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Theft of the Election, Redux

Why 2000 was Prelude to 2004 -- and the Democratic Party Got Mugged a Second Time.
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BuzzFlash > News Analysis > Theft of the Election, Redux.
BuzzFlash News Analysis

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December 15, 2004

Theft of the Election, Redux.

Why 2000 was Prelude to 2004 -- and the Democratic Party Got Mugged a Second Time.

A BUZZFLASH NEWS ANALYSIS

In case you missed it, an exhaustive 23,422-word Vanity Fair article, published just prior to the election (October), spilled the beans that at least four of the five Supreme Court justices who stole the election from Al Gore did it with willing forethought. And the fifth, Justice Kennedy, who came up with the hypocritical, convoluted reason for awarding the election to Bush, was probably just pretending to be "open-minded."

In short, the story, the first one to reveal the inside machinations of the infamous decision of 2000, confirmed that this wasn't a judicial decision that decided the election 4 years ago; it was a premeditated theft of democracy from the American voters.

The partisan choice of five justices -- led by the judicial right-wing molotov-cocktail throwing Nino Scalia -- outweighed the selection of the American people.

Why is this important now? Because it confirms that the Bush Cartel will do and did everything to win -- and it doesn't take a leap of imagination or common sense to speculate that with four years in office, they were able to heist the election this time without a nod and a wink to Nino and his right wing ship of judicially radical pirates.

What we forget in our focus on Ohio is that the Republicans, through dirty tricks, voter suppression and intimidation, faulty felons' lists, and the deep-sixing of tens of thousands of Kerry votes -- among other anti-democracy tactics -- probably had the election heisted before the polls even opened. They privatized the counting of votes of Americans and turned it over to companies deeply ensconced in the Republican camp and Republican politics, with checkered histories and Republican ownership. They intentionally mis-registered college students, threw away the registration forms of perhaps tens of thousands of Democrats, and lost more than 55,000 absentee ballots in Jewish/Democratic leaning Broward County, FL, alone. And this list is just for starters.

The Bush rogue regime was born a bastard child by a fixed Supreme Court vote and now controls the process by which any investigation of voting irregularities would be pursued. Indeed, Ken Blackwell, one of the two key Rove 2004 Katherine Harrises (along with Florida Secretary of State Hood), wrote Congressman John Conyers just this week that only the Department of Justice or the GAO had the authority to investigate voting in Ohio. So, two agencies under the Republicans, who Blackwell has just declared the winner of the Presidency, are the only ones Blackwell would allow to investigate their victory. It's a tactic worthy of Stalin -- and the Bush Cartel is one terrorist attack short of achieving full dictatorship powers, while the nation sleeps.

So what happened in the Supreme Court in the fateful days following the election of 2000? You should find someplace to read or still buy a back edition of the October, 2004, Vanity Fair, because they don't have the article we are about to discuss on their website (http://www.vanityfair.com/).

Be patient, as we walk you through a few select, edited, passages from this pivotal journalistic article in the publication edited by Haydon Carter, author of "What We've Lost," a courageous man who continually exposes the Bush crimes against America and the world.

The following writing is from Vanity Fair and is copyright of Vanity Fair. Please read the entire article, "The Path to Florida," within the October Vanity Fair -- and subscribe to the magazine (even if you are not into celebrities) for its commentaries by Haydon Carter and insightful articles on the Bush ship of fools and scoundrels.:

As the Florida recount ate away at George W. Bush's margin of victory (1,784 votes ...327 ...154 ... ), the machinery of political power sprang to life. In Washington, stunned U.S. Supreme Court clerks watched justice become partisan, while in Florida, tens of thousands of citizens-thousands of them African-American-found themselves disenfranchised by misleading, faulty, and uncounted ballots, or inexplicably purged from the rolls. Zeroing in on the frenzied 36 days that followed the 2000 election, David Margolick, Evgenia Peretz, and Michael Shnayerson investigate the "Brooks Brothers riot," Jeb Bush's high-tech felon hunt, and the new voting machines that leave no paper trail, and ask, "Could it happen again?"

