Partisan Politics Splits the Supreme Court: Should Scalia Recuse Himself?

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Lawyers for Republican George W. Bush and Democrat Al Gore are preparing for a historic U.S. Supreme Court showdown today that could finally decide who will be the 43rd president of the United States. [includes rush transcript]

After five weeks of legal battles following one of the closest presidential elections in U.S. history, the Supreme Court justices are as deeply split as the rest of the country. Friday, in a 5-4 decision, the nation’s highest court reversed a Florida Supreme Court order and halted a manual recount of ballots. The recount had been underway and had cut Bush’s lead to less than 200 votes.

Both Bush and Gore need Florida’s 25 electoral votes to put them over the 270 mark to win the presidency. The deadline for selecting the electors is tomorrow — Dec. 12 — and the Electoral College meets on Dec. 18 to select the president.

Leading the effort to stop the hand recounts are two justices: Antonin Scalia and William Rehnquist. Today we take a look at Antonin Scalia’s history around voting rights.


  • Jamin Raskin, Professor of Constitutional Law at The American University.
  • Jim Dwyer, Reporter with the New York Daily News.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: Lawyers for George Bush and Al Gore are preparing for a historic US Supreme Court showdown today that could finally decide who will be the 43rd president of the United States.

After five weeks of legal battles, one of the closest presidential elections in history could turn on the nine votes of the highest court in the land, whose justices appear to be as deeply split on the issue as the rest of the country. In a bitterly divided division of 5-4 over the weekend, the court reversed a Florida Supreme Court order and halted a manual recount of ballots. The recount had been underway and had cut Bush’s lead to less than 200 votes.

Both Bush and Gore need Florida’s twenty-five electoral votes to put them over the 270 mark to win the presidency. The deadline for selecting the electors is tomorrow, December 12, and the Electoral College meets on December 18 to select the president.

Leading the effort to stop the hand recounts are two justices: Antonin Scalia and William Rehnquist. Today, we’re going to start off by looking at Antonin Scalia.

There’s a very interesting piece in the New York Daily News, headlined “Justice Scalia’s Legal Vision Is Blinded by His Ambition.” It’s a piece by Pulitzer Prize-winning columnist Jim Dwyer. He starts off by saying, “Earlier this year, Antonin Scalia, the Supreme Court justice who now is all but serving as the attorney for George W. Bush, let it be known that if Democrats won the presidency, he’d quit the court. He would leave because under a Democratic administration, he would have no shot at being named chief justice by Al Gore, according to the March issue of the Washingtonian magazine.”

We’ve just caught up with Jim Dwyer in a taxicab. Explain this column.

JIM DWYER: Justice Scalia has played a central role in both of the arguments that have come before the court concerning the 2000 election. You know, on Saturday he said that there would be irreparable harm to George W. Bush, if the counts were allowed to go forward and somehow placed a cloud over the results of the election that Bush has claimed to have won.

Now, some conservative legal scholars say, well, normally you balance the harms between the two parties, in this case Al Gore, and then you decide who’s got the greater harm. Scalia didn’t actually make any balance on the question of — or attempt any balance on the question of whether Al Gore might be harmed by stopping the recounts. But a number of scholars believe that he would be harmed far greater than George W. Bush. In any event, Justice Scalia also said essentially that we should not know the facts about this, because they could prove damaging to a Bush presidency or place a cloud on it.

Now, there’s a couple of interesting things about Justice Scalia, one of which is that in March, an article appeared, a small item appeared in the Washingtonian magazine attributed to friends of his who said that if he were to be in a situation this fall when the Democrats had taken the presidency, he would leave the court. And the reason was that he was tired of being on the fringes of the court. He wanted to be the chief justice, and he knew that would not take place under a Democratic presidency. So, if the Republicans were there, he had hopes of becoming the chief justice.

Now, if you could imagine a situation in which a justice takes a public position that he would like to be the chief legal officer of Texaco, for instance, and Texaco came before the Supreme Court with a employment dispute between two people who were arguing that each of them had the right to be the chief executive officer of Texaco, and the judge knew that one of those guys was going to make him the chief legal officer and the other one wasn’t, that judge couldn’t hear that case, just as a fundamental matter of legal ethics and procedure.

