It is past noon on 20 January!

The first ((And may it be the last.)) US government to come to power in a coup d’etat has now completed just over 87.5% of its “constitutional” tenure!
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For the sake of unity

…for the sake of our unity as a people and the strength of our democracy, I offer my concession…

So uttered Albert Gore, Junior, on this day in 2000.

But as is always the case after a coup d’etat, those put in power via putsch seek neither unity nor democracy.

And six years later, we are still living with the consequences. As the world will be for many years to come.

The Mexican Electoral Tribunal: This is no Bush v. Gore

Regarding the Electoral Tribunal of the Federal Judiciary (TEPJF), Mexican political scientist José Antonio Crespo notes:

La calificación presidencial del año 2000 fue una prueba facilísima para el TEPJF, fue como pasar el kínder. Ahora, en este 2006, la calificación presidencial será para el TEPJF como su doctorado.

Indeed. (Roughly translated: In 2000, validating the election was as easy as passing kindergarten. In 2006, it will be like defending one’s doctorate.)

So, what is this body that now has the resolution of Mexico’s electoral dispute in its hands? It is a judicial body of last resort, charged with resolving election disputes and nothing else. Its Higher Chamber (Sala Superior) consists of seven magistrates who serve ten-year terms, expiring this October. (There are also five regional Salas of three members each.)

The terms of TEPJF magistrates are non-renewable. The body was established by the 1996 electoral reform (a constitutional amendment), and its members are elected by two-thirds vote of the Senate, from a terna, or list of three names (per vacancy), presented by the Supreme Court. (The Supreme Court justices themselves, since another constitutional reform in 1994, are also elected by a two-thirds vote of the Senate from a terna sent by the President, and serve for fifteen-year, non-renewable terms.)

The first TEPJ Sala Superior (which thus is the current one) was actually required to be elected by three fouths of the Senate, and in fact, all votes on these magistrates were unanimous.

In other words, the upcoming case is no Bush v. Gore.

Additional notes:

El Universal has a short profile of each magistrate. Some are career judges, others are academic law professors.

The TEPJF itself has an English-language page that explains its role and also offers profiles of the magistrates.

It is worth noting that the Tribunal is sometimes referred to as the “TRIFE,” after the name of the tribunal that was in place in the early 1990s. The older acronym, often written Trife, is still used, presumably because “Tepjf” is not pronounceable!

Now she speaks

Retired Justice Sandra Day O’Connor is worried about “dictatorship.” Her remarks at an event at Georgetown were reported by Nina Totenberg and posted at Raw Story.

In an unusually forceful and forthright speech, O’Connor said that attacks on the judiciary by some Republican leaders pose a direct threat to our constitutional freedoms.

…she took aim at former House GOP leader Tom DeLay. She didn’t name him, but she quoted his attacks on the courts at a meeting of the conservative Christian group Justice Sunday last year…

[…]

It gets worse, she said, noting that death threats against judges are increasing. It doesn’t help, she said, when a high-profile senator suggests there may be a connection between violence against judges and decisions that the senator disagrees with. She didn’t name him, but it was Texas senator John Cornyn who made that statement…

O’Connor observed that there have been a lot of suggestions lately for so-called judicial reforms, recommendations for the massive impeachment of judges, stripping the courts of jurisdiction and cutting judicial budgets to punish offending judges.

And now the punch-line:

Pointing to the experiences of developing countries and former communist countries where interference with an independent judiciary has allowed dictatorship to flourish, O’Connor said we must be ever-vigilant against those who would strongarm the judiciary into adopting their preferred policies. It takes a lot of degeneration before a country falls into dictatorship, she said, but we should avoid these ends by avoiding these beginnings.

So, do you suppose she regrets joining the coup?

h/t Michael J.W. Stickings

Roe, Bush v. Gore, South Dakota, and abortion

Scott L. at his best (and that’s saying something).

(I can’t say the same about the immediately previous post of his, in which he redirects his aim at a third-party candidate instead of at Bush v. Gore for producing the wrong winner in 2000.)

Gore on the constitutional crisis

Al Gore’s speech from January 16 is long, but powerful. Highly recommended. And, no, it is not a coincidence that I read it and am posting it at the very moment when Gore’s opponent in the 2000 case before the Supreme Court is speaking–and on the very day when the vaunted “swing vote” on that Court was replaced with an adherent to the doctrine of executive unilateralism. None of this is a coincidence.

US Supreme Court to hear DeLaymander case/Frist and Byrd spat on ‘nuclear option’–on anniversary of Bush v. Gore

The United States Supreme Court has agreed to hear a challenge to the mid-decade redistricting in Texas in 2003, which was engineered by US House majority leader, Tom DeLay (R-Tex).

