Justice Kennedy spoke to an enthusiastic audience of attorneys in Orlando. The whole article can be found here.
“When the judiciary is under attack, the bar disengaged, the public indifferent and critics scornful, then this idea of judicial independence might be under a real threat,” Kennedy said.
Perhaps Justice Kennedy should have considered the sanctity of judicial independence before he prostituted the High Court to install George W. Bush as President. But, Kennedy was fully complicit in the politicization of the court in 2000, making the comments of audience member, Jesse Diner, tragically ironic.
“He captured exactly what it means,” he said. “An independent judiciary should be free of outside influence and free of reprisals.”
How free was said judiciary in 2000? See below the fold.
All question that Bush v. Gore was a political decision, on the part of the Supremes should have been laid to rest with the revelations in Vanity Fair, which raised a furor by using former court clerks as sources.
It was actually Kennedy who inserted the court into the Florida process by rounding up votes from other justices for a grant of certiorari.
Vanity Fair reveals that the decision to put George Bush in the White House was made as soon as Justice kennedy agreed to accept Bush’s petition for certiorari. Each justice is responsible for considering emergency motions in different parts of the country. Florida was Justice Kennedy’s turf. It only required three more votes to support his grant of certiorari. The four justices who comprise the conservative bloc signed on: Rehnquist, Scalia, Thomas and O’Connor. At that moment the 5-4 majority vote favoring George Bush was carved out.
Justices Kennedy and O’Connor were never the swing voters that Gore’s lawyers thought they were.
[A]n O’Connor clerk said that O’Connor was determined to overturn the Florida decision and was merely looking for the grounds. … In this instance, one clerk recalls, “she thought the Florida court was trying to steal the election and that they had to stop it.”
The complete Vanity Fair story can be found here. The picture it paints of Kennedy is of a rather grandiose jurist, manipulated by conservative interns.
Conservatives, however, were not always happy with Kennedy, either. They had never forgiven him for his votes to uphold abortion and gay rights, and doubted both his intelligence and his commitment to the cause. Convinced he’d strayed on abortion under the pernicious influence of a liberal law clerk–a former student of the notoriously liberal Laurence Tribe of Harvard Law School, who was representing Gore in this case–they took steps to prevent any reoccurrences. Applicants for Kennedy clerkships were now screened by a panel of right-wing stalwarts. “The premise is that he can’t think by himself, and that he can be manipulated by someone in his second year of law school,” one liberal clerk explains. In 2000, as in most years, that system surrounded Kennedy with true believers, all belonging to the Federalist Society, the farm team of the legal right. “He had four very conservative, Federalist Society white guys, and if you look at the portraits of law clerks on his wall, that’s true 9 times out of 10,” another liberal law clerk recalls. “They were by far the least diverse group of clerks.”
I highly recommend the article, as it provides valuable background material on one of the worst subversions of justice in American history.
The Court’s opinions were issued at roughly 10 o’clock that night. The only one that mattered, the short majority opinion, was unsigned, but it bore Kennedy’s distinctive stamp. There was the usual ringing rhetoric, like the “equal dignity owed to each voter,” even though, as a practical matter, the ruling meant that the ballots of 60,000 of them would not even be examined. The varying standards of the recount, Kennedy wrote, did not satisfy even the rudimentary requirements of equal protection. Although six more days would pass before the electors met in their states, he insisted there was too little time for the Florida courts to fix things.
There were two more extraordinary passages: first, that the ruling applied to Bush and Bush alone, lest anyone think the Court was expanding the reach of the equal-protection clause; and, second, that the Court had taken the case only very reluctantly and out of necessity. “That infuriated us,” one liberal clerk recalls. “It was typical Kennedy bullshit, aggrandizing the power of the Court while ostensibly wringing his hands about it.”
Well, that is at least consistent with his recent comments.
Additional source material:
http://www.buzzflash.com/analysis/04/12/ana04030.html
http://www.crisispapers.org/topics/election_2000.htm
http://www.thenation.com/doc.mhtml?i=20010205&c=1&s=bugliosi
Damn them to hell. I mean that literally.
