The Disputed Election of 2000 in Florida: Part II, The Supremes Settle a Disputed Election

The disputed election was resolved by a partisan vote in the United States Supreme Court. A divided Florida Supreme Court ordered a full recount in which every effort would be made to honor the “clear intent” of the voters. The Supreme Court issued a stay order. A superior court can only stay the decision of another court when execution of the decision would do irreparable harm to the plaintiff. The counting could have continued without doing irreparable harm to Bush. It could have been halted later or its results could have been set aside when the Supreme Court invalidated the Florida decision. The majority decision setting aside the Florida decision came when time ran out for recounts. There was no time for the Florida court to remedy its decision in accordance with the decision of the five conservative Supreme Court justices.

Two of the five Republican justices had ample reasons to either recuse themselves or at least make public potential conflict of interest matters. Anton Scalia, who probably masterminded the judicial enthronement of George W. Bush, had two sons working for firms that represented Bush in the dispute. One worked for Ted Olson, Bush’s lead lawyer and brilliant right-wing legal activist. The other was in Barry Richard’s firm in Tallahassee. Federal law (28 USC 455) states explicitly that if the magistrate knows that one of his children “could be substantially affected by the outcome of the proceedings” he is required to recuse himself. Scalia had also been a driving force behind the Federalist Society. The Federalists opposed the New Deal and affirmative action, and some were against any form of corporate regulation. At their 2002 conference, Lino Graglia of the University of Texas called upon the Federalists to be bold and work to “repeal all the laws” regulating business. This occurred in a year marked by many corporate scandals that demonstrated that existing regulatory machinery was too weak.

The election to Bush would reward Scalia’s hard work for the Federalist Society with the appointment of hundreds of right-wing judges. Justice Clarence Thomas’s wife was working for the Heritage Foundation, where she was already busy vetting the resumes of people who would be appointed by the Bush administration. This justice also had a conflict of interest problem. Sandra Day O’Connor had responded to the premature news of Gore’s election with great dismay because she would not retire from the Court while a Democrat was in the White House. When the case was being heard, O’Connor refused to accept the claim that Florida had an 80-year tradition of giving primacy to voter intent in recounts. She questioned the claim that any of the Florida ballots were confusing, saying the instructions for voting could not have been clearer.

Critics of the five conservative justices were easily able to demonstrate that the Court’s action was filled with legal errors and demonstrated incompetence as well as being morally wrong. Unfortunately, many like Alan Dershowitz eagerly took the next step in insisting that it demonstrated a failure of the court to carry out its duties “because of malice aforethought,” which simply canno4 be proven. The night Al Gore made his concession, Republican lawyers and visiting Republican congressional staffers gathered in a Tallahassee club, where they taunted, hooted, and jeered as Gore spoke. The staffers happily took the name “the Republican thugs.” These whites did not notice and would not have cared that the black staff who were serving the drinks were quietly crying.


Sherman has written African American Baseball: A Brief History, which can be acquired from LuLu Publishing on line.http://www.lulu.com/browse/search.php?search_forum