[Congressional Record Volume 146, Number 152 (Monday, December 11, 2000)]
[Extensions of Remarks]
[Pages E2173-E2175]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               BUSH VERSUS GORE IN THE U.S. SUPREME COURT

                                 ______
                                 

                         HON. JOHN CONYERS, JR.

                              of michigan

                    in the house of representatives

                       Monday, December 11, 2000

  Mr. CONYERS. Mr. Speaker, I submit the following articles, which 
appeared in the New York Times on December 11, 2000 and the Washington 
Post on December 9, 2000, into the Congressional Record.

                [From the New York Times, Dec. 11, 2000]

                             To Any Lengths

                            (By Bob Herbert)

       And so the Supreme Court intervened, not with wisdom and 
     grace but with a clumsily wielded hammer, to protect the 
     interests of George W. Bush and the Republicans by thwarting 
     any further movement in the Florida vote toward Al Gore.
       Mr. Bush and his party have made it clear to the country 
     and the world that their greatest fear--the scenario they 
     dread above all others--is that somehow, someway, all of the 
     votes legally cast in Florida would actually be counted.
       They have demonstrated their willingness to go to almost 
     any lengths to prevent that from happening. And that resolve 
     was given the unfortunate imprimatur of the nation's highest 
     court on Saturday when, in a 5- to-4 decision, the court 
     ordered the hand recounts in Florida to stop.
       But the Bush team's appeal to the U.S. Supreme Court, which 
     will hear oral arguments this morning, is just one prong of 
     the G.O.P.'s dangerous assault on the spirit of democracy 
     that has served this nation so well for so long. The truth is 
     that while Mr. Bush and the Republicans will be more than 
     happy to accept a final Supreme Court ruling in their favor, 
     they are already prepared to take extraordinary steps to 
     circumvent a ruling that goes against them.
       In short, they are not willing to accept any set of 
     circumstances that would result in Al Gore winning the White 
     House.
       Former Secretary of State James Baker was asked on ``Meet 
     the Press'' yesterday if the Bush campaign would accept the 
     results of a recount in Florida if, after hearing the 
     arguments today, the Supreme Court ordered the recount to 
     resume.
       Mr. Baker told the moderator, Tim Russert, ``Of course 
     we'll begin the recount again if that's the ruling of the 
     United States Supreme Court.''
       Mr. Russert said, ``And will you abide by the result?''
       Mr. Baker, clearly uncomfortable with the question, said 
     ``Well, I'm not sure I understand what you mean, `Will we 
     abide by the result?' The result will be there.''
       Mr. Baker knows as well as anyone that the Republican-
     controlled Florida Legislature is poised to trash any 
     semblance of justice and fair play by designating its own 
     slate of 25 presidential electors committed to Mr. Bush if, 
     under any scenario, Al Gore wins the popular vote in Florida.
       Mr. Baker said of the Legislature, ``They have an interest 
     here that is a constitutional interest granted to them under 
     Article 2 of the Constitution, and it is not up to me or 
     anybody else to rule that out or rule it in.''
       Mr. Russert said: ``But your campaign has been working in 
     concert with them, giving them legal advice. Both sides admit 
     it.''
       ``Uh, Tim, we may have indeed,'' said Mr. Baker. ``Some of 
     our people have been talking to them, there's no doubt about 
     that, because it is a constitutional remedy set forth in 
     Article 2 of the Constitution.''
       In the eyes of the Republicans, the Supreme Court ruling is 
     the final word only if it goes against Mr. Gore.
       The game is rigged. And the Democrats, who all along have 
     been more willing than the Republicans to adhere to standards 
     of fair play, are openly talking about folding their tents 
     and conceding the White House to Mr. Bush.
       American democracy suffered a grievous wound this year in 
     Florida. The conservative majority on the U.S. Supreme Court 
     that has ranted ad nauseam about activist courts and the 
     infringement of states' rights turned its own philosophy on 
     its head by rushing in on Saturday and gratuitously stopping 
     a recount of votes legally cast by American citizens.
       It is not unreasonable to believe that had those votes been 
     counted, Al Gore, who won the popular vote nationwide, would 
     also have won Florida and a majority in the electoral 
     college.
       A former colleague of mine called yesterday and said: ``All 
     the Supreme Court of Florida wanted to do was have the vote 
     counted. What was so wrong with that?''
       The good news, of course, is that American-style democracy 
     is resilient enough to rebound from the Florida fiasco. 
     Eventually the full truth will emerge about the extent to 
     which the voices of voters in Florida went unheard. And the 
     role of the U.S. Supreme Court and the Republican Party in 
     silencing those voters will be a matter of public and 
     historical record.