Shortly after the presidential vote in November 2000, two law clerks at the United States Supreme Court were joking about the photo finish in Florida. Wouldn't it be funny, one mused, if the matter landed before them? And how, if it did, the Court would split five to four, as it so often did in big cases, with the conservative majority installing George W. Bush in the White House? The two just laughed. It all seemed too preposterous.

Moreover, the very jurists who'd normally side with Bush were the ones most solicitous of states' rights, most deferential to state courts, most devoted to the Constitution's "original intent"-and the Founding Fathers had specifically provided that the Congress, not the judiciary, would resolve close elections.

The commentators agreed. The New York Times predicted that the Court would never enter the Florida thicket. A law professor at the University of Miami pegged Bush's chances before the tribunal at "between slim and none, and a lot closer to none."

It all turned out very differently, of course, and the Court, by the very margin that the incredulous clerk envisaged, put George W. Bush in the White House. Now out in the working world, the two clerks, along with most of their colleagues who worked for the four liberal justices and the occasional conservative justice, remain angered, haunted, shaken, and disillusioned by what they saw. They'd learned in their elite law schools that the law was just and that judges resolved legal disputes by nonpartisan analysis of neutral principles. But Bush v. Gore, as seen from the inside, convinced them they'd been sold a bill of goods.

The 2000 election in Florida shook Americans from all walks of life and of all political persuasions. Many were left wondering about the viability of America's democratic system. Much has changed since the election's frenzied aftermath, in which hordes of reporters jammed the streets of Tallahassee, Palm Beach, and Miami, chasing ballots and lawyers for 36 days before the presidency was called by a margin of 537 votes out of the six million cast in Florida. But Florida is a state with a history of disenfranchising blacks-a legacy that seemed all too current in 2000. And the president's brother is still governor.

Could it happen again? [Here, Vanity Fair presented evidence on how it could happen again, as many would argue it did. There would be more focus on Florida than Ohio in the election's aftermath, but Jeb's in charge of Florida and pro-democracy advocates have tacitly conceded that it is a lost cause to take him on again.]

At 2:16 a.m., November 8, 2000, six hours after the networks projected that Florida would go to Gore, a young hotshot at Fox News named John Ellis, who happened to be George W. Bush's cousin, called the state-and the election-for Bush. Within four minutes, ABC, CBS, NBC, and CNN followed suit. "It was just the three of us guys handing the phone back and forth," Ellis would later say to The New Yorker. "Me with the numbers, one of them a governor, the other the president-elect. Now, that was cool."

Gore phoned Bush to offer his congratulations, but as he made his way from campaign headquarters at his Nashville hotel to the War Memorial to give his concession speech, Nick Baldick, his chief operative in Florida, saw that something was seriously amiss. A computer glitch, it turned out. Baldick watched the Bush lead wither with each new report.

By the time Gore pulled up to the memorial, he was trailing statewide by fewer than 2,000 votes.

Gore called Bush again, and the conversation went something like this:

"Circumstances have changed dramatically since I first called you," Gore told him. "The state of Florida is too close to call."

"Are you saying what I think you're saying?" Bush asked. "Let me make sure I understand. You're calling back to retract your concession?"

"You don't have to be snippy about it," said Gore.

Bush responded that the networks had already called the result and that the numbers were correct-his brother Jeb had told him.

"Your little brother," Gore replied, "is not the ultimate authority on this."

None of these irregularities would be addressed by the automatic recount, which at best would merely check the totals of successfully cast votes. Manual recounts would be needed to judge the more questionable votes.

James Baker, another ex-secretary of state, dug in like a pit bull. Unlike [Warren] Christopher and company, Baker spoke to the press loudly and often, and his message was Bush had won on November 7. Any further inspection would result only in "mischief." Privately, however, he knew that at the start he was on shaky political ground. "We're getting killed on 'count all the votes,'" he told his team. "Who the hell could be against that?"

