Jonathan Chait

Sandra Day O'Connor's Secret Shame

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I enjoyed Jeff Rosen's defense of Sandra Day O'Connor, but wanted to add a bit of detail to this part at the end:

O’Connor was prickly and defensive about Bush v.Gore in Aspen: “It wasn’t the end of the world,” she said impatiently. “They had recounts of the votes in four counties by the press, and it did not change the outcome at all. So forget it. It’s over!”

O'Connor's recollection of the media recount is false, though understandably so. The media recount was released shortly after the September 11 attacks, at the height of George W. Bush's popularity and in the midst of massive pressure to affirm his legitimacy. The newspapers spun the recount as an affirmation of Bush's victory. In fact, it proved the opposite. The newspapers assumed that the recount would only focus on "undervotes," or ballots that registered no presidential vote. But the judge overseeing the recount that the Supreme Court halted stated that he would have counted "overvotes," too -- ballots that register more than one vote for president. Many of those ballots registered a clear preference -- usually, the voter both checked the box and wrote in the name of the same candidate. And if those ballots were counted, Gore would have won.

Second, even if O'Connor was right that Bush would have won, it hardly justifies the ruling. After all, halting a legal statewide recount and eliminating any chance that your favored candidate might lose is wrong even if he wouldn't have lost anyway. I wrote at the time:

At the time, nobody knew who would win the recount, but everybody knew it was Gore's only chance of victory. The trouble with Bush v. Gore was that it distorted the law to bring about a desired political outcome. (Alternatively, if you believe Bush v. Gore got the law right, as the Journal does, then a subsequent recount wouldn't "vindicate" it.) That the Court's intervention may, in retrospect, have been unnecessary hardly exonerates it. You're no less guilty of burglary if you break into a bank vault that turns out to be empty.

O'Connor's defensiveness suggests a recognition that she supported a partisan, wildly activist, and legally bizarre ruling. People who are proud of a vote don't shout down any questions by declaring "forget it, it's over!" They're happy to discuss their role in a great legal moment! The justices who voted for Bush v. Gore don't act that way.

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