Third, since Article II, Section 1, Clause 2 of the Constitution gave the Florida legislature ultimate authority over the state’s selection of electors, it was clear at the time that the Republican-controlled legislature was preparing to do just that, had the U.S. Supreme Court not intervened to stop the Florida court’s rewriting of state election law.70
In my view, Gore’s litigation efforts were never going to grant him the presidency, the Florida Supreme Court’s lawlessness on Gore’s behalf was for naught, and the U.S. Supreme Court’s decision to rein in the Florida Supreme Court had no effect on the ultimate outcome of the election.
What should have happened in 2000?
The canvassing boards in the various Florida counties should have performed their duties under Florida law and certified their returns.71 The boards should have followed the specific standards for hand recounts as prescribed by Florida law.72 Those returns should have been sent within the required deadline to the Florida department of state,73 and then Governor Jeb Bush should have certified the appointment of electors to the archivist of the United States.74 Once Florida’s electors met in Tallahassee on December 18, they should have certified their ballots and forwarded them to the president of the Senate, the Florida secretary of state, the archivist of the United States, and the local federal district judge where the electors met—all as required by federal law.75
Florida’s circuit courts should have considered only whether the state’s election laws were being observed by the election boards, and should have refused to hear the spate of challenges offered by the political parties, by the candidates, and by individual Florida voters. In other words, the state courts should have limited the cases before them to the question of whether the election was conducted in accordance with the clear wishes of the state legislature, as expressed in the state’s election statutes.76
The Florida Supreme Court should have recognized the very limited role courts have in the electoral process and refused to consider most of the issues raised before it. And it certainly should not have ordered manual recounts to proceed past the statutory deadlines. The Florida Supreme Court should have deferred to the Florida legislature over the selection of electors, as required by the Constitution. Instead, it sought to rewrite Florida’s election laws and to use the judiciary as a political vehicle to achieve a partisan electoral victory.
The Gore campaign should not have asked the Florida Supreme Court to act in contravention of both state and federal election law in its demands for multiple manual recounts, the exclusion of absentee ballots from military personnel, changes in the standards by which votes in many counties were tabulated, and other issues the campaign raised in state court. Gore should have respected the dictates of the Constitution and appreciated the dangerous precedent his efforts could set for judicial intervention in future elections.
In short, Gore should have put the needs of our constitutional system of government before his personal political ambitions. If he didn’t win through the constitutional mechanisms available to him, he should have gracefully accepted defeat. After all, he was twice elected vice president under the same procedures he sought to overturn in 2000. And despite false allegations that the U.S. Supreme Court selected Bush as president, it was Gore who first went to court, and he would have been perfectly happy had the Florida Supreme Court succeeded in handing him the presidency.
By the same token, Bush’s campaign also set a very dangerous precedent by raising the equal protection issue in its challenges in federal court. Since equal protection had never been successfully raised previously in connection with ballot tabulation issues, the door has now been opened wide for future courts to interfere in close elections, at both the state and federal levels.
The U.S. Supreme Court did not select Bush as president. Instead, it stopped a rogue state supreme court from violating the rule of law. But it should not have invoked the equal protection issue to halt manual recounts. Chief Justice Rehnquist and Justices Scalia and Thomas were correct in their concurring opinion that the selection of state electors should have been the exclusive prerogative of the state legislature.
The ultimate arbiter of the outcome of the 2000 presidential election, like all presidential elections, was Congress. The candidates and the courts should have respected a process that has served us so well for so long.
CHAPTER TWELVE
LIBERALS STACK THE BENCH
“Every judge I appoint will be a person who clearly understands the role of a judge is to interpret the law, not to legislate from the bench. To paraphrase the third occupant of this house, James Madison, the courts exist to exercise not the will of men, but the judgment of law. My judicial nominees will know the difference.”
President George W. Bush1
So committed is the Left to changing our country through judicial fiat that it has now embarked on a brazen and unconstitutional strategy to pack the federal judiciary from top to bottom with activist judges. The Left has been very successful in advancing its big-government agenda and social goals through the least democratic of our institutions—the court—because it cannot achieve its ends through the ballot box. Indeed, over the decades, a kind of symbiotic relationship has developed between the Left and the judiciary. The Left brings cases alleging some purported constitutional abuse requiring judicial intervention, and the judiciary uses the occasion of such cases to expand its own power.
This relationship is threatened by the nomination of would-be jurists who don’t share the activist approach to lawmaking and constitutional tampering from the bench.
