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November 03, 2007

Comments

The big contrast, it seems to me, is that the Pakistani Supreme Court isn't willing to bend to the military this time, while SCOTUS--at least the majority (may they all be held in infamy)--ditched the principles they were supposed to be upholding in favor of a purely partisan decision. In other words, SCOTUS in 2000 (and since, in many ways) was what the Pakistani Supreme Court had been for a long time, based on the description you provided.

Look, I'm willing to concede that Bush v Gore was a bad decision. (They should have just let the state legislature send up a slate, and the House sort it all out.) But, second only to Dredd Scott? Worse than the Slaughterhouse cases the Court used to render the 14th amendment largely a dead letter for a couple generations? Worse than Korematsu, where the Court ruled in favor of ethnicly based internment camps?

Are you barking mad?

It was the moment of truth -- the moment where the conservative Justices forfeited every ideal they had ever espoused for the sweet apple of political power.

This reminds me of something John Yoo said in class one day (this was pre-9/11 and I think I've mentioned this here before), in response to a student comment that the Republicans wouldn't do X because they believed in federalism, he said something to the effect of "Don't think that if the Republicans get their hands on absolute power they won't use it."

Sort of sums up the past 6 years.

And I agree with Brett, second to Dred Scott seems a bit much.

I think it is #2 -- i honestly think people don't grasp the magnitude of what happened. yes, the cases that brett mentioned were morally abhorrent, but i doubt they were all that consequential. in both, the political branches would have ignored the court.

but here, you have 5 political actors selecting the PRESIDENT and substituting their will for the entire electoral system. the arrogance is both striking and frightening. they would have been hung in 1800 for trying something liuke this.

it was -- in all seriousness - a judicial coup. they should have all been impeached

"but here, you have 5 political actors selecting the PRESIDENT and substituting their will for the entire electoral system."

That is just a flat out BS reading of what happened, though I understand the Democratic belief that, if you keep repeating this, eventually everybody will think the 2000 election was stolen.

Look, Bush won election day. He won the automatic recount. He won Gore's selective recount. And, it's far from obvious he even would have lost the Florida Court's sorta state-wide recount, or that it even would have mattered, given that the state legislature was preparing to assert it's authority by sending up it's own slate of delegates.

Bush v Gore was illegitimate, in the sense that the Court inserted itself into a problem which was going to be resolved by other, more constitutionally appropriate mechanisms. But the notion that the Court in effect appointed Bush President, by putting a stop to a process which at every step had had Bush coming out on top, is delusional.

All they did was stop the Florida courts from giving Gore yet another roll of the dice.

a full and fair recount of florida would have found gore the winner. that has been demonstrated several times.

it is also the reason why bush took gore to court, not the other way around.

Brett - The equal protection thing stunk, too, and I think it could be argued convincingly that they knew it.

That said, I think that if Gore had been ahead by 1700 votes or 350 votes or whatever, Gore would have picked up the same equal protection argument that Bush did, and the election would have gone to Gore.

I'd consider "second only to Dred Scott" a big overstatement, because they were careful to avoid the precedent issue.

Brett, if you really want to seriously debate this issue, you have to stop with the crap argument that Bush won on election day and won every recount. You're not stupid, and we know you're not stupid.

I'd consider "second only to Dred Scott" a big overstatement, because they were careful to avoid the precedent issue.

In my opinion, it's the very fact that they avoided the precedent issue that makes Bush v Gore so loathesome. They knew they were being intellectually dishonest, and that they were inserting themselves into a place where they had no business. The no-precedent dodge is proof that they knew they were, in fact, installing a president, not ruling on the merits of the case before them.

I have no opinion about the relative rank of Bush v Gore in crapalicious landmark cases, but I would be curious to know what George W. Bush, Dick Cheney, and Antonia Scalia think happened in 2000, were they waterboarded and interrogated.

Besides, politics is an impressionistic art for me, and Bush v Gore carries an important impressionistic weight for the Democratic Party, just as Roe v Wade carries an important impressionistic weight (worse than Dred Scott) for 26% of the Republican electorate.

It's all presentation, in my opinion. Who would care to get out bed in the morning if our pet peeves ranked only 7th or 8th in importance?

As to Pakistan: Pakistan has always been the wildcard for me in that area of the world. It's very difficult to tell, given all of the horrible variables, whether Musharref''s move is slightly less horrible than whatever alternative might be brewing, or slightly more horrible.

True, some form of free, democratic government would be great for the good people of Pakistan. Unless the good people of Pakistan start hacking each other to death, while rogue elements of the military spirit away the nukes.

