffers a tort, and sues, he's considered to have started the fight?

And note what Scalia is quoted as saying:

Yep, it was all Gore's fault, "The election was dragged into the courts by the Gore people. We did not go looking for trouble." He said that at the Time Warner Center last night. [Emphasis added]

Not "into the Supreme Court" – "into the courts" (i.e., the judicial system).

[prodigal.livejournal.com]

That's like blaming a gunshot victim for walking in front of the shooter.

[karl-lembke.livejournal.com]

Precisely.

Gore pulled the trigger, Bush happened to be in the sights.

Arguing over the name of the case when it hit the Supreme Court is pedantic wanking.

[prodigal.livejournal.com]

No, the pedantic wanking is what Scalia and his supporters have been doing.

[pecunium.livejournal.com]

Bush v Palm Beach county is what started the court fight.

The decided questions over the outcome in Florida is what led to the contest. The contest was perfectly capable (under Fla. Law, which as a states' rights' conservative ought to have been left to Florida to decide, as they are the arbiters of thier laws (which contrary to argument were fairly clear; i.e. voter intent is to rule the determination of the ballot), and a remedy (in re the Safe Harbor Provisions) already exisists at the federal level. If one were trying to predict Rhenquist, O'Connor and Scalia, the way to bet, on judicial past judicial opinions, would be that Florida should be returned the job of counting ballots as Florida saw fit. If they failed to make safe harbor, they run the risk of Florida's votes being discarded, but it isn't mandatory (contrary to the spin being put on it by those saying the Supreme Court had to step in to save Florida from itself).

But the Court even muffed that fig-leaf of justification when it said there was an equal protection issue, but it wasn't actually going to rule on that (which was the effect of making the decision in Bush v Gore non-precedentiary... it can't be applied to the exact same circumstances, should they arise again). The remedy the Court gave wasn't the remedy of an appeals court, certainly not the remedy of a court tasked with resolving issues of Constitutional application, it was the remedy of the finder of fact, in the first instance.

It was unrestrained judicial activisim.

TK