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Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

Let me see if I understand this.

Florida wants to have a recount. But handling and interpreting different votes in slightly different ways is a violation of the constitutional rights of certain voters - presumably those voters who get their votes scrutinized more strictly than others. But how to come up with a standard? Ehh! Let's just not count any of them.

Or, there's another possibility. "Voter intent" is too imprecise a standard to insure fairness and basic equity. And every voter's rights have to be upheld. But there's just not enough time to work all this out. So, hey, let's just not count any of them.

Am I missing something?

Talking Points doesn't go in for quick-hits or cheap-shots. No childish humor or graceless attacks at other people's expense.

But let's just make this one exception, okay?

Look at this picture, which recently appeared in the Washington Post, and tell me whether this is the real Tom DeLay or the wax replica of Tom DeLay in the Tom DeLay Heritage Museum in Sugar Land, Texas.

Hard to tell, isn't it?

You can send your answers here.

(Come on ... You know you see it too. You know it's funny.)

P.S. Next post, back to incisive political analysis.

Is Joseph Klock the Rosencranz and Guildenstern of this tragic saga or what? I was trying to decide whether he was the Rosencranz or the Guildenstern but then I decided he was oafish and clumsy and ineffectually devious enough to be both. (Klock, of course, is the attorney for Florida Secretary of State Katherine Harris.)

In the first run through before the Florida Supremes Klock's strategy seemed to be to get in the face of the Justices as much as possible and pepper his shaky legal arguments with throw-away lines from Hardball.

He did a bit more of that today. But apparently the Cosmic Director of this sorry little show wanted to add a pinch more comic relief and had Klock consecutively misnaming Justices Stevens and Souter (calling Justice Stevens Justice Brennan and Justice Souter Justice Breyer.) Even Scalia couldn't resist whacking him around a bit. The Supremes momentarily broke out of their heated tones to have some fun ritually hazing this hapless rube.

(I saw Olson flub a name last week, addressing one Justice when he was being addressed by another. But addressing a dead man was a particularly canny move on Klock's part.)

There wasn't much fun to be had in the Court for Gore-ites today. But at least Klock gave everyone a good laugh.

P.S. Did you notice Rehnquist repeatedly asking Boies whether the Florida Supremes ordered the statewide recount in the interests of 'fairness.' I think that was a trap. But Boies seemed to fall into it. I suspect Rehnquist thinks that decision in the interest of 'fairness' would on its face constitute something more than the straight interpretation of statutes that is all the US Supremes say the law allows.

This is a classic bait-and-switch. If they try to make it fair they're changing the rules. If they don't it's an equal protection violation.

A conservative friend of mine writes and asks why the US Supreme Court's judicial activist decision to stop the Florida recount is any more troubling than the Florida Supreme Court's judicial activist decision to start it.

Quite apart from the particulars of the law (on which I believe the Floridians are on much stronger ground) isn't the answer to this question elementary? In a democracy, decisions to count votes are inherently more legitimate than decisions to ignore them.

P.S. Next post Talking Points drops the portentous tone and goes back to the signature snarky comments.

P.P.S. Looking for more portentous, but quite accurate, comments on today's oral arguments before the Supreme Court? Take a peek at Edward Lazarus in The Washington Post, Bob Herbert (particularly biting and good) in The New York Times, Anthony Lewis in The New York Times, and even the lead editorial in The New York Times.

Talking Points can rant and rave about the transparent partisanship of the Supreme Court's Saturday decision as much as he wants. But when the New York Times' Supreme Court reporter says essentially the same thing, well … then you know it really must be true.

(Alas, conservative Talking Points readers may find fault with that analysis. But, hey, if you're so conservative, what are you doing reading Talking Points in the first place? ... Just kidding, just kidding. Talking Points loves his conservative readers too.)

Anyway, back to my story.

Here are three choice grafs from Linda Greenhouse's article in Sunday's New York Times:

Justice Scalia said it was "the counting of votes that are of questionable legality" that was "casting a cloud," not on the process in general but specifically on what Mr. Bush "claims to be the legitimacy of his election."

In other words, the majority's justification for the stay was that if the vote counting proceeded and had appeared to make Vice President Al Gore the winner by the time the court could decide the merits of Mr. Bush's appeal, the Bush position would be untenable as a political matter even if it prevailed as a matter of law.

That justification put the court in the position of seeming to protect Mr. Bush - who has endorsed Justices Scalia and Clarence Thomas, named to the court by his father, as his ideal justices - from whatever uncomfortable truth the uncounted ballots might reveal. The fact that the justices entered the stay at midafternoon Saturday, with the counting under way and most of it expected to conclude at 2 p.m. on Sunday, gave the court the appearance of racing to beat the clock before an unwelcome truth could come out.

That qualifier 'seeming' in the first sentence of the third graf must be the price which common sense must pay to the canons of reportorial objectivity.