Baker saw his chance that Thursday, November 9, when the Gore team made a formal request for a manual recount in four counties: Volusia, Palm Beach, Broward, and Miami-Dade. Asking for a recount in these large, Democrat-dominated counties left the Gore team fatally vulnerable to the charge that they wanted not all votes counted, as Gore kept claiming in his stentorian tones, but only all Gore votes. Yet the Bush team knew full well that Gore could not have asked for a statewide recount, because there was no provision for it in Florida law. A losing candidate had 72 hours to request a manual recount on a county-by-county basis or wait until the election was certified to pursue a statewide recount.

The automatic recount was finished on November 9, and for the Bush team the news was sobering. Though many of Florida's 67 counties "recounted" merely by looking at their previous tallies, Bush's lead had shrunk from 1,784 votes to 327. Gore votes, it seemed, were everywhere.

Sure enough, the Bush campaign asked the Court to stay the decision and halt the recount. In a highly unusual move, Scalia urged his colleagues to grant the stay immediately, even before receiving Gore's response. Gore had been narrowing Bush's lead, and his campaign expected that by Monday he would pull ahead. But Scalia was convinced that all the manual recounts were illegitimate. He told his colleagues such recounts would cast "a needless and unjustified cloud" over Bush's legitimacy. It was essential, he said, to shut down the process immediately. The clerks were amazed at how baldly Scalia was pushing what they considered his own partisan agenda.

In the meantime, the conservative justices began sending around memos to their colleagues, each of them offering a different rationale for ruling in Bush's favor; to the liberal clerks, it was apparent that the conservatives had already decided the case and were merely auditioning arguments. So eager was the majority to stop the recount, one clerk recalls, that Stevens had to plead for more time to complete his dissent.

Finally, shortly before three o'clock, the Court granted the stay. No more votes would be counted.

But to the liberal clerks it was all over. The brother of a Ginsburg clerk, who covered legal affairs for The Wall Street Journal, had learned that the paper would soon report how, at a party on Election Night, O'Connor was overheard expressing her dismay over Gore's apparent victory. Once that information became public, the liberal clerks felt, O'Connor would have to step aside. When, on the night before the Court convened, she sent out a sealed memo to each of her colleagues, those clerks hoped this had actually come to pass. In fact, she was merely stating that she, too, felt the Florida Supreme Court had improperly usurped the state legislature's power.

O'Connor railed against what she suggested was the stupidity of Florida's voters, who were too dumb or too clumsy to puncture their ballots properly. "Well, why isn't the standard the one that voters are instructed to follow, for goodness' sake?" she asked. "I mean, it couldn't be clearer." Boies tried to explain that for more than 80 years Florida's courts had in fact focused on the intent of the voter rather than the condition of his ballot, but this was one instance for the Rehnquist Court in which deference to the states, and precedent, didn't matter.

Sensing trouble, the Bush camp gave her [Katherine Harris] a "minder": Mac Stipanovich, a coolly efficient Republican lobbyist who worked in Tallahassee. Stipanovich had served as a campaign adviser for Jeb in his first, unsuccessful run for governor, in 1994, and he had remained closely aligned with him ever since. Stipanovich appealed to Harris's grandiosity. He told her that nothing less than the course of history rested on her shoulders. "You have to bring this election in for a landing," he repeated again and again.

On Friday, November 10, three of Gore's four target counties-Miami-Dade, Broward, and Palm Beach-which all used punch-card voting machines, started to weigh whether to conduct manual recounts of, at first, 1 percent of their ballots, and then, if the results were dramatic, the other 99 percent. At issue were "undervotes," meaning blank or incompletely filled-out ballots. While totally blank ballots could hardly be counted, what about, in the case of the punch-card machines, ballots where the puncher, or stylus, hadn't quite gone through?

In those counties using optiscan machines, manual recounts also had to consider "overvotes," where voters appeared to have cast more than one vote in a contest. (In 2000, a majority of Florida's counties-41 of 67-had optiscans. A voter filled in ovals next to his candidates of choice on a paper ballot and then fed it into the optiscan, which looked rather like a street-corner mailbox. The ballot was then recorded electronically.) No one would dispute that some overvotes had to be put aside-when, for example, a voter had filled in the ovals next to Bush's name as well as Gore's. But some voters had filled in the Gore oval and then written "Al Gore" next to it. Should those ballots be nixed? For that matter, a stray pencil mark on an otherwise properly filled-in ballot would cause the ballot to be rejected as an overvote by an optiscan voting machine. Shouldn't these all be examined, since the gold standard of Florida election law was voter intent? There were, in all, 175,000 overvotes and undervotes.

