Big Lies Die Hard

No, this was no way to pick a President..

No, this was no way to pick a President..

It is clear after nearly 15 years that bitter Democrats will always believe that the 2000 Presidential election was “stolen,” just as the losing parties in 1824, 1876 and 1988 claimed those elections were stolen. (In 1876, the election was stolen.) But as the cliche goes, while they have a right to their opinion, they do not have a right to their own facts. I understand why Democrats flogged this myth during the first term of the Bush Presidency—it was irresponsible, dishonest and divisive, and helped make political discourse the vile swill it is today, but I understand it. However, history should not be permanently warped by strategic lies.

The 2000 Election Big Lie turned up again today, in an indignant letter to the Washington Post. George Will had written a column condemning third party Presidential candidates for warping elections, using Ralph Nader’s quixotic 2000 run as an example and claiming that Nader cost Gore the White House. Will was wrong. Nader ran on his usual “pox on both parties” platform, and nobody knows how his voters would have split if he hadn’t run, or how many of them would have voted at all. Nader’s lawyer, Oliver Hall, protested against Will’s analysis in a letter to the editor, properly pointing out that a chaos-theory illustrating confluence of factors led to Gore’s narrow electoral college loss, not the least of which was that Gore was an inept candidate. (The person most responsible for Gore’s defeat, of course, was Bill Clinton.)

That correct interpretation, however, runs counter to the Big Lie, so partisan reader Bill Yue reiterated it today. His letter claimed that “the removal of any one of those elements ” mentioned by Hall would “likely have put Gore in the White House,” “for example, if the Supreme Court had allowed the recount to continue.”

Legal scholars and commentators disagree regarding the decision in that case, which became necessary after the Florida Supreme Court decided to ignore the state’s laws to allow the recount to continue. That is a  separate question, however, from whether an endless recount would have led to a different winner. One very likely scenario, much discussed at the time, was that no final tally would have been dispositive, since the margin of error was larger than the difference between the vote totals of the candidates. That would have thrown the election into the Republican-dominated House, with Bush being the certain victor.

After the election, a consortium of newspapers announced a project to do the recount anyway, using various interpretations of “over-” and “under-” votes, including the infamous “hanging chad” dilemma. They undertook this because they fully expected to prove that a Supreme Court sanctioned recount would have ended with Gore as President-elect. These were nearly unanimously papers that had endorsed Al and been highly critical of the Court’s ruling.

The results disappointed them, and put the lie to the Big Lie. Bush won most of the recounts, though not all. The results were inconsistent enough to support the view that the final decision would have gone to the House, and that we would have ended up with the dysfunctional team of Bush and Lieberman, since the Democratic Senate would have chosen the Vice President. Sure, it’s moral luck. The recount could have shown that the Supreme Court took the election away from Gore, but it didn’t. The Big Lie that the election was stolen was definitively disproved.

Democrats can plausibly argue that Bush’s election was a fluke, because it was. They can argue that the Electoral College makes no sense, but everyone (well, everyone with a basic civic education and a knowledge of history) knew that was the system before a single vote was cast or a chad hung. Democrats would not have been whining about it if Gore had lost the popular vote but won anyway. They can even argue that the Supreme Court’s majority ignored the law to elect their personal choice as President, though I think that’s a slur and dead wrong. That would only mean that the conservatives on the court attempted to steal the election, but even accepting that biased view of events, the fact is that they didn’t. You can’t steal what you would get anyway.

The myth that Bush was fraudulently elected is harmful to the nation and democracy, and should be slapped down every time it surfaces. I know the Post typically doesn’t rebut letters, but this wasn’t an opinion, it’s a false fact that spreads ignorance, misinformation, and cynicism. Either the Post, which was part of the group that performed the multiple unofficial recounts post-election, should have set the record straight, or it shouldn’t have printed the letter at all. Big Lies are not healthy for any society, and this one is especially insidious, as it makes the false case that our elections are shams.

Meanwhile, Democrats and progressives are increasingly depending on the Big Lie tactic to attract supporters and votes. There are a lot of Big Lies, from this to “Bush lied” to “77 cents” to “Hands Up! Don’t Shoot” to “One in five women” to “Obama reduced the deficit.” It is not a smart way to seek power, but more importantly, it’s an unethical one.

228 thoughts on “Big Lies Die Hard

  1. 1) I’m not sure a Bush/Lieberman team would have been all that disfunctional. Independent of throwing out a rationalization comparing them to what we have now, I really don’t think they would have been all that bad… And who knows it may have spurned America in the right direction in terms of polarization…

    2) for those who wish to argue- the Electoral College IS a great system for electing the President, however, I’m not a fan of winner takes all nor am I a fan of faithless elector laws.

    3) great post.

    4) decades from now the 2000 election will be used by leftist conspiracists to show how the right cheated to get control of a country that was destined to be leftist IF the country actually drifts back to its roots.

        • Think, if they’d made Lieberman VP with even the modicum of reelection margin for Bush in the 2004, imagine the landslide ticket they’d have made if Bush ended up keeping him as a Fusion ticket running mate.

          Then, imagine the candidates lined up for 2008.

          Oh if only…we may have had some grown ups in charge!

          • I couldn’t stand Lieberman…a posturing, vacillating weasel. He got accolades for condemning Clinton’s conduct, but voted against impeachment anyway. Typical of Joe. Plus, as a friend of mine used to say, he sounded like someone struggling with a bad case of constipation.

            • And this is where Texas is superior…on our ballots, beneath each name it clearly states which party they come from:

              Candidate X, from posturing, vacillating weasel party #1 that wants to control your life via A, B, C.
              Candidate Y, from posturing, vacillating weasel party #2 that wants to control your life via D, E, F…

              who do you select?

              • You select the Libertarian party candidate who was selected by randomly calling people in the phone book and asking them if they are registered to vote and if “from each according to his ability, to each, according to his need” is in the US Constitution.

        • Well I should clarify-

          The VP does nothing unless the Pres says yes.

          The VP could easily be locked in a closet for 4 years if the President says so, only let out to fulfill one of his 2 constitutional duties should the need arise.

          Or the VP can run all sorts of “special projects” if the President says so…

    • 2. I hate both of them. I like the Electoral College when it agrees with the popular vote—I think it forces candidates to pay attention to all regions, and also tends to make squeakers look like a strong endorsement. Is four anomalies in 250 years too high a price to pay? Well, Jackson got his two terms anyway; Hayes was an able President; Cleveland got the term he was denied, and Bush was the only popular vote loser to get re-elected, which suggests that the country didn’t have buyer’s remorse in that case, even with the Democrats claiming that he had no legitimacy. (Then again, when Kerry is the alternative…)

      • “like the Electoral College when it agrees with the popular vote”

        What does that even mean? Sounds like an endorsement to do away with the Electoral college if the popular vote is what matters. But then we merely support the notion that the President is just “Bigger Legislator”…then we get the King our system is designed to avoid as the President can merely say “I have the Mandate congress, you WILL pass the Laws *I* want”…

        You think the Bully Pulpit is bad now?

        Nope…the Electoral College is specifically designed to AVOID giving elections to candidates during times when popular and inevitably fleeting passions may toss the wrong guy in office.

        The President is supposed to be Leader before he’s a Partisan….appealing to the Popular vote will only put the nail in the coffin of a great system, that albeit is on the way to the coffin, that is still recoverable.

        • I wouldn’t eliminate the EC, for the reasons I said, and because the states need to be respected as independent cultures and political entities.

          “The Electoral College is specifically designed to AVOID giving elections to candidates during times when popular and inevitably fleeting passions may toss the wrong guy in office.”…however, is nutsy cuckoo. You are describing an election, that’s all, and the EC is just a random factor that benefits random candidates. Why would an EC winner necessarily be “the right guy” and more than the PV winner? It’s pure luck and happenstance…it does nothing by design. It’s symbolism is the only think good about it.

          And when one considers that being an EC winner and PV loser essentially doomed the tenure of three of the four guys who won that way, you can hardly say that it’s a good thing. If Bush had lost the popular vote again in 2004 and still won, I think there might have been riots in the street. A clean PV-EC win is obviously in the best interests of everybody. A PV win only seems good when it rescues your candidate—note that Dems in 2012 were perfectly happy to suggest that Obama might win that way.


              Because the Founders did not want the President to be a partisan individual.

              The founders wanted the people and the States to have a direct say in the Legislative process, not so much in the process of executing the laws and prosecuting wars. They did not want the passions of the people to corrupt so great an office. His original purpose, and that which was generally pursued by most presidents until the birth of the bully pulpit and growth of the imperial presidency, was to Support and Defend the Constitution of the United States. If anything, the President was to be a check against the temporal passions of the people and the states passing potentially ill conceived laws.

              A purely democratic President would serve little purpose in the Checks and Balances system as he would be quick to approve anything and everything the passions of people demanded; a purely state-selected President would not be democratic enough. Hence the compromise of the Electoral College.

              This is not a complete explanation as I’ve been frantically perusing the Federalist Papers and the State’s Ratification debates for a more informative essay.

              Needless to say, there were 3 schools of thought during the Constitutional convention and ratification process:

              Nationalists – who wanted a purely democratic President: the fears of which were he would be too malleable to the short-lived passions of the people and not protect the Constitution.

