Supreme Court unofficial transcript

NY Times--December 13, 2000

THE BLOOM IS OFF THE ROBE

By Maureen Dowd

CHIEF JUSTICE REHNQUIST. We'll hear argument now on No. 00- 949, President-Elect Bush and Vice President-Elect Cheney v. Albert Gore Jr. et al.

JUSTICE SCALIA. Mr. Olson, the legal predicate that seems to have slipped your muddled mind is that recounts are only triggered if there's a problem with the machinery, not in the case of voter error. Come on, Ted, do I have to plead your case for Bush, as well as hear it?

JUSTICE O'CONNOR. Well, Mr. Boies, why can't those ninnies down in Florida simply follow the instructions for voting, for goodness' sakes? At the Chevy Chase Club, my friends have been asking me why people too stupid or slack to punch a hole through a piece of paper even deserve a vote.

JUSTICE SCALIA. That's it, Sandy, baby. Suffrage, shmuffrage.

CHIEF JUSTICE REHNQUIST. Mr. Boies, you fail to grasp the concept of equal protection for the conservative justices who want to retire. I'm 76. Sandy is 70. We started out long ago, working our hearts out for Barry Goldwater, and we're pooped. My back is killing me! But we can't leave until we install a Republican president. Al Gore would replace us with that hippy-dippy Mario Cuomo or that flower child Larry Tribe, or some minority who actually cares about the rights of the dispossessed.

JUSTICE GINSBURG. Mr. Boies — may I call you David? — I love you.

JUSTICE SCALIA. Ruthie, zip it. Mr. Boies, as you surely have noticed by now, I am the Big Brain here. So I will explain what should be res ipsa loquitor, not to mention a priori. We stopped the vote-counting because if we did not, Al Gore might have won. Then I would never have had a chance to be chief justice.

I have put up with so much hokum. When they upheld Roe v. Wade. When they made all-male military academies admit women. I became bitter and marginalized. Never mind Al Gore's due process. What am I due in this process?

MR. KLOCK. If I may, Justice Brandeis —

JUSTICE SCALIA. I'm Scalia, dimwit. To continue, it may look hypocritical if

the court's conservatives suppress the will of the people and install a states'-rights president by federal fiat. I know I have spent my career fighting against muscular assertions of judicial power. But now I see that judicial tyranny, judiciously used, can be a good thing. I don't believe in making laws from the bench. But making presidents? That's different. Hey, who ever said the Constitution is engraved in stone, anyhow? Text is important, but so is subtext. Why should I prop up a pathetic pol who vilified Clarence and me during his campaign?

This court is riddled with conflicts of interest. Clarence's wife, Ginny, is

over at the Heritage Foundation gathering conservatives' résumés for possible appointments in the new administration. My son is a partner at Ted Olson's law firm. Another son just got hired by another law firm working for

Bush. But if I had recused myself, there would have been a tie. And then those radicals on the Florida Supreme Court could have been affirmed. And President Gore might have made Ruthie the chief.

JUSTICE THOMAS (to himself). If this thing runs long, I'm going to miss "Trailer Park Nurses" and "Room Servicing" on the Spice channel.

JUSTICE STEVENS. De novo, de- lightful, de-lovely. Why don't we just devise a standard to count all the votes?

JUSTICE SOUTER. I know the Bushes are furious at me. That'll teach 'em to assume that a guy living like a monk in an isolated New Hampshire farmhouse is some kind of Live Free or Die nut.

JUSTICE O'CONNOR. Mr. Boies, while we are on the subject of irreparable harm, are you aware that if I side with you, it could put in jeopardy the membership of my husband, John, in the Bohemian Grove? He does so enjoy his week of stag frolicking and drag shows in the California redwoods with President Bush, Cap Weinberger, Bill Buckley, David Rockefeller and Henry Kissinger.

CHIEF JUSTICE REHNQUIST. We're dropping in the polls on the question of our fairness, but we still need to anoint Bush president. It's best for us. We'll just have to work harder to hide the truth: that we are driven by all the same petty human emotions as everybody else in this town — ambition, partisanship, political debts and revenge.

MR. KLOCK. How true, Chief Justice Holmes.

