Sandra Day O’Connor’s ‘Maybe’ Regret

Exclusive: Ex-Supreme Court Justice Sandra Day O’Connor, who normally ducks questions about overturning Al Gore’s election in 2000 and putting George W. Bush in the White House, admits that “maybe” a mistake was made. But she still won’t accept the magnitude of her judicial crime, says Robert Parry.

By Robert Parry

Even as an investigative reporter experienced in writing about terrible decisions that lead to horrible results, I find it galling that former U.S. Supreme Court Justice Sandra Day O’Connor now grudgingly concedes that “maybe” she shouldn’t have joined four other Republicans to hand the White House to George W. Bush in 2000.

In an interviewwith the Chicago Tribune editorial board last Friday, the 83-year-old O’Connor acknowledged that “maybe the court should have said, ‘We’re not going to take it [Bush’s appeal of a lower court ruling], goodbye.'”

Yet, perhaps even more galling, O’Connor didn’t try to defend her reasoning in the decision, that the Florida State Supreme Court’s mandate to count ballots that were kicked out by antiquated voting machines but still revealed how citizens intended to vote was somehow a violation of the Fourteenth Amendment’s requirement of equal protection under the law.

The amendment was passed after the Civil War to protect the legal rights of former African-American slaves, but in the hands of O’Connor and four other Republicans it was turned inside-out, used to disenfranchise blacks and other Floridians living in poorer districts lacking the newer voting machines of whiter and richer communities.

O’Connor, who for more than a dozen years has resisted discussing the 2000 decision that overturned the will of the American voters, suggested in her comments to the Tribune that the court’s legal reasoning was only a facade anyway. She noted that the disputed election had “stirred up the public” and “obviously the court did reach a decision and thought it had to reach a decision.”

She added, “It turned out the election authorities in Florida hadn’t done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day.”

O’Connor lamented, too, that the ruling “gave the court a less-than-perfect reputation.” Of course, more significantly, it gave the United States “a less-than-perfect” leader who proceeded to blunder the nation into a series of catastrophes that cost the lives of hundreds of thousands, threw the global economy into a depression, and left the U.S. government deeply in debt.

Though the mainstream press typically treats O’Connor with kid gloves, the hard truth is that she bears a great deal of responsibility for all that human suffering because she was the pivotal vote that overturned the collective judgment of the American people who had favored Vice President Al Gore both nationally and in Florida.

Not only did Al Gore win the national popular vote in Election 2000 but if all ballots legal under Florida law had been counted, he would have prevailed in that swing state, too, and thus become the 43^rd U.S. President. However, instead of giving Florida canvassing boards the chance to tally the ballots, O’Connor and four other Republicans simply stopped the count.

In siding with Bush, the U.S. Supreme Court also rewarded the Bush campaign for all the obstructions it had placed in the way of a full-and-fair vote count, including flying in rioters from Washington to disrupt the work of the Miami canvassing board. [For details on the election battle, see Neck Deep.]

Stopping the Recount

Finally, the Florida Supreme Court ordered a state-wide recount to determine if legally cast ballots had been missed. In response, Bush’s team of lawyers rushed into federal court seeking to stall the recount until after Dec. 12, 2000, when Bush’s 537-vote victory, as certified by Republican Secretary of State Katherine Harris, was scheduled to become official and render any recount meaningless.

In demanding the stay, Bush’s lawyers argued that the vote counting was a threat to “the integrity of the electoral process” and could cause Bush “irreparable injury.” But there would have been nothing irreparable about conducting the recount and then, if the U.S. Supreme Court agreed with Bush, to throw out the newly discovered votes.

On the other hand, there would be irreparable harm to Gore’s campaign if an injunction blocked the counting of the votes and the Dec. 12 deadline preserved Bush’s margin which by then had shrunk to 154 votes. When Bush’s legal arguments were presented to the conservative-dominated U.S. Court of Appeals in Atlanta, the case was promptly rejected. But Bush’s lawyers then hastened to a friendlier venue, the U.S. Supreme Court.