                                  ____
                                  

                [From the New York Times, Dec. 11, 2000]

                           Raising the Stakes

                           (By Anthony Lewis)

       Washington.--Whether Al Gore or George W. Bush becomes 
     president will make a difference, but it has never been a 
     cosmic question. Whoever wins, the country will survive.
       But now a truly profound interest is at stake in the 
     election controversy. That is the public's acceptance of the 
     great power exercised by the Supreme Court of the United 
     States.
       Justice Robert H. Jackson, in lectures published in 1955 
     after his death, pointed out the curiosity of the role played 
     by the justices in our democracy. The court has often been in 
     controversy, he said, and ``the public has more than once 
     repudiated particular decisions.''
       ``Public opinion, however,'' Justice Jackson said, ``seems 
     always to sustain the power of the court. . . . The people 
     have seemed to feel that the Supreme Court, whatever its 
     defects, is still the most detached, dispassionate and 
     trustworthy custodian that our system affords for the 
     translation of abstract into concrete constitutional 
     commands.''

[[Page E2174]]

       That is what has now been thrown into question: the public 
     belief that the court is ``detached, dispassionate and 
     trustworthy.'' The court's order stopping the recount of 
     ballots in Florida--a 5-to-4 decision along ideological 
     lines--looked to many Americans like a partisan intervention 
     to save the day for Governor Bush.
       The Bush forces had worked for a month to prevent a manual 
     recount of doubtful ballots, evidently in the belief that 
     counting them would put Mr. Gore ahead. Now, just after 
     recounts had begun, the five more conservative members of the 
     Supreme Court stopped the process.
       Lawyers and others who watch the court closely are saying 
     they are bewildered, even shaken, by what it did in stopping 
     the recount. The one guide we have to the reasons for the 
     intervention was the opinion by Justice Antonin Scalia, 
     concurring with the majority's order. And it made the action, 
     if anything, more troubling.
       To recount those Florida votes, Justice Scalia said, might 
     cast ``a cloud'' on what Governor Bush ``claims to be the 
     legitimacy of his election.'' To count them first and then 
     rule on their legality ``is not a recipe for producing 
     election results that have the public acceptance democratic 
     stability requires.''
       If the Supreme Court now permanently stops the recounts, 
     will that promote ``public acceptance'' and ``democratic 
     stability''? Hardly. Half
       Justice Scalia said the court must decide whether the 
     ballots that were ordered to be recounted--ones that on 
     machines showed no vote for president--were legally cast 
     votes ``under a reasonable interpretation of Florida law.'' 
     That comment raised an extraordinary legal question.
       It is basic constitutional law that the Supreme Court has 
     no power to consider state court decisions on the meaning of 
     state laws. The Florida Supreme Court's decision ordering the 
     recount was just that: an application of state statutes. Was 
     Justice Scalia saying that the Supreme Court will decide 
     whether the Florida court was ``reasonable''? That could open 
     an endless prospect of enlarged Supreme Court jurisdiction.
       The puzzle is what federal question exists here, of the 
     kind the Supreme Court has power to decide. The Bush brief 
     argues that manual recounts, with no precise rules binding 
     all counties in Florida, would be so inconsistent as to deny 
     ``the equal protection of the laws'' guaranteed by the 14th 
     Amendment. But there have been manual recounts all over this 
     country from the beginning of our history. Is every one of 
     them now going to raise a potential federal constitutional 
     question?
       The level of partisanship in our politics is already 
     dangerously high. The Bush people, in particular, have taken 
     a nasty, hateful tone in Florida and elsewhere. It would be 
     terrible for the court to exacerbate the division--and become 
     part of it.
       In this vast, diverse country, we depend on the Supreme 
     Court as the final voice. Perhaps some of the justices 
     believe they can bring finality to the election contest. But 
     if they over-reach, acting as what Judge Learned Hand called 
     ``Platonic Guardians,'' they will inflict a grave wound on 
     their own legitimacy.