              Hold-overs from the Confederacy – who wanted a State Selected President: the fears of this was it wasn’t democratic enough, smaller states had too much influence in the chief magistracy.

              “parliamentarians” (for lack of better terminology) – who wanted the President selected by Congress – This was feared more by the Nationalists and “Confederacy-ists” than they feared each other, because it merged two separate branches to much.

              Ultimately the compromise came when the Nationalists and old confederacy hold-overs unified because they knew that the parliamentary option would be disastrous.

              The electoral college additionally was meant to be men who would willingly be faithless electors if the popular candidate was seen to be incompetent or worse. Language by Alexander Hamilton in Federalist #68 hints that the Electoral College was a protection against the temporary passions of the people during election years.

              The pure system was quickly corrupted by the winner take all system established by the party systems in the separate states.

              Further corruption occurred when Presidents began overstepping their bounds by becoming activists, versus administrators and guardians of the Constitution.

                • I’m working on a response, but I’m also working on something else that I plan on emailing you and would love a review of if you have the time.

                  In the mean time…let’s just solve politics the way they used to in the Five Points in the mid 1800s…

          • What about a state having winner take two electoral votes, and the rest of the EV’s apportioned by congressional district?

              • I kind of like it for being a perfect mirror of the way congress is elected, but my taste for symmetry is quite possibly leading me astray.

                • Consider gerrymandering. If such a policy was implemented in the 2012 Presidential election Obama would have gotten 7 out of the 20 electoral college votes in PA and 6 out of the 18 electoral votes in Ohio despite winning majorities in both.

        • Not only is 2 worse, but 1 is preferable. I wouldn’t call that “worse.

          What disturbs me is the desire to manipulate the system by GOP legislatures in blue POTUS states to split the EC based on the percentage of the votes the candidate gets (or worse, based on congressional districts won) but not in any other state with GOP legislatures that vote for the GOP in presidential elections.

        • Here’s what I would like to do to fix some of our current issues with congress and our electoral college. Go to a fixed 1 representative per 100,000 people rounding up (numbers and rounding rule negotiable), with no fixed house size. That would require pretty drastic changes in the way the house operates, but it would do a lot to differentiate the house and senate again, and would alter the balance of the presidential election. It would do a lot to eliminate complaints about disproportionate representation in the presidential election. I’d hate some of the side effects, but most of those could be fixed by actually aligning congressional authority with what is specified in the constitution again. Which is about as likely as the former change.

          • Not to re-hash a dozen discussions, of which I think you took part in some, my opinions (which generally agree with yours):

            1) I don’t care how big and unwieldy the House gets, we need more representation…1:700,000 doesn’t cut it. I would be content to try 1:100,000 (but would prefer even better).
            1a) Even though most of the campaign finance reform crowd doesn’t buy into my connection here, I think smaller representation ratios would go along way to solving the “money in politics” problem… as price to win a House seat would diminish incredibly.
            2) Give the Senate back to the State Legislatures. It was meant to be a deliberative, slow, and often times annoying check on the passions of the HR. As long as it is a bastardized version of the HR, the Senate will only be a non-deliberative, slow and often times annoying cluster of the passions of the people from 6 years ago…
            2a) I am loathe to change the original structure of the Senate with 2 senators per state, but I find the current turn around, where entire states don’t get to shake things up for a whole election cycle annoying. I am not convinced yet, but am sympathetic to making 3 senators per state, with one each up for election during the election cycles.
            2b) I am not convinced yet on term limits for legislators, but Sarge983 certainly makes a point that our incumbency rates nearly mirror some of the most corrupt banana republics that don’t even pretend to have clean elections.
            2c) In regards to #1, I WOULD worry about the imbalance of power between the States & People in regards to the Electoral College. The Founders really wanted the States and People to have an appropriately proportionate voice in how the Electors cast their votes. At the Founding, there were 3 Reps per Senator and as the HR & Senate both expanded, the ratio bounced between 3.5 to 5 Reps per Senator…so that seems like a great rule of thumb for balancing their power in the Electoral College. But if we expanded the Senate to match the ratio of expanding the HR (like in #1), that is UNACCEPTABLE. We don’t need a zillion Senators running around. this bullet is just pointing out something, nothing I’d actually want to see happen.
            3) I am not a fan of a single term 6 year Presidency. Nope.
            4) I had a #4 in my mind…maybe I’ll remember it and create an addendum.

            • 1. Single six year term for president. Abolish the office of vice-president. 2. Repeal the 17th Amendment and allow each state a SINGLE senator chosen by the state legislature. Six year term, limit of three. 3. Representatives chosen by district by popular vote for a two year terms, limit of three. Districts may not number more than the least populated state. 4. Federal judges appointed by the president and confirmed by the Senate for a single 12 year term. 5. Abolish the federal district courts as unconstitutional. Possibly the other lesser federal courts as well. 6. And while we’re at it, repeal every constitutional amendment passed in the 20th Century with the exception of the repeal of Prohibition.

                • Article III, Section 1. The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish.

                  Does that sound like a constitutional mandate for the huge system of federal courts that now pollutes the landscape of America and permits little nests of jumped up lawyers (on an unelected, lifetime tenure) to wield autocratic authority over the states and the citizens? I maintain that not only are the federal district courts inherently unconstitutional, but that real doubt exists as to the validity of the higher federal courts as well.

                    • I’m saying that the clear implication from the Constitution’s wording is that the establishment of inferior courts would be a rare event based on a special necessity and not at all necessarily permanent. I can guarantee you that the Framers would be appalled at the monstrous federal court system that has been instituted over us from a culmination of “time to times”. As in a number of other cases, the wording of the Constitution has been stretched to the limits and far beyond the original intent.

                    • That “from time to time” phrase indicates, by itself, that the Framers had no vision at all of a huge system of lifetime tenured potential despots with power over the states and the people. Certainly, the Framers themselves were not unaware of the danger of such a system. That’s why they specified only a Supreme Court and military courts-martial. You could make a case for maintaining several appeals courts, given the fourfold increase in the number of states since the ratification. Not much else. Definitely not the district courts.

                    • Mr. Pilling seems to be saying that the meaning of “from time to time” includes “temporary”.

                      Mr. Pilling, please provide a citation for this inclusion of “temporary” in “from time to time” in the Federalist Papers, the Anti-federalist Papers, the debates on the Constitution, or the writings of at least one founding father. I admit you may have proof, but in the absence of proof, your statement is your opinion rather than fact.

                      The alternative idea contained in “from time to time” is that, if the experiment called America were to be successful, the country would grow immensely over the ensuing decades and centuries, and doubtlessly the needs of the Citizens would change. “From time to time” gave congress the capacity to adjust the judiciary to meet those needs.

                    • I’d suggest that it wasn’t a matter of “needs”. The judicial needs are met by a state and local judiciary (usually elected by the citizens) for the main part. The only necessity for a federal court lies in an appeal from a state supreme court ruling which has a direct bearing on constitutionality. As I said, I could understand a few courts of appeal to weigh cases short of the U.S. Supreme Court, due exactly to the growth of the nation, as you mentioned. But I see nothing in either the Constitution or the writings of the Framers that indicates support for a monster federal court system composed of life termed political appointees who also had the power to strike down laws and amendments of a sovereign state of the Union on their own say-so and the flimsiest of legal justifications. That’s not jurisprudence. That’s a license for tyranny. The federal district courts have become one of the greatest internal threats to liberty and limited government that could have been devised. It needs to be abolished and its funding channeled into the national debt.

            • 1) Completely support, but instead of house districts I would prefer that people get to vote on “slates” of candidates within a state. The need for geographical representation is not necessarily needed in our modern age and if people do want local representation they can always form a slate of candidates only from that region. It might not fix the money issue though.

              2) The history of the Senate being elected by the House legislature was rife with corruption to the point where many states just chose to put candidates to directly elect on the ballot. I am not keen on going back there.

              2b) I used to believe that term limits were unnecessary. Why force a district to lose a rep they like? But the power of the incumbency is strong.

              • The concept was that, while representatives would be locally elected to reflect the popular attitudes and aspirations of citizens, senators would be chosen by the state government as “ambassadors” to the federal government, that latter being a creation of the states. By direct election, it means that senators are nothing more than longer termed representatives and are to be swayed by transient popular opinion.

                • I understand the concept but in practice it wound up not being a good idea. That is why many states went to direct election of Senators before the amendment was passed.

                  And one weird thing about this discussion I have found is that typically the people making the argument to repeal the 17th amendment are small government Conservatives. It seems odd to me that such a person would want to take power away from people and put it in the hands of Government.

                  The good thing about Senators is that the districts cannot be manipulated by gerrymandering so they are representative of the whole voting population, but the House is.

                  In fact, the House representation is made up how the state legislatures decide. So the roles have flipped. The Senate has become the people’s house and the House has become the house of state government (or at least the state government as it existed when the last redraw of districts was approved).

                  So not only would a repeal of the 17th amendment return us to using a system that was already proven to not work, but it would mean that people had no real representation in Congress.