Meanwhile, in Florida, the state-court-ordered recount was underway. County by county, election canvassing boards were moving smoothly through the machine-rejected ballots, discovering hundreds that clearly had registered choices for presidential candidates. Gore gained some and Bush gained some.

When there was a dispute, the ballots were set aside for later presentation to Leon County Circuit Judge Terry Lewis, who had been named by the Florida Supreme Court to oversee the process and was given wide leeway to make judgments about which ballots should be counted.

“The Circuit Court is directed to enter such orders as are necessary to add any legal votes to the total statewide certifications and to enter any orders necessary,” the Florida Supreme Court ruling stated. “In tabulating the ballots and in making a determination of what is a ‘legal’ vote, the standard to be employed is that established by the Legislature in our election code which is that the vote shall be counted as a ‘legal’ vote if there is ‘clear indication of the intent of the voter.’”

As the recount proceeded, the chairman of the Charlotte County canvassing board posed a question to Judge Lewis: what should be done with ballots in which a voter both punched the name of a presidential candidate and wrote the name in? These so-called “over-votes” containing two entries for President although for the same candidate had been kicked out of the counting machines, too, along with the “under-votes,” those where the machine couldn’t discern a vote for President.

The Florida Supreme Court ruling had only specified tallying the under-votes, but the ruling also had instructed Judge Lewis to count every vote where there was a “clear indication of the intent of the voter.” The over-votes demonstrated even more clearly than the under-votes who the voter wanted.

So Lewis sent a memo to the state canvassing boards, instructing them to collect these over-votes and send them along with under-votes still in dispute. “If you would segregate ‘over-votes’ as you describe and indicate in your final report how many where you determined the clear intent of the voter,” Judge Lewis wrote, “I will rule on the issue for all counties.”

Lewis’s memo a copy of which was later obtained by Newsweek magazine might not have seemed very significant at the time, but it would grow in importance because the over-votes were discovered to heavily favor Gore.

If they were counted as they almost surely would have been under Lewis’s instructions Gore would have carried Florida regardless of what standard was applied to the “chads,” the tiny pieces of paper that were not completely dislodged from the punch-through ballots that were then kicked out by the counting machines.

After the Lewis memo surfaced almost a year later, the Orlando Sentinel of Florida was virtually alone in asking the judge what he would have done with the over-votes if the Florida recount had been permitted to go forward. Lewis said that while he had not fully made up his mind about counting the over-votes in December 2000, he added: “I’d be open to that.”

In effect, Lewis’s instructions had signaled an obvious decision to count the over-votes because once the votes that were legal under Florida law had been identified and collected there would be no legal or logical reason to throw them out, especially since some counties had already included over-votes in their counts.

A Heart-Stopping Decision

But only hours after Lewis issued his instructions, five Republicans on the U.S. Supreme Court did something unprecedented. The narrow court majority ordered a halt in the counting of ballots cast by citizens for the election of the President of the United States.

It was a heart-stopping moment in the history of a democratic Republic. It carried the unmistakable odor of a new order imposing itself in defiance of the popular will. There were no tanks in the streets, but the court’s ruling was as raw an imposition of political power as the United States had seen in modern times.

In the 5-4 decision, the highest court in the land told vote-counters across Florida to stop the recount out of fear that it would show that Gore got more votes in Florida than Bush did. Such an outcome would “cast a cloud” over the “legitimacy” of an eventual Bush presidency if the U.S. Supreme Court later decided to throw out the Gore gains as illegal, explained Justice Antonin Scalia in an opinion speaking for the majority, which included Justices William Rehnquist, Anthony Kennedy, Clarence Thomas and O’Connor.

“Count first, and rule upon the legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires,” wrote Scalia, an appointee of President Ronald Reagan. In other words, it was better for the U.S. public not to know for sure that Gore got the most votes if as expected the Supreme Court later decided simply to award the presidency to Bush.

In a sharply worded dissent, Justice John Paul Stevens took Scalia’s reasoning to task. Stevens, a moderate who was appointed by Republican President Gerald Ford, said the injunction against the vote tally violated the traditions of “judicial restraint that have guided the Court throughout its history.” Stevens complained that the high court’s action overrode the judgment of a state supreme court, took sides on a constitutional question before that issue was argued to the justices, and misinterpreted the principles of “irreparable harm.”

