Throughout the campaign, in stump speeches, press interviews and
debates, Al Gore repeatedly warned voters that George W. Bush would pack
the high court with more “ultra-right-wing” troglodytes — hell-bent on
dragging the nation back to the Dark Ages. He singled out William
Rehnquist, Antonin Scalia and Clarence Thomas for rebuke. If they are
cloned on the bench, he implied, blacks can kiss their civil rights
good-bye. Women, guard your wombs! Unions, hold fast your pickets!
Gore’s rhetoric was scaremongering at its worst. It was also
unusually personal, marking the first time a presidential candidate has
targeted sitting U.S. Supreme Court justices for attack.
But now, in a delicious irony, Gore is at the mercy of those same
Supremes he slammed. His hopes of overturning George W. Bush’s
certified Florida win rest largely with them and their six colleagues on
the bench.
Specifically, the Supreme Court will decide whether Florida’s
Democrat-packed high court was justified in essentially changing the
state’s election laws after the election to grant Gore 1) a hand recount
in select Democratic counties — even though there were no reports of
broken voting machines or fraud there — and 2) a longer deadline for
protesting the election results.
Gore’s attorneys argue it’s a states’-rights issue and
the federal court should butt out. But the U.S.
Constitution denies states the power to change the law
ex post facto, or after the fact (see Article I, Sec.
10, Clause 1). Federal statute, moreover, prohibits
changing the laws governing counting electoral votes
later than six days before the appointment of electors
(Title 3 USC Sec. 5).
Also, the U.S. Constitution (Article II, Sec. 1,
Clause 2) expressly gives power to state legislatures
— not state courts — to make laws regarding the
electoral process for president.
If the U.S. court overrules the Florida court, Bush’s lead would
revert back to the higher 930 votes he had as of Nov. 14 and exclude
Gore’s later hand-recount gain of 567 in Broward County.
However, the ruling may not affect any lower-court decisions made in
the contest phase under way now. Bush may have to go back to the Supreme
Court if Florida courts again rule in favor of more hand recounts.
Though there’s a glimmer of hope for Gore if the U.S. court rules
against him, he still has to regret ever savaging conservatives on the
bench.
In a speech to the AFL-CIO last year, he painted a caricature of
chief justice Rehnquist, Scalia and Thomas as a pack of frothing zealots
who get whipped into a mindless ideological frenzy every time they get
together in their “echo chamber.” Seized by “ultra-right-wing”
instincts, Gore suggested they’d take away individual liberties,
including the “right to organize,” the minute they get the chance.
But don’t worry, Gore assured union members, “those are not the
judicial philosophies that I support at all.” Bush may give them the
chance to destroy basic human rights, but not him. No, sir, he’d never
appoint justices with that “ideological bent.” (I guess he’d never
appoint fire-breathers like David Souter, either, who was appointed by
Bush’s father.)
Here’s the entire text of that part of Gore’s Aug. 19, 1999, speech:
I would look for Supreme Court justices who have an understanding of
the letter and the spirit of the Constitution and who don’t have an
ideological bent of the kind that we have seen in some recent
nominations. And when you and I looked at prospective nominees for the
Supreme Court, we would be looking at the same kind of people, I
guarantee you that.Now some of the others have more or less promised to the ultra-right
wing that they would follow a litmus test and look for ones that would
go along with Rehnquist, Scalia and Clarence Thomas, and those are not
the judicial philosophies that I support at all. I think we always had
a struggle in our country to stay on the right path, and I respect those
— I mean, I don’t want to demonize those who disagree with me — I
mean, I respect those with different opinions.But I honestly believe that those in the ultra-right wing get into a
kind of echo chamber and convince themselves that up is down and left is
right, and they just see a different country than the one I believe you
and I love and live in. I support the concepts of individual liberty,
the right to organize, and these rights would be supported by the
nominees that I would present to the Senate for confirmation on the
Supreme Court.
Then, in a Des Moines, Iowa, speech early this year, Gore basically
called Thomas a racist who doesn’t care about blacks — even though he
is one — doesn’t share Martin Luther King’s vision for equal rights and
doesn’t “honor” the Constitution’s “deepest values.”
He told the Brown-Black Presidential Forum the following on Jan. 17,
2000:
Are we talking Thurgood Marshall construct, or the Clarence Thomas
construct? Two words, Thurgood Marshall. You know, the next president
is likely to appoint at least three justices of the Supreme Court. And
the majority on the court that will determine our policies for the next
30 to 40 years will be appointed by the next president of the United
States.If you entrust me with the presidency, I will appoint justices to
that court who understand and reflect in their decisions the philosophy
that our Constitution is a living and breathing document. Dr. King
would want us to rededicate ourselves to building a beloved community.
And that means that we’ve still got work to do.And affirmative action is one of the tools that we still need to have
available to us to remove the barriers of discrimination and open up
opportunity for all through economic empowerment, through the best
education system in the world, through universal health care, through an
end to poverty in this country and through a Supreme Court that will
honor our Constitution’s deepest values and the deepest meaning of the
American spirit.
Gore also went out of his way during the campaign to demonize Scalia
and Thomas as enemies of women — assailing even their opinions against
the widely unpopular partial-birth abortion procedure as “divisive” and
warning that more justices like them would put women’s rights “in
jeopardy.”
And listen to what he said in the Boston debate: “Gov. Bush has
declared to the anti-choice groups that he will appoint justices in the
mold of Scalia and Clarence Thomas, who are known for being the most
vigorous opponents of a woman’s right to choose.”
Gore probably wishes he could eat such over-the-top language now that
the Supreme Court has joined the Battle of the Ballots. Although he no
doubt thinks he’d never catch a break from conservatives on the bench
anyway, his gratuitous ad hominem attacks certainly don’t help
his chances.
The vicious vice president thought he could get elected president in
part by bashing conservative Supremes. Now he might not be able to get
elected without them. Call it poetic justice.
