Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

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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?

Two quick points. First: As I said in this earlier post, the courts are determinative and their hearings and rulings will proceed. But Democrats should be focusing on this political argument:

The question isn't whether the Bushies have the legal power to stop, slow-roll, or stymie the Florida Supreme Court's order. The question is why they want to.

The answer is obvious, isn't it?

Second: During and since the contest trial under Judge N. Sanders Sauls it has become clear that Judge Sauls has fairly conservative political and judicial leanings. He is certainly as strict-constructionist and conservative as the Florida Supremes are interpretivist and liberal. But you heard very little of this argument from Dems after his ruling. Certainly nothing like the bloody talk from Republicans attacking the Florida Supreme Court after their 4-3 ruling in favor of Al Gore.

Now the US Supreme Court has stayed the recount on a narrow 5-4 decision with all the conservative justices ruling for suspending the recount. Sound familiar? I think we're about to see one of the many differences between Republicans and Democrats.

Wait a second. Aren't the Republicans hoisting themselves on their own petard?

One of the key Republican arguments currently before the 11th Circuit Court of Appeals and the US Supreme Court is that the current recount is 'standardless' and thus a violation of both the equal protection and due process guarantees of the 14th Amendment. The argument here is that the Florida Supreme Court set no guidelines for what constitutes voter intent. And thus each county can arrive at rules at their own discretion.

The Court's order stated:

In tabulating the ballots and in making a determination of what is a "legal" vote, the standards to be employed is that established by the Legislature in our election code which is that the vote shall be counted as a "legal" vote if there is "clear indication of the intent of the voter."
On the face of it, the Republican argument seems to have at least an arguable merit. This is a very ambiguous standard.

But the whole weight of the Republican claim across the board is that the state legislature has a basically absolute and unreviewable power to make the rules for the election. So how can the federal courts gainsay the (admittedly problematic) standard promulgated explicitly by the state legislature?

So what will we find in those piles of undervotes? The Washington Post leads with its analysis that says Gore stands to come out ahead even in counties that Bush won in the overall vote. An analysis by Knight-Ridder (reported here in the Detroit Free Press), however, comes to the opposite conclusion: that Bush stands to gain.

But the KR analysis is "based on the assumption that undervotes split in the same proportion that each county's vote for president did" - an assumption almost everyone else disagrees with. There is a broad consensus that undervotes are disproportionately located in poorer and/or more heavily African-American precincts. (The result of some vile conspiracy? No, poorer areas have more of the rickety old ballot machines that churn out more undervotes and the surge in African-American voters brought in many new or occasional voters who had less experience using the voting machines. Thus, apparently, more undervotes.) This AP article argues that this was the case in Duvall county. Congresswoman Corrine Brown told the AP that "Of the county's 4,967 Duval County undervotes, 1,413 were cast in predominantly black districts that carried Al Gore by more than 90 percent."

This article in the Philly Inquirer gives a run-down of the contending 'whose votes are they?' theories.

P.S. We have a winner in the (admittedly as yet unannounced) One-Time-Respectable- Republican-Turned-Incendiary-Hack contest. The prize goes to Jack Kemp. The following graf from Rick Berke's article in today's NYT:

To further that point, the Republican Party hurriedly issued a statement by Jack Kemp, the vice presidential nominee four years ago. "Today, America has witnessed a judicial coup d'etat by the Florida Supreme Court unprecedented in modern history," he said.
That's the hack, Jack.

P.P.S. We've already seen and noted in earlier posts that the John McCain-Chuck Hagel crew in the Senate has been among the most temperate, and least Bush-shilling, groups of Republicans in their statements about the Florida fracas. Hagel seems to be keeping it up. Again from Berke's article in the NYT.

Senator Hagel said he was worried about the tenor of the oratory from his colleagues and advised them not to let it get out of hand. "I think we should be very very careful of what we say and very measured," he said. But Mr. Hagel said he did not see the matter being resolved soon. "I don't know what you do to stop it," he said. "The only thing you could do is one of these guys steps up and says, `I'm not going to put the country through that,' because Constitutionally both men have every right to go on with this."
P.P.P.S. Want more info on the doings of Senator McCain? This article of mine in The American Prospect details McCain's successful efforts on behalf of Republican congressional candidates during the last election, and says what it might mean for McCain in the next congress.

Talking Points isn't sure he really grasped the full meaning of the word 'Schadenfreude' until this moment.

('Schadenfreude'? Websters defines it as "enjoyment obtained from the troubles of others." Doesn't it figure you'd have to go to German to find a word that describes such an ugly sentiment?)

But boy is he feeling it now.

Right now he's really enjoying watching the dread and rage on the face of Bush attorney Phil Beck as he tries, rather obviously, to tell Judge Terry Lewis that he basically needs to undo or ignore what the Florida Supremes just told Lewis to do.

Nice try, Phil.

At one point Beck argued that determining a rule or standard for judging undervotes (dimples, pregnant, etc.) would mean 'changing the rules after the election.' But then Judge Lewis shot back: don't the Republicans also argue that there is no standard? How can you change the standard when there is no standard determined, he asked.

Good point, judge!

And now Beck is serving up the bogus argument about undervotes and discrimination against Cuban-Americans in Miami-Dade. (Here's the doctrine about why counting only undervotes is fair.)

Ahhhh ...

"enjoyment obtained from the troubles of others …"

You got that right.

First, read this excellent column by Mike Kinsley. It's worth your while.

Now down to business. Isn't it time for the Democrats to MASSIVELY raise the volume against Republican attempts to prevent the hand recounts just ordered by the state Supreme Court? The Florida Supreme Court ordered hand recounts of undervotes not just in those three or four Democratic counties, but in every county in the state where ballots are in dispute. What is their argument on the merits against doing so? What reasons can there be aside from a fear that such a count will show that their candidate didn't win?

(Think only counting undervotes is unfair? Here's the Talking Points doctrine on that issue.)

Shift the argument. Let the courts go their way. What the Democrats have been lacking in the last couple weeks are well-argued political arguments. The question isn't whether the Bushies have the legal power to stop, slow-roll, or stymie the Florida Supreme Court's order. The question is why they want to.

And of course there's only one answer. They want to win whether they got the most votes or not.

Simple as that.