“Counting every legally cast vote cannot constitute irreparable harm,” Stevens argued. “On the other hand, there is a danger that a stay may cause irreparable harm to the respondents [the Gore side] and, more importantly, the public at large” because the stay could prevent a full tally of the votes before the impending deadline of Dec. 12 for selecting Florida’s electors.

As for the “legitimacy” issue, Stevens answered Scalia’s rhetoric directly. “Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election,” Stevens wrote.

Dangerous Journey

Immediately after the U.S. Supreme Court’s unprecedented injunction, I wrote at Consortiumnews.com that if the high court insisted “on stopping the vote count and handing the presidency to George W. Bush, the United States will have embarked upon a dangerous political journey whose end could affect the future of all mankind.

“For American political institutions to ignore the will of the voters and to wrap partisanship in the judicial robes of the nation’s highest court will almost certainly be followed by greater erosion of political freedom in the United States and eventually elsewhere.

“Illegitimacy and repression are two of history’s most common bedfellows. Perhaps most chilling, at least for the moment, is the now-unavoidable recognition that the U.S. Supreme Court, the country’s final arbiter of justice, has transformed itself into the right wing’s ultimate political weapon. A dark cloud is descending over the nation.”

Three days later, the other shoe from the U.S. Supreme Court was expected to drop. There should have been no real doubt how O’Connor and the other four would rule they clearly had decided that George W. Bush should be President but it was less certain what legal reasoning they would employ.

The mainstream press regarded O’Connor as a sort of “wise woman” beyond the taint of partisanship, but she had a personal as well as political reason for putting Bush in the White House. With her husband ailing from Alzheimer’s disease, O’Connor was contemplating retiring and wanted a Republican appointed as her successor.

Consortiumnews.com political reporter Mollie Dickenson reported that “one of the court’s supposed ‘swing votes,’ Justice Sandra Day O’Connor, is firmly on board for George W. Bush’s victory. According to a knowledgeable source, O’Connor was visibly upset indeed furious when the networks called Florida for Vice President Al Gore on Election Night. ‘This is terrible,’ she said, giving the impression that she desperately wanted Bush to win.”

But one optimist who thought that O’Connor would demand a ruling respectful of democratic principles was Al Gore. Dickenson reported that as late as 4 p.m. on Dec. 12, Gore was making campaign thank-you calls, including one to Sarah Brady, the gun-control advocate whose husband James Brady had been wounded in the 1981 assassination attempt against President Ronald Reagan.

“We’re going to win this thing, Sarah,” Gore said. “I just have all the faith in the world that Sandra Day O’Connor is going to be with us on this one.”

An Acrobatic Ruling

As it turned out, Gore’s confidence in O’Connor was misplaced. As the clock ticked toward a midnight deadline for Florida to complete any recount, O’Connor was working with Justice Kennedy to fashion a ruling that would sound principled but still would prevent a full recount and thus guarantee both George W. Bush’s inauguration and Republican control over the appointment of future federal judges.

Yet, behind the closed doors of the court chambers, O’Connor and the other four pro-Bush justices were having a harder time than expected coming up with even a marginally plausible legal case. Indeed, outside public view, the five justices tentatively decided on one set of arguments on Dec. 11 but then reversed their thinking nearly 180 degrees heading into the evening of Dec. 12.

USA Today disclosed the inside story in a later article that focused on the stress that the Bush v. Gore ruling had caused within the court. While sympathetic to the pro-Bush majority, the article by reporter Joan Biskupic explained the court’s flip-flop in legal reasoning.

The five justices had been planning to rule 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, but events took a different turn.

The Dec. 11 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 pro-Bush argument was highly technical, the rationale at least conformed with conservative principles, supposedly hostile to “judicial activism.”

But 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 the passing reference to the state constitution. The revised state ruling based its reasoning entirely on state statutes that permitted recounts in close elections.

