"Against the law" and "The Betrayal of America"

Readers respond to Gary Kamiya and Charles Taylor on books by Alan Dershowitz and Vincent Bugliosi about the Supreme Court's Election 2000 ruling.


Salon Staff
July 11, 2001 9:13PM (UTC)

Read "Against the Law"

Three simple points about the actual law, not breathless conspiracy theory (Why is the left so brain dead when it comes to facts?):

1) Seven of nine justices agreed that the Florida recount violated equal protection, not five (there was disagreement only on the remedy).

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2) The Constitution clearly states that election rules are the responsibility of the state Legislature, not the judiciary, thus the Florida Supreme Court is prohibited from "legislating from the bench."

3) The U.S. Code states equally clearly that elections shall be conducted by rules in place before the election. Thus it was illegal for the Florida Supreme Court to create, ex post facto, new conditions and new deadlines after the vote was conducted.

Let's not forget that 10 of the 16 justices involved at the state and national supreme courts are Democratic appointees; in other words, despite a greater number of justices presumably in favor of the Democrats, the two courts as a whole found for Bush.

Also, no claims of fraud etc. have ever been substantiated.

Finally, a statewide recount conducted by a variety of news organizations has proven that Bush was indeed the winner, as he was at every step of the recount process.

The true scandal is Gore's brazen attempts to steal an election, which were only thwarted by the principled stands of a variety of judges at various levels, most of whom are Democrats.

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-- John Chilcott

Gary Kamiya's review of two new books about Election 2000 was by far the best I have seen.

The books, "Supreme Injustice" by Alan Dershowitz and "The Vote" by Sunstein and Epstein, were well-researched from different perspectives yet arrived at essentially the same conclusion.

They seem to conclude that the U.S. Supreme Court's unholy majority stomped on our beloved democracy with hobnailed boots when it robbed Al Gore, and the American people, of a chance to find out who really won the Florida vote -- and the presidency.

I especially appreciate that Prof. Dershowitz's work cuts to the chase and in simple language that even Dubya should understand, accuses the five untouchable justices of deciding the outcome because of their personal and political preferences.

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Kamiya is to be applauded for his thoughtful, fair and even-handed analysis.

-- Olin Ashley

There are issues that simply are not amenable to resolution by the legal process. In these cases, the court will never make the "right" decision. Instead, it's more about which ruling would be "less wrong." I think that the Florida election case falls into this category because it was no longer possible to determine the "clear intent" of Florida's voters.

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Partisans on both sides have forgotten that punch card ballots are never the most resilient of media. The more you handle them, the less confidence you can have in the counts. And, of course, that means that the recount effort would forever be mired in controversy. That's because there could be no consistent and replicable standard by which to recount the votes. For example, a hanging chad might represent a vote or it just as easily could have been inadvertently created when the ballot was rerun though the counting machine. It's no surprise, then, that all the recounts done after the election by the media have come up with different results.

One can argue with the court's decision, but it did bring the process to an end. That may have been the "best" result in such a "bad" case.

-- David P. Graf

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The fundamental truth is in Gary Kamiya's conclusion: "By besmirching democracy itself, the five members of the Supreme Court majority disgraced themselves forever. From history's judgment, there will be no appeal."

However, everyone is presuming this case was so outrageous that it will not serve as a precedent. In actuality I believe it will serve as a critical precedent that discredits the lines of legal reasoning that these justices had spent their lives trying to establish.

The proof of the bankruptcy of their ideas is simply that they abandoned them themselves. That will be the true legacy of their shame, and thus they have discredited their own lives.

-- Mike Martin

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Read "The Betrayal of America"

I have tears in my eyes -- it's hard to see the keys to type. Bugliosi (and now Taylor) represent the essence of a breed I feared extinct in modern America -- the American Patriot. The lone voice that dares speak the truth. I was among the 30,000 who protested Bush's coronation. I marched in D.C. for election reform May 19th at VoterMarch -- shouting "impeach the gang of five" as we circled the Supreme Court building.

I'll never forget Dec. 12, 2000. I'll never forgive the five who overthrew democracy that night. The fact that the majority of my countrymen would sit back and do nothing scares me like nothing else. I may be just a 45-year-old working-class woman, but I will not give up until this Republic's democratic soul is restored.

-- Kathleen Johnson, R.N.

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Mr. Taylor goes somewhat far afield in concluding his review of Bugliosi. I have no problem with calling the justices "traitors." I take more issue with thinking that Democrats' only distaste for Clinton was because he wanted to "get things done" -- think prayer in school, more prisons, encryption restrictions, more Star Wars, flubbed healthcare reform and more persecution of gays in the military, aside from the massive loss of time and political leverage due to his Lewinsky idiocy. It's sometimes hard to figure out what Clinton did right except for not getting removed from office. It certainly wasn't standing by and helping fellow Democrats.

My other big issue with the conclusion is that somehow Democrats should keep screaming "Thief! Thief!" like harpies. The American public has a severe distaste for poor losers, and the Democrats have gained much more by sitting back and letting the naked Emperor reveal himself. Note Bush's poll ratings. A few early concessions and thoughtful action lay the groundwork for a new vision (read: life after Clinton, something Al never clued to). Even letting Olson through was civil, not spiteful (nor obsequious). The Democrats seem to have gained the upper hand even without the White House and the House of Representatives, and with only a one-vote Senate majority. Not a bad turnaround in six months. Keep up the steady, non-demagogic attention to details and issues, and maybe they'll throw Bush out in 2004. Keep being chained to election 2000, and they stand a chance in 2040.

-- Bill Eldridge

Before I get down to brass tacks, let me say that I'm a party-line Democrat: I've never voted Republican for so much as county dogcatcher and I probably never will.

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That said, Charles Taylor's review of Vincent Bugliosi's "The Betrayal of America" is utter claptrap (I can only assume that Taylor faithfully portrays Bugliosi, since I haven't read it). If, as Taylor suggests, the 2000 election was stolen in what amounts to an extra-constitutional coup d'état, then why all the provisos about resisting only through peaceful and legal means? If Bush and the Supreme Court majority are treasonous usurpers, then isn't violent resistance the appropriate response?

I surmise the reason Taylor shies away from this conclusion is that he, along with most reasonable Americans, accepts at least part of the Republican claim articulated in the post-election morass: namely, that the most important outcome to insure is a peaceful transition of power that preserves the right of the loser to try again next time under broadly democratic conditions.

Where the Republicans erred, and the Supreme Court played along, was in insisting that the outcome of the election had to be settled quickly and in a manner that had the patina of extra-political and "legal" legitimacy.

The founding fathers of the United States appreciated the possibility of exactly the outcome we saw in the 2000 election: a contest too close to call. (Let's make no mistake about what the Florida vote was: a tie, a result inside the margin of error of the voting technology and organization used in that election.) The founders made a clear choice in favor of an explicitly political decision mechanism, administered by state legislatures and the "people's house" of Congress. The Supreme Court arrogated to itself powers that were explicitly invested in the legislative branches, for reasons that are known to them alone, and that was a serious breach of the appropriate separation of powers, which endangers the court's future claim to objectivity.

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Nevertheless, if the political processes for settling the election outlined in the Constitution had been followed, guess what? George W. Bush would have been proclaimed president by the Republican-controlled Florida Legislature and U.S. House of Representatives. Was Dubya's inauguration illegitimate? As unhappy as it makes me to say so, no, it was not. Fortunately, we'll have the opportunity to vote him out of office soon enough.

-- Matthew Kocher


Salon Staff

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