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Episode 38: Dear Justice O’Connor

I believe it was that great philosopher, Popeye the Sailor, who once said, “That’s all I can stands, I can’t stands no more!” Well, we here at The Last Chance Democracy Café have reached that point over all the gushing about what a wonderful Supreme Court justice Sandra Day O’Connor was. Sure, she was at times a swing vote; but let’s not forget that the only reason that seems so important right now is because she, along with four other justices, subverted democracy back in 2000 in order to put George W. Bush into office.

So in response, we have authored the following open letter to Justice O’Connor, written by Winston and signed by 76 of our regular customers and employees (and you damn well better believe that I signed it myself as well).

The Last Chance Democracy Café
Episode 38: Dear Justice O’Connor

by Steven C. Day

Some mistakes you never stop paying for.
(Roy Hobbs, The Natural)

To the Honorable Sandra Day O’Connor
Associate Justice of the United States Supreme Court

Dear Justice O’Connor:

Given that you’re a Supreme Court justice and all, you probably won’t have much interest in what a rag tag collection of regulars at The Last Chance Democracy Café think about your tenure on the Court.

But consider this — over the course of the last five years, the top two people appointed by George W. Bush to advise you and the rest of the nation on legal affairs were: Crisco Kid-John Ashcroft and Torture Boy-Alberto Gonzales.

Kind of makes a collection of drunks look pretty darn good, doesn’t it?

I hear Torture Boy may end up getting his own spot on the Court: It isn’t hard to see why you expressed such a strong desire in the past that a Republican president pick your replacement. There’s no chance we’d get an appointment of that quality from a Democrat.

But down to business:

Justice O’Connor, who could blame you if you’re feeling mighty pleased with yourself these days, what with all the wonderful things people are saying about you?

Not only this from Bush, “America is proud of Justice O’Connor’s distinguished service, and I’m proud to know her.” And this from Sen. John Cornyn, R.-Texas, “Throughout her service on the nation’s highest court, Justice O’Connor restored a measure of common sense to our criminal justice system, a measure of respect for our nation’s allocation of power between the states and the federal government, and a measure of freedom in the public square to people of faith.”

But even this from Sen. Ted Kennedy, D-Mass., “She was a careful and thoughtful and highly respected member of the court, a wise judge who served the nation and the constitution well.”

Man! Now, there’s a woman for all seasons!

Being the very bright person you are, I’m sure you recognize that many of the liberals saying nice things about you have been, shall we say, puffing a bit: They’ve been trying to position themselves for the upcoming confirmation battle if, as seemed depressingly likely, Bush ended up nominating someone so rabidly right wing as to make us nostalgic for the good-old-days of Antonin Scalia.

Of course, we now know John Roberts is the man, and while his judicial record is more than a little sketchy (that’s what happens when you appoint a political hack instead of an experienced jurist), the early returns aren’t encouraging.

But as for you: Collecting accolades the way a frugal grandmother clips coupons, you probably can almost make yourself forget that other thing . . .

Almost . . .

But like I said, you’re smart, real smart. You know the score.

Somewhere deep inside, you know that in the end history will hunt you down.

In a way, it’s hard to blame you. There it was for the taking — the presidency of the United States, the leadership of the freaking Free World, for God’s sake. A chance to be sure your guy won, your agenda carried forward and your kind of justices were added to your Supreme Court. Asking you to stand by your oath of office under these extraordinary circumstances was asking a lot — too much as it turned out.

It was kind of like leaving a kleptomaniac alone in a bank vault and then expressing disappointment when he fills his pockets with money.

But as naïve as it may sound today, back then, before the decision came down — and I’m speaking for myself now as the scrivener of this letter — I was convinced that you’d be up to the job. “Don’t worry,” I told Democratic friends who were concerned that the largely Republican Court might seize the opportunity to put Bush into office. “They would never put the reputation of the Court in that kind of peril.”

And I still can’t believe it. Five and a half years have passed since Bush vs. Gore was decided, but I still shake my head every time I think about the case. The decision was so unbelievably wrong, so mind-numbingly bad; so far off-base, in fact, that the standard analogies just don’t cut it. It isn’t enough to compare it to a bad call that decides the seventh game of the World Series. This is more like an umpire deciding the World Series by awarding one of the teams six points for a touchdown.

Of course, you and the rest of the Gang of Five did have your defenders, most notably, Defender-in-Chief, Judge Richard Posner. He wrote a book and went on the talk show circuit on your behalf. Be honest: Wasn’t it kind of sad watching Posner, the undeniably brilliant fellow that he is, spinning and wobbling like a poorly balanced top, fighting valiantly to come up with some way, any way, to defend your actions?

But in the end, even he had to throw in the towel, unable to bring himself to swallow your equal protection excuse for handing the election over to Bush; so, instead, he fell back on one of the last refuges of a scoundrel (or in this case, of a scoundrel’s defender), gamely insisting that the Court had made the right decision, just for the wrong reason.

Besides, his argument continued, even if the Supreme Court had allowed the recount to go forward, the Republican controlled Florida legislature and/or the Republican controlled Congress would likely have stolen the election for Bush anyway, so no harm, no foul (not precisely his words, but in substance close enough).

You know, the well established legal principle that it’s okay to murder someone if there’s a high likelihood that someone else will murder him anyway.

But let’s face it: Even if Posner or someone like him had been able to successfully float an argument that passed the giggle test in favor of the Court’s final decision, they would still have hit the rocks when the subject turned to the Court’s earlier order staying the recount.

Let’s take a moment to set the scene: The Florida Supreme Court had just ordered a statewide recount; a team of district court judges was already hard at work (carried live on national television), counting lawful votes that for one reason or another had never been counted. Then, without warning, they packed up and left. Why? Because five United States Supreme Court justices, yourself shamefully included, Justice O’Connor, had entered a stay preventing the counting of additional votes pending the Court’s decision, thereby, effectively running out the clock on any possible recount.