When George W. Bush was running for president in 2000, he made clear his intention to appoint originalist judges. He said, “Voters should assume that I have no litmus on [the] issue [of abortion] or any other issue. The voters will know I’ll put competent judges on the bench, people who will strictly interpret the Constitution and will not use the bench to write social policy. I believe in strict constructionists.”2
After he took office, President Bush did the unthinkable—he reversed a decades-old White House practice of referring judicial candidates to the American Bar Association (ABA) for qualification ratings before sending their nominations to the Senate for consideration. The president’s reasoning was simple: The ABA had stopped vetting judicial nominees based on professional credentials alone, because it had evolved from a traditional professional association into a liberal advocacy group advancing the Left’s agenda. It opposes the death penalty and favors abortion. When officials in the Reagan and Bush administrations were the targets of independent counsel investigations, the ABA supported the Independent Counsel Act. When Bill Clinton became the target of an independent counsel, the ABA opposed the act.
Perhaps the ABA’s most controversial and disgraceful behavior occurred when President Ronald Reagan nominated Judge Robert Bork, one of America’s finest legal minds, to the Supreme Court. In 1987, in an act of transparent partisanship, the ABA’s judicial review committee helped to undercut Bork’s nomination. While a majority of committee members rated Bork “well qualified,” four members actually rated him “not qualified” to serve on the Court. Keep in mind, Bork had been solicitor general of the United States (the government’s top litigator), a judge on the U.S. Court of Appeals for the D.C. Circuit, and a longtime professor of law at Yale. The politically and ideologically skewed ABA rating was used by Bork’s opponents to unleash a campaign of character assassination against him, which ultimately defeated his nomination.
President Bush’s decision to end the ABA’s formal participation in the vetting process outraged two of the most liberal members of the Senate, Patrick Leahy of Vermont (the top Democrat on the Senate Judiciary Committee) and Charles Schumer of New York. They insisted that Senate Democrats would involve the ABA in the judicial selection process, regardless of the president’s decision. Leahy and Schumer said at the time: “We are extremely disappointed that the President…[has] decided to downgrade and delay the American Bar Association’s
role in evaluating prospective nominees for the federal bench. Now that the White House has eliminated the ABA’s initial role in the nomination process, we will work to ensure they play a role in the Senate confirmation process.”3
Having deluded themselves about the 2000 presidential election by claiming that somehow Al Gore had really won, these Democrats were now committed to stopping the president from making his mark on the federal judiciary. The Boston Globe unabashedly urged political payback via judicial nominees, writing, “The Senate will have the right and the duty to examine any Bush nominee to the Supreme Court through the lens of the Court’s Bush v. Gore decision.” It continued, “The Senate should not allow the five-member conservative majority on the Court to perpetuate its ideology through such a contrived political decision.”4 Increasingly extreme contentions and demands were openly advocated by the likes of Yale law professor Bruce Ackerman:
This is the first time in American history that the majority of the Supreme Court has the potential to arrange for its own succession. By intervening in the last presidential election, the conservative majority removed the American people’s check on a runaway court. It is one thing for the justices, who are not elected, to exercise the sovereign power of judicial review. It is quite another for them to insulate themselves yet further from popular control by putting their man in the White House.
This unprecedented situation requires the Senate to ask new questions and draw new lines. The first step should be a moratorium on Supreme Court appointments until the American people return to the polls in 2004. Under present rules, it only takes forty senators to block any appointment to the Court. Senators should use this power to force President Bush to demonstrate that he can win reelection in 2004 without the court’s assistance.5 [Emphasis added.]
The Senate Democrats then hatched a plan to circumvent the Constitution and delay—and, where possible, defeat—the president’s judicial nominations. They decided to turn the judicial confirmation process on its head—first by obstructing confirmation hearings to delay consideration of judicial nominees, and then by threatening and instituting unprecedented filibusters of judicial nominations.
To implement this plan, Democrats on the Senate Judiciary Committee—who are among the most liberal in the Senate—have mounted a highly partisan and destructive campaign to defeat judicial nominees for the federal bench, especially appellate nominees.6 If a candidate does not follow the liberal activist approach to the law, he is labeled “right-wing” or “extreme,” and his nomination is denied a vote on the Senate floor. It doesn’t matter whether these nominees have distinguished records as federal or state judges or are respected legal scholars or successful attorneys.
These Democratic senators work very closely with extreme left-wing groups committed to the appointment of only the most activist candidates to the courts. Until now, most of their work took place in the shadows, out of public view. But thanks to the uncovering of explosive memoranda in 2003, we now know how they collaborate and coordinate their efforts. The memoranda refute the public perception that senators on the Judiciary Committee vet judicial nominees on merit, focusing on the nominee’s ability to be a capable judge. Rather, the memoranda show that Senators Ted Kennedy of Massachusetts, Schumer, Leahy, Tom Daschle of South Dakota, and Dick Durbin of Illinois regularly meet with the ideological leaders of these outside groups that have the express goal of defeating President Bush’s nominees to the federal bench. In almost every case, these groups oppose a nominee because they believe he does not meet the litmus test of their own radical activist agenda.
