Sandra Day O'Connor's Doubts on Bush v. Gore

Thursday, May 02, 2013

Retired Justice Sandra Day O'Connor has said that she has doubts about whether the court should have taken up Bush v. Gore. Adam Liptak, who covers the Supreme Court for the New York Times, explains what her comments tell us about public opinion and the Supreme Court, the decision in Bush v. Gore, and what it means for potential future cases.

Brian's 2006 Exchange with Sandra Day O'Connor on Bush vs. Gore

Lehrer: Here in my city...which voted 75% for Al Gore, you will always be remembered as the deciding vote to elect President Bush. Can you tell New York, for posterity, in lay-man's terms, why you denied Florida the right to recount votes in its own state?

O'Connor: Well, Florida had the opportunity to recount votes and did. But the court found that Florida courts were not correctly applying federal law in the election process there. And after the decision of our court became final, there were three separate recounts of the votes in the counties that were affected by the decision. And those were conducted by members of the media, and in none of those votes would have changed. So indeed the Florida vote count was as it was -- very close, indeed, but it went in favor of George Bush.

Lehrer: I guess you never second guess yourself on that one?

O'Connor: Well, I don't know that I need to.



Adam Liptak

Comments [39]

@gary from queens

1) You seem to be chiding Gore for putting wanting to win over any coherent principle of democracy. What then do you think of the filibustering senators who appear to regard blocking majority action as an exercise in patriotism rather than the underhanded, self-serving oligarchism that it is?

2) Please explain the 7-2 reference in your post. SCOTUS was 5-4 in Bush v. Gore.
"The Supreme Court ultimately based their reversal of the Florida Supreme Court’s ruling on the 14th Amendment’s Equal Protections clause, in order to obtain a 7-2 consensus."

May. 03 2013 10:48 AM

@Mike from Jersey City from Hudson County

You are clinging to the analysis of the undervote which usually puts Bush ahead. But when the undervote (no machine discernible vote for any candidate) AND overvote (two or more candidates checked off), Gore wins. How can you decide an overvote? When both candidates have missing or hanging chad, the one that has 'I want Gore' written on it is a vote for Al Gore. The one that says "Give me Bush' is a vote for Bush.

Al Gore and the DNC erred in not going statewide and using the 'discernible will of the voter' standard early. Once the GOP delayed them into missing the safe harbor date, Bush's inauguration was assured. The GOP won by playing 'stall ball' - the will of the voter be damned. SCOTUS betrayed their eagerness to have a Bush presidency...imagine SCOTUS without Roberts or Alito!...and it is the inappropriateness of SCOTUS weighing in on a matter that was clearly being handled under state law is activism at its worst and what I take Justice O'Connor's regrets to be about. Just another symbol of conservative hypocrisy, IMO.

I have written elsewhere on what a weakened President Bush could have accomplished in Iraq, on the debt, on tax cuts. I doubt very much that he would have survived the 2004 election.

May. 03 2013 10:39 AM
msm02 from USA

This thread seems preoccupied with the election but there was a comment made during the broadcast that I found troublesome. Now we all know that the Bush administration ignored terrorism during the summer of 2001.
And that Gore, Clinton, Gary Hart's bipartisan committee, Richard Clark and others have told us that the Bush Cheney team ignored the admonitions of numerous people that told them that Al Quida was the biggest threat to America in the world.
Yet in the broadcast I heard earlier, during a conversation between Brian and a caller, they commented on how invading Iraq probably would not have happened under Gore, but invading Afghanistan probably would have. This assumes that 9/11 would have been as successful as it was under Gore. An assumption that defies what we know about what happened that summer. Now I'm not asking you to assume that it would not have happened, only to admit that we could never know. Thus assuming that it WOULD have happened is equally spurious as assuming that it would not. Yet everyone continues to assume that it would have happened.

May. 02 2013 06:33 PM
mc from Brooklyn

Again, gary, I don't buy that it could not have been tested.

May. 02 2013 11:47 AM
gary from queens

@MC from Brooklyn

Yes, Congress can determine the date when the electoral college will meet. But only for future elections. Not the current one.

But as Gore demonstrated, the wrongs of changing the rules DURING the game is something Democrats seem oblivious too.

May. 02 2013 11:20 AM
Mike from Jersey City from Hudson County

THE FUNDAMENTAL ERROR in thinking about the 2000 election can best be explained by a BASEBALL ANALOGY.

What Gore supporters are saying is similar to the losing team in a World Series saying that they "really won" the series because, even though they lost four games, they got more runs total, and the deciding game was won by one run.

No one would agree with such an argument. And yet, Bush 2000 won based on the terms of the contest, which was electoral votes. They also deployed their campaign resources with that in mind, targeting several smaller states -- including Gore's home state of Tennessee. Had the contest been solely about popular votes, one suspects that they would have deployed their resources differently, with different results in the popular vote count. It is reasonable to assume that Gore 2000 would have done the same thing.