The revision drew little attention from the national press, but it created a crisis within the U.S. Supreme Court’s majority. Justices O’Connor and Kennedy no longer felt they could agree with the “new law” rationale for striking down the recount, though Rehnquist, Scalia and Thomas still were prepared to use that argument despite the altered reasoning from the state court.

Searching for a new rationale, O’Connor and Kennedy veered off in a different direction. Through the day of Dec. 12, the pair 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 Fourteenth Amendment. But this argument was so thin and so tendentious that Kennedy reportedly had trouble committing it to writing with good reason.

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 where many African-Americans and retired Jews lived were stuck with outmoded punch-card systems with far higher error rates. Some Republican counties also had conducted manual recounts on their own and those totals were part of the tallies giving Bush a tiny lead.

The suspended 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 Fourteenth Amendment on its head, guaranteeing less equality than would occur if the recount went forward. Plus, the losers in this perverse application of the Fourteenth Amendment would include African-Americans whose legal rights the amendment had been created to protect.

Further, if one were to follow the O’Connor-Kennedy position to its logical conclusion, the only fair outcome would have been to throw out Florida’s presidential election in total. After all, Florida’s disparate standards were being judged unconstitutional, and without some form of recount to eliminate those disparities, the entire statewide results would violate the Fourteenth Amendment.

That, however, would have left Al Gore with a majority of the remaining electoral votes nationwide. Clearly, the five pro-Bush justices had no intention of letting their “logic” lead to that result.

A Catch-22

Beyond the stretched logic of O’Connor-Kennedy was the readiness of Rehnquist, Scalia and Thomas to sign on to the revamped opinion that was almost completely at odds with their own legal rationale for blocking the recount in the first place. On the night of Dec. 11, that trio was ready to bar the recount because the Florida Supreme Court had created “new law.” A day later, they agreed to bar the recount because the Florida Supreme Court had not created “new law,” the establishment of precise statewide recount standards.

The pro-Bush justices had devised a Catch-22. If the Florida Supreme Court set clearer standards, they would be struck down as creating “new law.” Yet, 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.

Never before in American history had U.S. Supreme Court justices exploited their extraordinary powers as brazenly to advance such clearly partisan interests as did these five justices.

The Bush v. Gore decision was finally released at 10 p.m., Dec. 12, just two hours before the deadline for completing the recount. After having delayed any remedy up to the deadline, the five pro-Bush justices then demanded that any revised plan and recount be finished in 120 minutes, a patently impossible task.

In a dissenting opinion, Justice Stevens said the majority’s action in blocking the Florida recount “can only lend credence to the most cynical appraisal of the work of judges throughout the land.”

Justices Stephen Breyer and Ruth Bader Ginsburg, appointees of President Bill Clinton, said in another dissent, “Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”

Tacitly recognizing the nonsensical nature of its own ruling, the majority barred the Bush v. Gore decision from ever being cited as a precedent in any other case. It was a one-time deal to put Bush in the White House.

The next day, Al Gore whose final national plurality by then had grown to about 540,000 votes, more than the winning margins for Kennedy in 1960 or Nixon in 1968 conceded Election 2000 to George W. Bush.

After Gore’s concession, Justice Thomas told a group of high school students that partisan considerations played a “zero” part in the court’s decisions. Later, asked whether Thomas’s assessment was accurate, Rehnquist answered, “Absolutely.”

Shielding Bush

Once those five Republican justices handed the White House to their fellow Republican the poorly qualified Bush other representatives of the Establishment stepped in to shield Bush’s fragile “legitimacy.” Major U.S. news outlets did their part to conceal the reality of the electoral fraud. Especially after the 9/11 attacks, senior editors closed ranks around the bumbling Bush and even misreported the findings of their own recount of the disputed Florida ballots.

When the news outlets finally got around to publishing their findings in November 2001, they intentionally buried the lede, i.e. that the wrong guy was in the White House. Instead, they focused on two hypothetical partial recounts that would have still left Bush with a tiny plurality. Yet, the only tally that should have mattered was the will of the Florida voters as reflected in the ballots considered legal under state law.

