Antonin Scalia Falls Flat on Facts and Substance
March 12, 2012 7 Comments
ThinkProgress posted an article Saturday about a speech given last week at Wesleyan University by ultra-conservative Supreme Court justice Antonin Scalia. They focused on Scalia’s lack of knowledge when it comes to the landmark Bush v. Gore decision, in which the conservative Court handed the presidential election to George Bush the Junior, quite literally deciding that the votes didn’t matter.
According to the Middletown Press, Scalia told his audience
It was a long time ago, people forget…It was a 7-2 decision. It wasn’t even close.
That is, of course, not true. Only the five most conservative Republican-appointed judges voted in favor of handing the election to Bush: William Rehnquist, Antonin Scalia, Anthony Kennedy, Sandra Day O’Connor, and Clarence Thomas.
Okay, so Scalia slips when it comes to intellect. How about when it comes to ethics?
“Get over it,” Scalia said of the controversy surrounding it, to laughter from the audience.
That’s right, Mr. Constitutional Originalist wants us to “get over” the decision made a little over a decade ago in which his court handed the election to their buddy. It’s not that he has a different opinion and disagrees. No, Antonin Scalia quite explicitly states that he does not care about the issue of proper elections and that we shouldn’t, either. To put it mildly, this may has power that he does not deserve.
SEE ALSO
mykeystrokes.com: “False Faith”: Did Justice Scalia Call All Non-Christians Irrational?
drugsandotherthings: Republicans violating the spirit (and the letter) of Citizens United
Polentical: The Supreme Court v. Affirmative Action
About Matthew
Actually, Scalia is right. The decision that the Florida method of counting votes for each county was in violation of the US Constitution and had to stop. That decision was 7-2. The 5-4 decision determined that there was no recount process that does not violated the constitution that could be complete in the time called for by the US Constitution.
The reason why most legal scholars place a greater importance on the 5-4 decision is because that was the crucial decision which prevented a proper count of the votes. Scalia may be trying to divert focus to the other 7-2 decision as it’s very much in line with my point that he was not (and is not) concerned with the proper counting of votes. Plus, it helps divert attention from the fact that all of the justices who handed the election to George Bush were appointed by Republican presidents, which underlines how much of a partisan decision this was. In any case, Scalia is wrong. As you yourself note, the crucial decision to not recount the votes at all was close…it was 5-4.
Well he was concerned with the proper counting of votes. The 5-4 decisions determined that there was no recount process that did not violate the constitution. All that aside, the court decisions doesn’t matter much in reality because Gore decided not to continue the case at the state level, again. More importantly, once all votes were counted the realization was that Bush did in fact with the Florida presidential race.
Why is there an assumption that the Republican appointees were making a partisan decision. The Democrat appointees were making a decision that favored the Democrat candidate. To meet it seems, without being inside each justice’s head, that you must either equally lay the blame on all parties or not lay the blame at all.
Two factual corrections.
1. Bush did not get the majority of votes in the Florida election. The research done afterward by multiple news organizations showed that Bush would have won a limited recount but lost a full recount. http://www.factcheck.org/2008/01/the-florida-recount-of-2000/
2. The justices who voted against the 5-4 decision were a bipartisan group. David Souter was appointed to the Supreme Court by a Republican president.
It is you who falls flat on the facts.
From you the factcheck.org site that you cite:
According to a massive months-long study commissioned by eight news organizations in 2001, George W. Bush probably still would have won even if the U.S. Supreme Court had allowed a limited statewide recount to go forward as ordered by Florida’s highest court.
Bush also probably would have won had the state conducted the limited recount of only four heavily Democratic counties that Al Gore asked for, the study found.
On the other hand, the study also found that Gore probably would have won, by a range of 42 to 171 votes out of 6 million cast, had there been a broad recount of all disputed ballots statewide. However, Gore never asked for such a recount.
So, Bush did win and where there was a slight chance Gore would have won, he essentially dropped out of the presidential race, making Bush the defacto winner regardless of what the voters wanted. Also, I have heard that absentee ballots from the military are not counted unless absolutely necessary. Chances are the Republican candidate won the majority of those votes.
My argument about understanding the motives of the justices still stands. Just because Souter voted in the minority does not make the majority wrong. it also does not remove the suspicion of the democrat appointed justices from playing partisan politics. My point is, you can’t prove it, so stop accusing either side.
What you quote can be summed up exactly as I did. To quote myself, “The research done afterward by multiple news organizations showed that Bush would have won a limited recount but lost a full recount.” That statement remains factually correct.
As for my claim of partisanship, I am not being metaphorical. Every single one of the five justices who voted to prevent a recount were appointed by one political party. That is the literal definition of partisan.
Concerning the NORC recount, both they and the official count included absentee ballots. Among those were the military ballots, some of which were allowed despite being late. When it came to votes that were, as you point out, more likely to be Republican, they broke the rules in favor of the Republicans.
As for Gore, I disagree with his actions. I am more interested in what the voters wanted which, as you point out, was no longer the issue at hand. It should have been.
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