Brett, it's not the result, it's the process. It's still a travesty -- like if the Red Sox had the Supreme Court award them the World Series after the third game. After all, everybody knew they were going to win anyway.

Constitution says that the Electors shall be chosen by the States. They weren't. They were chosen by the Supreme Court.

As to Dred Scott -- I would agree that the decision was correct, given the times. It was an absolutely horrible law, from just about any point of view -- but constitutional. Now, Plessy vs Ferguson ...

“War on Terror” = Gross Conceptual Error

Here’s what our tens of billions in aid have done for our ‘Great Friend and Ally’, the Islamic Republic of Pakistan:

Pakistan Expanding Nuclear Program
Plant Underway Could Generate Plutonium for 40 to 50 Bombs a Year, Analysts Say

http://www.washingtonpost.com/wp-dyn/content/article/2006/07/23/AR2006072300737_pf.html

Never thought the day would come when I’d feel any compassion for a bunch of lawyers. It’s going to be an interesting Century.

That is the dumbest thing I've ever read, and I've read Flaubert.

The only reason the decision wound up in the supreme court is because the Florida supreme court overstepped its bounds by interfering in the duly elected process.

It was a largely liberal court that didn't like the fact that the Secretary of State of Florida was a republican & she was legally in charge of the recount. (that was what she was ELECTED to do)

I can't stand Bush or Gore, but all the supreme court did was slap down the Florida supreme court for getting involved in something that was not in their legal sphere of influence.


If the Florida Supremes hadn't illegally gotten involved in the first place, it never would have been put in the lap of the Supreme Court.

Frickin Lawyers!!!

Brett: I am not familiar enough with the history of the Supreme Court to say how I think this ranks in the worst decision ever sweepstakes. And I don't care to debate who won the recounts. If the Court had obeyed their own precedents and sent it back for recounts and Bush had won. If they had decided it in a way they found defensible, and were willing to have serve as a precedent, also fine. But to have them decide to resolve the issue themselves, while saying: oh, ha ha, this isn't a precedent for anything, just a one-off deal -- that's a very, very, very big deal.

And to me, it's a big deal because of the process. As I said, I would have been happy to go to a state-wide recount and let the chips fall where they may.

"In my opinion, it's the very fact that they avoided the precedent issue that makes Bush v Gore so loathesome."

I'm with you on that. But to me, the worst decisions are the ones that "canonize" a crappy way of looking at the constitution.

It's like Saga versus Air Supply. With Saga, the badness was over in a relatively short period of time (though the scars are never completely gone). But with Air Supply, the badness just kept coming and coming, until you started to doubt whether pop music really had any redeeming, intrinsic worth.

dkilmer: Dude, you’re all out of love?

OK bad. Couldn’t resist. Bad Steve. Bad.

If the Florida Supremes hadn't illegally gotten involved in the first place, it never would have been put in the lap of the Supreme Court.

I'm not even a lawyer and I understand how inane this statement is. If anyone overstepped their bounds, it was SCOTUS. The Presidential election is not a federal election--it is a combination of 50 state elections, and the court of jurisdiction for those individual elections is rightly the Supreme Courts of the individual states.

"it is a combination of 50 state elections, and the court of jurisdiction for those individual elections is rightly the Supreme Courts of the individual states."


Absolutely correct!!!

BUT!! State Supreme Courts are beholden to the laws of their state. The FSC broke that law. They do NOT make law they are supposed to uphold it.

According to Florida State Law, the elected Secretary of State of Florida decides the manner in which recounts are decided. (period) The Florida supreme court has no say in the matter.

No Supreme Court, be it federal or state, is above the law.

If you want to change that, change the laws. We have procedures for that.

"it is also the reason why bush took gore to court, not the other way around."

Yeah, that's why the case was called "Gore v Harris", because it was Bush suing to overturn the election result. Never would have been any Bush v Gore if Gore hadn't started the whole ball rolling by trying to win in court what he didn't win on election day.

"Constitution says that the Electors shall be chosen by the States. They weren't. They were chosen by the Supreme Court.

No, it says they will be appointed in the manner chosen by the state legislatures. What the Supreme court did was slap down the state judiciary's effort to usurp that role by rewriting election laws after the voting was done. For instance, by deciding that they could order Harris to accept post-deadline recounts the law unambiguously gave her discretion as to whether to accept.

In any event, I agree the Supreme court bungled Bush v Gore, beginning with taking it. But the idea that it's the second worst Supreme court decision in history? Only a partisan who's never gotten over losing in 2000 could take that idea seriously, when there are so many better contenders.