Ahha! As long as we're talking about complete irrelevancies which are nonetheless terribly fun to point out, it turns out that one of Bush attorney Ted Olson's law partners is none other than Eugene Scalia. As in Justice Antonin Scalia's son.

Olson, of course, will be arguing for Governor Bush in tomorrow's oral arguments before the US Supreme Court. This, presumably, because he has wrapped up work on the Arkansas Project, the multi-million dollar effort to dig up dirt on Bill Clinton funded by Richard Mellon-Scaife and run through The American Spectator Magazine.

Ahhh … but I digress. Does Scalia have a conflict of interest? Has Scalia Jr. done any work on the Bush case? Should Scalia, Sr. step aside?

Of course, none of this matters (Supreme Court Justices don't recuse themselves); but isn't fun to point out as long as Scalia completely tipped his hand in his utterly transparent concurring opinion to the stay order?

But perhaps we're not being thorough enough on this whole recusal question. Souter and Thomas were appointed by George W.'s dad. Surely they have a conflict and should step aside, right? And in all fairness Breyer and Ginsburg were appointed by Bill Clinton and Al Gore is Clinton's vice-president. So they should step aside too. And if you're going to go by that standard Rehnquist, Scalia, O'Connor and Kennedy were appointed by Ronald Reagan. And George W.'s father was his vice-president. So they should step aside.

That just leaves Ford-appointee John Paul Stevens...

I can live with that.

Okay, forget about Joe Lieberman. Let's make it Gore-Boies (it even has a nice, good ole boy sound to it.) I know we're supposed to reflexively despise all lawyers and all their shenanigans. But I have to confess: I'm really starting to like this guy.

Boies was on Meet the Press this morning with Tim Russert and it was really a tour de force. If you're on the West Coast and can still watch it, do so. Or if you have Nexis be sure to look at the transcript.

I'm currently writing an unrelated article in which I have to praise (painful as it is) Russert. But this was a sterling example of how thoroughly a well-versed and articulate advocate can bulldoze through an often-factually-challenged interviewer, even one with Russert's Rock-em, Sock-em, Robots style.

Russert: How do you respond to charges 'x', 'y', and 'z'?

Boies: Well, actually, Tim, 'x' is 'p' and 'y' is 'q' and you don't really seem to have understood 'z.'

Russert: Oh.

Let's just say that's my paraphrase. But look at the transcript and tell me if you disagree.

P.S. My sources tell me that Boies will be arguing for Gore before the Supreme Court. Not Larry Tribe. Why not? Lead with your clutch hitter.

Yet another quotation from over the wires that requires little explanation:

"It's remarkable that the same justices who have argued against judicial activism have intervened here with extreme judicial activism by telling a state's highest court that it cannot decide a matter of state law ... This is very bad for the Supreme Court because their credibility is so diminished, and their moral posture is so diminished, that it could take years to pull back from that."

Senator Patrick Leahy D-VT, Ranking Member, Senate Judiciary Committee

'Nuff said.

A few sentences into John Paul Stevens' dissent you find the key sentence - right on the law and on democratic principles ...

"Counting every legally cast vote cannot constitute irreparable harm."

-- John Paul Stevens, writing in dissent, George W. Bush et. al. v. Albert Gore, Jr. et. al. on Application for Stay, December 9, 2000

George W. Bush spent most of the campaign telling voters and journalists that Antonin Scalia was his favorite Justice on the Supreme Court.

Apparently Scalia feels the same way about George W.!

Talking Points has been bellowing on for several days now about the impropriety of questioning the integrity of the rulings of judges.

Well … that was this morning's post. Things change!

Let's look at Antonin Scalia's highly unusual concurring opinion to the court's order to suspend vote counting in Florida. After arguing, improbably, that George W. Bush would be irreparably harmed by having undervotes counted, Scalia wrote the following:

Another issue in the case, moreover, is the propriety, indeed the constitutionality, of letting the standard for determination of voters' intent - dimpled chads, hanging chads, etc. - vary from county to county, as the Florida Supreme Court opinion, as interpreted by the Circuit Court, permits.
How can this be anything but an astonishingly inconsistent (not to say hypocritical) statement? The Florida Supremes explicitly adopted the statutory standard put in place by the Florida legislature (see this earlier post for more details). The whole basis of the US Supreme Court's earlier ruling was that the state legislature had plenary power to determine the method of the election. Not just the state broadly speaking, but the legislature.

Can they have it both ways? The standard Scalia finds so suspect is the one the legislature put in place. And the court is on record as holding that the legislature has the power to set the standard. Am I missing something here? Or is Scalia?

P.S. Scalia's argument is bogus on a more mundane factual level. His reasoning would also mean that using different voting technology from county to county is also problematic or, perhaps to his lights, unconstitutional. (Special Talking Points' shout-out to TPM reader Stephen Schwartz for pointing this out.)

P.P.S. Am I wrong to fear that the five members of the Supreme Court majority have knowingly just prejudged, even settled, the matter by running down the clock?

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