Harris and Stipanovich couldn't tell the four target counties how to do their l percent recounts-at least, not directly. But they could, and did, send a young, strawberry-blonde lawyer named Kerey Carpenter to offer help to Palm Beach County's three- person canvassing board. According to the board's chairman, Judge Charles Burton, Carpenter mentioned she was a lawyer, but not that she was working for Katherine Harris.

At one point, when the recount had produced 50 new Gore votes, Burton, after talking to Carpenter, declared the counting would have to start again with a more stringent standard-the punched-out paper chad had to be hanging by one or two of its four corners. By this stricter standard, Gore's vote gain dropped to half a dozen. Carpenter also encouraged Burton to seek a formal opinion from Harris as to what grounds would justify going to a full manual recount. Burton happily complied.

That Monday, November 13, Harris supplied the opinion. No manual recount should take place unless the voting machines in question were broken. Within hours, a judge overruled her, declaring the recounts could proceed as planned. Harris countered by saying she would stop the clock on recounts the next day, November 14, at 5 p.m.-before Palm Beach and Miami-Dade had even decided whether to recount, and before Broward had finished the recount it had embarked upon. (Only Volusia, far smaller than the other three counties, was due to finish its recount by November 14, in time to be counted on Harris's schedule.)

James Baker, the Bush team's consigliere, issued a public threat after the Florida Supreme Court's maddening decision. If necessary, he implied, Florida's leading Republican legislator, incoming House Speaker Tom Feeney, would take matters into his own hands. What Feeney proposed, on Tuesday, November 21, was to vote in a slate of electors pledged to George W. Bush-no matter what. Since both the state House and Senate were Republican-dominated, he could pass a bill to do that.

In Miami-Dade that week, a manual recount of undervotes began to produce a striking number of new votes for Gore. There, as in Palm Beach and Broward, fractious Democratic and Republican lawyers were challenging every vote the canvassing board decided. In Miami-Dade, Kendall Coffey, tall and gaunt, was the Democrats' eyes and ears. As the Gore votes accumulated, he recalls, "panic buttons were being pushed."

On Wednesday, November 22, the canvassing board made an ill-fated decision to move the counting up from the 18th floor of the Clark Center, where a large number of partisan observers had been able to view it, to the more cloistered 19th floor. Angry shouts rang out, and so began the "Brooks Brothers riot."

Several dozen people, ostensibly local citizens [but really DeLay Congressional staffer loyalists], began banging on the doors and windows of the room where the tallying was taking place, shouting, "Stop the count! Stop the fraud!" They tried to force themselves into the room and accosted the county Democratic Party chairman, accusing him of stealing a ballot. A subsequent report by The Washington Post would note that most of the rioters were Republican operatives [organized by Tom DeLay and a shady, ubiquitous GOP operative named Roger Stone], many of them congressional staffers.

Elections supervisor David Leahy would say that the decision to stop counting undervotes had nothing to do with the protest, only with the realization that the job could not be completed by the Florida Supreme Court's deadline of November 26. Yet the board had seemed confident, earlier, that it could meet the deadline, and the decision to stop counting occurred within hours of the protest.

The day before Thanksgiving, the Bush campaign turned to the United States Supreme Court. Claiming that the situation in Florida had degenerated into a "circus," it asked the high court to stop everything, and cited two highly technical federal issues for it to consider. The first, based on an obscure law from 1887, prohibited states from changing the rules after the date of that election. The second, a jurisdictional issue, was that by stepping into the case the Florida Supreme Court had usurped the Florida legislature's exclusive powers to set the procedures for selecting electors, as provided for by Article II of the United States Constitution. The Bush lawyers claimed, too, that the selective recounts violated constitutional guarantees of due process and equal protection-meaning the different criteria for recounting the ballots did not give equal rights to all voters.