                  • The Reason, Dan, is because this was part of a finely crafted system of checks and balances. The purpose of the Senate was to directly represent the state government at the federal seat. Being elected “indirectly” freed senators from submitting to popular passions. Remember, too, that we do not live in a “democracy”, but a Republic. We also life in a federal republic composed of sovereign states. Most of the elected offices are at the state and local levels, where the bulk of the public power is supposed to reside.

                    • You need not remind me that we live in a Republic. That is clear via the Constitution. (I am reminded of an argument I had in a chat room once. I (the Democrat) was arguing that we are a Republic with a Republican who insisted we are a Democracy).

                      Direct election of Senators does not stop us from being a Republic. It does not make us a Democracy.

                      History showed us that THIS particular check and balance (Senators being chosen by the state legislators) did not work. It increased corruption. It was not “finely crafted”. It was a failure.

                      The idea that direct election of Senators somehow takes power away from the “states” is silly. The states are made up of the people who reside in them. The states also voted for the amendment. If the states choose to change the rules to direct election, then any power lost is done so willingly.

                      That the Senators serve 6 year terms mean that they are not just going to be swayed by short term popular passions.

                      Finally, our Constitution has changed from the inception of this country and more powers have been given to the federal government. You may not agree with it, but that i what we have today.

                    • I would certainly dispute your notion that the direct election of senators decreased corruption! Once again, I need to stress that the Constitution was carefully crafted in regard to checks and balances. It is also evident that you find satisfaction in those 20th Century amendments that increased federal power over the states and citizens in defiance of the spirit of the document and its intent. This has also been paralleled by judicial revisionism, a factor feared by the Framers. As Prohibition was repealed, so too should the other amendments of the last century be likewise treated. The trend toward an ever stronger central government is one that must ever be guarded against. When the people become careless or lose their perspective of heritage, things like this will gradually place ever heavier chains on them. The purpose of the Constitution is to put chains on government, not to lessen them.

      • I thought at the time that race was Kerry’s to lose, and he campaigned hard to do so. By the way, did you know he served in Vietnam? And that those events were SEARED into his memory?

        It’s a shame how much some of the stupid campaign nonsense from that time has stuck around in my brain, but it was probably the first election that I was actually paying close attention to.

  2. This argument keeps popping up from time to time, even in Texas (“Windy” Davis did get 30-something % of the vote). Rather than argue with a “believer”, my comment is to simply suggest that the idiot 1) read the actual SCOTUS decision, then; 2) follow the history of the various recounts, both before and after the SCOTUS decision (before, official; after, unofficial). Few of the believers actually do as suggested, and keep coming back week after week. Which, I suppose, is one of the guiding principals of the Big Lie. Tell it loud enough and long enough, it will become the “truth”.

  3. Who was the real origin of the “big lie”. Was it Hitler or Goebbels or can it be traced back furher, er further?

    Republicans tell the Big Lie as often as Democrats do. Trickle-down economics and “Free” trade are two large examples. Republicans rely on the lies of under-reported rates for unemployment and inflation as much as do the Democrats.

    The real BIG LIE is that either one of these parties cares about anything other than the augmentation of their own power and purse. They both talk a good game “on the stump” but both act very similarly in their chambers of power. We need to flush them both.

    • I don’t see trickle down economics as a big lie any more than Keynesian economics, or Communism. It’s a theory. Theories can be asserted as true, but they are still in the realm of opinion Neither is Free Trade, which is a misnomer. Don’t over-broaden a useful term like Big Lie, which is an intentionally invented fact, designed, in most cases, to start an argument that validates the lie by its very existence. “The Holocaust didn’t happen” is a Big Lie. “Mike Brown was gunned down while surrendering to a racist cop” is a Big Lie. “The CIA launched AIDS to kill blacks” is a Big Lie. “FDR let Pearl Harbor be bombed” is a Big Lie. “Poor people are poor because they are lazy” isn’t a Big Lie, it’s a dumb opinion based on over-generalization.

      • Please don’t compare Holocaust denial to the question of if Mike Brown was killed while surrendering as both being “big lies” .

        Thank you.

        • A Big Lie is a Big Lie. Maintaining the false to be true for political gain. There is no difference, except in scope. Deliberate spread of untruth is just as wrong: I’m not sure that the Ferguson Big Lie isn’t more damaging than the Holocaust lie, because the latter has so much tangible evidence to disprove it.

          • I would assert that a “Big Lie” has as it’s only criteria that it be told “Loud enough and long enough” to APPEAR as truth. Subject matter would be….uh-oh, that word again….irrelevant.

          • The idea that Brown was surrendering has not been proven false though. There was just not enough evidence to bring an indictment in the eyes of the grand jury. Knowing that Brown did or did not have his hands up at the time of the final gunshots is a guess based on evidence or not, it is a belief. People who say Brown was charging and people who say that Brown was surrendering are basing their arguments on 3rd party sources. Holding either of those sides is not an example of any sort of deceit. So it cannot, by any stretch of the imagination, be called a lie.

            There is proof that the Holocaust happened, plenty of it, and denying the existence of the Holocaust is a BIG LIE.

            These two things are not even remotely close and I feel a disservice is done to the 12+ million victims of the holocaust to suggest that there is any sort of comparison here other than “they cannot be compared”.

            • Sure it has. The forensic evidence contradicted that account, the officer’s account did, and the witnesses that claimed it were thoroughly discredited. Yes, you can’t prove a negative, but the “Hands Up! Don’t Shoot!” argument has no evidence to support it (“it” being also that Brown’s death was racially motivated.) Asserting as fact something that is not fact—in the eyes of the law, Wilson is innocent, which means he did not execute anyone in cold blood—in reckless or intentional disregard of the evidence is Big Lie strategy.

              • Yes, in the eyes of the law Wilson is innocent. In the eyes of the law OJ is innocent of killing Nicole Brown as well. That doesn’t mean someone saying they believed OJ did it is giving a “Big Lie”.

                My opinion is based on the video of the contractor taken right after the shooting who exclaimed “he had his hands up” in an exasperated way and one forensic examiner who counters the forensics causing your belief.

                I prefer a system, and I would suppose you do as well, where guilty people go free because of the burden of proof we place on the prosecution over a system where it is easy to lock people away and as such innocent people are put away at a greater rate. Part of that system means that guilty people walk free. And while the law does consider them innocent, we can still disagree with the outcome of court cases without any one side of the argument being a lie.

                • Erm… You base your opinion on 2 bits of info despite all the overwhelming info opposing your opinion? Faith that can move mountains…

                  It’s a big lie because it is advancing the notion that the police of America are simply blue-clad race exterminators.

                  • I do not see the other evidence as overwhelming. For weeks they based the defense of Wilson on the hearsay of one woman. Forensics experts differ on what happened. And common sense should win out, which requires the question be asked “why would Brown retreat so far back just to charge Wilson who he knew was armed?”

                    Stating Brown had his hands up is not a statement that police are race exterminators. There are absolutely some problems with how police departments deal with persons of color. But your statement is clearly another strawman of what most people who believe Brown had his hands up assert.

            • Big Lie isn’t just about what is being lied about, but the effect of the lie.

              There are no credible or large numbers of people who can use the information of the holocaust denial lie in any real capacity.

              The hands up don’t shoot LIE is being used by many credible individuals to put the nail in the coffin of race relations in this country.

              Surely you see the relevance…

              • No, the people putting the nail in the coffin of race relations are the ostriches who bury their heads in the sand and do not want to admit the problems that currently exist in this country as it comes to race relations (especially by police departments).

                This doesn’t mean all police are bad or that all police are racist. It means that there are organization wide policies that cause otherwise good people to act in a way that fans the flames.

                  • You love to change people’s arguments don’t ya? Doesn’t seem like representing an argument as something other than what it is would be ethical behavior.

                    • Uh what part of “Hands Up Don’t Shoot” in the context of Michael Brown’s death doesn’t communicate a cop killing a surrendering black person? And you say it is really just a “hey, let’s address some problems, ok?”

                      My characterization is accurate. You just don’t like it.

                    • This argument just bewilders me. To use Dan’s earlier example, would we accept “NO Gas, NO Ovens” as an anti-Israel slogan, saying that it isn’t intended to deny the Holocaust, just to suggest that Israel isn’t being fair to Palestinians? Or that “Kenyan Obama” is just a rallying cry for Obama critics, not a serious accusation that he’s not a citizen? Obama, I see, used the bogus 1 in 5 stat again recently talking about sexual assault. Is that now just a symbolic stat to suggest that assault is a problem, and not what it appears to mean?

                      I don’t see how anyone can make such an argument and look in the mirror.

                    • Tex: Hands up don’t shoot is the reaction to the Brown shooting that is a symptom of a larger problem. The point I am making was one of a general problem of racism on the part of police in dealing with the black community. Stop and frisk policies that should be considered unconstitutional. Being pulled over for DWB. Etc.

                      You are claiming that the terms are being used to claim that all police are “blue clad race exterminators” or that the stand up dont shoot term is the end all and be all of the move to fix the racial issues in dealing with law enforcement. That is the strawman. You take one line and make it the entire movement in an attempt to discredit that movement EVEN THOUGH that one line does not make up the movement as a whole (or even a large enough portion to make it a majority of the issues).

                    • DAN:That’s a 2011 story about a stat that has been completely, definitively disproven, by Justice Department stats, last year.

