January 29, 2001
Rehnquist -- Political Puppeteer
By Robert Parry
When William Rehnquist swore in George W. Bush as president on Jan. 20, the U.S. Supreme Court chief justice completed a near-decade-long struggle by conservative jurists to put their political allies in control of the U.S. government – a victory that marks a radical shift in American democracy.
Never before in American history have a chief justice and other federal judges exploited their extraordinary powers as brazenly to advance clearly partisan interests as have Rehnquist and his fellow Republican appointees – jurists sworn to enforce the laws impartially and to protect the Constitution.
Yet there is a history to this development that the news media has missed. This unprecedented politicization of the federal courts dates back at least to the early 1990s when federal judges – including Rehnquist – adopted legal strategies to protect the Reagan-Bush administrations from the legal fallout of the Iran-contra scandal.
This partisanship arced higher through the Clinton administration and reached its apex with the installation of George W. Bush as president.
On a personal level, Rehnquist’s history of behind-the-scenes political machinations dates back even further to the 1960s when he opposed desegregation in Phoenix and worked on Republican “ballot security” in Arizona, a program criticized as intimidation of African-American and other minority voters.
According to a Senate summary of the opposition to Rehnquist's 1986 nomination to be chief justice, Rehnquist "publicly opposed a Phoenix public accommodations ordinance, and he publicly challenged a plan to end school segregation in Phoenix, stating that 'we are no more dedicated to an integrated society than a segregated society.'
"Moreover," the summary said, "in the early 1960s, he led a Republican Party ballot security program designed to disenfranchise minority voters. The [Senate Judiciary] Committee has received sworn testimony from numerous credible witnesses that, as part of his involvement in the ballot security program, Mr. Rehnquist personally challenged the eligibility of minority voters. Justice Rehnquist has categorically denied this. But, none of these witnesses had anything to gain by misrepresenting the truth."
Though Rehnquist's denial of the "ballot security" charges prevailed as he won Senate confirmation, he seemed equally callous to minority voting rights in 2000 when he ensured that the votes of African-Americans and other minorities were undercounted, this time in Florida.
In the weeks after the ruling to stop the Florida vote count, the Rehnquist court’s intervention has come into clearer focus.
New information indicates that the five conservative justices flipped their legal rationale nearly 180 degrees between Dec. 11, when they were first prepared to rule in Bush’s favor, and the night of Dec. 12 when the decision to make Bush president finally was announced.
The judicial gymnastics demonstrated how Rehnquist and the four other conservatives settled on a political outcome – Bush’s victory – and then dressed up the choice in legal verbiage.
USA Today disclosed this inside story in an article about the strains that the Bush v. Gore ruling created within the court. [USA Today, writer Joan Biskupic, Jan. 22, 2001]
Though the article was sympathetic to the five conservative justices, it disclosed an important fact: that the five justices were planning on ruling for Bush after oral arguments on Dec. 11. The court even sent out for Chinese food for the clerks, so the work could be completed that night.
On Dec. 11, the legal rationale for stopping the recount was to have been that the Florida Supreme Court had made “new law” when it referenced the state constitution in an initial recount decision – rather than simply interpreting state statutes.
Even though this argument was highly technical, the rationale at least conformed with the conservative principles of the five-member majority, supposedly hostile to judicial “activism.”
However, the Florida Supreme Court threw a wrench into the plan. On the evening of Dec. 11, the state court submitted a revised ruling that deleted a passing reference to the state constitution. The revised state ruling based its reasoning entirely on state statutes that permitted recounts in close elections.
This revised state ruling drew little attention from the press, but it created a crisis for the five conservatives. Justices Sandra Day O’Connor and Anthony Kennedy no longer felt they could agree with the “new law” rationale for striking down the recount, though Justices Rehnquist, Antonin Scalia and Clarence Thomas still would, USA Today reported.
O’Connor and Kennedy then veered off in very different direction, USA Today said. Through the day of Dec. 12, they worked on an opinion arguing that the Florida Supreme Court had failed to set consistent standards for the recount and that the disparate county-by-county standards constituted a violation of the “equal protection” rules of the 14th Amendment.
This argument was quite thin and Kennedy reportedly had trouble committing it to writing.
To anyone who had followed the Florida election, it was clear that varied standards already had been applied throughout the state. Wealthier precincts had benefited from optical voting machines that were simple to use and eliminated nearly all errors, while poorer precincts with many African-Americans and retired Jews were stuck with outmoded punch-card systems with far higher error rates. Some counties had conducted manual recounts, too, and those totals were part of the tallies giving Bush a tiny lead.
The statewide recount, even if there were slight variations of standards regarding “intent of the voters,” was designed to reduce these disparities and thus bring the results closer to equality. Applying the “equal protection” provision, as planned by O’Connor and Kennedy, turned the 14th Amendment on its head, guaranteeing less equality than letting the recounts go forward.
