Bush v. Gore to Trump v. Thompson

Hillary Clinton, a bright, very competent but fairly uninspiring neo-liberal advocate of incrementalism and espouser of the meritocracy of her fellow Ivy League high achievers, society’s best, brightest and most ambitious (since childhood), was pilloried for referring to the ‘vast rightwing conspiracy” that regularly, and damagingly, attacked her for decades.   She was not wrong about the conspiracy which has been actively and effectively changing American politics into a no-holds-barred blood match for decades now and is in sight of its goal of a permanent one-party government directly controlled by the wealthy white partisans of the 1%.  

Not all conspiracies are hatched out of unfounded social media claims, spun out wildly to millions online by bot farms in Russia and elsewhere.  Pizzagate, once conclusively disproved (even if Hillary was running a child sex farm in the basement, there was no basement in that pizza place…), metastasized into Q-Anon (not just Hillary, ALL liberals are Christ-hating cannibal pedophiles!), in the spirit of fact deniers now reflexive doubling down and doubling down until the lie is so gigantic nobody can say millions don’t already believe it (see, e.g., Ted Cruz, certification of Biden’s win must be postponed because of massive allegations of widespread fraud believed by millions).   

Not all conspiracy theories are created equal.   If you can show a straight line in concerted action, to benefit a particular group, such as the straight line wealthy ‘movement conservatives’ have been drawing since shortly after Brown v. Board of Education rocked their world by declaring segregation unconstitutional (partisan judicial activism, that unanimous decision!) then you have a conspiracy.   The conspirators don’t have to be in the same room, though they often are, as long as they are single mindedly united in advancing their movement’s common cause, especially if they work in a network of like-minded organizations that they fund with secret donations.   Case in point: attorney and president of Liberty Consulting, Ginni Thomas and her long jihad for a conservative, white, Christian fundamentalist USA. 

Bush v. Gore, the partisan 5-4 decision that decided the outcome of the 2000 presidential election was one Ginni’s husband, Clarence, should have sat out, for ethical reasons.   The Supreme Court stopped the recount in Florida on the theory that, after the Supreme Court delayed the recount until it was too late to meet the constitutional deadline for counting all the uncounted votes, that it was too late and Bush, who led by very few votes (with thousands uncounted and tens of thousands more purged from voter rolls) had to be declared the winner [1].

As for the consistent inconsistency of this transactional group’s jurisprudence and modus operandi, note that this logic — we delayed you and now you’re barred by time limits we made you miss — is identical to the “logic” Republicans used as the rationale for acquitting Trump of any wrongdoing in connection with his January 6 riot to stop the certification of Joe Biden’s victory.  McConnell refused to formally accept the articles of impeachment until after he had created a procedural Catch 22 — you can’t impeach somebody after they’ve already left office, however compelling the merits of the case might be, sorry, cucks.

Bush v. Gore prevented  “irreparable harm” to candidate George W. Bush, in a one-off political ruling it instructed posterity not to cite as a precedent (though it contained the poison pill of the independent state legislature doctrine).  The partisan 5-4 decision was placidly accepted by Gore who cited his constitutional obligation to obey the Supreme Court’s decision, stepped aside and let Bush be inaugurated after O’Connor,  Scalia, Rehnquist and Kennedy, joined by Clarence Thomas, ruled that Bush would be president, by bare Electoral College majority, Bush having one more than the necessary 270.   

Ginni Thomas worked for the Koch-funded Heritage Foundation at the time, an outfit that was busily staffing the prospective  Bush/Cheney administration.   Related organizations were on the ground stopping the Florida recount (including young partisans Boof Kavanaugh and Amy Coney Barrett, who along with John Roberts, were also dispatched to Florida — check out this unimpeachable source), including self-proclaimed rat-fucker Roger Stone’s Dade County “Brooks Brothers Riot” where a well-dressed mob he assembled managed to stop the lawful recount underway in a large Florida county Bush almost certainly lost by thousands of votes (in an election he “won” by a few hundred, and falling fast, when the Supreme Court ordered the recount to stop).  Thomas supplied the deciding vote, giving Bush one vote more than he needed for a one vote Electoral College victory.  Democracy. Nothing to see here.  Scalia also had the appearance of conflict (I think at least one son was working for the Bush campaign), but Scalia was a brilliant, slippery bastard whose overarching principle was advancing his confidently espoused religious right-wing worldview.  

Then, of course, there’s this kind of in-your-face shit, always popular among Dixiecrats and the Ku Klux Klan, very fashionable right now in right wing states’ rights activism, this from Florida prior to the 2000 election:

Here is a December 12, 2000 New York Times article about the appearance of impropriety in Thomas not recusing himself from Bush v. Gore.  This “kerfuffle” with his influential extremist wife is certainly nothing new.

