Bush v. Gore

On Chief Justice Roberts’ “Rebuke” Of President Trump

/ Jack Marshall / 18 Comments

What Chief Justice Roberts said:

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. The independent judiciary is something we should all be thankful for.”

What prompted his comment: After federal judge Jon Tigar of the U.S. District Court for the Northern District of California temporarily blocked the Trump administration from denying asylum to migrants who enter the U.S. illegally, the President said that the decision was a “disgrace,” adding,

“Because every case, no matter where it is, they file it — practically, I mean practically — for all intents and purposes — they file it in what’s called the 9th Circuit. This was an Obama judge. And I’ll tell you what, it’s not going to happen like this anymore. Everybody that wants to sue the United States, they file their case in — almost — they file their case in the 9th Circuit. And it means an automatic loss no matter what you do, no matter how good your case is. And the 9th Circuit is really something we have to take a look at because it’s — because it’s not fair. People should not be allowed to immediately run to this very friendly circuit and file their case. And you people know better than anybody what’s happening. It’s a disgrace. In my opinion, it’s a disgrace what happens with the 9th Circuit. We will win that case in the Supreme Court of the United States.”

This was—I don’t think it’s unfair to characterize it as “gleefully”—gleefully reported as a rare rebuke of the President by a Chief Justice.

Notes: Continue reading →

Playing Dangerous Cognitive Dissonance Games With U.S. The Supreme Court

/ Jack Marshall / 15 Comments
The cognitive dissonance scale, now being used to weaken a crucial U.S. institution for political gain.

The cognitive dissonance scale, now being used to weaken a crucial U.S. institution for political gain.

Of all government institutions, the U.S. Supreme Court has traditionally only trailed the Presidency in public trust and esteem. There are several good reasons for this. One is that being appointed for life, the Justices are presumed to be less subject to the personal and political agendas that make the positions of politicians suspect. Another is that the Court has often taken heroic stances that made the United States a better nation and more just culture. A third is that unlike elected political offices, that of a judge requires an education and technical expertise that the average citizen does not possess. The Justices are traditionally accorded the deference given to experts. Perhaps the most important reason we trust the Court is because we need to do so. It was made the third branch to protect the Constitution against violations of core rights, as well as to be an objective mediator when the other branches, or states, or courts, reach an impasse. Of the many ingenious devices the Founders put in place, the U.S. Supreme Court is one of the wisest.

That the Court is accorded inherent respect and trust is essential to the stability of our government. What the Court says, goes, and the culture and society, including the most furious dissenters in political parties and interest groups, must follow a ruling and constrain its efforts within those boundaries. There have been times when the Court recognized that its unique credibility obligated it to intercede in dangerous conflicts that might otherwise escalate to social unrest or worse. The 2000 Presidential election was a potentially dangerous situation because the result in Florida rested on a margin of error that the available technology was incapable of resolving with certainty.  Unlike the similarly dubious results in the 1960 election, the initial losing candidate and his party decided to plunge the nation into an electoral morass, in this case one complicated by politicized state courts, vague local statutes, confusing ballots, partisan media reports and varying standards of what constituted a vote, with the rotten cherry on top being a rare situation (it had happened only three times before)  in which a popular vote loser was  the apparent electoral vote winner. The Supreme Court stepped up and stopped it from spinning out of control, in essence declaring a winner. It was a courageous and responsible act, one that many (including me) predicted, and though it came at a high cost, one that exemplified why the Court’s public acceptance must be high—so it has some room to fall when it has to take a controversial stand.

This crisis was not the beginning of the effort by parties and activists to discredit the Court by impugning its motives and undermining the public’s trust, but it caused a permanent escalation. It was when the insinuation that a Justices nominated by Republican Presidents (or Democratic ones, depending on who’s leading the chorus of critics) see their job as bolstering that party’s policies and interests became routine. Continue reading →

Big Lies Die Hard

/ Jack Marshall / 228 Comments
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.” Continue reading →

Here’s a Proposal: Republicans Stop Saying That Obama’s a Muslim, and Democrats Stop Saying that The Supreme Court “Stole” The Presidency For Bush

/ Jack Marshall / 13 Comments

Law professor/blogger Ann Althouse properly chastises The National Review’s Jonathan Cohn for designating “Bush v. Gore” as the most earth-shattering case of the 21st Century, and not just because the case, decided in December of 2000, occurred in the 20th Century.

“Ridiculous! I can’t believe Cohn doesn’t know that if the case had gone the other way Gore would still have lost in the end!”, Althouse writes, reminding her readers of the results of the objective, meticulous and multiple recounts performed by journalists in 2001, which showed—much to the surprise of the counters, who were dying to be able to report that Gore had been robbed—that “George W. Bush would have won a hand count of Florida’s disputed ballots if the standard advocated by Al Gore had been used.”