The fact is that, despite the expenditure of significant resources, no one has ever come up with a credible count of votes suggesting that Bush didn't win Florida.

Moreover, for all the talk of Butterfly Ballots -- designed by a Democrat controlled committee, BTW -- one can easily talk about irregularities that hurt the other side. The most notable of these were the suppression of the pro-Bush military vote and the TV networks calling Florida for Gore and hour before polls closed in Western, heavily Republican Florida, which is in a different time zone than the rest of the state -- an error last made during the Bush-Clinton, interestingly enough. Strong arguments exist that both of these "irregularities" reduced votes for Bush.

The real unanswered question is this one. In the first Bush v Gore decision (people tend to forget there were two) the Court ruled 7-2 that they could find no part of the Florida state constitution that gave the Florida Supreme Court the authority to intervene in the election. The second decision -- 5-4 with two liberal judges changing their votes -- reaffirmed the first decision and shut down the Florida Supreme Court.

The only new facts taking place between those decision was the reaffirmation of Bush's amazing narrow victory in the recount.

So what caused those two justices to change their votes. Anyone ever bother to ask them? I'd be curious to know.

May. 02 2013 11:17 AM
mc from Brooklyn

The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

I don't believe the December deadline has ever been tested. It would have been worth a try.

May. 02 2013 11:12 AM
Estelle from Brooklyn

Two things. I had students who various Caribbean islands who spoke about terrible violence related to elections. We certainly don't need that here.

There's a term in physics, the butterfly effect. How about saying the war in Iraq is a result of the butterfly ballot effect. Civilians in Iraq died because of a badly designed ballot.

May. 02 2013 11:04 AM
Martin Chuzzlewit from Manhattan


Bravo, bravo, bravo !!!!!!

Just another day in the life of "public radio".

May. 02 2013 10:59 AM
gary from queens

To answer those who say a full recount was necessary, you need to realize that this was a federal election with deadlines that not even the high court could have violated.

The high court’s close 5-4 split was merely over the remand order (i.e., instructions for the lower court to dispose or proceed with the case). But the Justices in the minority were left with no practical suggestions, as was reflected in their disparate opinions on the remand issue. Even the two justices in the first minority (7-2) seemed resigned to the fact that for all practical purposes, there was insufficient time to proceed with the (Florida Supreme) court-ordered recount and with it, meet the deadline to furnish the results to the Electoral College. Indeed, none of the justices even offered an amended schedule for the recount to proceed. It was the mess made by the Florida Court, let them clean it up.

May. 02 2013 10:47 AM
gary from queens

Aside from Gore's illegal maneuvers to conflate and contort the post-election timetable, what the public found most repugnant was the sight of the Democrat-dominated canvassing boards—having foreknowledge of exactly how many votes Gore needed to win—interpreting voter intention using subjective criteria, and modifying that criteria at various points when it looked like Gore would need more votes than he appeared to be getting. This was precisely what Florida’s post-election vote processing deadlines were designed to prevent. This is what outraged Republicans.

On November 29, 2000, William Saletan observed in, “Electoral Knowledge”

“Even if all the ballots were assembled before a team of neutral inspectors, the winner couldn't be objectively resolved. When the number of ballots requiring interpretation exceeds the number of votes separating the candidates, determining who won is no longer a matter of investigation. It's a matter of interpretation.”

Gore’s petition was to “recount” votes solely in three Democratic-dominated counties where he was expected to gain votes. And he didn’t want to saddle them with confining rules: Arguing for Gore, attorney David Boies said ballots should be deemed as votes for Bush or Gore based on “the intent of the voter; not how the voter manifests his or her intent”(!) Gore steadfastly refused to accept or even suggest a uniform criteria for interpreting disputed votes, until he was forced to do so just prior to Judge Sauls’ ruling, which by then was too late to help him. Thus, here was Gore’s team cynically determined to win by way of vote skimming, while at the same time, they were engaged in demagoguery on behalf of supposed disenfranchised voters!

May. 02 2013 10:41 AM
Taher from Croton on Hudson

Because of a decision by a bunch corrupt judges in 2000 at the Supreme Court the nation was given a president that tanked the county by going into 2 wars. I hope these judges livelong enough to see the results of their handy work.
The worst is yet to come.

May. 02 2013 10:38 AM

Gore wins Florida in a full recount of the entire state when the only when 'overvote' and 'undervote' are taken into account. This was NOT the rule that was being used in the recount that was underway when stopped by SCOTUS. Bush is likely to have won any other recount. Even that facts is is moot because the SAFE HARBOR date would have enabled the Florida legislature to act to award its electors. Can there be any doubt that they would have gone to Bush? Bush would have been President...but would his presidency have been so weakened by the hanky-panky that it took to get him in to the office that he would have been neutered....or, recognizing that his days were numbered, would he (and his party) have acted even more boldly? My crystal ball gets fuzzy at that point....

