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On the Anniversary of the Bush v. Gore Decision

Sunday, December 12, 2010 - 09:08 AM

Ten years ago today, my idealism died. On that cold December day, as I stood in the Tallahassee frost, the United States Supreme Court became, for me, a political body, instead of the neutral, objective and purely jurisprudential body I had always hoped it to be. I was devastated.

December 12, 2000 is a critical date in American history. Yet, it is not a date we commit to memory. It is not a date that lives on in infamy, though it should.

That was the day on which the United States Supreme Court decided Bush v. Gore, the case that put an end to the undecided and hotly contested presidential election of the previous November.

It seems like a lifetime ago. The sitting Vice President, Al Gore, won the national popular vote; the former Governor of Texas, George W. Bush was awarded the votes of the state of Florida. Bush, therefore, won the election.

Yet, it wasn't quite that simple. Bush v. Gore caused a wrenching growing pain in the course of the development of a democracy that was then only 224 years old. It also presented a challenge to the legitimacy of our political process. And for this writer and patriot, it was a fervent reminder that law and journalism are, together, critical tools of our democracy, without which our democracy cannot thrive.

After five tortuous weeks of counting pregnant chads, dimpled chads and hanging chads, the counting had suddenly stopped. The highest court in the land had decided the outcome instead. George W. Bush would be the 43rd president of the United States. Al Gore would not. It was the day, in the view of this young lawyer, that the US Supreme Court waded into a political matter where it need not have done so.

There are legal minds far greater than mine that have battled over the relative merits of Bush v. Gore. Entire books have been written about whether the Court was entitled to rule as it did, or whether the Court was entitled to rule at all. In my humble view, the Court was not.

All of that is beside the point of this writing. When the decision came down, and with it the practical effect that George W. Bush would be President, I was assigned to cover the case for the ABC News Law & Justice Unit. I was surprised to find that I did not care about the outcome of the election itself. While it is true I had served as an advisor in the Clinton White House, in the end, I was not disappointed because the Court ruled in favor of George Bush. After five weeks of waiting for the political process to play out, I would have been just as disheartened had the number of chads counted favored Mr. Gore and had the Court, at that moment, waded into the fray to find for him, applying the same faulty reasoning it used to find for Mr. Bush. The underlying facts of the case were not what troubled me. What killed my idealism that day was the Court's decision to decide at all.

Thus began the odyssey of this lawyer and journalist, from objective and impartial analyst of our nation's law and political scene, to advocate for our democracy and the very survival of our Constitution.

I suppose I was naïve to believe that people, once they don a black robe, become inured to the political process. They should, however, aspire to insulate themselves as much as possible. Surely they should not inject themselves into it.

As Justice Stevens stated so eloquently in his dissenting opinion: 

It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.

Ten years later, that judgement still stands. 

 

Jami Floyd is a broadcast journalist and legal analyst for cable and network news, and is a frequent contributor to WNYC Radio. She is former advisor in the Clinton administration and served as a surrogate for the Obama campaign on legal and domestic policy issues.

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Comments [5]

Paul Brown from NYC

Beautifully written Blog, Perfect Grasp of the real importance of what transpired that day---as also so eloquently and succinctly summed up by Justice Stevens.

We continue down that road of Partisan Political Ideology within SCOTUS and we do so at the Nation's peril.

Dec. 17 2010 03:11 AM
Karen from NY

I don't know about journalism being a critical tool of our democracy. That ended well over 10 years ago and is more dangerous than useful in the current debate.

Dec. 14 2010 10:44 AM
mvymvy

A survey of 800 New York voters conducted on December 22-23, 2008 showed 79% overall support for a national popular vote for President.

By gender, support was 89% among women and 69% among men.

By age, support was 60% among 18-29 year olds, 74% among 30-45 year olds, 85% among 46-65 year olds, and 82% for those older than 65.

Support was 86% among Democrats, 66% among Republicans, 78% among Independence Party members (representing 8% of respondents), 50% among Conservative Party members (representing 3% of respondents), 100% among Working Families Party members (representing 2% of respondents), and 7% among Others (representing 7% of respondents).

http://nationalpopularvote.com/pages/polls.php#NY_2008DEC

Dec. 13 2010 12:22 PM
mvymvy

The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and DC).

Every vote, everywhere would be politically relevant and equal in presidential elections. Elections wouldn't be about winning states. Every vote, everywhere would be counted for and directly assist the candidate for whom it was cast. Candidates would need to care about voters across the nation, not just undecided voters in a handful of swing states.

The bill would take effect only when enacted, in identical form, by states possessing a majority of the electoral votes--enough electoral votes to elect a President (270 of 538). When the bill comes into effect, all the electoral votes from those states would be awarded to the presidential candidate who receives the most popular votes in all 50 states (and DC).

The bill uses the power given to each state by the Founding Fathers in the Constitution to change how they award their electoral votes for president. Historically, virtually all of the major changes in the method of electing the President, including ending the requirement that only men who owned substantial property could vote and 48 current state-by-state winner-take-all laws, have come about by state legislative action.

In Gallup polls since 1944, only about 20% of the public has supported the current system of awarding all of a state's electoral votes to the presidential candidate who receives the most votes in each separate state (with about 70% opposed and about 10% undecided). Support for a national popular vote is strong in virtually every state, partisan, and demographic group surveyed in recent polls in closely divided battleground states: CO-- 68%, IA --75%, MI-- 73%, MO-- 70%, NH-- 69%, NV-- 72%, NM-- 76%, NC-- 74%, OH-- 70%, PA -- 78%, VA -- 74%, and WI -- 71%; in smaller states (3 to 5 electoral votes): AK – 70%, DC – 76%, DE --75%, ME -- 77%, NE -- 74%, NH --69%, NV -- 72%, NM -- 76%, RI -- 74%, and VT -- 75%; in Southern and border states: AR --80%, KY -- 80%, MS --77%, MO -- 70%, NC -- 74%, and VA -- 74%; and in other states polled: CA -- 70%, CT -- 74% , MA -- 73%, MN – 75%, NY -- 79%, WA -- 77%, and WV- 81%.

The National Popular Vote bill has passed 31 state legislative chambers, in 21 small, medium-small, medium, and large states, including one house in AR (6), CT (7), DE (3), DC (3), ME (4), MI (17), NV (5), NM (5), NY (31), NC (15), and OR (7), and both houses in CA (55), CO (9), HI (4), IL (21), NJ (15), MD (10), MA(12), RI (4), VT (3), and WA (11). The bill has been enacted by DC, HI, IL, NJ, MD, MA, and WA. These 7 states possess 76 electoral votes -- 28% of the 270 necessary to bring the law into effect.

http://www.NationalPopularVote.com

Dec. 13 2010 12:17 PM
CityTrucker from San Francisco

Justice Steven's dissent may well be the ONLY lines recalled from Bush V Gore in the future.

Dec. 13 2010 12:35 AM

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