Brett, you magnificent bastard.

Sully:

"That's the dumbest thing I've ever read, and I've read Flaubert".

That's the funniest thing I've read this week, and I like Flaubert.

Brett:

Would you agree that Kath. Harris wears the second-most amount of eye-liner in history, next to Alice Cooper, if we leave out all of those gorgeous women on the Indian sub-continent?

dkilmer: I think that if Gore had been ahead by 1700 votes or 350 votes or whatever, Gore would have picked up the same equal protection argument that Bush did, and the election would have gone to Gore.

Do you really think that?

And when do you graduate from high school?

But with Air Supply, the badness just kept coming and coming, until you started to doubt whether pop music really had any redeeming, intrinsic worth.

True, but you gotta admit, they sure knew who to exploit that evil little gremlin in your brain that forces you to hum along to crap songs like

Making Love out of nothing at all

Bonnie Tyler(or whoever wrote her songs), Roxette or, erm, Foreigner were also masters at this art.

somebody mentioned

"But there's another way to look at it: to think: Musharraf is an American puppet who orders his army to kill his own people at the behest of the Americans, in exchange for the wherewithal to stay in power."

This perception makes me very angry.

It reminds me that there are places where the people can be more in the wrong than their own government (actually at times that's been the case with the population of the US).

The Pakistani public has a choice about who to be angry at. They can choose to be angry at the the people who are committing unprovoked acts of war against Afghanistan, or they can choose to be angry at the Pakistani government that attempts to suppress that breakage of national and international laws (a government that is doing this with US support, encouragement, even pressure). They appear to be choosing to be angry at the wrong people, from the very get-go. They are probably choosing to apportion blame the way they are because of pre-existing religious prejudices, a generation-long cultivation of an America as the devil narrative, and wallowing post-colonial self-pity.

A Pakistani public opinion that was morally and intellectually sound, and based on the right principles, would condemn first off the use of their own territory as a base for violent extremism. While no doubt wanting the problem solved with as little bloodshed as possible,

Basically, if the Pakistani general public had a sound system of ethics, it would not have been a hard thing at all Musharaff to get compliance in keeping the Taliban out. Pakistani citizens would have endorsed it and the Taliban would have been kept out of Pakistani households to the point that no military operations would have been needed in the first place. The Pakistani public is angry about a situation that is their fault to begin with.

The Pakistani public opinions as described here are in no way morally or intellectually defensible. They exist, nothing I'm saying here will change them, but for the record......they are a steaming pile-- based on their own nationalistic and religious prejudices combined with an irresponsible attitude completely unconcerned about the impact of their own actions on others.


-Pashtun nationalists are esentially throwing rocks at the US because they're very angry at the US. What are they so angry about? the US came in and stopped them from throwing rocks at the US (The Pashtun sanctuary for AL-Qaeda). When you go back to the beginning of this chain of events you don't find Americans sstarting it with any evil visited upon the Pashtuns. We're being asked to be sympathetic to people who hate us because we hurt their fist a little bit when they were trying to punch us.

The average Pakistani joe hated the US even for working to arrest the guy who shot up a bunch of people at CIA in the early 90s.

Nothing I will say is going to stop the Pakistanis from havng a chip on their shoulder against the west. But that doesn't mean they have a right to that chip.

Hilzoy, can you come up with a justified reason for the rage they had even before the US began post-9-11 military operations (the US embassy was burned in '79..this stuff goes far, far back).

I mean seriously, compare the US interaction with Pakistan before 9-11 to people who really do have a legitimate chip on their shoulder like the Iranians (from the 53 coup) or the Palestinians (for decades of US-Israeli relations). There's been no credible allegation that the US participated in any Pakistani coups (it would have showed up in William Blum's book if it happened). The US was an ally and aid provider for Pakistan during the Cold War.

Yes that was support was inconsistent, but the US was always either a friend or a neutral towards Pakistan, never an enemy. We never gave India a military edge.

At most, the Pakistanis have a case for resenting us as we can resent the French for being an inconsistent ally. That's really about as much as they can complain. Muslims have complained alot about "disproportionate" responses to them. Their whole attitude towards the US is "disproportionate" to anything the US ever did to Pakistan.

The Pakistani Islamists decided to be anti-American before the Americans decided to be anti-Islamist in Pakistan. They were allies in the 80s, and possibly in the 90s (the Bosnia issue). They decided to betray the US, not the other way around. There perhaps are Pakistanis who have a right to complain against the US, persons hurt by Islamists there, for instance. But those are presciely the people in Pakistan who are not supporting anti-American actions.