Meanwhile, in the last two days Senate Majority Leader Bill Frist (R-Tenn.) and senior Democrat Robert Byrd of W.Va. have engaged in a verbal skirmish surrounding the possibility that a filibuster by the party with the minority of seats in the body could prompt the party with manufactured majority of seats to “go nuclear” and unilaterally abolish the right of filibuster. Even though there has been no filibuster threat thus far, Frist on Sunday said “the answer is yes” when asked if the Republicans would change the rules to stop a filibuster of Samuel Alito’s confirmation. Byrd today responded on the floor of the Senate: “If he ever tries to exercise that, he’s going to see a real filibuster if I’m living and able to stand on my feet or sit in my seat. If the senator wants a fight, let him try it.”

Interesting that both of these matters would come precisely at the fifth anniversary of Bush v. Gore. These cases all tie together and provide a trifecta of one party using dubious manipulation of law and rules to solidify its grip on the levers of federal power.

In Bush v. Gore, the Supreme Court handed the presidency to America’s (and probably Florida’s) Second Choice. As my remarks on the Senate filibuster allude to, Republicans are also America’s Second Choice in Senate elections since 2000 (thus the filibuster currently prevents a minority party from acting like a majority party). And in the House, while the Republicans had the plurality (not majority) of votes in 2004, they lost votes compared to 2002, yet gained seats. The net gain is accounted for by the DeLay’s blatant and extraordinary mid-decade partisan gerrymander. (About halfway through an LA Times article there is a good quick summary of that redistricting.)

How will the Court rule on the Delaymander case? The case is similar to one in Pennsylvania in which a 5-4 ruling rejected the notion that an excessively partisan redistricting plan violated equal protection. (The first-linked story, from Bloomberg, has an overview.) Justice Kennedy sided with the majority in that case. Rick Hasen, quoted in both the Bloomberg and Times stories, suggests “One possibility is that Justice Kennedy has come to a firmer conclusion as to how to deal with these cases.”

New Chief Justice John Roberts will hear the Delaymander case. We can probably predict where he comes down on the matter, given that Roberts helped prepare the Republicans’ case in Bush v. Gore.

As for Samuel Alito–who will be on the Court by then if either there is no filibuster or the Republicans nuke it–we know he does not object to legislative malapportionment. Is it a stretch to think he considers partisan gerrymandering to be just fine, too?

I think we know how this is going to turn out.

[UPDATE: Scott Lemieux, at LGM has his usual perceptive analysis, asking whether: (1) The Delaymander is so ourtageous that it will be the case that prompts Kennedy to develop, with the 4 dissenters in the Pennsylvania case, a standard for unconstitutional partisan gerrymanders; or (2) Kennedy is ready to go with Scalia and argue that all partisan gerrymander cases are non-justiciable. Althouse believes the latter: “Perhaps it will use this occasion, however, to set a clear standard for bowing out of these controversies altogether.”]

[Scott also notes that Alito’s vote, which we can assume, as I did above, to be that the gerrymander is constitutionally permissible, will not affect the balance in the case, given that he replaces O’Connor, who voted with the majority in the Pennsylvania case.]

[Don’t miss Rick Hasen’s post on this topic.]

The bomb under our democracy that already went off

Yesterday, I quoted and linked to a Make My Vote Count entry that referred to Senate malapportionment as a “time bomb” under American democracy. And now we are upon the fifth anniversary of the bomb that did go off: the coup (which is, after all, French for stroke or blow) in which an unaccountable state institution with an interest in the outcome took it upon itself to determine the occupant of the presidency. A very sad day for democracy, and still very much an open wound, in response to which exactly no healing has been done.

Election 2000: Still an open wound

Via Rick Hasen, who has a summary on his own blog, I found today’s NYT column by Paul Kurgman (registration required) especially interesting.

Whatever your position on the outcome of that election and its subsequent contest and Supreme Court decision, the piece (or even just Hasen’s summary) is well worth a read.

I am going to quote just from the end of it. After commenting on the urge, in late 2001, to put the story of the 2000 election behind us, given 9/11, Krugman says:

But we aren’t doing the country a favor when we present recent history in a way that makes our system look better than it is. Sometimes the public needs to hear unpleasant truths, even if those truths make them feel worse about their country.

I really regret—and strongly believe the country as a whole one day will regret—that no significant debate about how the rules by which we select our president resulted from the 2000 debacle. We had another close call in 2004–and it would have had the opposite partisan bias compared to 2000.

And, as PolySigh’s Richard Skinner noted recently in an excellent post, the last four presidential elections “have showed remarkable stability” in voting patterns, noting:

In none of them has any candidate won more than 11% or so of the other party’s identifiers.

This is the real meaning of the term “polarization” when applied to our politics, and given the close divide between the parties and the stability of regional voting patterns, the electoral college (at least with its present winner-take-all voting system) remains something of a ticking time bomb aimed right at the heart of our democracy. This is not a partisan issue, it is a small ‘d’ democratic issue.

UPDATE: A little over a week after I posted the above, Scott Lemieux made the pointed observation that an assessment of Rehnquist’s legacy should start with this open wound of election 2000 and Bush v. Gore. And, of O’Connor, too.