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Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

Talking Points spent some time last night at a conclave of Democrats (well, mostly Democrats). And the consensus seemed to be ... Bad News: our beloved candidate just lost to a hapless dork who may be less qualified to be president than any candidate in the last century. Good News: our opponent for the next four years is a hapless dork who may be less qualified to be president than any candidate in the last century.

Alright … alright … I can live with that. That works for me.

Speaking of being in the opposition, Democrats now seem intent on making one of the first priorities of the 107th congress.

Isn't this just great politics?

As we've seen, this is a very important issue. Whether or not Palm Beach county threw out upwards of 20,000 ballots in 1996 as well as 2000, it's just an unacceptably high number. So the issue is good on substance.

But think of the politics.

Bush can't run away from the issue, obviously. And yet what is the subtext of the whole debate? We need to reform our election machinery so that the loser in the race doesn't slip through as the winner because a bunch of voting machines don't work right. Isn't that it? Even the Bush-friendly sub-text would be, we have to reform our election machinery so that the 'winner' isn't hobbled and made illegitimate by faulty voting machines.

It's win-win politics for the Democrats.

Finally, now that all the distraction is over, we can get down to the real business of the post-election period: bashing that lousy stab-in-the-back wretch Ralph Nader.

Watch for future posts.

If you're interested in Talking Points' take on Al Gore's wonderful and heart-breaking concession speech you'll have to hop on over to Feed Magazine where it was just published late this morning.

But your visit to Talking Points this morning isn't totally in vain. Let's go to the pictures.

Remember all that talk about the 'rule of law' from those election-grabbing conservative Justices on the Supreme Court?

Rule of law? Rule of law my #%$#!

Above you'll see (in this picture from today's New York Times) a seat-belted Justice Breyer and a seat-belted Justice Souter riding off into the evening in the gentle and protective embrace of the state.

And Scalia?

No seatbelt!

Now this raises an interesting question. Justice Scalia certainly has libertarian impulses which might give him anti-seat-beltist politics. But what happened to strict-construction? What about the rule of law? Doesn't the law apply to everyone?

My read here is that Scalia is just putting his politics above his respect for the law.

But then we already knew that about him, didn't we?

P.S. Talking Points would like to give a special TPM shout-out to the two eagle-eyed Pointsters who clued him in to the political import of this pic.

Please, please, please bring back the subjunctive mood!!! I can't take it. No more 'if Governor Bush becomes president.' Or 'should Bush become the president.' No 'were Bush to be the next president.' Not even the semi-heart-breaking 'assuming Bush becomes the next president.' We're down to 'when Governor Bush is sworn in …' Ahhh! The fatal 'is.' I guess it depends on what your definition of 'is' is. But clearly it doesn't mean anything good.

(Uggh! Candy Crowley on CNN just said the 'Bush Era'.)

Okay, let's go to the Talking Points doomsday grab bag.

1. A Talking Points quote of the day. This one from Lois Frankel, the Democratic Minority Leader of the Florida House of Representatives (basically the Sunshine state Dick Gephardt).

"Let's take our energy. We're going to fix those machines, we're going to register those voters, we are going to learn to vote right and come two years, we will leave no chad behind."
Leave no chad behind! I like it. Even sounds a little like a southerner saying 'leave no child behind.' (Try it. You'll see what I mean.)

2. And now to the decision. If you only read one paragraph in the whole bundle of Supreme Court concurrences and dissents, read Section A of Justice Souter's Dissent. (Hey, don't be so lazy. It's only one paragraph. Trust me, it's worth reading.)

And the most stunning part of the Per Curiam brief (the majority opinion):

"The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint member of the Electoral College." Section II, B
Perhaps true. But still stunning.

3. Got an email today from a friend sending me a link to a Bush parody based on The Grinch. I went and looked at it and for the first ten seconds it seemed totally moronic (and I started to wonder about my friend). But he's right. It's actually really funny. Take a peek.

4. And finally, inevitably, a picture. This picture comes from The Hindu, one of India's national newspapers. I think many newspapers must have a machine called a goof-alizer. These are special machines that you run a photo through and a relatively normal-looking person comes out looking like a complete doofus. Apparently The Hindu has a damn good goofalizer. See for your self.

What did I tell ya?

P.S. I promise: after this I will get over my hurt about Gore, grow up a bit, and stop making fun of how people look.

Ugghh! I wanted to help the Gore folks see if there was any wiggle room in the Court's 5-4 decision. Everyone is saying it certainly looks like a defeat. But equal protection, changing the law, not changing the law, standards, no standards. The decision is so complex. It takes a while to puzzle through every part.

But I think I've found the crucial passage. And I have to admit it looks like black letter law. In Rehnquist's majority opinion, page 3, sub-section 4, footnote 2, it says "said recount plainly violates the George W. Bush protection clause of the United States constitution ..."

Ouch! Hard to find a way around that.

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.

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