                      Clearly, you didn’t comprehend my comment at all. “Hands Up” also CLEARLY references the fake Mike Brown story.

                    • Maybe this will get through. Imagine there was no video of Garner’s death. Let’s say he didn’t say “I can’t breathe,” but a witness said he did. Then let’s say that it is proven that the witness was not close enough to have heard Garner, that four closer witnesses heard no such statement, and finally that forensics show that Garner did not die from the excessive force arrest, but from a tiny curare dart in his neck, origin unknown.

                      Then Al Sharpton and Garner’s family spark nationwide protests of police violence against black men using “I can’t breathe!” as a slogan. Fair? Honest?

                    • Did you see peaceful protests in Ferguson? St. Louis? Oakland? Is it “peaceful” when gangs of people deliberately march down the center of a city street to block traffic? (They tried that in Dallas… to their sorrow.) How about when they march chanting slogans about killing cops, whites in general or anything else they don’t like at that moment? How about just gathering in a park to scream obscenities at the top of their lungs? Or maybe the only guy they attack is some clueless white kid who joins them thinking he’s doing something cool? Those protests by the Left turn ugly pretty quick, as they have no ethical restraints or incentives beyond blind hate or amusing themselves by committing mayhem.

    • Egypt, after a battle with the Hittites. Egypt pushed the Hittites back into a local fort and were unable to dislodge. Upon returning home, Pharaoh (Ramses II? Can’t actually remember.) started touting the great and decisive victory over the Hittites.

      As to your last point, “We need to flush them both”, and replace them with what?

      • It may not have been a great and decisive victory in terms of routing and destroying the Hittites gloriously…

        but the Hittites did withdraw from Canaan. That is a victory.

        Ramses merely made it out like the tactical portion was more than it was. The strategic bit certainly held…

        • Oh, yeah…I did not mean to imply that it was a lopsided defeat and Ramses claimed victory. The Hittite army remained intact and they withdrew from Canaan because of internal “problems”. I would call it a draw, but Ramses did claim a resounding victory, which it was not.

        • Well, it is really how the government and the Fed take value from your pocket without identifying it as a tax. Keynesian or not, Democrat or Republican, the printing of fiat currency causes the devaluing of the currency. I suppose the truth is that most are Keynesians these days. The real difference is how they stimulate rather than whether they stimulate.

  4. The outcome of the 2000 presidential election was irrelevant.

    “Bush v. Gore obviously attracted enormous public and media attention. Yet, one crucial aspect of the case was largely overlooked: justiciability. For all of the discussion about the decision, no one seemed to pay much attention to whether the Court properly had the legal authority to hear the case. Most likely, this is because justiciability doctrines are complicated and unfamiliar to the public. Perhaps, too, this is because neither of the parties raised justiciability issues in their briefs. This, however, does not excuse the Court’s failure to raise it, because it is firmly established that justiciability issues are jurisdictional, and courts are to raise them even if the parties do not. (See, e.g., Allen v. Wright, 468 U.S. 737, 750-52 (1984); Warth v. Seldin, 422 U.S. 490, 498 (1975))

    … Bush lacked standing to raise the claims of Florida voters that they were denied equal protection by the counting of votes without standards. Bush’s argument was based entirely on discrimination among voters in Florida as a result of the counting of ballots without standards. But he personally did not suffer this injury, and he did not have standing to raise the rights of the Florida voters.” (Bush v. Gore Was Not Justiciable, 76 Notre Dame L. Rev. 1093 (2001)

    “Article III of the Constitution confines the federal courts to adjudicating actual “cases” and “controversies.” As the Court explained in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471 -476 (1982), the “case or controversy” requirement defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded.

    The Art. III doctrine that requires a litigant to have “standing” to invoke the power of a federal court is perhaps the most important of these doctrines. “In essence the question of standing is whether the litigant is entitled to have the [468 U.S. 737, 751] court decide the merits of the dispute or of particular issues.” ALLEN v. WRIGHT, 468 U.S. 737 (1984)

    By asserting jurisdiction over the matter on December 9th, 2000, and with it the franchise, the Court “exercised power beyond right which no one has a right to” — violating the separation of powers doctrine at the highest apex imaginable.

    See also the 12th Amendment.

    • I’m not re-litigating Bush v. Gore. I’m secure in the judgment of the Court: anyone can cherrypick law review articles, although you picked a particularly strange one. The standing argument has been generally discarded as a stretch. Meanwhile, your comment doesn’t address the issue at hand.

      And this…“The outcome of the 2000 presidential election was irrelevant” is a ridiculous statement. In fact, it may be one of the most ridiculous statements I’ve ever read. It was obviously relevant to the election, the country, history, Bush, Gore, the Presidency, Democrats, Republicans, election law, and whether or not the election was stolen. What, pray tell, is it you think it wasn’t relevant to? The casting of “My Mother The Car”? The weather in Mongolia? The blush on an infant’s cheek? What?

      • “The outcome of the 2000 presidential election was irrelevant” is a ridiculous statement. In fact, it may be one of the most ridiculous statements I’ve ever read. It was obviously relevant to the election, the country, history, Bush, Gore, the Presidency, Democrats, Republicans, election law, and whether or not the election was stolen. What, pray tell, is it you think it wasn’t relevant to?”

        The outcome becomes irrelevant when the rules and process are completely ignored.

        Law is not a search for truth but a search for process. For example, while a coerced confession from a suspect may reveal the whereabouts of a kidnapped child, the law will disallow the confession in proving the defendant’s guilt, no matter how truthful it may be. The reason the legal process disallows coerced confessions is that they will generally turn out to be false much more than true.

        “What the people care about, what affects them is the Bill of Rights …. That is a profoundly mistaken view …. For the fact is, that it is the structure of the government, its constitution, in the real sense of the word, that ultimately destroys freedom. The Bill of Rights is not more than ink on paper unless … it is addressed to a government which is so constituted that no part of it can obtain excessive power….” — Antonin Scalia, November 15, 1988.

        Article III did not give the Supreme Court the power to override Article II and the 12th Amendment by exercising jurisdiction over a case that clearly was not justiciable. In a word, the Court was textually powerless to do anything.

        I don’t mind being insulted so long as the person issuing the insults can show me they have a better understanding of the material than I do.

        • I’m not insulting you. You just need to learn what “irrelevant” means. I won’t lay the Montoya quote on you, but it applies. Assuming arguendo that you are correct about process in this case…you’re not, but I don’t care to debate it…a lack of process doesn’t make a result irrelevant.

          This—In a word, the Court was textually powerless to do anything is the 2nd most ridiculous statement I have read today. It obviously had power to do it, because it did it.

          • The Court has more than once defined its own power in unique circumstances. It decided, correctly, that the Florida Supreme Court was making a mess of things,the country was headed for a possible constitutional crisis, and the only institution that could settle the issue was SCOTUS. And that’s what it did. And it worked. This was the perfect example of the Incompleteness Theorem as applied to government: sometimes, the rules don’t work, because the circumstances cannot be anticipated. When that happens, you have to solve the problem and go outside the lines. Your argument is like the pedants who argue that Lincoln didn’t have the power to stop the Confederacy from seceding. Go ahead, tell me that the Civil War was “irrelevant.”

            Bush v. Gore was a courageous and responsible choice, and I predicted it and its result weeks earlier, as did Alan Simpson and several others.

            • The USSC has no jurisdiction over a state election. It has no legal basis for interferring in the election of FL State Electors. None. The only reason they got away with their tyrannical interferrence was that Congress refused to honor its duty under the 12th Amendment.

              • The Supreme Court has taken jurisdiction on many occasions when the government needed a deadlock breaker to function. Brown v. Bd. of Education was one example. Marbury was another. The late prof. Robert McCluskey, the Harvard scholar who was the first to study the institution of SCOTUS as a government branch rather than from a legal perspective, made this clear in his writings and analysis. This was exactly the kind of situation where the Court had to step in. Gore partisans would have rather seen months of uncertainty, more partisan manipulation by the Florida Supremes, and a true crisis than except the inevitable, but Bush was going to be elected, and Bush v. Gore minimized the damage. Courageous decision, and well within the traditions of the court.

                • Note this phrrase.

                  “But [Bush] personally did not suffer this injury, and he did not have standing to raise the rights of the Florida voters.”

                  He did have standing because the reversal of the judgment of the Floruida Supreme court would stop the current recount, which would then default to the previous recount which he had won. This would be sufficient to grant Article III standing.

                  How could a law review author fail to understand basic standing doctrine?

        • So, what you are saying is that the outcome of the election is irrelevant to the question of whether process was adhered? But isn’t the question of whether process was properly followed irrelevant if correct adherence would have yielded the same result?

          I know we are supposed to be a country of laws, but we have to accept that real world outcomes are relevant to the real world, regardless of whether the outcome is a result of the proper application of process.

  5. “what you are saying is that the outcome of the election is irrelevant to the question of whether process was adhered?”

    Yes; but we’re not just talking about process. We’re talking about a violation of the separation of powers unrivaled in American history.

    “But isn’t the question of whether process was properly followed irrelevant if correct adherence would have yielded the same result?”