Bush's petition for certiorari-that is, for the Court to take the case-went initially to Justice Anthony Kennedy, whose task it was to consider all emergency motions from Florida, Georgia, and Alabama. Batting aside a Thanksgiving Day plea from the Gore campaign to pass on the case, Kennedy urged his colleagues to take it on, suggesting that the Court was absolutely the essential arbiter of such weighty matters.

When Kennedy's memo circulated, one flabbergasted clerk had to track down Justice John Paul Stevens on the golf course in Florida and read it to him over the phone. Under the Court's rules, Kennedy needed only three votes beside his own for the Court to hear the matter. Quickly, the four others who make up the Court's conservative block signed on: Chief Justice William Rehnquist, along with Justices Antonin Scalia, Clarence Thomas, and Sandra Day O'Connor. In an unsigned order the day after Thanksgiving, the Court agreed to consider the two more technical arguments, spurning the equal-protection claim, and set down an extraordinarily expedited calendar. Normally, arguments are scheduled many months in advance. Now briefs were due the following Tuesday, with oral arguments set for December 1-only a week away. Clerks and justices scotched their vacations and stuck close to the Court; Scalia's clerks ended up having Thanksgiving dinner together. The clerks for the liberal justices watched the events unfold with dismay.

The liberal clerks were pessimistic. Why, they asked, would a majority of the Court agree to consider the Florida ruling unless they wanted it overturned and the recount shut down?

Certainly, that was what the justices who'd opposed taking the case believed. Convinced the majority would reverse the Florida court, they began drafting a dissent even before the case was argued in court.Certainly, that was what the justices who'd opposed taking the case believed. Convinced the majority would reverse the Florida court, they began drafting a dissent even before the case was argued in court. It was long -- about 30 pages -- and elaborate, written principally by Justice Stevens, then 80, the most senior of the would-be dissenters and, largely by default, the Court's most liberal member, even though a Republican, President Gerald R. Ford, had appointed him. With the assistance of Justices Stephen Breyer, David Souter, and Ruth Bader Ginsburg, Stevens laid out why the Court should never have accepted the case.

At a dinner on November 29, attended by clerks from several chambers, an O'Connor clerk said that O'Connor was determined to overturn the Florida decision and was merely looking for the grounds. In this instance, one clerk recalls, "she thought the Florida court was trying to steal the election and that they had to stop it."

In 2000, as in most years, that system surrounded Kennedy with true believers, all belonging to the Federalist Society, the farm team of the legal right. "He had four very conservative, Federalist Society white guys, and if you look at the portraits of law clerks on his wall, that's true 9 times out of 10," another liberal law clerk recalls. "They were by far the least diverse group of clerks."

It was unusual, then, for a conservative clerk to visit the chambers of a justice on the other side. But that is what Kevin Martin, a clerk for Scalia, did on November 30 when he stopped by Stevens's chambers. Martin had gone to Columbia Law School with a Stevens clerk named Anne Voigts; he thought that connection could help him to bridge the political divide and to explain that the conservative justices had legitimate constitutional concerns about the recount. But to two of Voigts's co-clerks, Eduardo Penalver and Andrew Siegel, Martin was on a reconnaissance mission, trying to learn which grounds for reversing the Florida court Stevens would consider the most palatable. They felt they were being manipulated, and things quickly turned nasty. "Fuck off!" Martin finally told them before storming out of the room.

Once the arguments were over, the justices met for their usual conference. At the poles were Stevens and Scalia-the one wanting to butt out of the case altogether and let the political process unfold, the other wanting to overturn the Florida Supreme Court and, effectively, to call the election for Bush. But neither had the votes. Eager to step back from a constitutional abyss, convinced the matter could be resolved in Florida, the Court punted. Rehnquist began drafting a ruling simply asking the Florida Supreme Court to clarify its decision: whether it had based its ruling on the state constitution, which the Bush team had said was improper, or had acted under state statute, which was arguably permissible.

