December 15, 2000
The Shame is Eternal

Justice Breyer said...

The Court was wrong to take this case. It was wrong to grant a stay. It should now vacate that stay and permit the Florida Supreme Court to decide whether the recount should resume.

Justices William Rehnquist , Clarence Thomas, Sandra Day O'Connor, and Anthony Kennedy have absolutely no excuse for ignoring Justice Breyer ‘s common sense analysis which is bolstered by the strength of its historic and legal grounding . The majority decision of Justices who arrogantly ignored legal precedent and pompously stuck their noses in a state matter was beyond preposterous because it was the consequence of their interference which produced the Federal implications of an unprecedented and improper, de facto impeachment. The framers of the Constitution rejected proposals to place the power of impeachment in the Federal Courts, and Justices who are appointed rather than elected essentially abuse their authority when they take it upon themselves to disenfranchize the voters.

Al Gore was represented by capable, intelligent, legal counsel who did not leave any stone unturned, in the effort to deny Al Gore’s assassins the opportunity to trash the will of the voters. The introduction of the legal brief Bush versus Gore speaks for itself.

This case raises the most fundamental questions about the legitimacy of political power in our democracy. In this case, the Court will decide whether the Electors for President of the United States, and thus the President of the United States himself, will be chosen by ascertaining the actual outcome of the popular vote in Florida in the election of November 7, 2000, or whether the President will be chosen without counting all the ballots lawfully cast in that state. The Florida Supreme Court has determined, in a way that would be unremarkable but for the stakes in this election, that in order to determine whether lawfully cast ballots have been wrongly excluded from the certified tally in this election, they must be examined. This is basic, essential to our democracy, and to all that gives it legitimacy.

The Supreme Court ignored the will of the voters, it ignored the principles of democracy, it ignored the sound judgment of the Supreme Court of Florida and it accepted the frivolous arguments of Theodore Olson. Under the circumstances, is it even remotely plausible to suggest that it did anything more or anything less than improperly deny Al Gore the presidency?

Reasonable critics have understandably lambasted this improper, unprecedented, Supreme Court interference with great eloquence and sound reason, and this is not an attempt to pile on to what has been repeatedly and forcefully declared. Everybody has acknowledged the politically motivated, Supreme Court assault, but how do you correct a grievous wrong? The simple fact that is seldom acknowledged, is that the damage is permanent. When hypocrisy and bias is empowered , injustice is impossible to accept. That is why what this Supreme Court has done is absolutely indefensible -it has squandered its credibility in the most extreme manner, and it will never get it back until Justices William Rehnquist , Clarence Thomas, Sandra Day O'Connor, and Anthony Kennedy resign or retire.

Thankfully, the dissent of Justice Stevens, joined by Justices Breyer and Ginsburg, proves that reason, hope and justice ultimately survives. In their own words:

Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing however is certain. Although we may never know with complete certainty the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.
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