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US Supreme Court Justices Defend Decision That Made Bush President January 24, 2007

Posted by notapundit in Judiciary, US News.
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WASHINGTON (AP)–Three of the five U.S. Supreme Court justices who handed the presidency to George W. Bush in 2000 say they had no choice but to intervene in the Florida recount.

Comments from Justice Anthony Kennedy and retired Justice Sandra Day O’Connor are in a new book that was published this week. Justice Antonin Scalia made his remarks Tuesday at Iona College in New York.

Scalia, answering questions after a speech, also said that critics of the 5-4 ruling in Bush v. Gore need to move on six years after the electoral drama of December 2000, when it seemed the whole nation hung by a chad awaiting the outcome of the presidential election.

“It’s water over the deck – get over it,” Scalia said, drawing laughs from his audience. His remarks were reported in the Gannett Co.’s (GCI) Journal-News.

The court’s decision to halt the recount of Florida’s disputed election results, thus giving Bush the state’s electoral votes, has been heavily criticized as an example of the court overstepping its bounds and, worse, being driven by politics.

Rather than let the recount take place and leave state officials and possibly Congress to determine the outcome of the election, the court’s five conservative justices decided to intervene.

They eventually overturned a ruling of the Florida Supreme Court and halted the recount of the state’s disputed election results 36 days after the voting. The decision effectively gave Bush Florida’s electoral votes – and the presidency – by 537 votes.

“A no-brainer! A state court deciding a federal constitutional issue about the presidential election? Of course you take the case,” Kennedy told ABC News correspondent Jan Crawford Greenburg in her new book, “Supreme Conflict.”

Kennedy said the justices didn’t ask for the case to come their way. Then- Vice President Al Gore’s legal team involved the courts in the election by asking a state court to order a recount, Kennedy said.

Legal scholars and the four dissenting justices have said the Supreme Court should have declined to jump into the case in the first place.

In a decision made public on the evening of Dec. 12, 2000, the court said the recount violated the Constitution’s Equal Protection Clause because Florida counties were allowed to set their own standard for determining whether to count a vote.

“Counting somebody else’s dimpled chad and not counting my dimpled chad is not giving equal protection of the law,” Scalia said at Iona. Justice Clarence Thomas and the late Chief Justice William Rehnquist, who died in 2005, also were part of the majority.

O’Connor said the Florida court was “off on a trip of its own.”

She acknowledged, however, that the justices probably could have done a better job with the opinion if they hadn’t been rushed.

Still, O’Connor said the outcome of the election would have been the same even if the court hadn’t intervened.

She was referring to studies that suggest Bush would have won a recount limited to counties that Gore initially contested, although other studies said Gore might have prevailed in a statewide recount.

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