AMY GOODMAN: Because the president is the one who nominates the chief justice.

JIM DWYER: The president is the one who nominates the chief justice. Now, he has to be approved the Congress, by the Senate. But — and obviously that would not happen under Al Gore. On the other hand, George W. Bush has said that if he were president, he’d look for people in the mold of Scalia and the other conservative member of the court, Clarence Thomas.

So it’s pretty clear that Justice Scalia, if these remarks that are attributed to him in the Washingtonian magazine or if this viewpoint and this ambition are truly his, then all the precedents and all of [inaudible] ethics make it clear that he cannot sit on this case and decide it.

AMY GOODMAN: You also have his son serving in the law firm that’s representing George Bush.

JIM DWYER: That’s right, although I believe they have made a consultation with legal ethicists on that particular issue, and everybody agrees apparently that it’s okay for them to go forward, because the son is not involved in any way in the case. But there’s no question that his own personal ambitions, if they are truly stated, are relevant and have not yet been aired, as far as I know, by any, you know, sort of competent body to consult on this.

AMY GOODMAN: Also on the issue of Antonin Scalia, you write that he could not have been bolder in his advocacy for Bush’s cause, and by extension his own. During oral arguments two weeks ago, he took shots at the Florida courts, which had said the most fundamental right in a democracy is the vote. He disagreed.

JIM DWYER: That’s right. He pointed out that there is no right of suffrage in Article II of the Constitution, which sets out the method of selection of the president. It says that this is in the hands of the state legislature. That is literally true. But it is also literally true that every single one of the state legislatures has procedures in place so that the election of the president is done by direct vote, at least insofar as each state’s electors are concerned. So it’s a little bit disingenuous and a little bit radical. I mean, I actually think that if Scalia were a leftwing person, he would not be a Marxist. He would be a Stalinist, you know, he’s so far off the charts.

You know, one of the interesting things that people don’t know about Scalia, I think, is that he’s frequently so far to the right that the other conservatives on the court take cover when he issues one of his opinions. In the famous Herrera v. Collins decision concerning the claims of innocence by a man who was about to be executed in Texas, Judge Scalia said that there is nothing in the Constitution, nothing in statute, nothing in the law, that says it is unconstitutional to execute an innocent person as long as they’ve had a fair trail. The other justices could not, you know, traffic with that opinion, aside from Clarence Thomas, who frequently — almost always, actually — sides with Justice Scalia.

AMY GOODMAN: Well, I want to thank you for being with us, Jim Dwyer, even if you are in a taxi.

JIM DWYER: OK. Thanks a lot, Amy.

AMY GOODMAN: Jim Dwyer, Pulitzer Prize-winning columnist with the New York Daily News, talking about Justice Scalia’s legal vision — is it blinded by his ambition? It’s a column in the Daily News today.

And speaking of politics, the men who will be arguing before the Supreme Court, Theodore Olson, George W. Bush’s chief lawyer, former assistant attorney general in the Reagan administration and partner in the Washington law firm Gibson, Dunn & Crutcher. Olson has also argued more than a dozen cases before the high court. He’s a close friend and ex-law partner of former independent counsel Kenneth Starr and represented David Hale, a witness in the Whitewater land deal investigation headed by Starr. Olsen also represented the Virginia Military Institute in its attempt to remain all male and represented four white students in Texas in a case that led to the end of affirmative action at the University of Texas Law School.

David Boies is Al Gore’s chief lawyer, known for his courtroom charm and wearing black sneakers into the courtroom. Boies won the government’s antitrust case against Microsoft. He most recently represented the music-swapping firm Napster in its fight to stay in business. Boies also has been retained by cigarette-maker Philip Morris to help defend it against a $69 billion lawsuit by tobacco growers in fourteen states. And Joseph Klock will be speaking lawyer for Florida Secretary of State Katherine Harris, a Republican, and other members of the State Elections Board.

We’re joined right now on the telephone by Jamin Raskin. He is a constitutional lawyer, professor at American University Law School. Welcome to Democracy Now!, again, Professor Raskin.

JAMIN RASKIN: Thank you for having me, Amy.

