At the moment, I am deeply immersed in a book that I could probably not have read before Nov. 4 without crying.
The book? The Nine by Jeffrey Toobin. I’m sort of a politics nerd anyway, and this book is just amazing for anyone interested in the Supreme Court. I’m transfixed by it. It has great details about all the justices. It kind of makes me love Sandra Day O’Connor. But then, she disappoints me. Most of the justices do in the section devoted to Bush v. Gore. Toobin concludes that the Bush side was willing to fight dirty and do whatever it took to be declared the winner, even if they didn’t have the most votes. They came out fighting. The Gore side fought, but well, it wasn’t enough. They couldn’t circumvent Katherine Harris, who could have let the recount continue, but decided to just declare it all said and done after a week. She certified the results even though court challenges and recounts were pending.
But the Supreme Court, or at least some of the members, seemed eager to take up the case. The judge who comes out looking the best in this is John Stevens, now 88. He was against the Supreme Court’s decision to issue a stay stopping the recounts, saying there was no way counting more votes could cause “irreparable harm” if all the votes were legitimate. He pointed out that such harm was supposed to be the threshold for issuing a stay. But it was issued anyway, and then, on Dec. 12, by a 5-4 decision, the court used weak logic in deciding in favor of Bush in a case they should never have heard in the first place.
The section on the 2000 election opens with Sandra Day O’Connor hearing the networks call Florida for Gore and being upset because she apparently wanted to retire and a Gore win meant at least another four years, since she didn’t want a Democrat to seat her replacement. One of the most bitterly ironic passages speaks of how O’Connor was not prone to being fond of politicians, but made an exception for George W. Bush.
As she tracked Bush’s’ rise to national prominence in the late nineties, O’Connor thought his centrist appeal would win over voters and protect the Republican party from extremists. She just didn’t know George W. personally, but she found him very attractive, in every sense of the word.
Oh, Sandy. I’m not done with the book yet, but so far there’s no indication O’Connor lived to regret her initial opinion of Dubya. At one time, when I was in high school and Bush was running for office, I believed much as O’Connor did. I thought Bush should be president and that the recount needed to stop because it was uh, chaos or something (actually, the recount process wasn’t nearly that bad, according to the book). But Bush needed to be president, definitely. Then I wised up in college. Good thing my appointment to the Supreme Court didn’t work out in high school, eh?
There’s so much good stuff in the book, and I highly recommend picking it up for yourself and diving in. But one last point from Toobin, who notes fairly that the SC didn’t “steal the election.”
Rather, what the Court did was remove any uncertainty about the outcome. It is possible that if the Court had ruled fairly — or better yet, not taken the case at all —Gore would have won the election. A recount might have led to a Gore victory in Florida. It is also entirely possible that, had the Court acted properly and left the resolution of the election to the Florida courts, Bush would have won anyway. The recount of the 60,000 undervotes might have resulted in Bush’s preserving or expanding his lead. The Florida legislature, which was controlled by Republicans, might have stepped in and awarded the state’s electoral votes to Bush. And if the dispute had wound up in the House of Representatives, which has the constitutional duty to resolved controversies involving the Electoral College, Bush might have won there, too. The tragedy of the Court’s performance in the election of 2000 is not that it led to Bush’s victory but the inept and unsavory manner with which the justices exercised their power.”
The end of the 2000 election section notes that Bush v. Gore upset Justice David Souter so much that he very nearly resigned, and that he was sometimes moved to tears just by thinking about it. Since nothing like this happened in 2008, I’m not crying. Since Barack Obama is president for at least the next four years, I’m not wailing and gnashing my teeth over just how close the Court came to overturning Roe v. Wade in 1992 (which is also a really riveting section of the book). Well, I am a little. But not too much.
But the enormity of what this book recounts is hitting me hard. And for that, I’m very grateful. It’s nice sometimes to read a book that hits you over the head and demands you pay attention, because this is important.