I can believe Cohn wrote what he wrote, because the claim that Bush’s presidency was “stolen” has been a cornerstone of Democratic political warfare and unscrupulous hard Left activists since the chad-counting stopped. It stoked the base, misled the public, increased partisan anger, divided the country and undermined Bush’s presidency, all good things from a partisan perspective (and the truth be damned), just as Republicans have been happy to allow the unjustified doubts about President Obama’s loyalty and citizenship linger among its most fanatic partisans. Continue reading →

The Rick Perry-Birther Flap: An Addendum

/ Jack Marshall / 16 Comments

I’ll make this uncharacteristically brief.

I wrote, and believe, that media reports that Rick Perry had expressed Birther sentiments were unfair and misrepresented his words. That was correct. In interviews since that post was composed, Perry has suggested that it is fun to tease the President about the dispute over his place of birth and citizenship, and “keep it alive.”

No, it isn’t. It is unfair, disrespectful and wrong. There is no teasing that is appropriate when the subtext is a challenge to a President’s legitimacy. Perry needs to cut it out, though it is too late in one respect: his words indelibly mark him as a jerk.

Let me also say that I am not especially sympathetic to Democratic indignation regarding teasing over a president’s legitimacy. This is exactly what the entire party did for every second of President Bush’s tenure, suggesting that the 2000 election was “stolen,’ thus rendering his tenure illegitimate. This exploited the vast majority of the public’s ignorance about the Electoral College, and also involved impugning the integrity of the U.S. Supreme Court, doing far more damage to the nation than the idiot Birthers on their best day.

That does not excuse Perry, of course. Every additional word he says to keep the Birther issue in the public eye is another reason—and there are already plenty—to keep him in Texas.

Donna Brazile Opens An Ethics Can Of Worms On “The Good Wife”

/ Jack Marshall / 6 Comments

Is this the real Donna Brazile or the fake one?

The increasingly common practice of using real political figures playing themselves in dramas made me queasy from the beginning, and now I know why.

“The Good Wife,” CBS’s excellent legal drama now highlighting that network’s Sunday nights, has made such blurring of the real and fictional something of a trademark, featuring such real-life political power-player as Fred Thompson and Vernon Jordan in past episodes, not merely in cameos, but participating in substantive scenes as their real-life selves. Last night, Democratic Party strategist Donna Brazile, who had earlier in the day participated in Christiane Amanpour’s roundtable on ABC, played herself in the episode’s fictional meeting between her and  Eli Gold (Alan Cumming), the ethics-free campaign manager for the Good Wife’s Creepy Husband, Peter Florrick (Chris Noth). I must say, Donna Brazile made an extremely convincing Donna Brazile. She has a future in acting, as long as she can play herself. The problem is what fictional Donna Brazile told fictional Eli Gold, and the immediate, and confusing real life ethical issues it raises. Continue reading →

Daniel Schorr’s Ethical Legacy

/ Jack Marshall / 1 Comment

It was interesting, though a little jarring, to read and hear the outpouring of admiration for the late CBS and NPR journalist Daniel Schorr, who died last week at the age of 93, even as the same sources were decrying the biases of Fox News. For Daniel Schorr was the herald of ideologically slanted journalism, though he never admitted it and was notable for his self-congratulatory dedication to what he called journalistic ethics. His legacy is what we have now: self-righteous journalists who refuse to separate fact from opinion, and whose definition of “fair and balanced” is “expose the bad guys—that is, those who we think are the bad guys.”

Some of the odes to Schorr’s career themselves defy any reasonable definition of objective reporting. During his 25 years at NPR, Schorr comfortably settled into reliably pro-liberal, pro-Democrat reporting, calling, for example, the Supreme Court’s decision in Bush v. Gore, “a judicial coup” by “the Gang of Five, philosophically led by archconservative Antonin Scalia.”

“Some critics of Schorr and NPR felt his analysis veered into opinion — that he had a profoundly liberal take on the world that became more evident over time,” said NPR in its obituary of Schorr.

Gee…How could they think such a thing? Continue reading →

Integrity, Lost Perfection, and the Midget at the Bat

/ Jack Marshall / 10 Comments

Suddenly, a lot of writers, baseball players and commentators are calling for Major League Baseball Commissioner Bud Selig to step in and reverse umpire Jim Joyce’s blown call that cost Armando Galarraga a history-making perfect game on what should have been the last play of the game. Disturbingly, it seems that the Commissioner might be listening. The argument: the Commissioner has broad power to take action “in the best interest of baseball.”

The problem with this argument: it wouldn’t be in the best interests of baseball, or the principles of ethics, either. Continue reading →