Where am I going wrong here. Please, explain it to me.

Oh, they're poor or brown so we it's not really our place as westerners to question
Pakistani behavior?

Oh, they we're colonized, so they get an indulgence to be hypocritical with deadly consequences for a couple centuries?

Pakistan's northwest frontier has been tied to a really large share of international terrorist networks which have operated in the US and Europe going back to even before 9-11. The residents of that area do live a blighted life in many ways. They have things to be resentful about. But their assignment of blame is completely off the mark as is their choice of targets in venting their rage.

This ain't no karmic circle. People in many places are going to be killed by people enjoying sanctuary or training in this area. The people doing the killing aren't going to be doing it fighting occupation and avenging historical wrongs they or their ancestors suffered. They're going to be doing it for stupid reasons.

The equal protection argument did have a pretty strong basis: The Florida supreme court set up a partially state-wide, (Another of their election law re-writes.) recount, wherein the people doing the counting were allowed to arbitarily use different counting criteria from one ballot to the next. An open invitation to biased counting.

spockamok,

Your points about the Pakistani public opinion being stupid, immoral and undefensible may well be correct. However, the Pakistani people, just like anyone else, have the right to decide their fate in a democratic process. If we support democracy, we must support the peoples' right to make bad decisions.

"And when do you graduate from high school?"

I assume that's a rhetorical question, since the Air Supply comment gives me away :).

I'm not saying the court would have decided the same way. But had they knocked it back to the state SC, the issues surrounding recounting would have been no less of a can of worms. I think it was the worms that led to the bad decision.

"True, but you gotta admit, they sure knew who to exploit that evil little gremlin in your brain that forces you to hum along to crap songs like"

My point exactly. It's one thing to accidentally hit on something bad that insidiously gets inside people's heads. It's another to be able to reproduce it regularly.

Roxette. Thanks so much. I had almost forgotten about them.

dkl: the issues surrounding recounting would have been no less of a can of worms.

True, because the can of worms for the Republicans in charge of the count were that if they counted every vote according to the strict interpretation of Floridian electoral law, it was extremely probable that Al Gore would win. As Jeb Bush had already promised his brother he could "deliver Florida", and with a Democratic President in the White House there would be no protection from federal investigation into the systematic corruption that had led to the election being close enough to let it be called for Bush, any state-wide recount would indeed have opened up a big, big can of worms. Safer just to say "Hey, Bush won!" as soon as a count got him a few hundred votes ahead with thousands of ballots still uncounted, and then fight like hell to stop those ballots from being counted.

"The equal protection argument did have a pretty strong basis"

Sure. That's why it was the argument of choice, and why I think Gore would have also used it.

I don't think that makes it a good decision, though.

Jes - I was thinking of a different can of worms ;). Scalia used the words "democratic stability" (or something like that), but I think the fear at the time was that there would be a wholesale loss of faith in the election process. They were able to contain that to halfsale.

but I think the fear at the time was that there would be a wholesale loss of faith in the election process.

Well, yeah: if you show the election process has been corrupted, there will be a wholesale loss of faith in it. This is not a bad thing, because it leads ultimately to electoral reform.

True, it would be better if you could have electoral reform before the corruption got so bad that a President could be appointed who lost the election, not once but twice - but it will never be fixed if it gets swept under the carpet and everyone pretends it wasn't a problem.

Well, yeah: if you show the election process has been corrupted, there will be a wholesale loss of faith in it. This is not a bad thing, because it leads ultimately to electoral reform.

Jes could probably tell you more about this, but the whole rotten borough phenomenon and the Reform Act of 1832 (though one has to observe that the Act itself specifically disenfranchised women) might be something to think about in this light. In fact, I've always wondered if Jean Luc Picard's penchant for Earl Grey tea is related to the person that Lord Grey was...

but the whole rotten borough phenomenon and the Reform Act of 1832

Curiously enough, I was thinking about just that...

(Women were disenfranchised in the UK before 1832, liberal japonicus: it was only less noticeable, because most men were also disenfranchised.)

"Well, yeah: if you show the election process has been corrupted, there will be a wholesale loss of faith in it. This is not a bad thing, because it leads ultimately to electoral reform."

Of course, the process was corrupted: The courts in a pivotal state were playing a game of "Let's keep recounting over and over until it comes out the way we like". That's pretty darned corrupt, and if Gore had come out on top after the 3rd or 4th recount, you really think Republicans would have had any reason to view it as legitimate?

