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Wednesday, February 17, 2016

Bush v. Gore proves Antonin Scalia's "originalism" doctrine is a fraud, so karma dictates that President Obama should nominate Al Gore to Supreme Court

Antonin Scalia
(From motherjones.com)
Bush v. Gore, as much as any other case, reveals that Antonin Scalia's legal doctrine of "originalism" is a fraud. That tells us Scalia had no legal basis for supporting the decision that ushered in the disastrous George W. Bush presidency. And that means Scalia supported the ruling, and maybe even engineered it, for political or personal reasons--perhaps because his son, Eugene Scalia, had been promised a job in a Bush administration. On top of that, Eugene Scalia, worked for Gibson Dunn and Crutcher, a Los Angeles-based law firm that helped represent Bush in the 2000 post-election controversy.

Both of those factors likely required Antonin Scalia to recuse himself from Bush v. Gore. But he didn't, and his one vote made the difference in turning the presidency over to George W. Bush, a man many historians and experts already call "the worst president in American history." What words did Scalia have for the American public about such skulduggery--"Get over it." (See video at the end of this post.)

That's the kind of arrogance and sleaze, and borderline criminality, that requires payback--not just for Democrats, but for any American who cares about democracy. Antonin Scalia died on Saturday, under peculiar circumstances at a remote ranch in Texas, and that provided some measure of karma for those who have not "gotten over" Bush v. Gore. But a deeper sense of karma dictates that President Barack Obama take it a step further--and he should do so by nominating Al Gore to fill Scalia's seat on the U.S. Supreme Court.

Does Gore make sense as a Supreme Court nominee? More on that in a moment. But first, let's see how Antonin Scalia trampled his own notion of originalism by supporting the majority opinion that put George W. Bush in the White House, where he did untold damage to our country--via 9/11, wars in Iraq and Afghanistan, support for torture, erosion of privacy rights, false intelligence on critical international matters, outing of a CIA agent, firing of U.S. attorneys, use of the justice system as a political weapon, rampant greed and malfeasance on Wall Street, and installation of perhaps the most devious and destructive political operative in American history (Karl Rove).

None of that would have happened without Antonin Scalia. Now we know that Scalia's own phantom legal doctine--originalism--did not support the finding in Bush v. Gore. In fact, originalism would have required Scalia to vote against the finding in the case--to side with the minority. Had Scalia stuck to his own stated beliefs, his vote would have turned the minority into a majority--and the election would have been decided in Florida, which (by law) was the proper venue, and Gore would have been the likely winner. Here's how Scott Lemieux, of American Prospect, described it:

Scalia is inadvertently right about one thing: It's not a "hard question" whether this case should have been resolved by the Florida Supreme Court or by the United States Supreme Court. Since the case was an issue of state law that did not present anything remotely resembling a substantial federal constitutional question, it should have been decided by the former.

In essence, Scalia betrayed his country and himself. How do we know? We have Scalia's own words.

In a January 2011 interview with California Lawyer magazine, Scalia made it clear that, in his originalist view, the Equal Protection Clause of the 14th Amendment--which the court cited to hand the presidency to George W. Bush--only applied to black males. From Robert Parry's report at Consortium News:

U.S. Supreme Court Justice Antonin Scalia unintentionally revealed the hypocrisy of the Right’s rhetoric about “originalist” interpretations of the U.S. Constitution with his comments about how the 14th Amendment’s guarantee of “equal protection under the law” doesn’t mean equal rights for women.

“In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation,” Scalia said in a recent interview with the legal magazine California Lawyer.

“So does that mean that we've gone off in error by applying the 14th Amendment to both? Yes, yes. Sorry, to tell you that.”

Was Scalia full of horse manure with this? Absolutely, as Robert Parry proved by comparing the justice's words with his actions in Bush v. Gore:

However, if the “original intent” of the amendment’s drafters was so determinative – that the 14th Amendment supposedly was only meant to apply to black men at the end of slavery – it might be safe to assume that the drafters weren’t thinking about protecting a white man like George W. Bush from possibly losing an election in Florida in 2000.

Yet, the 14th Amendment was precisely what Scalia and four other partisan Republicans on the Supreme Court cited to justify shutting down the Florida recount and handing the White House to Bush, despite the fact that he lost the national popular vote and apparently would have come out on the short end of the Florida recount if all legally cast ballots were counted.

To justify their ruling, the five Republican justices cited the 14th Amendment’s “equal protection” clause in claiming that Florida’s electoral precincts had failed to apply common standards for counting votes. Then, rather than giving the state time to rectify the situation, the justices set a deadline of two hours, effectively assuring Bush’s “victory.”

Are Scalia and his like-minded brethren actually guided by originalism? Of course not, Parry says, unless it serves their political agenda:

In other words, Scalia and other right-wing justices operate with a situational ethic when it comes to “originalism” and “strict construction.” If their partisan and ideological interests require the abandoning of those precepts, the principles are dumped overboard.