    Absolutely not. Just like a man’s got to know its limitations, a government’s got to adhere to its limitations. Our republic wasn’t built upon “ends justifying the means” reasoning.

    I know we are supposed to be a country of laws, but we have to accept that real world outcomes are relevant to the real world, regardless of whether the outcome is a result of the proper application of process.

    Check out Scalia’s dissent in MORRISON v. OLSON, 487 U.S. 654 (1988) that begins with the line “It is the proud boast of our democracy that we have “a government of laws and not of men.”

    To say that a branch of government “obviously had power to do [something], because it did it” is tantamount to deeming the constitution as nothing more than a urinal puck.

    • A litigant has standing to appeal a court’s ruling, judgment, or order if they have a protectable legal interest at stake.

      Winning an election is most definitely a protectable legal interest.

    • Maybe you are arguing some obscure definition of “relevant” with which I am unfamiliar. I think you could argue that an improper application of process could yield an improper or unjustified or unsubstantiated result. I do not think you can successfully argue that it yields an irrelevant one.

      Scalia’s statement does nothing to rebut the relevancy of real world results. I believe in laws and the constitution. My point is that you can’t sit in a room debating about the correctness of the process, while ignoring the fire that is about to consume the building. The fire is relevant to your survival, whether you proclaim it to be irrelevant or not.

      The importance of process is in its ability to yield a proper result rather than its ability to make a result relevant.

      • I’m saying that adherence to rules and procedure dictates the outcome; not vice versa. So long as the rules and procedures are adhered to, the outcome is arbitrary and irrelevant as to said rules and procedures.

        “My point is that you can’t sit in a room debating about the correctness of the process, while ignoring the fire that is about to consume the building. The fire is relevant to your survival, whether you proclaim it to be irrelevant or not.”

        Exactly where was this “fire” back in 2000?

        My point is that you can’t yell fire simply because you desire a certain outcome. Furthermore, blowing up the building in the name of putting out “the fire,” i.e. concentrating all the several powers into a single department, defeats the whole purpose of having the building in the first place.


        “No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.” Federalist 47

            • Wait so Bob Stone and Ethics Bob have nothing to do with each other?

              My money on Art’s reincarnation was Andrew Wakeling. I had him pegged for Art who decided to behave himself.

              Now I’m just confused.

                  • I’ve got it figured out, thanks to the persistent post-banning messages and attempts at comments from these guys:

                    1. Bob and PBH are NOT the same people.
                    2. Both are Angry Democrat trolls who insist that Bush v. Gore was wrong, and they have absorbed every left-leaning law journal argument claiming so.
                    3. Neither is interested in real discussion. Both are addicted to the “this settles it!” school of links, which I detest.
                    4. PBH would be constructive if he had any interest in the topic of the blog. He’s smart, but a mega-jerk. Bob is just a by-the-numbers ideologue, and not very bright.
                    5. First bans of 2015.

                    • By the way, I think you pegged Bob Stone as Art Hawley. There towards the end it was spitting image Art-esque style argument.

                      Somehow my email notifications allowed me to see all the last posts you deleted or spammed.

                    • See anything that makes you doubt the justness of the exiles? I’m not reading their crap any more—eventually I train the spam program and they’ll go there directly. Neither ever addressed the substantive arguments, just kept repeating the same one of their own, and finding quotes and authorities: what a surprise, Larry Tribe can’t abide a colleague who writes a pretty objective analysis of BvG.

                      But these kinds of trolls are like stalkers, one of the unpleasant aspects of blogging.

                    • Nope. Arguing the ethics of the 2000 Election may have made sense DURING the “crisis”. But America needed to decide it had a President. The Democrats refused to let the recounts stand, if the recounts couldn’t stand, then the vote still couldn’t go to the House of Representatives…because Florida’s votes would still have to go to one candidate or another…making a winner!

                      Presidential Elections only go to the House if, after all electors are in, there is no 270 vote winner.

                      Then the same fashion of Art-esque arguments –

                      A handful of links, a long cut&paste excerpt from one of them, all then hammer the same point home…

                    • Which reminds me: 2000 is the best possible argument for the Electoral College. With such a close popular vote, we could have been watching an endless recount of all votes, with constantly shifting totals. The Democrats were willing to provoke a constitutional crisis rather than accept Bush’s election.

                    • Yep. Because EVERY single “close” state would have to be recounted. It wasn’t Florida that “Won” it for Bush and “Lost” it for Gore…it was every state that voted for Bush that “Won” it for Bush and “Lost” it for Gore…

                    • There is also a less prominent “Bush stole the 2004” election conspiracy theory too, as you know. Nobody bothers much with that, because its impossible to believe Kerry-Edwards could beat anybody.

                    • Pure hindsight bias, with a flavor of “it worked out for the best”, but for the life of me, I don’t know how the 9-11 attacks didn’t shut up every patriotic & realistic Democrat on the whole “Bush stole the election”.

                      Anyone with a brain should be relieved that we didn’t get that dithering robot in charge to oppose the Islamist attack on our country.

                      “My fellow Americans, in response to these terrible events, WE WILL STRIKE BACK WITH ALL OUR MIGHT! WE WILL TEAR DOWN THE CARBON EMITTING INDUSTRIES!””””

                      (aide whispers in his ear)

                      “The who did what?”

                      (more whispers)

                      “OH…uhm…they were mostly Saudis right??”


                      “Yeah, I knew it had to do with evil oil companies!”

                    • Wait, which hindsight bias? None was necessary to conclude that Kerry was (and is) an empty suit and a habitual bungler. He may have been the least qualified candidate for President since…oh, I don’t know, Alf Landon? Horace Greeley?

                    • I wasn’t clear, I was still addressing the 2000 election gripes… that after 9-11, we should have all had a collective sigh of relief that Gore wasn’t at the helm.

                      Yes, the 2004 gripes are just asinine.

                    • Great list start: least able POTUS candidates! Let’s see: Kerry, McGovern, Landon, Blaine, Greeley ( I count the fact that he was dead against him); surely McClellan. Successful candidates are disqualified. Surely we can get to 10.

                    • Was he really a candidate, though? He was on the ticket as VP, and then exploited a dumb flaw in the system to nearly get elected President. (I’ve never understood how the brilliant Founders let that happen. The Supreme Court should have stepped in!)

                    • It was probably one of those “we’ll deal with it tomorrow” things that then get lost in the shuffle and come back to haunt you. We can be thankful that such oversights were rare. They should have mandated a single six year term for president and never had an office of vice-president to begin with.

                    • For myself, the best possible argument for the Electoral College is that it kept Al Gore from becoming president. That alone is sufficient! Imagine that charlatan in the White House when 9-11 happened. God and the Framers gave us a gift in 2000 that we still don’t fully appreciate.

                    • He’s arguably a conservative, in the sense that a lot of absolutists are conservative politically. Which one was it who objected to me using the short-hand “Democrat” rather than “Democratic”? I find it hard to grasp any objective observer, especially a conservative or Republican-leaning one, watching the disgraceful performance of the Democrats on the Florida Supreme Court and not understand that in the interests of preventing a travesty of the electoral system, SCOTUS had to act. The vote to reverse the ordered recount as an Equal Protection breach was 7-2—Bush v Gore trolls never mention that, because it interferes with another myth.

                    • I think that was PBH51 got mad at SMP for calling them “Democrat stronghold districts”, not “Democratic dominated counties”.

                      Which is still incorrect. It is more correct to say “Democratic Party” as opposed to “Democrat Party”. It is actually more correct to say “Democrat Dominated County” than to say “Democratic Dominated County”.

                    • I feel like I’m missing a bunch of posts here. Did your ban delete the nonsense they were spewing? Kind of wish I’d been actively refreshing the page instead of coming back to it hours later.

                      As an aside, I like to link to people who present an argument better than me. I can usually add something about it instead of just posting, but if you feel I ever start mimicking the style of linking you detest, let me know. I’m more willing to respond to the things other commenters actually say than Bob Stone seemed to be, so I think I’ve avoided it…

                    • Just the ones that occurred post banning, Phlinn. They did, as is usually the case, validate my judgment by being increasingly rude and or nasty. These were pretty straightforward: After the same essentially unchanging point was made by each over and over, despite the fact that it was not germane to the topic, I said enough, which is my prerogative as moderator. I’ll never shut down an on-point debate or even a tangential one that is a legitimate exchange of ideas, but just posting links and cut-and-paste quotes isn’t productive. I said: OK, enough, no more. They sent more of the same. I trashed it, and said: that’s your last warning: post on that topic again, and you’re banned. They both posted on the topic again, Bob attaching a gratuitous insult in the bargain. Then I was subjected to the typical barrage of “You coward, you just allow comments you agree with!” in emails here and subsequently trashed comments.

                    • There’s nothing wrong with linking to articles or other arguments.

                      The dude had the same repetitive argument, each linking to the same monotonous appeals to authority, each with the same monotonous arguments but by different people that were all essentially the same argument already debunked.

                      There were no new angles being explored to undermine Jack’s rebuttal. When one argues and receives a rebuttal, one must pick apart the rebuttal logically or one must rebolster one’s own argument with DIFFERENT angles not considered in the rebuttal. Ideally, taking apart a rebuttal SHOULD accomplish BOTH objectives of a reply.

