From his perch at the liberal magazine The New Yorker on Tuesday, CNN legal analyst Jeffrey Toobin recycled his lament that the Bush-Gore 2000 chad fight should have lasted several more months. (Toobin's 2001 book Too Close to Call also carried Al Gore's water.) Toobin fights against the popular notion that liberals should get over 2000, for it revealed conservative judicial activism, most appalling to Toobin when "equal protection" is applied to white males, as if they're entitled to it. But Toobin simply gets it wrong in finding media recounts were not conclusive:
Bush v. Gore would resonate, in any case, because the Court prevented Florida from determining, as best it could, whether Gore or Bush really won. (Recounts of the ballots by media organizations produced ambiguous results; they suggest that Gore would have won a full statewide recount and Bush would have won the limited recount initially sought by the Gore forces.)
Wrong. As Brent Baker reminded readers in 2008, both media recounts, including a statewide recount of undervotes, concluded the Court did not decide the election:
The lead of an April 4, 2001 USA Today story headlined, “Newspapers' recount shows Bush prevailed,” by reporter Dennis Cauchon:
George W. Bush would have won a hand count of Florida's disputed ballots if the standard advocated by Al Gore had been used, the first full study of the ballots reveals. Bush would have won by 1,665 votes -- more than triple his official 537-vote margin -- if every dimple, hanging chad and mark on the ballots had been counted as votes, a USA TODAY/Miami Herald/Knight Ridder study shows. The study is the first comprehensive review of the 61,195 "undervote" ballots that were at the center of Florida's disputed presidential election....
That look was followed in November by an analysis by a consortium of media outlets, including the New York Times, Washington Post, Los Angeles Times, CNN and AP. It determined that George W. Bush still would have won under either legally possible recount scenario which could have occurred: The Florida Supreme Court ordered recount of undervotes statewide or Gore’s request for a recount in certain counties. The New York Times led its November 12, 2001 front page article, “Study of Disputed Florida Ballots Finds Justices Did Not Cast the Deciding Vote,” by reporters Ford Fessenden and John M. Broder:
A comprehensive review of the uncounted Florida ballots from last year's presidential election reveals that George W. Bush would have won even if the United States Supreme Court had allowed the statewide manual recount of the votes that the Florida Supreme Court had ordered to go forward.
But Toobin sneered that Bush v. Gore signaled the rise of a Roberts court of conservative judicial activism run amok:
The echoes of Bush v. Gore are clearest when it comes to judicial activism. Judicial conservatism was once principally defined as a philosophy of deference to the democratically elected branches of government. But the signature of the Roberts Court has been its willingness, even its eagerness, to overturn the work of legislatures.
Brandishing a novel interpretation of the Second Amendment, the Court has either struck down or raised questions about virtually every state and local gun-control law in the nation. In Citizens United v. Federal Election Commission, decided earlier this year, the Court gutted the McCain-Feingold campaign-finance law in service of a legal theory that contradicts about a century of law at the Court. (Citizens United removed limits on corporate expenditures in political campaigns; the decision is, at its core, a boon for Republicans, just as Bush v. Gore was a decade ago.) When the Obama health-care plan reaches the high court for review, as it surely will, one can expect a similar lack of humility from the purported conservatives.
..This, ultimately, is the tragedy of Bush v. Gore. The case didn’t just scar the Court’s record; it damaged the Court’s honor.
It is liberals like Toobin who have labored to sully the court's "honor" for not ruling in Al Gore's favor. He's entitled to his own opinions, but readers should be wary of his so-called "facts" about media recounts.