By December 4, all nine justices had signed on to the chief justice's opinion. The unanimity was, in fact, a charade; four of the justices had no beef at all with the Florida Supreme Court, while at least four others were determined to overturn it. But this way each side could claim victory: the liberal-to-moderate justices had spared the Court a divisive and embarrassing vote on the merits, one they'd probably have lost anyway. As for the conservatives, by eating up Gore's clock-Gore's lawyers had conceded that everything had to be resolved by December 12-they had all but killed his chances to prevail, and without looking needlessly partisan in the process. With the chastened Florida court unlikely to intervene again, the election could now stagger to a close, with the Court's reputation intact, and with Bush all but certain to win.

On Friday, December 8, however, the Florida Supreme Court confounded everyone by jumping back into the fray. By a vote of four to three, it ordered a statewide recount of all undervotes: the more than 61,000 ballots that the voting machines, for one reason or another, had missed. The court was silent on what standard would be used-hanging vs. pregnant chads-and so each county, by inference, would set its own.

Sure enough, the Bush campaign asked the Court to stay the decision and halt the recount. In a highly unusual move, Scalia urged his colleagues to grant the stay immediately, even before receiving Gore's response. Gore had been narrowing Bush's lead, and his campaign expected that by Monday he would pull ahead. But Scalia was convinced that all the manual recounts were illegitimate. He told his colleagues such recounts would cast "a needless and unjustified cloud" over Bush's legitimacy. It was essential, he said, to shut down the process immediately. The clerks were amazed at how baldly Scalia was pushing what they considered his own partisan agenda.

Rehnquist moved up the conference he'd scheduled for the next day from 1 in the afternoon to 10 that morning. In the meantime, the conservative justices began sending around memos to their colleagues, each of them offering a different rationale for ruling in Bush's favor; to the liberal clerks, it was apparent that the conservatives had already decided the case and were merely auditioning arguments.

This time, there would be no papering over the divisions. Arrayed against the five conservative justices wishing to stop the recount were their four colleagues, who'd voted initially not to hear the case. Justice Stevens would write for them; so eager was the majority to stop the recount, one clerk recalls, that Stevens had to plead for more time to complete his dissent. What he wrote-that "counting every legally cast vote cannot constitute irreparable harm"- so provoked Scalia that, as eager as he was to halt the recount, he delayed things by dashing off an angry rejoinder, largely reiterating what he'd told the justices the previous night. "Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires," he argued, forecasting that a majority of the Court would ultimately rule in Bush's favor on the merits.

"The Court had worked hard to claim a moral high ground, but at that moment he pissed it away," one recalls. "He'd [Scalia] made our case for us to the public about how crassly partisan the whole thing was." Scalia's opinion held up release of the order for an hour. Finally, shortly before three o'clock, the Court granted the stay. No more votes would be counted. Oral arguments were set for the following Monday, December 11.

When Gore's lawyers came to the Supreme Court for oral arguments on the morning of December 11, they felt that the Bush team's jurisdictional argument, that the Florida Supreme Court had overstepped its bounds, was a loser because it emasculated one appellate court more than any other appellate court would ever want to condone. And, though they didn't know it, Justice Kennedy agreed with them. In a memo circulated shortly before he took the bench, he endorsed what O'Connor had written the night before, but declared that it would not be enough: to carry the day, he argued, the conservative justices needed to assert that evaluating ballots under different standards in the various counties violated the equal-protection clause.

Up to now, this argument had received scant attention from the clerks, the litigants, or even the justices-and understandably so. Even in the best of circumstances, voting procedures were riddled with inconsistencies, beginning with the use of systems of wildly varying reliability, such as punch cards and optiscan machines, in different jurisdictions. Voters, often poor or black, in counties with older machines were far less likely to have their votes counted than those in wealthier jurisdictions, and nobody ever heard a peep from the Supreme Court about unconstitutionality. Moreover, the Rehnquist Court had always stingily construed the equal-protection clause of the 14th Amendment, enacted after the Civil War to protect freed slaves, applying it only when discrimination was systematic, blatant, intentional, incontrovertible. It was not surprising, then, that the Court had originally declined to hear arguments on the point, or that, when they returned to the Court, Bush's lawyers had given those arguments only 5 pages in a 50-page brief.

But here was Kennedy dusting it off. And not as some academic exercise, but as the very basis of the Court's decision. The Court already had its majority. Now it had its rationale.