May. 02 2013 10:38 AM
Mike from Jersey City from Hudson County, NJ


Well, this one was some kind of Orwellian record -- even for WNYC.

We began with a clear distortion of what Justice O'Connor has regrets about -- that the Supreme Court intervened at all, not the outcome of the election.

The we listen to an exercise in reading into her comments whatever fits the prejudices of the commentators.

And callers are permitted who only disagreed with the Court's decision.

You might say, that that was because no one called in to disagree. But I did. So there was at least one. So much for diversity.

Someone remind me, why is it we're giving you guys a big tax break to do this, when folks like FoxNews seem to produce a similar product without similar tax breaks?

A truly shameful segment.

May. 02 2013 10:36 AM
mc from Brooklyn

I've got nothing for O'Connor except contempt. She told her clerks to find a legal rationale for voting the way she had always intended and during the oral arguments she was dismissive of the problems people in Palm Beach County had with the confusing ballot. Gore's campaign brought the wrong suit--they should have argued for counting the whole state and the US Supreme Court should have stayed out of it. The media, particularly the NY Times editorial page was no help at all, publishing pious opinions saying that "this needs to be settled now, the country needs a leader at the helm." Hogwash. The country needed to know who actually won Florida. Let it take the time. We had a Speaker of the House who could have served if the count took long enough. Instead, SCOTUS short circuited the process and its reputation has never recovered.

May. 02 2013 10:36 AM
Truth & Beauty from Brooklyn

The truth is that the Supreme Court should never have decided the result of the election. We, the People, vote and decide the outcome of our elections. All the Supreme Court should have done was allow the count to continue.

It is well known that Kathleen Harris was a tool of the Bush family and she unduly influenced the count and the Court.

It is my contention that GW Bush was only elected once: 2004. In 2000, We, the People, elected Al Gore.

May. 02 2013 10:30 AM

Very proud of her and my country for producing a Supreme Court Judge who dares to admit this embarrassing thing.

Surely a touchstone for the future, when wondering if everything was really as crazy as it seemed.

May. 02 2013 10:30 AM
Rich_P from Long Island

The caller questiong how ALL future female nominees might now be questioned with regard to their equivocation is reaching...A tenuous argument for sure.

May. 02 2013 10:29 AM
steve from upper west side

Once the Supreme Court took the case and decided, their decision had to be honored, and in this sense Gore was absolutely correct. But Gore and the Democrats should have mounted a much more powerful challenger prior to this decision -- the time to protest and scream was before their decision, when the Republican thugs were running wild in Florida, hassling election districts attempting to recount, and breaking into election centers where the ballot were stored... and this isn't even mentioning the illegal tactics of the Republican Sec. of State Katherine Harris. Such an outcry might have helped the Supreme Court realize that NOTHING but a full recount would ever solve this, and stopping the recount would forever plunge this matter into controversy.

May. 02 2013 10:29 AM
bob from flushing

Then there's the whole issue of the Electoral College. So Gore accepted the decision of the court to validate an electoral process created to uphold the right of slave holders. So this is our democratic process?

May. 02 2013 10:28 AM
gary from queens

Ironically, it was Al Gore himself who was responsible for aborting the “recount” he desired: Recall that Gore succeeded in extending the post-election ‘Protest’ period at the expense of ‘Contest’ period, thereby short-circuiting the time required for recounts, contests, and challenges later on. Florida’s compressed Protest period (prior to certification) was intentionally designed that way to mitigate post-vote count manipulations. But under Florida law, it’s easier to pick up more votes during the Protest phase than the Contest phase. So, Gore convinced a local judge to extend the Protest phase a few days, based upon a dubious pretext that the overseas ballots hadn’t arrived yet. Against statute and precedent, Gore managed this maneuver despite the fact that Florida’s election law permits recounts solely when it can be shown that the tabulation process failed, and not because of voter error or confusion. Yet the basis of Gore’s claim was the latter.

When that time had elapsed, Gore attempted to extend the period again. Judge Terry Lewis ruled against him. But the Florida Supreme Court reversed Terry’s decision—without even waiting to be petitioned by Gore’s lawyers! (The Florida high court later intervened on behalf of Gore a second time, without being petitioned—to reverse trial Judge Sauls’ ruling to exclude contested ballots.). If anyone tried to hijack that election, it was the Florida Supreme Court—whose Justices were appointed by Democrats—who seemed to be working on behalf of the Gore campaign. They extended the original Protest period for Gore, thereby leaving insufficient time for secondary Protest and Contest periods following the recount that Gore wanted.