When these memoranda became public, the senators succeeded in making the release of the memoranda a more important issue than their contents. They demanded investigations to determine who released the memoranda and how they got them. Senator Orrin Hatch of Utah, the Republican chairman of the Senate Judiciary Committee, ordered an immediate investigation. An investigation was conducted by the Senate’s sergeant at arms and certain Republican staffers were forced to resign. However, the shocking substance of the memoranda—revealed in the Appendix—has never received the attention it deserves. The memoranda reveal that within the U.S. Senate, a small cabal of senators has conspired to undermine the Constitution and judicial selection.
Consider the following, a memorandum purportedly written to Senator Kennedy by a staffer, dated April 17, 2002. It states, in part:
Elaine Jones of the NAACP Legal Defense Fund (LDF) tried to call you today to ask that the Judiciary Committee consider scheduling Julia Scott Gibbons, the uncontroversial nominee to the 6th Circuit at a later date, rather than at a hearing next Thursday, April 25. As you know, Chairman [of the Senate Judiciary Committee] Leahy would like to schedule a hearing next Thursday on a 6th Circuit nominee because the Circuit has only 9 active judges, rather than the authorized 16. (These vacancies are, as you know, the result of Republican inaction on Clinton nominees). Senator Leahy would also like to move a Southern nominee, and wants to do a favor for Senator Thompson.
Elaine would like the Committee to hold off on any 6th Circuit nominees until the University of Michigan case regarding the constitutionality of affirmative action in higher education is decided by the en banc 6th Circuit. This case is considered the affirmative action case most likely to go to the Supreme Court. Rumors have been circulating that the case will be decided in the next few weeks. The thinking is that the current 6th Circuit will sustain the affirmative action program but if a new judge with conservative views is confirmed before the case is decided, that new judge will be able, under 6th Circuit rules, to review the case and vote on it.
LDF asked Senator Leahy’s staff yesterday to schedule Richard Clifton, an uncontroversial nominee to the 9th Circuit, before moving Gibbons, but they apparently refused. The decision has to [be] made today (or by early Thursday morning) since the hearing will be noticed on Thursday.
[Name redacted] and I are a little concerned about the propriety of scheduling hearings based on the resolution of a particular case. We are also aware that the 6th Circuit is in dire need of additional judges. Nevertheless we recommend that Gibbons be scheduled for a later hearing.7 [Emphasis added.]
This memo tells us a great deal. These groups are obviously deeply involved in the judicial confirmation process, and even go so far as to suggest when Kennedy should schedule a vote on a judicial nominee. They are also trying to influence the outcome of a judicial decision by encouraging Kennedy to hold back the nominee until a hoped-for favorable opinion can be issued on affirmative action by the court—even though there was a “dire” need for more judges on this court. Indeed, seven of sixteen authorized slots for judges on this court—the Sixth U.S. Circuit Court of Appeals—were vacant. This is court tampering, plain and simple.
A June 4, 2002, memorandum, written to Senator Kennedy by a staffer, states, in part:
As you know, the meeting with the groups to discuss the strategy on judicial nominations is scheduled for tomorrow at 11:50. Both Senator Schumer and Senator Durbin will be able to attend. The six principals who will attend are: (1) Wade Henderson [of the Leadership Conference on Civil Rights], (2) Ralph Neas [President of People for the American Way], (3) Leslie Proll of the NAACP LDF [Legal Defense Fund], (4) Nancy Zirkin [Deputy Director, Leadership Conference on Civil Rights], (5) Nan Aron [President, Alliance for Justice], and (6) Kate Michelman [President, NARAL Pro-Choice America].8
These individuals appear throughout the memoranda as pivotal power players in marshalling and orchestrating the Democratic opposition to President Bush’s judicial nominees. They run radical organizations that seek to utilize the court system to advance a left-wing agenda. For example, People for the American Way, founded by Hollywood millionaire Norman Lear, advocates the defeat of school voucher programs, the legalization of gay marriage, and the defeat of the USA Patriot Act.9 NARAL Pro-Choice America has worked extensively to defeat the bans on partial-birth abortions.10 The other groups pursue similar agendas.
The e
levation of any originalist—a nominee who believes in applying and interpreting the Constitution—to a federal court is a direct threat to the policies these groups seek to impose on the nation through an activist judiciary. And the Left is hell-bent on stopping them.
The memoranda reveal some of the tactics these groups use to defeat President Bush’s judicial nominees. For example, regarding the nomination of Priscilla Owen to the federal appellate bench, a June 4, 2002, memorandum states, in part:
Our Next Big Fight
The current thinking from Senator Leahy is that Judge Owen will be our next big fight, after the July 4th recess. We agree that she is the right choice—she has a bad record on labor, personal injury, and choice issues, and a broad range of national and local Texas groups are ready to oppose her. The groups seem to be in agreement with the decision to move Owen in July.
Men in Black Page 19