                      This guy? Just repeated the same argument, over and over and over, ignoring the rebuttals.

                      He was just a litany of Appeals to Authority (authorities all parroting the same stuff).

                      Nah, linking is totally cool, if it is actually part of responsible arguing.

          • He’s a leftist because he approves of SCOTUS doing what it thinks it has to do when he agrees with the end result, if the end result—like Brown, like Roe—achieves the Lefts goals at the time. Otherwise, the last paragraph is absolute.

            But no system will survive without the recognition that sometimes the system won’t work, and you have to improvise. Lincoln and FDR are prime examples.

            • Brown and Roe established constitutional principles for lower courts to follow.

              What was the principle set forth in Bush v. Gore?

              “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”

              Bush v. Gore enunciated and stood for no legal principle whatsoever; part and parcel of the problem of it being an unlawful decision.

              But by all means, keep pretending it was legal and principle centered and stating it as fact.

              • You don’t pay attention.

                It was primarily a governmental ruling, not a legal one. The election needed a resolution, and the Florida Courts were screwing it up by changing the laws on the fly, and badly. SCOTUS was the only one that could address it. The principle is that when the margin or error is larger than the votes at issue, you have to stop counting. Obviously the situation was sui generis—the fact that there was no guidance for lower courts is a straw man. You’re saying that the US government has no mechanism to handle an unanticipated mess if the state courts can’t. Wrong. And the proof is, it happened.

                    • The Court violated its charter in many significant ways. Recognizing Bush was the first violation. He was not then and is not now a Florida resident and therefore was not then and is not now qualified to vote in Florida. Therefore he has no standing to contest a vote in Florida. Secondly, the USSC does not have authoritory over the resolution of Electoral elections. That is a duty reserved for Congress. The fact that it abdicated its duty does not change the fact that it is its duty. Nor does it change the fact that what the USSC did is unconstitutional. Res ipsa loquitur.

                • “It was primarily a governmental ruling, not a legal one.”

                  Otherwise known as a political question; yet another reason Bush v. Gore was not justiciable.

                  The political question doctrine states that the Court cannot hear cases which deal directly with issues that Constitution makes the sole responsibility of the other branches of government.

                  “Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department” Baker v Carr, 369 U.S. 186 (1962)

                  To wit:

                  Amendment XII

                  “The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.”


                  • Again, you’re not listening. If you want to pretend that SCOTUS cannot break out of the four walls of precedent and/or traditional jurisprudence when history shows otherwise, go ahead. You’re wrong. You can ignore the obvious fact that a controversy that involves the very process by which the other branches of government are constituted isn’t an exception. You can, as many of the critics of the decision have done in accusing the conservative majority of violating their own principles of federalism, forget that a state decision that has a direct impact on the entire country is an exception to typical federalism principles, and you can even ignore the fact that as a non-partisan institution, the Court was the only one of the three branches that COULD resolve the Bush-Gore problem while maintaining the integrity of the process (stained by Florida abandoning its own election laws mid-vote count) and avoiding the appearance of impropriety as much as possible with ruthless partisans attempting to undermine faith in the ruling for political gain.

                    Stop quoting the Constitution: I’ve read it many times. The Court is the Constitutional authority on that document; its members know the contents better than either of us; its members decided that it had the power to deal with Bush v. Gore in unique circumstances, and anyway, using the word “relevant” correctly, none of your musings are relevant to the post, which was about saying that the election was “stolen,” when the facts show that Bush was going to be elected anyway. The only question was how, how long it would take, and how much the confusion and ignorance, plus the exploitation of it by Democrats, would harm the country. SCOTUS chose the best of bad alternatives, which is what leaders have to do sometimes.

                    If you have a new argument, a reply to a commenter or another relevant comment to the post, it’s welcome. If you post another reiteration of the argument you’ve already made about 6 times, I’ll trash it. I understand your theory. Thanks. Now stick to the subject.

                    • “If you want to pretend that SCOTUS cannot break out of the four walls of precedent and/or traditional jurisprudence when history shows otherwise, go ahead.”

                      Really? What precedent can you cite where the USSC acted ultra viries?

                    • I didn’t say it acted ultra vires, which means “beyond it’s power”. I said the Court has the power, and has taken it, as in Marbury, which John Jay would have considered ultra vires, but his opinion didn’t count any more. Miranda could be called over-reach; so could Roe.

                      Moreover, I was making that statement to show that the Court could have and should have intervened in the case even if Bob were correct that it didn’t have jurisdiction to do so. But it did. It is interesting that none of the dissents on the court argued that the decision was unconstitutional. The tradition that the Court should avoid political disputes IF POSSIBLE as dangerous and unwise was the closest anyone (Breyer) came.

                    • “Miranda could be called over-reach; so could Roe.”

                      You might call them that, but technically they are not. Requiring arresting officers to protect themselves from liability, not to mention estabilshing firm guidelines for the admissibility of evidence, thereby reducing the number of failed prosecutions, by advising arrestees of their constitutional rights is hardly unConstitutional. And the interesting thing about Roe is that it found a State interest in protecting the Foetus at the point of viability, an interest that had not been considered Constitutional before as Foetuses are not considered persons under the Constitution. Viable Foetuses, however, now are as of Roe.

                      Surprised you didn’t go for Griswold, another of the usual suspects.

                      Marbury was obviously not Ultra Vires.

                    • None of them were. Neither was Bush v.Gore. The 12th Amendment argument is baloney, and that’s why, mirabile dictu, none of the dissenters made it. The Court had ruled, long ago, in McPherson v. Blacker, that Congress does not have the exclusive authority to regulate Presidential elections. And the Bush v Gore court had just relied on that very case in Bush I. So neither the majority nor the dissenters bought the argument that the 12th Amendment precluded jurisdiction.

                    • “I said the Court has the power, and has taken it”

                      And you are quite wrong about that. Unless you consider the 12th Amendment somehow less significant than your opinion on these things.

        • Again, it seems that you are arguing whether a result is legitimate rather than whether it is relevant. Absolutely, I agree that the proper process is required in order for a result to be legitimate; absolutely, I do not agree that the proper process is required to make the result relevant. Illegitimacy does not preclude relevancy.

        • Okay. Here is a different tack…

          If we say that the outcome of the election of 2000 is irrelevant (in the sense of the term that is used by the majority of the citizens, then we are stating that Al Gore would have acted in exactly the same way that George W. Bush acted in every important event during the period from 2001 to 2008, inclusive. Furthermore, we are stating that the citizens of this country and of other countries, and the rulers of other countries, as well as the two houses of congress, Wall Street, the Federal Reserve and untold other entities, would have reacted to Al Gore in exactly the same manner in which they reacted to George W. Bush.

          Is that really your argument?

  6. There’s a lot of election decisions that don’t go the way i like. Wasn’t that the Eagles’ song, “Get over It?” There is an expiration date for butt-hurt, not murder level, and the election of 2000 has passed it for me.

    Actually that expiration date applies to a most butt hurt. .

  7. First; it was pretty well proven that the only way for all those “hanging chads” to have happened at all was if a number of people had been fitting several ballots in the receiver at once while voting. In other words, they were the result of voter fraud occurring in Democrat stronghold districts. This is why the recount occurred mainly in those Democrat dominated counties, such as Palm Beach. Secondly; the recount was ended by the Democrats themselves when they realized that they were still only increasing George Bush’s lead. The decision was made somewhere to concede, but to institute an ongoing myth that the Republlcans stole the election in order to attract and rally voters for the next time around. Not surprisingly, they’re still at it.

  8. THE UNBEARABLE WRONGNESS OF BUSH V. GORE, Laurence H. Tribe, Tyler Professor of Law, Harvard Law School

    Nelson Lund, for his part, seems far too focused on rationalizing his desired result to see that law professor-non-litigants are no less susceptible to “acquired conviction syndrome” than are law professor-litigants.

    For Professor Lund, an attempt to write a “disinterested” response to an “unexceptional” article of “daunting volume” and “genuinely indefensible” conclusions has produced what is un-doubtedly the single most partisan and unself-critical defense of the per curiam opinion in Bush v. Gore —a defense that is, to borrow what foreign affairs columnist Tom Friedman once aptly said of Benjamin Netanyahu, “deeply, deeply shallow.” While most defenders of the decision have at least struggled with the difficult questions it poses—whether the Equal Protection Clause mandates precisely drawn and completely uniform standards for recounting electoral ballots; whether Article II imposes substantive constraints on a state court’s power to interpret its own state election laws; when federal judicial resolution of state ballot-counting disputes intrudes too far into the responsibilities of the coordinate political branches; when the interests of finality and stability instead justify such federal judicial intrusion and might even justify abandoning some voters’ rights to have their ballots counted—Professor Lund seems to find all these problems easy. Bush v. Gore’s critics have not agreed on just where the Court went wrong, and even most of the decision’s defenders, after noting the uniquely hurried and thus arguably extenuating circumstances in which the Court acted, have found something significant to criticize in what the Court did and in what it said. But not Professor Lund. For him, Bush v. Gore was “simply not a close case.” Lund’s loyalty to each argument, idea, and even word used by the Court is, to my knowledge, unmatched in the academic community. Methinks the Professor doth protest too little.”