Jes, I didn't say that they had the vote before, I said that the Act specifically _dis_enfranchised them, whereas previously, as I understand it, there was not formal statement that women did not have those rights. You may view this as a mere legal semantics, but to me, it illustrates how laying out the terms of the debate often has unanticipated consequnces.

"This is not a bad thing, because it leads ultimately to electoral reform"

Absolutely. I can't argue with anything that you're saying. It just seemed (at that time) that there was a fear of trying to sort through everything while waiting to find out who would be president. I think SCOTUS saw itself as pulling the brakes on what might have become a runaway train.

Luckily, everyone learned their lesson from the whole mess, and we implemented all of the necessary reforms ;).

By the way, I'd like to ask a question which has long bothered me: What basis was there for thinking that the third or fourth recount, of ballots that were wearing out, would be more, rather than less, accurate than the original count?

dkilmer, I finally responded to your question in Friday's music thread...

liberal japonicus: whereas previously, as I understand it, there was not formal statement that women did not have those rights

The way the British "unwritten constitution" works, a formal statement in legislation does not actually mean that the legal framework does not exist.

For example:

There was no formal statement that same-sex couples could not marry in Britain until the 1973 Marriage Act. Nevertheless, same-sex couples could not marry in Britain until the Civil Partnership Act became law in December 2005.

There are many instances of women getting actively involved in politics before 1832 - but there is no instance* of a woman, having the property qualifications to vote (which would have been unusual in any case), casting her vote in an election.

*Well, OK (given I don't want to undertake the mammoth job of hunting through centuries of voting which used to be done by hand-count anyway) - there is no record of women, qualified by property, voting for MPs.

Brett: What basis was there for thinking that the third or fourth recount, of ballots that were wearing out, would be more, rather than less, accurate than the original count?

You're forgetting the tens of thousands of ballots that were not counted at all. The "overvotes" in which people both wrote in a candidate's name and punched the card are a particularly telling example - Florida law allowed overvotes to be counted as a single vote if the voter's intention is clear (as it is, if you both punch the hole for Al Gore and write in Gore's name). The overvotes were 2/3rds for Gore/Lieberman... more than enough to make a difference... and were not counted at all.

A first count normally omits all faulty ballots. If the first count shows a clear victory with a margin greater than all the faulty ballots, then there's no need to count the faulty ballots. As you might remember, Brett, this didn't happen in Florida - and nor did the full recounts, including all the faulty ballots to see if the voter's intention was clear.

All of the ballots were never counted in Florida in 2000. Bush sued to keep the mandatory statewide recount from happening.

Bush also imported fake mobs of Republican hacks to stand around outside vote count buildings and protest and scream threats at the counters.

Plus before the election, the fake felon vote roll purges disenfranchised many more people than the margin of the election was.

And then 5 Republican hacks on the Supreme Court gave the Presidency to George Bush, and said "No, really, this only applies to this, nothing else. Because, um, we say so." And because of that, we've had years of torture, lies, corruption, and war. The results of their corruption ought to be counted when we're considering their "process" of deciding the 2000 election.

Nate, Nate, full of hate.
Why do you seem so irate?

Are you trying to debate?
Have a beer and be my mate.

Corruption we'll investigate.
It's not a single party trait.

Each side has their spate.
Let me now enumerate.

For Clinton lying was his fate.
Because he did ejaculate.

I sure know you can relate.
Nixon had his Watergate.

JFK always had a date.
Looked like fun to emulate.

Why do they all take the bait?
Perhaps they like to fornicate.

(all of us, usually...)

I foresee a possible future at Hallmark.

Would you agree that Kath. Harris wears the second-most amount of eye-liner in history, next to Alice Cooper, if we leave out all of those gorgeous women on the Indian sub-continent?

Dude, Tammy Faye.

Thanks -

spockamok,

"Your points about the Pakistani public opinion being stupid, immoral and undefensible may well be correct."

Yep -

"However, the Pakistani people, just like anyone else, have the right to decide their fate in a democratic process."

I think that Pakistan should have a democratic process. Though it'd be nice if it had something like the Warren Court built into it. that sorta took some of the nastiest edges off of our democracy.

" If we support democracy, we must support the peoples' right to make bad decisions."

Absolutely, for instance, all their economic decisions. I do think however that bad decisions that affect people outside of PAkistan become other people's business. "It's democratic" doesn't mean no accountability or an exemption from diplomatic pressures proportionate to the harm those decisions are causing.

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