Indeed, if one were to follow the “logic” of the O’Connor-Kennedy position, the only “fair” conclusion would have been to throw out Florida’s presidential election in total. After all, Florida’s disparate standards were being judged unconstitutional. Without some form of recount to eliminate those disparities, the statewide results would violate the 14th Amendment.
That, however, would have meant that Al Gore would become president because, without Florida, Gore had a majority of the remaining electoral votes. Clearly, the five conservatives had no intention of letting their “logic” lead to that result.
Yet possibly even more startling than the stretched logic of O’Connor-Kennedy was the readiness of Rehnquist, Scalia and Thomas to sign on to a ruling that was almost completely at odds with their own legal rationale for blocking the recounts.
On the night of Dec. 11, that trio was ready to bar the recount because the Florida Supreme Court had created “new law.” On Dec. 12, the same trio barred the recount because the Florida Supreme Court had not created “new law,” the establishment of precise statewide recount standards.
The five conservatives had devised their own Catch-22. If the Florida Supreme Court set clearer standards, that would be struck down as creating “new law.” If the state court didn’t set clearer standards, that would be struck down as violating the “equal protection” principle. Heads Bush wins; tails Gore loses.
Rationalizing the Rationale
After the court's Dec. 12 ruling and Gore's concession the next day, Justice Thomas told a group of high school students that partisan considerations play a "zero" part in the court's decisions. Later, asked whether Thomas's assessment was accurate, Rehnquist answered, "Absolutely."
In later oblique comments about the court’s role in the case, Rehnquist seemed unfazed by the inconsistency of the logic. His overriding rationale seemed to be that he viewed Bush’s election as good for the country – whether the voters thought so or not.
In a speech to a Catholic service organization on Jan. 7, the chief justice said sometimes the U.S. Supreme Court needed to intervene in politics to extricate the nation from a crisis.
Rehnquist’s remarks were made in the context of the Hayes-Tilden race in 1876, when another popular vote loser, Rutherford B. Hayes, was awarded the presidency after justices participated in a special election commission.
“The political processes of the country had worked, admittedly in a rather unusual way, to avoid a serious crisis,” Rehnquist said.
Scholars interpreted Rehnquist’s remarks as shedding light on his thinking during the Bush v. Gore case as well.
“He’s making a rather clear statement of what he thought the primary job of our governmental process was,” said Michael Les Benedict, a history professor at Ohio State University. “That was to make sure the conflict is resolved peacefully, with no violence.” [Washington Post, Jan. 19, 2001]
But where were the threats of violence in the 2000 election? Gore had reined in his supporters, urging them to avoid confrontations and to trust in the “rule of law.”
The only violence had come from the Bush side, when protesters were flown from Washington to Miami to put pressure on local election boards.
On Nov. 22, as the Miami-Dade canvassing board was preparing to examine ballots rejected by the voting machines, a well-dressed mob of Republican operatives charged the office, roughed up some Democrats and pounded on the walls. The canvassing board promptly reversed itself and decided to forego the recount.
The next night, the Bush-Cheney campaign feted these brown-shirts-in-blue-blazers at a hotel party in Fort Lauderdale. Starring at the event was crooner Wayne Newton singing "Danke Schoen," but the highlight for the operatives was a thank-you call from George W. Bush and his running mate, Dick Cheney, both of whom joked about the Miami-Dade incident. [Wall Street Journal, Nov. 27, 2000]
The Journal also reported that the assault on the Miami-Dade canvassing board was led by national Republican operatives "on all expense-paid trips, courtesy of the Bush campaign."
The Journal noted that "behind the rowdy rallies in South Florida this past weekend was a well-organized effort by Republican operatives to entice supporters to South Florida," with House Majority Whip Tom DeLay's Capitol Hill office taking charge of the recruitment.
In other less violent ways, the Bush-Cheney team signaled that they would not accept an unfavorable vote total in Florida.
If Gore pulled ahead, the Republican-controlled state legislature was prepared to void the results. In Washington, the Republican congressional leadership also was threatening to force a constitutional crisis if Gore prevailed in Florida.
If one takes Rehnquist’s “good-for-the-country” rationale seriously, that means the U.S. Supreme Court was ready to award the presidency to the side most willing to use violence and other anti-democratic means to overturn the will of the voters.
Ignoring the Voters
Gore won the national popular vote by more than a half million votes and was almost certainly the choice of the voters of Florida but for confusing ballots, inefficient voting machines and improperly purged African-American voters.
Yet instead of ruling that the vote tabulations alone would decide the victor – a position the U.S. Supreme Court could have taken – the Rehnquist court intervened to hand the presidency to Bush, the apparent loser.
The reason – under this "good-for-the-country" rationale – was that Gore and his supporters were less likely to disrupt the political process or to resort to violence, if they were declared the losers.
To reward a political party simply because it is ready to throw the country into crisis is a bad precedent for reasons that every parent understands when dealing with a child’s temper tantrum.
But other evidence suggests that Rehnquist’s real motives were even less lofty and far more premeditated.