O'Connor railed against what she suggested was the stupidity of Florida's voters, who were too dumb or too clumsy to puncture their ballots properly. "Well, why isn't the standard the one that voters are instructed to follow, for goodness' sake?" she asked. "I mean, it couldn't be clearer." Boies tried to explain that for more than 80 years Florida's courts had in fact focused on the intent of the voter rather than the condition of his ballot, but this was one instance for the Rehnquist Court in which deference to the states, and precedent, didn't matter.

Breyer and Souter saw Kennedy's new focus on equal protection as an opportunity, suggesting during oral argument that if there were problems with the fairness of the recount the solution was simple: send the case back once more to the Florida Supreme Court and ask it to set a uniform standard. Breyer, whose chambers were next door to Kennedy's, went to work on him personally. An affable and engaging man, Breyer has long been the moderates' most effective emissary to the Court's right wing. But the politicking went both ways; at one point, Kennedy stopped by Breyer's chambers and said he hoped Breyer would join his opinion. "We just kind of looked at him like he was crazy-'We don't know what you're smoking, but leave us alone'-and he went away," a clerk recalls.

Given the approaching deadline, Rehnquist decreed after oral arguments that any decision to send the case back to Florida had to be handed down immediately; were the Court to reverse, time would cease to matter, and the decision could wait a day. Stevens banged out a one-paragraph opinion, remanding the case to Florida, and sent it around. "It seemed like a Hail Mary to me," recalls a clerk in one of the conservative chambers. There were no takers. The Court was going to reverse, and throughout Monday evening and into Tuesday morning the two sides drafted and circulated their proposed opinions. Rehnquist was writing what he thought would be the majority opinion, reversing the Florida court on both the jurisdictional and equal-protection grounds. Stevens was drafting the principal dissent; it would reiterate what he'd written in the unused dissent from the first round, but shorn of all legalese, in order to be easily understood by ordinary people. It chastised the Court for holding the justices of the Florida Supreme Court up to ridicule. "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 stated. "It is the Nation's confidence in the judge as an impartial guardian of the rule of law."

The other dissenters would join Stevens, but had their own points to make. Because they, too, believed the case would hinge primarily on the autonomy of the Florida legislature, they dealt only secondarily, and peripherally, with the equal-protection argument. Stevens and Ginsburg denied that it applied at all. For better or worse, Ginsburg wrote, disparities were a part of all elections; if there were any equal-protection concerns at all, she wrote, they surely applied more to black voters, noting a New York Times report that a disproportionate number of blacks had encountered problems voting. Though racial questions already hung over the Florida vote, hers was to be the only reference to race in any of the opinions, and it was relegated to a footnote. But to the liberal clerks, these issues needed to be acknowledged, and a footnote was better than nothing at all.

As the drafts began circulating, tempers began to fray. In an unusual sealed memo-an unsuccessful attempt to avoid the clerks' prying eyes-Scalia complained about the tone of some of the dissents. He was, he confessed, the last person to criticize hard-hitting language, but never had he, as the dissenters were now doing, urged the majority to change its decision based on its impact on the Supreme Court's credibility. He charged that his opponents in the case were inflicting the very wounds to the Court that they had supposedly decried. As Jeffrey Toobin first reported, he objected in particular to what he called the "Al Sharpton footnote" in Ginsburg's dissent: her comment on Florida's disenfranchised black voters. Whether out of timidity, collegiality, or affection-Scalia was her closest friend on the Court-Ginsburg promptly took it out. "It was the most classic example of what kind of bully Scalia is," says one clerk, who called Scalia's complaint "an attempt to stifle legitimate discourse worthy of Joe McCarthy." As for Ginsburg, this clerk says her response "showed a lack of courage."