A similar conflict of interest presented itself in June 2018, when Clarence Thomas cast the deciding vote on Trump’s “Muslim ban,” which barred foreign nationals from predominantly Muslim countries from traveling to the U.S. In 2017 and 2018, The New Yorker reported, Ginni Thomas’ consulting firm raked in $200,000 from a conservative nonprofit that submitted an amicus brief to the Supreme Court when it was reviewing the ban in Trump v. Hawaii, which in a 5-4 ruling led to the policy being upheld. 

Most notably, in January, Clarence Thomas stood firm as the lone dissenter in Trump v. Thompson, voting against allowing the January 6 selection committee to access president records from the Trump White House in their investigation of the Capitol riot. That decision came just a month after the panel was attacked in an open letter by Ginni Thomas, who in December called on House Minority Leader Kevin McCarthy, R-Calif., to expel Reps. Liz Cheney, R-Wyo., and Adam Kinzinger, R-Ill., from the House Republican Caucus over their roles in the probe. 

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Here’s a nice slice of the letter to Kevin McCarthy (who quickly acted on it), signed by a Who’s Who of far-right activists, including Liberty Consultants President Ginni Thomas:

The actions of Reps. Cheney and Kinzinger on behalf of House Democrats have given supposedly bipartisan justification to an overtly partisan political persecution that brings disrespect to our country’s rule of law, legal harassment to private citizens who have done nothing wrong, and which demeans the standing of the House.

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One month later, her husband, Supreme Court Justice Clarence Thomas, took part in a case crucial to the same committee’s work: former president Donald Trump’s request to block the committee from getting White House records that were ordered released by President Biden and two lower courts.

Thomas was the only justice to say he would grant Trump’s request. . .

. . . The first major case that drew national attention to that potential conflict came in 2000, when the fate of the presidential campaign between Republican George W. Bush and Democrat Al Gore came before the Supreme Court. At the time, Ginni Thomas was working with the Heritage Foundation to recommend people for jobs within a possible Bush administration. Some Democrats called for Clarence Thomas to recuse himself from hearing the case that would decide the presidency, but Ginni Thomas told the New York Times at the time that “There is no conflict” and that she rarely discussed cases with her husband.

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Well, at least we get the occasional self-reflective mea culpa from the outlying Republican:

Sandra Day O’Connor, who was one of the five votes that gave Bush and Cheney the 2000 election (when you’re a swing vote, in a pinch, you have to swing with your team), later opined that the Supreme Court intervening to declare George W. Bush the winner (by a Florida decided Electoral College majority of 271-266) of a close election he’d almost certainly lost was “probably a mistake”:

Now she tells us. More than 12 years after the fact, retired Justice Sandra Day O’Connor said it was probably a mistake for the Supreme Court to hear Bush v. Gore and anoint George W. Bush as president of the United States.

“It [should more accurately read “we” — ed.] took the case and decided it at a time when it was still a big election issue,” Justice O’Connor told the Chicago Tribune editorial board on Friday. “Maybe the court should have said, ‘We’re not going to take it, goodbye.’

She continued: “Obviously the court did reach a decision and thought it had to reach a decision. It turned out the election authorities in Florida hadn’t done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day.”

The result, she allowed, “stirred up the public” and “gave the court a less than perfect reputation.”

Granted, we don’t know for sure whether Justice O’Connor wanted to take Bush v. Gore. Only four justices have to agree to hear a case. But we do know that she sided with the majority on the actual decision, which stopped the recounting in Florida and gave a one-vote majority in the Electoral College to the man who lost the national popular vote. The ruling was a huge stain on the court’s reputation because it appeared to be — may well have been — blatantly partisan.

[1] 

While the four-member liberal minority argued that the federal courts had traditionally deferred to state courts in the interpretation of state constitutions and state election laws, the five-member majority discarded their usual posture of support for “states’ rights” when it came into conflict with the interests of the Republican Party and its ultra-right backers.

Three days later, the same 5-4 majority handed down its final ruling, declaring, in a perfect Catch-22, that the delay in the recount—caused by its own order—had made it impossible to complete a recount in time to meet the December 12 deadline for certifying electors. Accordingly, the decision of the Republican-controlled state government, awarding the electors to Bush, was upheld.

Because the three ultra-right members could not obtain agreement from two other conservatives Sandra Day O’Connor and Anthony Kennedy, to base the decision on Scalia’s Article II claim that the American people have no constitutional right to vote for president, the court majority found an entirely new legal argument to support its predetermined outcome: putting Bush in the White House.

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