That is what most of us would call hypocrisy or dishonesty. But Scalia, like many on the Right, operates with a curious sense of false righteousness, at least when his “principles” match up with his ideology and partisan interests.

Scalia's "curious sense of false righteousness" probably was the No. 1 reason Al Gore was cheated out of the presidency. But President Obama has a way now to fix that (at least a little bit)--by nominating Al Gore to replace Scalia on the nation's highest court.

Al Gore
(From theatlantic.com)
Has this idea occurred to Obama or his staff members? I have no idea. Would Gore consider such a nomination, if it was put to him? I don't know. Is Al Gore qualified to serve on the U.S. Supreme Court, would he be a good justice, and would he be a wise nominee at a time of heightened controversy regarding the GOP senators' stated plans to block any Obama nominee?

The answers, in my view, are "without question," "yes," and "absolutely.

Just consider Gore's biography: He is a former vice president of the United States, a former U.S. representative, and U.S. senator. He served in Vietnam and has received the Nobel Peace Prize for his work on climate change, He has written books and articles on some of the most important issues of our times--climate change, American family life, capitalism, and efficient government. His intellectual output far surpasses that of the supposedly brainy Scalia and probably everyone else on the current Supreme Court.

Americans, in general, already have shown that they approve of the way Al Gore conducts his business. It's undisputed that he won the popular vote in the 2000 election over George W. Bush. That election probably was close only because President Bill Clinton (whom Gore served as vice president) had engaged in an unseemly Oval Office dalliance with an intern named Monica Lewinsky. Gore decided that he needed to separate himself from Clinton's personal missteps--which was unfortunate because Gore also separated himself from the Clinton administration's many successes. Gore went so far as to pick Clinton critic Joe Lieberman as his running mate, which proved disastrous because Lieberman probably did not help carry a single state.

Bottom line? If ignorant white voters in Gore's home state (Tennessee) and Clinton's home state (Arkansas) pulled their heads out of their behinds and voted to continue the peace and prosperity and competence of the Clinton years, the Florida controversy would not have mattered--Gore would have won the election without needing Florida. If an NRA-funded scare campaign had not convinced white voters in normally Democratic West Virginia that a Gore administration would come for their guns, Gore would not have even needed Arkansas and Tennessee.

Gore's public life is the very definition of "mainstream"--and even Jeb Bush, George W.'s brother and a current GOP presidential candidate--has said that is the kind of nominee Obama should make.

Al Gore is one of the most distinguished Americans of his time, and he likely would be both a breath of fresh air and an effective jurist on the Supreme Court.

For those of us who like a little karma with our public affairs, an Al Gore nomination to replace Antonin Scalia would be delicious indeed.


Anonymous said...

The courts are all politicized. Both sides are guilty of judicial activism. Just like both sides in the Senate will say anything depending on the circumstances. Does anybody think the Democrats would have allowed W. to appoint a replacement to a liberal justice in 2008? No way. They would have been saying "wait until the election," while the Republicans would be saying "this is unprecedented obstructionism." This type of blatant hypocrisy is why so many people are flocking to "authentic" alternatives like Trump and Sanders.

Anonymous said...

One of your best posts, LS. Well thought out and presented--and very timely. Bravo!

legalschnauzer said...

Not sure I agree with you, @2:34. A Ronald Reagan nominee, Anthony Kennedy, received a vote and confirmation in Reagan's final year:


The political tone probably is harsher now than it was then, but I don't think Democrats are as mean and nasty as Republicans. I think they would have allowed a vote on a W nominee in 2008. Who knows if that person would have been confirmed or not. But the notion of blocking a nominee before a nominee is even presented, I believe, is unprecedented in American history.

Anonymous said...

Al Gore would make a great Supreme Court justice, which means he probably has no chance to get it. But I hope this idea picks up steam.

Anonymous said...

Sounds like Gore is doing pretty well in the business world. He might have to take a pay cut to join SCOTUS.

Anonymous said...

LS, Much as I love Al Gore and his Big Mind, I think his days as a Washingtonian are over. (See the Preface of his 2011 book, "The Future" wherein he disdainfully expresses no desire to return to politics.)

Anonymous said...

Originalism is a pigment of Scalia's imagination. It has no basis in reality.

Anonymous said...

You left out that gore invented the Internet. That was pretty big, right?

legalschnauzer said...

Yes, that was big, @9:11. I think Gore also invented the three-point circle in basketball and the designated hitter in baseball. Hell of a guy.

Anonymous said...

Didn't he also actually write the constitution?

Kidding with you LS! He would be better than most of the nominees that will be floated out there.

legalschnauzer said...

Yes, the Constitution, and the New Testament, I think.

Anonymous said...

Once the Florida vote was certified and sent to the archivist of the United States, the 2000 election was OVER, regardless of anything the Florida Supreme Court Or Antonin Scalia did, and GWB was always from that point going to be the new president on Jan 20, 2001.