Highly recommended, Recordkeeper!
I have not only a copy of the original article in The Nation, “None Dare Call It Treason” by Vincent Bugliosi, but also the book that he wrote to expand upon his original ideas.
You will recall that the Supreme Court first granted a stay that shut down the vote count in Florida–and Kennedy was one of the five criminals who voted for that.
It must be noted that not only did the Supreme Court intervene in a recount procedure clearly defined by state law, but that the Supreme Court in its infamous Bush v. Gore decision took great pains to limit its decision as being applicable ONLY to that case–so that it could not be used against right-wing candidates in the future, we may presume.
From Bugliosi’s article in The Nation (cited above by Recordkeeper):
The New York Times observed that the Court gave the appearance by the stay of “racing to beat the clock before an unwelcome truth would come out.” Terrance Sandalow, former dean of the University of Michigan Law School and a judicial conservative who opposed Roe v. Wade and supported the nomination to the Court of right-wing icon Robert Bork, said that “the balance of harms so unmistakably were on the side of Gore” that the granting of the stay was “incomprehensible,” going on to call the stay “an unmistakably partisan decision without any foundation in law.”
As Justice John Paul Stevens wrote in opposing the stay, Bush “failed to carry the heavy burden” of showing a likelihood of irreparable harm if the recount continued. In other words, the Court never even had the legal right to grant the stay. “Counting every legally cast vote cannot constitute irreparable harm,” Stevens said. “On the other hand, there is a danger that a stay may cause irreparable harm to the respondent [Gore] and, more importantly, the public at large because of the risk that the entry of the stay would be tantamount to a decision on the merits in favor of the applicant. Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election.” Stevens added what even the felonious five knew but decided to ignore: that it is a “basic principle inherent in our Constitution that every legal vote should be counted.” From the wrongful granting of the stay alone, the handwriting was on the wall. Gore was about as safe as a cow in a Chicago stockyard.
In yet another piece of incriminating circumstantial evidence, Scalia, in granting Bush’s application for the stay, wrote that “the issuance of the stay suggests that a majority of the Court, while not deciding the issues presented, believe that the petitioner [Bush] has a substantial probability of success.” But Antonin, why would you believe this when neither side had submitted written briefs yet (they were due the following day, Sunday, by 4 pm), nor had there even been oral arguments (set for 11 am on Monday)? It wouldn’t be because you had already made up your mind on what you were determined to do, come hell or high water, would it? Antonin, take it from an experienced prosecutor–you’re as guilty as sin. In my prosecutorial days, I’ve had some worthy opponents. You wouldn’t be one of them. Your guilt is so obvious that if I thought more of you I’d feel constrained to blush for you.”
Little wonder, then, that given this evidence of the open partisanship of the Scalia Five, as these criminals in black robes were dubbed by Bugliosi, in combination with the relentless right-wing attacks on the institution of the judiciary itself, public opinion of the once-esteemed Supreme Court has fallen further and further.
According to a recent Pew Research Center polling survey, the favourable rating for the Supreme Court has fallen from 72% in 2001 to 57% now.
http://pollingreport.com/Court.htm
It should also be noted that one of the keys to instituting a fascist state–which is rather difficult to do in a country as steeped in the rule of law as the United States–is to undermine the judiciary. In fact, it is one of the 14 defining characteristics of fascism:
http://www.rense.com/general37/fascism.htm
Little wonder, then, that given this evidence of the open partisanship of the Scalia Five, as these criminals in black robes were dubbed by Bugliosi, in combination with the relentless right-wing attacks on the institution of the judiciary itself, public opinion of the once-esteemed Supreme Court has fallen further and further.
And, little wonder that DeLay and his band of crazies think the judiciary is there to do their bidding. These people threw the door wide to all manner of political arm-twisting, coercion, and threats. In 2000, the Supreme Court let the hard right make the judiciary its bitch. I think Justice Kennedy is going to have to work a little harder than this to regain any perception that the court is honor bound to anything but political pressure.