The Supreme Court ultimately based their reversal of the Florida Supreme Court’s ruling on the 14th Amendment’s Equal Protections clause, in order to obtain a 7-2 consensus. While many legal pundits felt that ‘Equal Protections’ was not the most relevant basis for reversal, it was certainly the most fitting with which to hoist Gore on his own petard: “Let every vote count.”

May. 02 2013 10:27 AM
ml from inwood

According to the NY Times, published NOT on the front page in the fall of 2001 (after 9/11), Gore won Florida, hanging chads or not.

May. 02 2013 10:25 AM
DJdharma from Manhattan

I'm 35 and she ruined my adult life. Bush, war, and flipping the court, which is the gift that keeps on giving (Citizen's United), all because she wanted to stop counting the vote. I'll never forgive her.

May. 02 2013 10:25 AM

The guest expresses surprise that two callers in a row thought "extra-legal" actions should have been taken ... but let's not forget that Bush stole the election! His team had ALREADY done things outside the law, shutting voters out, rigging machines, etc.

May. 02 2013 10:25 AM

Does this include all the purged folks from the voter rolls?

May. 02 2013 10:24 AM
john from office

The answer is that there has to be a final decision, A FINAL DECISION, was Gore supposed to go to war over this?? Who will pick up the first gun??

Liberals are to weak to fight anyway, so empty words.

May. 02 2013 10:23 AM
Nancy from NYC

When I started out as a law student over 30 years ago, I had the utmost respect for the Supreme Court. Since Bush v. Gore, that respect is completely gone. The Supreme Court stuck its nose into state law, where it did not belong, and picked the President, and lost all credibility.

Too bad that S.Day O'Connor is just figuring out that this decision was an epic blunder, and the amount of death, blood spilled and treasure lost is something we can never fix.

May. 02 2013 10:22 AM

I agree with the callers at the time I called for the UN to invade

May. 02 2013 10:21 AM
blacksocialist from BKbaby

once again lehrer shows his hackiness (new word)... gore, that sack of dung, did nothing to fight the racist tactics in florida (anyone remember katherine harris and the stripping of black folk on the voter rolls). the black caucus was up in arms and he basically ignored them...

May. 02 2013 10:21 AM
Bob from Huntington

If the Supreme Court is so concerned with its reputation, what does Citizens United do for that reputation?

May. 02 2013 10:18 AM
gary from queens

News Media Keep Peddling Their Bush Vs. Gore Lie

Posted 04/30/2013 06:50 PM ET

Media Bias: When Sandra Day O'Connor said she regretted her decision in Bush v. Gore, the press threw another fit about the "stolen" election. They seem to forget their own studies proved the court's ruling didn't matter.


May. 02 2013 10:18 AM
blacksocialist from BKbaby

of course, "conservative" justices view themselves in partisan terms. what a stupid childlike statement. they're all apart of the federalist society, an incredibly vile conservative (neo) organization which touts radical retrograde policies (aka conservative)

May. 02 2013 10:14 AM

Didn't Jeffrey Toobin say this months ago?

May. 02 2013 10:13 AM

Didn't Jeffrey Toobin say this months ago?

May. 02 2013 10:13 AM

Bruce Ackerman, Vincent Bugliosi, Alan Dershowitz ... to name just three legal eagles (one, Bugliosi, a long-time Republican), all of whom say Bush v. Gore is one of the _worst_ Supreme Court decisions in American history -- down there with Dred Scott. Bugliosi went so far as to call it treasonous, a direct violation of the Constitution by O'Connor, Scalia, Thomas, and the others who reached out to seize the case.

May. 02 2013 10:12 AM
RUCB_ALum from Central New Jersey

Presuming that IF SCOTUS had NOT stopped the recount that Gore would have been President is mistaken. The full recount - which the courts and campaigns had finally gotten around to - would NOT have finished before the FL legislature stepped in to give the electoral votes to Bush.

Bush *would* have been inaugurated on Jan 20, 2001 BUT would his first administration have been so weakened that he couldn't marshal the political capital to get us to give away tax money to the rich thereby exploding the debt? Run us up into war with the Iraq? Stick around long enough to give SC seats to Roberts and Alito? a drunken cheerleader at a frat party, we were pretty pliable after 9/11.

May. 02 2013 10:12 AM
JR from NYC

Obnoxious and self-righteous person. She was recently interviewed by Terry Gross and it was the most painful thing to listen to. I don't know how Terry didn't lose it with her. And yes,too little too late.

May. 02 2013 10:12 AM
Dan from Park Slope

I say this with all due respect and seriousness, but has anyone raised the possibility that she might be going senile?

May. 02 2013 10:08 AM

Too little too late
What are the chances his 50.5 million other supports will admit their mistake as well?

May. 02 2013 09:40 AM

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