Times (London)--December 16, 2000

AMERICA HAS SEEN IT ALL BEFORE, MR BUSH

Column by Ben Macintyre

He was the eldest son of a President, ambitious to repeat his father’s achievement. After the father had run for a second term and been soundly defeated, the son — who had the same name but a different middle initial — made his own bid for the presidency. He failed to win the popular vote, yet after weeks of bitter wrangling he finally made it to the White House.

“Fellow citizens, you are acquainted with the peculiar circumstances of the recent election,” John Quincy Adams, the son of former President John Adams, declared in his victory speech of 1825. “Less possessed of your confidence in advance than any of my predecessors, I am deeply conscious of the prospect that I shall stand more and oftener in need of your indulgence.”

George W. Bush, the son of former President George Bush, did not express matters in quite the same way, but the thrust of his speech was similar. “Our country has been through a long and trying period . . . whether you voted for me or not, I will do my best to serve your interests, and I will work to earn your respect.”

There are eerie parallels between the elections of George W. Bush and John Quincy Adams, the scions of one-term Presidents who had expected to walk into the White House but found themselves having to fight for the prize long after the votes had been cast. Adams won only after one of the other candidates agreed to back him, and was given a Cabinet position. There were accusations of corruption.

The younger Bush and the younger Adams could hardly have been more different personalities — Adams was a puritan intellectual of such caustic temperament he was rumoured to drink “sulphuric acid in his tea” — and they had starkly contrasting relationships with their fathers.

John Quincy Adams was fiercely independent. He was so much his own man that he even backed Thomas Jefferson, the man who had ousted his father from office, on a point of principle. John Adams delighted in his son’s self-direction. “You have too honest a heart, too independent a mind, and too brilliant talents, to be sincerely and confidentially trusted by any man who is under the domination of party maxims.”

Adams chafed at the idea that he had risen to power on his father’s coat-tails, but he conceded: “I cannot escape my destiny.” America’s dour second President followed his son’s progress keenly, but kept his distance. When John Quincy Adams was finally elected, the father wrote him a one-sentence letter: “This is not an event to excite vanity.”

George W. Bush, on the other hand, has clearly and intentionally fashioned his presidential rise and his political philosophy around that of his father. The two are in almost daily contact; the father’s friends and associates bankrolled much of the son’s campaign and when the legal earthquake erupted in Florida, it was to James Baker, his father’s silky henchman, that the son turned. As yet we know of only five certain Cabinet appointments by Bush, and every single one worked under the father. He has promised to reach across the political chasm, as he urgently needs to do, but so far he has surrounded himself with old-style conservative Republicans of the Richard Cheney stamp.

It is only natural that the 43rd President should want to consult the 41st; father and son are close and the elder Bush had a knack for picking good and

loyal advisers. Yet there is real danger for the new President in appearing beholden to his father. When the elder Bush emerged during the primaries to present “this boy of ours”, George W’s ratings slumped dramatically. The perils of appearing to be Daddy’s Boy are even greater in a political atmosphere seething from an astonishingly close election and a ferocious legal struggle. Oddly enough, the shadow that looms most dangerously over the second President Bush may be that of the first President Bush.

Bush needs to distance himself from his father’s era, and swiftly. Had he won the election more emphatically, the return of so many familiar faces might not matter. But Democrats are already looking for vengeance, and the perception that this presidency is a “retread” can only diminish what is already a fragile mandate.

The President-elect’s life and career has always been moulded and driven, through example more than intent, by his father. Now that he has stepped into his father’s place, he cannot be seen to be his father’s creation.

George W. is acutely aware of the pitfalls in his presidential parentage. In

1988, with his father heading for the White House, the younger Bush commissioned a secret 44-page report on what became of the children of past Presidents. He was so sobered by the implications of what he discovered — the rampant alcoholism, the depression, the failed political careers — that he ordered all copies to be destroyed.

If George W has done too little to distinguish himself from his father, then

John Quincy may have done too much. His prickly independence endeared him to

few, and the second Adams presidency was unremarkable.

There is one more historical warning that George W may ponder as he prepares to become only the second son in history to follow his father into the White

House. John Quincy was a one-term President. The famously wooden former Senator from Tennessee who had won the popular vote but lost the fight in 1825 came roaring back four years later, accusing his opponent of stealing the previous election. Adams was trounced.

The revenge exacted by Andrew “Old Hickory” Jackson on John Quincy Adams may be precisely what Al Gore has in mind for George W. Bush in 2004.