Despite Joe Lieberman’s plea at the time to let bygones be bygones, the Supreme Court’s decision in the 2000 election still sticks in my craw not only because of the outcome which didn’t please me from a political standpoint but more importantly from a fairness and conflict-of-interest perspective.  The feeling that has haunted me for over a decade simply won’t go away and for Americans of all political persuasions, it shouldn’t.

There is no question that if I were convicted of a crime or had lost a civil case and discovered that the judge had a personal relationship with my opponent in the case, I would have had an easy time appealing the outcome to any appeals court in the land including the Supreme Court.  Not one member of that court would have allowed a decision to stand when the presiding  judge had an apparent conflict-of-interest relationship with one of the litigants.  Why then did the Supreme Court allow any of its members who had such a relationship to participate in Bush v. Gore?  Two members of the Court should have recused themselves from that decision.  That would have been the right thing to do but that court would rather have been a voice for the political right than a champion of moral and legal right.  Here’s the cause of my ongoing unhappiness.

One of the Supreme Court judges at the time owed his job to the father of one of the litigants in Bush v. Gore.  That judge was Clarence Thomas.  How is it possible that he could enter into the deliberations without a prior personal bias?  He was appointed by George H.W. Bush, the father of litigant George W. Bush.  That would never pass the “smell test” in the event he were to be sued successfully by Anita Hill if the presiding judge in that case had been appointed by a family member of Ms. Hill.  How then was it OK for Mr. Thomas to weigh in on a case where one of the litigants was the son of the man who appointed him to the Court?  It wasn’t OK and if there were another impartial higher court, the outcome would have been overturned probably by a unanimous decision.  That is what Mr. Lieberman should have argued but as it turned out and as he later demonstrated, he had other identity-related problems. The issue relating to Mr. Thomas’ conflict is pretty clear and unambiguous.  But there is more.

Enter Antonin Scalia, the champion not of impartial law but of Mr. Antonin Scalia.  Scalia, it turns out had a different family-related conflict of interest.  In this instance, his son, Eugene, a budding lawyer, had been promised a job with the new administration if Mr. Bush were to be elected.  It was a well-known “secret”.  Mr. Justice Scalia was well aware of the pending appointment at the time of Bush v. Gore and he not surprisingly voted with the Court’s majority that overturned the Florida recount while it was being conducted.  He also knew at the time that there is a federal statute that “requires a judge to recuse himself from any case in which their spouse or CHILD has an interest that could be substantially affected by the outcome of the proceeding”.  (Mr. Thomas may also have the same problem given the activities of his wife.)  The outcome of the recount had implications for his son’s legal future.   Sure enough, Eugene Scalia was nominated by President George W. Bush to be Solicitor of Labor in the Department of Labor, a position that could influence a range of issues relating to worker safety and other working conditions.  Everyone including Congress knew that Eugene Scalia didn’t give a fig about worker safety or the laws that protected workers from harm.  The confirmation hearings were confrontational as they should have been.   His chances looked grim.

Eugene Scalia was finally appointed by George W. Bush using the recess appointment route that allowed him to  circumvent Congress.  During his term as a recess-appointed official, Mr. Scalia argued a case involving one of his former paying clients, Pacific Marine Association.  It is not surprising that his former client won the case in its conflict with ILWU (the longshoreman’s union).  Apparently, the affinity for conflicts of interest is congenital in the Scalia clan.

According to Source Watch, after Eugene Scalia’s recess appointment expired, President Bush fulfilled his pre-Bush v. Gore promise and appointed him as the Acting Solicitor of Labor which was yet another strategy to avoid the Congressional approval process.

There is no way to rewrite history.  If the recount had been allowed to proceed, there is evidence that either candidate might have won.  It was that close but it would have been settled by the the right process, the free election by the citizens of this country, not the conflict-of-interest ridden Supreme Court.  Mr. Bush became the president and held office for eight years.  Anyone can read about that outcome on our history and quality of life and judge for themselves.  But what it did then and continues to do is to throw open the perception of the Court’s ability to decide cases on their merit unsullied by any personal gain for themselves or members of their families.  Americans of every political persuasion agree that of all the courts in the land the Supreme Court must be a bastion of impartiality and, even more importantly, free of any conflicts of interest.  The Court in Bush v. Gore failed to pass that test and in doing so it undermined the public confidence in perhaps the most important and revered branch of government.  It would be a very interesting study to follow the money and/or the influence trails and their relationship to members of the court and their families in the wake of Citizens United.  That search is not likely to end in glory for certain Justices.  I would never have considered such a statement had it not been for Bush v. Gore and the widening judicial conflict-of-interest oil slick that has since been tolerated by certain members of the Court, the Congress and a nation that doesn’t seem to care.

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