Sandra Day O'Connor re-opens Bush v. Gore can of worms

OPINION - Twelve years after the controversial Supreme Court decision in Bush v. Gore, former Justice Sandra Day O’Connor is having some second thoughts about the case...

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Twelve years after the controversial Supreme Court decision in Bush v. Gore, former Justice Sandra Day O’Connor is having some second thoughts about the case.

O’Connor told the Chicago Tribune about her buyer’s remorse over the 5-4 decision, which put the brakes on the Florida vote recount in the epic 2000 presidential election, in the contest between then-Texas Governor George W. Bush and Vice president Al Gore.

The Florida Supreme Court had ordered a statewide manual recount in this nail biter of an election, after a machine recount erased Bush’s lead to a mere 327 votes.

And the high court’s decision to stop the recount amounted to the selection of Bush as president of the United States.  Looking back at the 2000 presidential election, it is no wonder many people believed the fix was in: Florida’s then-secretary of state Katherine Harris—who was a Republican partisan hack, co-chair of the Bush campaign and therefore in the bag for Bush—had certified the election in her candidate’s favor, of course.  Florida decided the national election for Bush, whose brother Jeb happened to be governor of the state.

A smear on the Supreme Court’s record

And most of all, a majority-Republican appointed Supreme Court gave its blessing to the GOP candidate. The justices created the perception they were a court on the take, motivated solely by petty political partisanship rather than the rule of law. The court’s reputation has been damaged ever since.

Justice O’Connor, a Reagan appointee who often provided the swing vote, sided with the conservatives on the court.  Thirteen years later, she said the case “stirred up the public” and “gave the court a less than perfect reputation.”

“It took the case and decided it at a time when it was still a big election issue,” O’Connor said to the Chicago Tribune editorial board of the Supreme Court. “Maybe the court should have said, ‘We’re not going to take it, goodbye.’ ”

“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.”

A stolen election?

Actually, Florida officials had done a horrendous job of ensuring a fair election under the one person, one vote standard–but a good job of stealing votes.

The New York Times found that the ballots of black, Latino and elderly voters were rejected far more than the ballots of white voters.

Moreover, while Latinos and the elderly were twice as likely to have their ballots rejected as whites, black precincts had three times as many rejected ballots as whites.

In other words, Jeb Bush and Katherine Harris purged votes in a manner that would have made the officials in a banana republic blush.

A ‘come to Jesus’ moment

If Justice O’Connor regrets her role in selecting President Bush, the people regret it even more. Although one can say better late than never, why did it take the retired justice seven years after her retirement for ‘her come to Jesus’ moment?

The cost of Bush v. Gore to all of us was clear. President George W. Bush presided over a train wreck of a presidency, with the 9/11 terrorist bombings, expensive wars in Afghanistan and Iraq, and a huge tax cut that wrecked the economy.

And this week the George W. Bush presidential library opens to the public, thanks at least in some part to the swing vote of Sandra Day O’Connor.  Elections do matter, but Bush v. Gore suggested that elections can be bought, and created the perception that some judges might be on the take.

Over a decade later, the Supreme Court continues to recover from a tainted reputation.  The ultra-conservative Samuel Alito, a Bush nominee, replaced the more moderate O’Connor on the bench, and the high court continues to issue bad rulings protecting the powerful and abandoning the defenseless.

Follow David A. Love on Twitter at @davidalove