Despite their loyalty to their justices-a striking, filial-like phenomenon among most clerks-several concede that the dissenters in Bush v. Gore were simply outmaneuvered. Never did the four of them have the votes to prevail. But first by endorsing a decision suggesting that the Florida Supreme Court had overstepped its bounds, then by appearing to buttress the majority's equal-protection claims, the dissenters had aided and abetted the enemy. "They gave just enough cover to the five justices and their defenders in the press and academia so that it was impossible to rile up the American people about these five conservative ideologues stealing the election," one clerk complains. In the meantime, Bush's lead had diminished to 154 votes

(End of edited material from October, 2004, Vanity Fair Article. Italics were inserted by BuzzFlash.com. Subscribe to Vanity Fair by going to http://www.vanityfair.com/)

So here was a damning indictment that revealed, from inside participants, that a right wing judicial coup had stolen a Presidential election -- and that Nino Scalia had played the role of a ward hack who would stop at nothing to install his candidate, whatever the will of the voters.

How did the mainstream press respond? With virtually deafening silence and some ridicule.

The Washington Post, in its "Style Section" on Sunday, October 17th, ran an article that was laughably ludicrous, if the issue of the theft of democracy had not been at stake. It was headlined, "In Court's Breach, a Provocative Precedent."

Did the story discuss how legal scholars were expressing outrage at the conduct of the felonious five?

No.

Lawyers are buzzing -- but the buzz centers less on the article's content than the fact that some of the brilliant, ambitious young men and women who work for the justices broke their vow of silence.

"Since 'The Brethren: Inside the Supreme Court' [the 1979 Supreme Court expos? by Bob Woodward and Scott Armstrong], I don't think there has been another case where law clerks spoke so openly to the press about the inner workings of the court," says Noah Feldman, a professor of law at New York University and ex-clerk for Justice David H. Souter. "I'm shocked."

Roll back the tape please, "Lawyers are buzzing -- but the buzz centers less on the article's content than the fact that some of the brilliant, ambitious young men and women who work for the justices broke their vow of silence."

The Vanity Fair article was 23422 words in length on how five justices were the only voters that ended up deciding an American election for president -- and the Washington Post says that the content of the story didn't matter. Good lord, "No!", what's really shocking, the Post wants us to believe, is that some law clerks revealed the workings of a crime against democracy and violated their Supreme Court "honor" by telling the truth! In short, if you see a felony being committed against America, don't come forth as a witness, but honor the Federalist Society/Bush code of Omerta.

The mainstream media in America today could work for that funny looking guy running North Korea and not miss a beat.

Democracy, voting, content -- none of this matters anymore. All that matters is loyalty to the status quo of a radical right wing regime. Think Franco. Think Pinochet. Think Stalin. All totalitarian regimes require the same kind of press, one that lies on its back and takes dictation -- and then publishes it with the official spin.

What does all this mean?

That most Americans, except for people like our beloved BuzzFlash readers, "got over" the theft of the 2000 election and the felony committed against democracy, only to give the criminals four years to create the ability to systemically define and steal and election. There was no one way that the Bush Barbary Pirates took the Presidency this November. It was through a multi-pronged strategy, of which the snagging of Ken Blackwell as Ohio Katherine's Harris was a key element, but hardly the only dirty trick. We don't know who Blackwell's Mac Stipanovich was, but we do know that this heist of the American election was four years in the making.

A bastard presidency couldn't win a free and transparent election. It systemically stole this one through fear, character assassination, and a wide range of dirty tricks at the polls, including the likely manipulation of electronic voting machines in key states.

The truth is that the valiant band of Democratic Congressional Representatives led by Congressman Conyers -- as well as the Green and Libertarian Parties -- are carrying on the Spirit of '76 in pursuing the voting irregularities in Ohio.

But the theft of the 2004 election goes much deeper than Ohio, although it was the linchpin electoral state. It was widespread, systemic, and coordinated -- throughout the nation.

But with a one-party government, who will investigate the perpetrators of the crime against democracy redux, when it is the perpetrators who hijacked our system of government and who control the committees and departments that could investigate, well, themselves?

The news in America is now on six hour cycles. Each day, we forget the morning's news by the afternoon.

It is no wonder that so many have forgotten that four years ago, the Supreme Court of the United States put the nails in the coffin of democracy. It occurred in the darkness of a winter Washington night on Tuesday, December 12th, with an unprecedented 10 PM decision release that elected George W. Bush president by a vote of 5-4.

A BUZZFLASH NEWS ANALYSIS