                                  ____
                                  

                [From the New York Times, Dec. 11, 2000]

                           Biting the Ballot

                          (By William Safire)

       Washington.--You cannot spit in the eye of the nation's 
     highest court without suffering consequences.
       The Florida Supreme Court ignored the U.S. Supreme Court's 
     order nullifying its deadline-breaking action and in effect 
     told the nation's final judicial tribunal to mind its own 
     business.
       Florida's four-judge majority, not content with taking over 
     the lawmaking function of its state's Legislature, and 
     brushing aside the dire warning of creating an unnecessary 
     crisis from its own chief justice, arrogated to itself the 
     power to pursue its political course--despite direction to 
     the contrary a few days before from the top of the nation's 
     court system.
       Not in living memory have Americans seen such judicial 
     chutzpah. Our political process was almost subverted by the 
     runaway court.
       Perhaps the U.S. Supreme Court invited Florida's 
     disrespect. In its eagerness to preserve its own unanimity 
     and to show undue deference to a state court's interference 
     in a federal election, the high court in Washington had 
     temporized in its first opinion. Rather than cleanly 
     reversing the Tallahassee jurists, the Rehnquist court 
     acquiesced in its liberal members' suggestion to learn the 
     legal reasoning behind the Florida decision to ignore the 
     U.S. Constitution's delegation of electoral power to state 
     legislatures.
       The Tallahassee majority read that deference as weakness. 
     Rather than answer the high court's questions, it took 
     constitutional law into its own hands and extended the agony 
     of the Gore campaign by ordering a count of votes whose 
     legality is in dispute.
       Bush partisans mistakenly made much of the narrow split in 
     the Florida court, as if a 4-to-3 decision was somehow less 
     than decisive. But in our judicial system, the narrowest 
     majority carries the full power of the entire court. That 
     runaway court's order to start counting was promptly, and 
     rightly, obeyed--until a majority of the highest court, 
     recognizing its deference had been misplaced and its 
     authority was being challenged, stayed the counting fingers.
       In our presidential elections, the constitutional majority 
     rules. That means the majority of electors of all the states. 
     When the votes of the people in a state amount to a virtual 
     tie, the nation's choice of a president cannot suitably be 
     made by one state's executive branch (in this case, for Bush) 
     or that state's judicial branch (for Gore). Rather, the 
     state's vote must be decided in the manner the U.S. 
     Constitution specifically directs--by its legislature (for 
     Bush) or if the contest goes all the way, by the newly 
     elected House of Representatives (voting by states, 29 of 
     which have Republican majorities that would elect Bush).
       But do we need to go all the way to that bitter end? No; 
     with the House vote certain for Bush, it serves nobody's 
     purpose to prolong the interregnum. We have an institution in 
     place that a majority of the people trusts to decide what is 
     the most constitutionally defensible solution. That is the 
     U.S. Supreme Court.
       So what if the justices are internally divided on this 
     election issue? They were far from unanimous on Roe v. Wade, 
     and yet even those who disagree with that majority's decision 
     recognize it as the law of the land. Unanimity is a 
     consummation devoutly to be wished, but the high court's 
     majority rules, and its decision cannot be overridden except 
     by a future high court or by amending the Constitution.
       Now we are at a point where the highest court can no longer 
     delay its decision in hopes that an inferior court will act 
     responsibly. By its coming decision on the late count, the 
     Supreme Court will be deciding (a) to validate for our time 
     Article II's unambiguous assignment of electoral power to 
     elected state legislatures, with its enabling statutes passed 
     long ago by Congress; (b) to restore order to the judicial 
     system by curbing the runaway state court; and (c) to lend 
     some of its own legitimacy to the political victor in an 
     election where there can be neither a statistical winner or 
     loser.
       All during the campaign of 2000, Al Gore kept saying that 
     this election was about the Supreme Court. Turns out he was 
     right. It is fitting that we now call on the nine justices to 
     bite the ballot and call on the contestants to abide by the 
     majority's judgment.