AMY GOODMAN: Well, the significance of today’s arguments and what this means? I mean, you just heard Jim Dwyer laying out Antonin Scalia, saying he should recuse himself, considering he would be dependent on the next president to be named chief justice.

JAMIN RASKIN: Well, I don’t know about that, because after all, any of these justices could theoretically be appointed chief justice.

AMY GOODMAN: But he said he would quit, according to his friends, if —

JAMIN RASKIN: Right. Well, I think Rehnquist has said that he would leave the court only if a Republican were elected and would not leave the court if a Democrat were elected. And since he wants to retire, he also would be invested in it.

Look, I think several of them have made their intentions clear about leaving the court. A number of the Republicans have said they would leave or confided to people they would leave if a Republican were elected, and some of them want to go off and make some money with kids in college and stuff. But I don’t think we would really want to create a standard of recusal in cases like that.

I mean, the real issue here is that there is no legal substance or predicate for what’s about to take place, which is the five conservatives on the court intervening, overruling a state supreme court’s interpretation of state law, which is a perfectly sound and reasonable interpretation of state law in a very politically motivated effort to deny the presidency to Bill Clinton.

And I think, perhaps unlike some other people, that the cake is pretty much baked already. In entering the stay over the weekend, the five justices committed themselves to a position that there is a probable likelihood of success on the merits by Bush and that he faced irreparable harm, which was why the entered the extraordinary order stopping the counting of ballots. And unless somehow Justice O’Connor can be turned by David Boies today in court, it’s hard for me to see exactly where the fifth vote comes from to renew the process of hand-counting the ballots.

AMY GOODMAN: They say it all comes down to Kennedy or O’Connor.

JAMIN RASKIN: Well, I think that’s right. I mean, you know, Rehnquist, Thomas, and Scalia are a completely lost cause. I’m afraid that Kennedy probably also should be counted in that camp. O’Connor herself was a Republican partisan, you know, Arizona Republican politician, president of the state legislature, and so on. Very tough.

Now, on the other hand, what the Democrats have going for them is that what the Republican — the hard-core conservatives on the court are determined to do here cuts against every jurisprudential bone in their body. That is, it’s a violation of federalism. It’s an assault on the integrity of a state judiciary and a state legal process, and it’s one of the most extraordinary acts of judicial activism in our history.

But all of this just goes to show that politics comes before law, rather than law before politics.

AMY GOODMAN: What about George Bush using the Fourteenth Amendment of the Constitution?

JAMIN RASKIN: Well, there are, of course, multiple ironies here. I mean, this is a court that has repeatedly used the Equal Protection Clause in a way that would have appalled the designers of equal protection. Equal protection now works primarily for white people, rather than for racial minorities. This court, since 1993, in its decision in Shaw v. Reno has been on a campaign to dismantle majority African American and majority Hispanic congressional districts and state legislative districts when they have a so-called bizarre appearance on the map. And the court, we know, has used equal protection to strike down affirmative action plans, as in the Hopwood case at the University of Texas, where David Boies was a lawyer for the white students challenging affirmative action. Equal protection now, in the hands of this five-person majority, primarily works against the interests of racial minorities and for white people and for white voters specifically. This is a court that has not hesitated to intervene to overturn the handiwork of state legislatures, when they think somehow it offends the right of white voters to be in a political majority in the states.

Now, this court rejected an equal protection attack several months ago on Congress’s disenfranchisement of hundreds of thousands of American citizens who live in Washington, D.C., a lawsuit brought by the D.C. Corporation Counsel, backed by the mayor of Washington, the D.C. Counsel, and the vast majority of people who live in the city was brought before the court. It failed two-to-one, but had a resounding opinion in its favor by Judge Louis Oberdorfer, the senior judge on the District Court panel. And the Supreme Court refused even to hear oral arguments in the case with only Justice Stevens dissenting from that decision to deny oral arguments.

So this is a court which is not friendly to voting rights. It’s not friendly to the principle of universal suffrage. And the five-person conservative majority has not hesitated at every possible turn to overturn state laws in order to further a conservative agenda.

AMY GOODMAN: Jamin Raskin, I want to thank you for being with us, professor of constitutional law at American University.

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