    Click to access 03-33.pdf

    • Larry Tribe suffers from exactly the kinds of biases he accuses Lund of embodying, of course. This is appeal to authority, straight out. I’ve read Tribe on the case. He’s a lawyer and he’s an advocate, just as Lund is, not an objective observor. Tribe may be worse, since he falls back on the “most agree with me, so you must be wrong” rationalization. As the recent Pew study showed, law professors are overwhelmingly left-leaning, and Tribe’s more left than most. Methinks Tribe protests too much.

      And that was your last comment litigating Bush v. Gore. And your last warning. Go ahead, try me.

      • Note: I told Bob Stone (not the Ethics Bob version) that I had been plenty generous in allowing him to carry on about the Bush v. Gore decision, which is in the same class as Roe v. Wade as a SCOTUS call that will never have a consensus among scholars, especially since the topic is 1) tangential to ethics and 2) irrelevant to the post at issue. He answered with a long quote from Larry Tribe; I answered nicely, and said that was it: I was not accepting any more from him on this tangent. Whereupon he sent another Larry tribe excerpt.

        As promised, it was trashed. The next one will be spammed, and Bob will be banned. I’m the moderator and the proprietor: if I say move on, move on. I know, I know: I allowed a completely off-topic exchange about military experiences to go on forever recently…I viewed it as harmless and non-substantive, and among three established commenters here, as well as something that didn’t require my time or participation….and when I asked them to wind it up, they did.

        My guess is that Bob will challenge me and get himself banned. They almost always do. I hope I’m wrong.

            • Wasn’t me Jack.

              I gave up on this charade of yours when you insisted that your appeal to Prof. Lund’s authority must go unchallenged.

              “The reasons that thus lead mankind to believe the marvellously false, and to disbelieve the marvellously true, may be easily gathered. Of all the offspring of Time, Error is the most ancient, and is so old and familiar an acquaintance, that Truth, when discovered, comes upon most of us like an intruder, and meets the intruder’s welcome.” — Charles Mackay

              • Thanks for clarifying, but I did not appeal to Lund’s authority at all. I simply referred you to a scholarly article that addresses many of your points. I didn’t say, or suggest, that because Lund asserts it, it must be true. I happen to agree with him, that’s all.

                And the point of the warning had absolutely nothing to do with preventing you from rebutting Lund, and everything to do with ending an off-topic thread that you appeared ready to keep flogging ad nauseum.

                There is no “charade,” and re-entering the fray by referencing the banned topic and insulting my integrity crosses the line for the last time. If you want to apologize, you can find my e-mail. Otherwise, you’re banned too. Hook up with pbh51…you guys belong together.

                  • For example, based on yet another banned comment, pb claims that it’s ad hominem when I referred to him as a jerk, based on his behaving like one. See, this is a common misconception. If he is acting like a jerk, then calling him one is a legitimate opinion based on observable data. If he had not acted like a jerk, then it would be a gratuitous or unfair insult. But ad hominem only applies if I used the fact (or opinion) that he is a jerk to argue that his opinion wasn’t valid solely because of that. Jerks are right about many things, all the time. Brilliant people are often jerks, especially lawyers.

                    Brilliant people also generally can understand the distinction between being accurately diagnosed as a jerk and having one’s opinion unjustly dismissed by the fallacy of ad hominem attacks.

                  • Sorry, that was waaaay off topic, but it fit perfectly, like a set up for an obvious pun. I think your point is you want a certain level of discussion, NOT that you are so insecure in your own authority that you will manhandle some poor kid who doesn’t bow to it. P.S. As someone who disciplined cops for 4 years, that guy deserved to be fired and that firing was properly upheld. He was a ticking time bomb of rage and risk and the City of Baltimore dodged a bullet when that kid’s civil suit was tossed on a procedural technicality.

                    • You know, Steve, Jack and I have disagreed multiple times, generally over trivial things, but not always. And yet, I HAVE NEVER BEEN BANNED NOR HAS IT EVER BEEN OFFERED TO AS A CHOICE (I don’t much like the word ‘threatened’ in this context, as I see it as more of a promise). May have come close once or twice, but… The reason for that is that I have enough sense to know when I am approaching the line, and I work really hard at not crossing it. Well, not really, it’s as simple as knowing when to keep your mouth shut.

  9. And some clarification, though the fair and rational don’t need it. One of the two commenters who I banned on this thread—I really don’t know or care which—just e-mailed me suggesting that I had a problem with their legal/procedural/policy critiques of Bush v. Gore, and that, and not their relentless, off-topic,obnoxious advocacy of such critiques, was the reason for their exile. That’s simply untrue. In the post itself, I stipulated that regardless of the merits of such claims, the point is that the election was not “stolen,” and the persistent narrative to the contrary is, at this point, a lie. That was the topic of the post. Every now and then bitter partisans who want to rant about the Iraq War or Bush v Gore, or about who was responsible for the 2008 economic collapse, hijack a thread. Some tangential points about the case B v G are interesting context and fine, and I allowed them, but this quickly turned into trolling. These guys weren’t interested in the original post or ethics.

    • Unfortunately, Jack, some topics are, using a psych term, “triggers” for certain people. Be critical of Ron Paul, and his advocates come out in droves. Say there might be a question about gay marriage or how it is handled, and the Dan Savage wannabes proceed to rain down venom on you. The Iraq War and the 2000 election (although discussion of the latter is fading into history more than the former, since GWB is gone, his opponents got their way in 2008, and look where it’s gotten us) are two other major triggers for folks who are and remain passionate on one side or the other.

      If, like most folks, you have friends and/or family members who you passionately disagree about certain topics on, ranging from major political disagreements to petty personal issues (a seating dispute at a wedding, an item borrowed and not returned after the person died), I am guessing that you know what those triggers are, you try to avoid pressing them, they extend you the same courtesy, and if either of you slips, the other wisely says something along the lines of “this is a conversation we can’t have” to warn the offender off. Anyone who pushes the envelope after the warning has been given has really no leg to stand on if an offended guest packs up and leaves or if an offended host tells an offending guest to clear out.

      Some of my family are of another mind on this, and think it’s better to avoid escalating a conflict, but I think people can only walk over you if you let them, and it’s perfectly acceptable to tell an uncle who keeps bringing up the same embarrassing story after being told not to that “you were warned, you chose to ignore the warning, now leave,” or a sister who whines her obnoxious husband is “just that way” that “he can be that way somewhere else.” Anyone who does that can do so with a clear conscience.

      • The triggers I have noticed here:

        1. Iraq
        2. Trayvon and Ferguson
        3. Capital punishment. (Lost a great commenter last year who was so angry when I said that I really didn’t care how much agony a monstrous killer went through during his execution, as long as it was not intended.)
        4. Drug legalization
        5. Gay marriage
        6. The “law scam”
        7. The 2000 election.
        8. Transgender issues
        9. Civility

        • Did civility spark serious multiperson discussions?

          I think the last time civility was discussed was that british guy and maybe you. Or Scott and maybe you… Or Ampersand and maybe you…and never at the same time.

          What is the “law scam”?

          Abortion should be #10.

          • 1. Sure—that long discussion centering around Scott, Ampersand, my being censored on his site, and the Bruce Bartop meltdown. I can spark it again if you want a test.

            2. Yes, abortion belongs on the list.

            3. Law scam is the generic term for the conspiracy theory among unemployed law grads that they were misled into paying huge tuitions for a law degree by schools “guaranteeing” them 6 figure jobs. Remember Nando? I banned a record four commenters on just one thread.

        • Ah yes, I remember the #3 discussion, I still owe this blog an essay on the concept of moral gloss, which I hope to get to this year (there were some family issues last year). That was also my first of two keyboard destructions, the second being when I told you a football-stand chant I made up for Michael Sam, resulting in a Danny Thomas spit-take.

          I know Luke G said he was dropping out after a testy exchange with you, but, from what I read there, anyway, he was not a “great commenter,” he just came off as someone who had “let his brains liquefy and trickle out his ears,” in the words of HT.

  10. Two aliens are sitting in a bar.

    The first one says, “I am new on this planet. I have noticed one thing that I am puzzled about… why do Earthlings hate lawyers so much?”

    The second says, “I was puzzled by that too at first. Then I read a blog post by Jack Marshall. If you read the comments by lawyers who were trying to hi-jack the forum to their own ends, it will clear everything up for you.”

  11. I can’t remember the source. It’s been a while. However, as an experienced election judge myself, I can readily accept it. your choice, I suppose. Also: I didn’t use the word “Democratic” as this is a misnomer when referring to the apparatus and inclinations of the Democrat Party. Got it?

  12. Ugh. Sometimes people on my side of the Florida 2000 election issue piss me off.

    That people voted for Nader is not evidence of a stolen election.

    That people voted for Buchanan because they were too stupid to ask questions about the ballot in West Palm Beach is not evidence of a stolen election. (The ballot may have been confusing but it was made by Democrats)

    That Gore “won the popular vote” nationally is not evidence that the election was stolen. We don’t pick Presidents that way. It is like Republicans trying to claim that more counties vote for them. It is irrelevant.

    That being said there ARE legitimate items of concern that to me do prove a stolen election.