                                  ____
                                  

                [From the Washington Post, Dec. 9, 2000]

                           Ghosts in Florida

                          (By Colbert I. King)

       The ghosts of Campaign 2000 in the form of Florida's 
     controversial presidential vote will trail the next president 
     into the White House. If it is George W. Bush, his first year 
     will be haunted by a decision reached this week in 
     Washington. If it is Al Gore, he can sit back and watch the 
     fun.
       After several daily meetings with FBI and Civil Rights 
     Division staff to review intelligence concerning alleged 
     voting irregularities, senior Justice Department officials 
     concluded that there were sufficient grounds to send federal 
     lawyers to Florida last Monday. The decision was a long time 
     coming.
       Since Election Day, civil rights groups have demanded that 
     the Justice Department probe numerous complaints of 
     improprieties, minority vote dilution and violation of 
     federal civil rights laws in Florida voting precincts. This 
     week, the federal government finally agreed to act--with too 
     little and too late, critics say. Maybe not.
       The introduction of Justice Department lawyers certainly 
     won't change the election results or alter court decisions 
     reached yesterday. But the current information gathering 
     effort may get converted into a formal Justice Department 
     investigation. If that happens, the civil rights probe could 
     reach out and touch Florida Bush backers in a way that street 
     protests, demonstrations and heated cyberspace traffic never 
     could.
       By Jan. 20, the judicial jousting and Florida's Supreme 
     Court justices will be a memory. Not so the charges of 
     African American voters being denied the right to vote due to 
     discrimination, intimidation and fraud. There's no such thing 
     as the clock's running out on the fight against racism.
       If the Justice Department finds that voters of color were 
     disenfranchised and left unprotected by the Florida state 
     government--that U.S. laws indeed were broken--the issue will 
     be alive and squarely in the lap of the next administration. 
     And the problem will come with a twist that is sure to make a 
     Bush White House squirm.
       Simply put, a George W. Bush appointed attorney general 
     could not be entrusted to investigate and prosecute illegal 
     voter suppression activities in the state that gave Bush the 
     presidency and in which his brother Jeb is governor. A civil 
     rights probe in Florida, on the other hand, would be no 
     problem for a president Gore.
       Faced with a formal Justice Department investigation, the 
     Bush administration would have no choice but to seek the 
     appointment of a special counsel to conduct an independent 
     inquiry into possible federal violations in Florida. Only an 
     impartial outsider, not beholden to Bush or his attorney 
     general, can be expected to serve the interest of justice. 
     Nothing short of an independent

[[Page E2175]]

     team of lawyers and investigators interviewing witnesses and 
     probing the nooks and crannies of the likes of Volusia, 
     Broward and Miami-Dade counties, will reassure the public 
     that politics and special preference won't rule the day in a 
     Bush White House.
       Investigating voting irregularities in Florida will not be 
     a game of trivial pursuit. Some troubling allegations have 
     already surfaced, such as:
       The names of law-abiding voters, disproportionately African 
     American, wrongly removed from the rolls or identified for 
     purging.
       Registered African American voters banished from the polls 
     because their names couldn't be found on voter registration 
     lists.
       Voting sites in African American precincts switched without 
     timely notice or any notification at all.
       African American voters harassed and intimidated near the 
     polling places.
       Ballot boxes in African American precincts not collected, 
     predominantly minority polls understaffed, language 
     assistance sought but denied, old and unreliable voting 
     machinery.
       And the list of alleged irregularities does not include the 
     disproportionate number of ballots in predominantly minority 
     precincts that were thrown out.
       For those of you tempted to dismiss these complaints as the 
     predictable whining of blacks who find themselves on the 
     losing side, I say not so fast. Experience, old and new, has 
     been a great teacher.
       I commend to you the observations of Hugh Price, president 
     of the National Urban League, on National Public Radio's 
     ``Talk of the Nation'' show. Price backs calls for the 
     Justice Department to get into the Florida situation in a 
     strong way. He told listeners: ``I'm reminded of what 
     happened in the case of racial profiling in New Jersey when 
     the first response to the allegation was, `We don't do this,' 
     a staunch denial.
       ``Then we discovered there were some correlations between 
     race and who was being stopped, but there was still a lot of 
     denial. . . . And then it turned out that it was 
     happenstance. And now that the New York Times has dug into 
     and received mounds of paper they have found that it was an 
     outright, point-blank, in-your-face conspiracy on the part of 
     the New Jersey troopers to stop people of color.''
       All the media attention today is on Florida courts, the 
     presidential contenders and the potential winning candidate's 
     thrill of victory. Come next year, the limelight shifts to 
     Washington--and maybe to another scene--an all-too familiar 
     tale about the uphill struggle of a people who tried in vain 
     to live out the American Dream on Election Day.