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THE IMMEDIATE AFTERMATH of Bush v. Gore saw widespread concern about the legitimacy of the U.S. Supreme Court’s ruling. As discussed elsewhere in this book, the justices were bitterly divided over how to decide the case. Although seven members of the court joined the per curiam opinion that Florida’s “clear intent of the voter” standard governing manual recounts violated the equal protection clause of the Fourteenth Amendment of the U.S. Constitution, the core question—whether the manual recounts the Florida Supreme Court ordered could continue—was decided by a razor thin 5–4 vote. Many charged that the Court’s decision was politically motivated. The closeness of the vote to stop further recounts reinforced that concern, as did the breakdown of that vote (the more conservative justices voted to stop the recount and the more liberal justices dissented). Critics noted that justices on both sides seemed to reverse their usual stance on states’ rights to justify their conclusion in this case and that the embrace of equal protection by the conservative members of that 5–4 majority seemed inconsistent with their approach to equal protection in other cases (Dworkin 2001, 9; Gillman 2001, 162–63). E. Joshua Rosenkranz, president of the Brennan Center for Justice at New York University’s School of Law, wrote that the majority’s unusual caveat that its equal protection claim was confined only to the particular recount in this particular case was especially revealing (see Bush v. Gore, 121 S.Ct. 525 (2000), at 532). As Rosenkranz puts it, the 225 ELEVEN The Impact of Bush v. Gore and Election 2000 on the Judicial Selection Process John Anthony Maltese caveat transformed the majority’s “apparent love affair with political equality ” into “just a one-night stand” (Rosenkranz 2001). The result, he suggested , was a carefully calculated embrace of equal protection designed to achieve a particular political outcome. Even Justice John Paul Stevens suggested that the ruling amounted to a self-inflicted wound that would undermine the Court’s legitimacy. In a widely quoted portion of his dissent, Stevens wrote: It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law. (Bush v. Gore 2000, Stevens’ dissent at 542) The initial concern that Bush v. Gore would undermine the Court’s legitimacy was particularly pronounced among legal scholars and media commentators (Gillman 2001, 165). The New York Times ran an advertisement condemning the Court’s ruling on January 13, 2001. It was signed by 524 law professors who charged that “the U.S. Supreme Court used its power to act as political partisans, not judges of a court of law.” The number of signatories rose to 655 after the ad’s publication (Mauro 2001). The ruling also provoked discord closer to the court itself. Several members of the Supreme Court bar (those lawyers who are eligible to argue cases before the Court) resigned in protest—a virtually unprecedented reaction to a single case (Biskupic 2000). The media fueled speculation that the decision had spurred ongoing tensions among the justices themselves. For example, Newsweek reporter David Kaplan (2001) reported that when members of the Supreme Court hosted a conference with members of the Constitutional Court of the Russian Federation on January 9–10, 2001, Justice Stephen Breyer said in front of his colleagues that the ruling was “‘the most outrageous, indefensible thing’ the court had ever done” (34). Letters expressing anger about the decision poured into the Supreme Court. Legal affairs reporter Joan Biskupic (2000, A1) explained that although “certain justices have been barraged by mail after controversial rulings,” it is “rare that the entire Court is swamped with letters ” as it was in the wake of Bush v. Gore. In his annual year-end report to Congress on the federal judiciary, Chief Justice William Rehnquist (2001) addressed the issue in his opening paragraph . He wrote that the 2000 election had “tested our constitutional system in ways it has never been tested before.” Although he noted the orderly transition to power in the...


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