    An example of such is that Katherine Harris cast a “wide net” when she conducted a voter purge. Many false positives were kicked off the ballots, most of those people likely to vote for Gore. No formal notice was given to those people when they were removed from the list. Now, don’t you find it odd that the Secretary of State, who was also the chair of the Bush campaign in Florida, took an action that specifically removed legitimate voters from the voter list, most of whom were Democratic voters?

    • That’s hindsight bias, though, Dan, as well as moral luck. How many of those purged voters would have voted for Gore? How many would have voted for Bush? Supposedly party affiliation, race and other designations don’t compel a vote for a particular candidate. I know a lot of Democrats, women and blacks who didn’t vote for Gore. What about other states? The SOS is supposed to purge the rolls. When people urged from the list show up, they get provisional ballots. Katherine Harris was also savaged for following the law regarding certification of results. Even if the allegations about her biased standards for purging the rolls are true, that didn’t steal the election, for the reasons you cited as well as others. In a trial where causation and motive had to be established, this would fail badly. If there were intervening causes, and there are dozens of them, she didn’t steal anything.

      • The requirement to have a provisional ballot in federal elections didn’t start until 2002 with HAVA. In 2000, some states had a provisional ballots but Florida was not one of those states.

        I would suspect that such a removal, such a wide net cast, was purposeful in an attempt to help her candidate win an election. However, even if it was not done with malicious will and she was really just trying to do her job but managed to do it in such an inept way that eliminated many legitimate voters from the list the election would still be stolen. I may pick up a canned good from a store, forget i had it, and walk out. I may not have intended to steal the item but the item is still stolen.

        Maybe the SOS is supposed to purge the rolls, but they should be doing so in a way that only removes people who are legitimately not supposed to be on the voter rolls.

        Harris was supposed to certify according to a timeline. I don’t criticize her for that. Gore was also wrongly criticized for how he handled the protest phase of the election.

        • “I may pick up a canned good from a store, forget i had it, and walk out. I may not have intended to steal the item but the item is still stolen.” Not true: theft requires intent. You could not be convicted on those facts. More important, that’s a simple transaction, and this was one small factor in multi-faceted clusterfuck. Unless you can say that Harris’s actions intentionally resulted in a different winner and would have absent all the other factors, and you can’t, then you can’s say she, or anyone, stole the election.

      • How come so many liberal arguments follow this rubric:

        “I don’t believe X, like so many others of my kind, here’s what I believe…”
        and then proceed to describe how they believe X…


        “I don’t think we should do away with X, I really believe X is valuable and important, here’s what I believe…”
        and then proceed to describe how they would do away with X…

              • Your claim that I stated I didn’t believe in X and then demonstrated a belief in X is clearly a strawman.

                When listing the several claims that some claim are evidence of a stolen election but yet are not, I was not saying that the election wasn’t stolen. I was saying that those are not evidence of a stolen election.

                I do believe the 2000 election was stolen, in part, because of the last example.

                • Strawmen are designed to debunk arguments. I didn’t do that, I only described the form of your argument…

                  It is really interesting that you don’t believe the typical (and most rational) reasons the “election was stolen” and thoroughly oppose those reasons, which for any logical human, is really not different than opposing the mainstream notion. Then you follow it with some vague theory of stolen.

                  It’s really not that different from what I described as the form of your and most liberals arguments…

                  • You think the butterfly ballot and Nader arguments are rational arguments? Seriously?

                    The butterfly ballot was made by Democrats. It is not rational to suggest that Democrats wanted to make it easy for Bush to win.

                    The Nader argument suggests that Nader, by running (or his supporters by voting for him) wanted Bush to win. Again, irrational.

                    Both of those didn’t help Gore win, at all. In fact they hurt his chances of winning. Had either not happened Gore would have likely won. But they are not proof of theft.

                    Yet you find them rational??? Seriously?

                    • I should have been clearer. Of the handful of loon ideas you posited… It was a comparison.

                      These are not my beliefs. I’d submit most if not all democrat ideas about a stolen election aren’t well thought out. But that doesn’t mean some aren’t less poorly thought out than others…

  13. I followed this discussion over the weekend and decided not to engage because I get heated over this issue and I knew there was no point trying to rehash things here. This is not a Constitutional Law blog — it is an ethics blog.

    For the record, I do believe that the Supreme Court should never have waded into this in the first place. The Constitution sets forth a procedure for handling it. And I would feel this way even if the Supreme Court had issued a ruling that resulted in Gore being President.

    All that being said, what’s done is done — and no good comes of rubbing crystal balls and speculating how the world would be different.

  14. Breaking this out to allow for better replies:

    Jack: “DAN:That’s a 2011 story about a stat that has been completely, definitively disproven, by Justice Department stats, last year.”

    Link? Are you talking about during a year or during a woman’s lifetime rape stats?

    “Clearly, you didn’t comprehend my comment at all. “Hands Up” also CLEARLY references the fake Mike Brown story.”
    It is still unclear as to why the no gas plays into it, if it is some sort of analogy it is horrible.

    And you are sure as hell are SURE that matters went down in the way that they did despite your not being there. Neither of us were there. We do not know for sure what happened other than Brown was shot and killed by Wilson. I CANNOT see any logic in Brown retreating just to charge Wilson. It makes ZERO SENSE WHATSOEVER. You don’t want that to play into your analysis, fine. But don’t assert that your side is factually correct. You cannot know with certainty that it was. Could Brown have retreated just to charge? Maybe, but I find the idea highly unlikely. Especially with the construction workers, who have no connection to anyone involved, and their reactions to the shooting.

    “And quoting that stat of course implies something about men: it implies that a lot of them are raping women. And it’s a lie.”

    No. That is an illogical statement. If 1 in 5 women are raped during their lifetimes then AT MOST 1 in 5 men are rapists, meaning the vast majority of men don’t rape. However, if we accept that rapists will rape more than 1 person in their lives, on average that automatically drops the percentage of men who rape to 1 in 10 (at the very most). As an overall number, yes 1 in 10 is a lot. But that is also at the very most. But at least 90% of men not raping is also a statement that a vast majority of men respect the autonomy of other people.

    “Maybe this will get through. Imagine there was no video of Garner’s death. Let’s say he didn’t say “I can’t breathe,” but a witness said he did. Then let’s say that it is proven that the witness was not close enough to have heard Garner, that four closer witnesses heard no such statement, and finally that forensics show that Garner did not die from the excessive force arrest, but from a tiny curare dart in his neck, origin unknown.

    Then Al Sharpton and Garner’s family spark nationwide protests of police violence against black men using “I can’t breathe!” as a slogan. Fair? Honest?”

    I am not sure how this is analogous to Brown/Wilson. No, it wouldn’t be fair or honest for them to do that in that alternate universe example.

    • Link? Are you talking about during a year or during a woman’s lifetime rape stats?

      Both, Dan. The laziness of rape stats is nicely explained here:
      The strangeness of the lifetime stats, here.

      Since there is no accurate way to get stats on “all women during their lifetimes,” this kind of stat is inherently dubious.

      It is still unclear as to why the no gas plays into it, if it is some sort of analogy it is horrible.

      It’s an obvious analogy. Is “No showers” easier for you? You objected to my comparison of the Ferguson Big Lie to the No Holocaust Big Lie. See, gas, ovens and showers are part of death camp history, do I have to explain that? Ergo, the “No Gas” slogan would be similar to “Hands Up!” evoking a lie deliberately and falsely claiming its a generic slogan.

      And you are sure as hell are SURE that matters went down in the way that they did despite your not being there.

      However, the evidence supports the account that Wilson fired at a charging Brown. And the “Hands Up! Don’t Shoot” false narrative didn’t hold up to scrutiny, thus it is irresponsibility to use a slogan that asserts that what was never shown to have happened did. You have the burden of proof, in other words, and you can’t meet it.

      I CANNOT see any logic in Brown retreating just to charge Wilson. It makes ZERO SENSE WHATSOEVER.

      How about trying to take a revolver away from an officer? Does that make sense to you? Brown’s proven and observed conduct showed him to be irrational and violent in the encounter. Why do you, or anyone, think it makes more sense that a police officer would fire 8 times at an individual posing no threat at all?

      I am not sure how this is analogous to Brown/Wilson. No, it wouldn’t be fair or honest for them to do that in that alternate universe example.

      Well, that statement disqualifies you as in a trance, because it’s the same, juts worse. The point is that neither slogan has a factual connection to what really happened or the evidence, but is being presented as fact, misleading and distorting the truth, using discredited testimony.

      • “How about trying to take a revolver away from an officer? Does that make sense to you? ”

        If you think the Officer is a threat to you, perhaps. And had Brown died from a gunshot he received while his head was inside the vehicle we would be having a completely different conversation (and would likely be agreeing on the matter). But the struggle in the vehicle ended and Brown retreated. Why retreat?

        ” Brown’s proven and observed conduct showed him to be irrational and violent in the encounter. ”
        Well there is disputed claims as to why Browns head was in the car and to the nature of the struggle.

        “Why do you, or anyone, think it makes more sense that a police officer would fire 8 times at an individual posing no threat at all?”

        A lack of training? An irrational fear of the big black man with his hands up?

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