So, not only was history altered by the unjustified intervention of O’Connor and her four collaborators, but history was then willfully miswritten by the New York Times, the Washington Post, CNN and other news heavyweights. “Study of Disputed Florida Ballots Finds Justices Did Not Cast the Deciding Vote,” the New York Times declared. “Florida Recounts Would Have Favored Bush” exclaimed the Washington Post.

The Post’s Page One article was followed by a sidebar from media critic Howard Kurtz, who took the Bush-victory spin one cycle further, with a story headlined, “George W. Bush, Now More Than Ever.” Kurtz ridiculed as “conspiracy theorists” those who had expected to learn that Gore had actually won.

“The conspiracy theorists have been out in force, convinced that the media were covering up the Florida election results to protect President Bush,” Kurtz wrote. “That gets put to rest today, with the finding by eight news organizations that Bush would have beaten Gore under both of the recount plans being considered at the time.”

Kurtz also mocked those who believed that winning an election fairly, based on the will of the voters, was all that important in a democracy. “Now the question is: How many people still care about the election deadlock that last fall felt like the story of the century and now faintly echoes like some distant Civil War battle?” he wrote.

But, Kurtz’s sarcasm aside, a close reading of the actual findings buried by the big newspapers on inside pages or included as part of a statistical chart revealed that the Page One stories were misleading, if not outright false. The reality was that Al Gore actually had been the choice of Florida’s voters if all legally cast votes were counted. By any chad measure hanging, dimpled or fully punched through Gore would have won Florida and thus the White House.

Gore won even if one ignored the 15,000 to 25,000 votes that USA Today estimated Gore lost because of illegally designed “butterfly ballots,” or the hundreds of predominantly African-American voters who were falsely identified by the state as felons and turned away from the polls. Gore won even if there were no adjustment for Bush’s windfall of about 290 votes from improperly counted military absentee ballots where lax standards were applied to Republican counties and strict standards to Democratic ones.

Put differently, George W. Bush was not the choice of Florida’s voters anymore than he had been the choice of the American people who cast a half million more ballots for Gore than Bush nationwide. Yet, possibly for reasons of patriotism or out of fear of criticism if they had written “Gore Won” leads, the news organizations that financed the Florida ballot study structured their stories on the ballot review to indicate that Bush was the legitimate winner.

In effect, the elite media’s judgment was “Bush won, get over it.” Only “Gore partisans” as both the Washington Post and the New York Times called critics of the official Florida election tallies would insist on looking at the fine print.

Seeing the Numbers

While “Bush Won” was the short-hand theme of nearly all the news stories on Nov. 12, 2001, it was still a bit jarring to go beyond the Page One articles or CNN’s headlines and read the actual results of the statewide review of 175,010 disputed ballots. “Full Review Favors Gore,” the Washington Post stated in a box on Page 10, showing that under all standards applied to the ballots, Gore came out on top. The New York Times’ graphic revealed the same outcome.

Counting fully punched chads and limited marks on optical ballots, Gore won by 115 votes. With any dimple or optical mark, Gore won by 107 votes. With one corner of a chad detached or any optical mark, Gore won by 60 votes. Applying the standards set by each county, Gore won by 171 votes.

Beyond getting the story wrong, the major U.S. newspapers acted as if it was their duty to convince the American people that Bush really was elected legitimately. Within one or two hours of posting a story at Consortiumnews.com challenging the big media’s version of the recount, I received an irate phone call from New York Times media writer Felicity Barringer.

In an “interview” which was more like a cross-examination, Barringer argued that my story had unfairly impugned the journalistic integrity of then-Times executive editor Howell Raines. Barringer seemed to have been on the lookout for any deviant point of view that questioned the “Bush Won” conventional wisdom.

Now, more than a decade later, after the calamity of George W. Bush’s presidency should be apparent to any thinking human being, the “swing vote” on the U.S. Supreme Court the supposedly fair-minded justice whom Gore had expected to stand up for the democratic process admits that “maybe” a mistake was made.

Investigative reporter Robert Parry broke many of the Iran-Contra stories for The Associated Press and Newsweek in the 1980s. You can buy his new book, America’s Stolen Narrative, either in print here or as an e-book (from Amazon and barnesandnoble.com).