It was almost certainly the single worst abuse of power in the history of the Supreme Court.

Under the law, a judicial stay may only be issued when it is necessary to prevent “irreparable harm.” As almost any lawyer knows, and yes, Justice O’Connor, as you unquestionably knew when you acted, this is an extremely tough showing to make. It isn’t enough to merely prove the party seeking relief is about to suffer some grievous harm; to receive a stay (thereby harming the opposing party who has not yet had the opportunity to be fully heard), a party must go one step further and also establish that there is no way the Court can later remedy this harm, after the opposing party has received full due process.

It is inconceivable that Bush could ever have met this burden. As you must have realized, allowing the vote counting to go forward in Florida would have caused Bush no legal harm whatsoever, let alone irreparable harm. Legal harm could only have occurred later, if and when the newly counted votes were added to the official tally. However, the Supreme Court could easily have prevented that from happening if, after a full hearing, it ruled in Bush’s favor by simply ordering the Florida Secretary of State not to include the newly counted votes in the final tally (one suspects she wouldn’t have complained).

From a legal standpoint, entering the stay order made no sense at all. But from a political standpoint, its purpose couldn’t have been clearer.

This wasn’t just a bad decision: It was a coup d’ etat.

And we’re sorry, but the fact that in some ways you have been a less extreme right winger than the likes of Rehnquist, Thomas and Scalia, while certainly a good thing, and something we will definitely miss, isn’t nearly good enough to earn a pass on a sin of this magnitude.

* * *

Justice O’Connor, I’m sure you’re familiar with the old expression, popular both in retail merchandizing and neoconservative empire building, “If you break it, you own it.”

Well, you and your colleagues broke American democracy in December of 2000: Now you own George W. Bush.

As the people who put him into power, his legacy is your legacy.

You own it lock, stock and barrel.

You own the War in Iraq.

You own the foreign policy that’s left America hated throughout the world.

You own the incompetence of allowing Osama bin Laden to escape by refocusing our armed forces from Afghanistan to Iraq.

You own the corruption of the multi-billion dollar boondoggle no-bid contracts handed out like candy to Bush’s political friends.

You own the torture.

You own the ballooning national debt.

You own the lies.

You own the practice of using the Sept. 11 attacks for political gain.

You own Karl Rove.

You own the near complete disregard for our natural environment.

You own the dirty tricks.

You own the degradation of our civil liberties.

You own the slander directed against anyone who dares oppose Bush.

You own the failure to even try to address Global Warming, potentially the single greatest threat ever to confront humanity.

You own the tax giveaways to the super rich.

You own the outing a CIA operative, potentially placing everyone she’s ever worked with into danger, merely to score a little cheap political revenge.

You own the practice of filling up regulatory boards and commissions with industry insiders.

You own the near dictatorship level obsession with governmental secrecy.

You own the growing economic inequality in America.

You own America’s declining public health system, as reflected in the stunning failure to properly prepare for a potential flu pandemic.

You own the playing politics with stem cell research.

And you own the far right extremists Bush is appointing to the federal bench.

All of this, and so much more, belongs to you now.

You see, Justice O’Connor, you didn’t just put the losing candidate into the White House in 2000; you put there the worst president in American history.

* * *

During your retirement news cycle, Bush vs. Gore has been the elephant in the room; barely mentioned among all of the gushing and puffing that has surrounded your retirement announcement. But I wouldn’t take too much solace in that.

History has a way of blowing away the gush and puff, leaving the parchment describing a life bare and exposed to the sun. And as the years drift by, like a long slow string of boxcars in a four-engine train, even the words themselves begin to fade, until, finally, all that’s left to encapsulate the life of any but the most important public figure is, at most, a few sentences.

In your case, Justice O’Connor, those sentences, aside from a brief mention of the significance of your gender, will mostly be about Bush vs. Gore. That’s what you will be remembered for. That’s the basis upon which you will be judged.

Not exactly the legacy you dreamed of when you became the first woman to serve on the Supreme Court, is it? But maybe that’s the justice of it, because like all Supreme Court justices, you doubtlessly care deeply about your place in history.

And the truth is, Justice O’Connor, subverting a presidential election is a crime that should rightfully bear some consequence for its perpetrators.

* * *

Justice O’Connor, we here at The Last Chance Democracy Café sincerely wish you a long, healthy and joyous retirement. May the Arizona you return to be as inviting as the one you remember leaving, may you find peace and happiness there and may the desert breezes always warm your face.

But we have a bit of advice: As the years go by, try not to pay too much attention to how history is treating you.

You won’t like what you see.


The Last Chance Democracy Café

* * *

When not busy managing a mythical café, Steven C. Day lives with his family in Wichita, Kansas where he has practiced law for 25 years. Contact Steven at [email protected].

© Copyright 2004, Steven C. Day. WGAw #974001

2 Responses to “Episode 38: Dear Justice O’Connor”

  1. iowametal76 Says:

    Indeed, history does sometimes have a way of hunting down and exposing the guilty and bringing the truth to light. That will only happen if those of us committed to the truth make sure that it does happen. This time things are different, and the truth will not survive without our help.

  2. FreeDem Says:

    When bards sit around tiny campfires on a ruined earth, and contemplate what might have been, they will sing of Bush VS Gore and how the last best chance to save humanity was destroyed in a single statement.

    Like Rome and the semi-mythical Camelot, and even Troy, a long and complex process is focused in a single act. The bards rarely sing the official version, but usually the true one. Judge O’Connor will be forever a part of the Gang of Five.

    Dec 12 2000 will live in infamy long after Pearl Harbor and the WTC are forgotten.

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