Supreme Court Politicians
There’s lots of chitchat today about the Supreme Court oral arguments in the ACA case and the idea that the court could be results oriented and rule against the mandate despite the specious reasoning of the plaintiffs. Evidently, some people have forgotten about Bush vs Gore, the fifth vote for which was the same as is likely this time: Anthony Kennedy.
It’s silly to think that they are incapable of making a political decision. Of course they aren’t. They are clearly members of the two political tribes, with Kennedy being an iconoclastic conservative. This isn’t really in dispute. All you have to do is look at the number of 5-4 decisions to see that.
While former solicitor general Paul Clement, who argued against the mandate today, is highly respected for his skills and his integrity, I wasn’t surprised to see Michael Carvin there as well. He’s a well known Republican lawyer but he’s also a political operative. I’m sure he wouldn’t see it that way, but there’s no getting around it.
The Republicans have been remarkably good about keeping their mouths shut about the Florida shennanigans, pretending that Jeb Bush’s electoral apparatus gave them no unusual help. Still, I was surprised to see a former Florida recount icon show up on the Lehrer News Hour last week to argue that the US Attorney firings were completely above board. His name is Michael Carvin and he was the lawyer who argued the Bush case before the Florida Supreme Court. Here’s his picture. I’m sure many of you will remember him:
The Newshour failed to identify him as one of the Florida recount team and instead named him merely as a former Reagan official. But he didn’t fail to carry the Bush water one more time:
MICHAEL CARVIN: “I really think this is much ado about very little. I’m not saying that they haven’t mishandled this from a public relations perspective. They clearly have.
But the notion that firing eight U.S. attorneys with White House personnel involved is somehow shocking is like saying you’re shocked to discover there’s gambling in Casablanca. I don’t know where these people have been.
There’s not one member of that Judiciary Committee who hasn’t called the White House or the Justice Department and said, “My cousin or my law school roommate wants to be a U.S. attorney.”
So the notion that these kinds of appointments and removals in Walter’s administration — they fired all 93 in one slot — the notion that is isn’t influenced by the fact that the president needs his team in place, both at the main Justice Department and in the field, is really quite silly and quite counterfactual.”This would be typical Carvin. For instance, here’s something he said after Bush v Gore was decided:
“The new deadline for all recounts to be submitted to Katherine Harris was 5 p.m. Sunday, November 26. Now, that Sunday afternoon you could watch any of the television coverage and see that Palm Beach was still counting. And by late afternoon you heard various officials in Palm Beach acknowledging that they were not going to be finished by five. Now, we maintain that was completely illegal, because the law said you had to manually recount all ballots.” [See Village Voice top five outrages for why this is such a slimy position for him to take.]
“But as five o’clock approached, we heard that the secretary of state was going to accept the Palm Beach partial recount — even though the Palm Beach partial recount was blatantly illegal. We were told that the secretary of state’s view was that unless Palm Beach actually informed her — in writing or otherwise — that the returns were only a partial recount, she could not infer that on her own.
So we made some calls to a few Republicans overseeing the Palm Beach recount. We told them to gently suggest to the canvassing board that it might as well put PARTIAL RETURN on the front of the returns that were to be faxed up in time for the deadline. The reason we gave was clarity — that the words PARTIAL RETURN would distinguish those returns from the full count that would be coming in later that night. I’m not exactly sure what happened, but I think the Palm Beach board did in the end write PARTIAL RECOUNT on the returns. We all know that the Secretary of State, in the end, rejected them.” [By rejecting them, he means that she said that a partial return missed the deadline altogether and all the previously uncounted votes that were counted in the partial recount were never added to the tally. This had the effect of never allowing Gore to take the lead.]
“I think the board members probably agreed to write the PARTIAL RECOUNT notation for two reasons. First of all, I think they hadn’t slept in 48 hours, so I think they’d sort of do anything. Second of all, I don’t think they or anybody else would have suspected that it would actually make any difference. Who would imagine that without the simple notation of PARTIAL RETURN the partial count would have been accepted as a complete count by the secretary of state? Even while the television showed them still counting?
But I don’t think it was Machiavellian to suggest to the board that it write PARTIAL RECOUNT, because that is what it was. I think it would have been sort of Machiavellian to suggest to pretend they were notpartial returns.” [Talk Magazine, March 2001, p. 172
I know that virtually nobody cares about this anymore, if they ever did, but this was so full of nonsense that it amazed me that he got away with saying it. And the tale he tells, bad as it is, is still obviously not the whole story.
They were clearly colluding with Katherine Harris’ office throughout and they determined that she could reject all of the Palm Beach county votes they had counted by 5pm with this little gambit. Everything depended on not allowing Al Gore to ever take the lead or their whole PR campaign would start to fall apart.
It’s a small thing, I know, and probably one of thousands of such small acts of illegal and inappropriate collusion between Jeb Bush and the campaign during the recount. But it happened and we knew it happened. And it was done by people like Michael Carvin, former Reagan Justice Department official who now implies that the US Attorney scandal is nothing because everyone knows that the Bush Justice department is an enforcement arm of the Republican Party and that’s perfectly normal.
That is just how these people think. It’s why they hunted Clinton and Reno like dogs for eight years, determined to find evidence of wrongdoing. They either assume everyone does it because they do or they know they can innoculate themselves against accusations of their own bad acts by getting to the punch first. (And harrassing Democrats is rewarding in and of itself.)
I wrote to reporters Don Van Atta and Jake Tapper about this Carvin tid-bit when they were covering the media recount for the NY Timesand Salon (and Tapper was writing a book about it.) Tapper was uninterested, but Van Natta called me and I told him where to find the quote. (Talk Magazine is not on lexis-nexis.) Then came 9/11, the recount story was pretty much shelved and the entire country was told we had to gather around the president.
But then, we had been told that from the beginning, hadn’t we? The media were complicit in this, helping the Republicans along every step of the way during the recount with constant rending of garments about a constitutional crisis and fantasies about tanks in the streets if things weren’t settled instantly. (The deadlines! My god, the deadlines!) And when it was all done, they told us repeatedly to get over it.
As @JeffHauser tweeted earlier today:
The idea that any progressive or Dem should have “gotten over” Bush v. Gore is dangerous, and in many ways responsible for today’s fears.
Indeed it is. If anyone thinks that the case against Obamacare isn’t strictly political or that the Supreme Court must decide it on the merits they are sadly deluded. I’m sorry that’s the way it is, but that’s the way it is. The only way the health care bill survives is if Anthony Kennedy decides to make himself into a right wing target or John Roberts sees more to be gained politically by upholding the law than striking it down. That’s how this works today. Maybe it always has.
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