CyberAlert -- 12/09/2000 -- "Republican" U.S. Supreme Court, Non-Partisan Florida Supreme Court

"Republican" U.S. Supreme Court, Non-Partisan Florida Supreme Court; CBS Ignored Chief Justice's Dissent

1) Dan Rather refused to apply a partisan label Friday night to either the Florida Supreme Court or the U.S. Commission on Civil Rights, but he insisted the U.S. Supreme Court "has a majority of Republican-appointed justices" and the Florida legislature features "an overwhelming Republican majority."

2) Sam Donaldson: "If the Republicans complain that this was a Democratic court in Florida, that's a little dangerous ground because seven of the nine justices of the United States Supreme Court were appointed by Republican Presidents."

3) Chief Justice Charles Wells delivered a blistering dissent about how the majority opinion will precipitate a "constitutional crisis," but the CBS Evening News didn't utter a word about it.

4) ABC and CBS stressed how the Florida legislature is controlled by the GOP, but only NBC's Lisa Myers quoted how the Constitution says "each state shall appoint in such manner as the legislature ...may direct, a number of electors," though she gave equal weight to the view that they no longer hold the power.

5) Peter Jennings characterized the court decision as an "earthquake" while Dan Rather asserted it created a "dramatic and historic turn" in the battle as Tom Brokaw pointed out Gore's team expected the court to "deliver a political death sentence," but now "Gore lives." And is Bush now up by 154 or 192?

1

To Dan Rather the Florida Supreme Court and U.S. Commission on Civil Rights are beyond partisan taint, but the U.S. Supreme Court "has a majority of Republican-appointed justices" and the Florida legislature features "an overwhelming Republican majority." He twice tagged each "Republican" entity during Friday's CBS Evening News.

Not once during his December 8 broadcast did Rather or any other CBS News reporter note how all seven Florida Supreme Court (FSC) justices were appointed by Democratic Governors, but in his opening summary of reaction to the surprise FSC ordering of a recount, Rather declared:
"Bush will appeal to the U.S. Supreme Court which has a majority of Republican-appointed justices. The Republican-controlled Florida legislature is now almost certain to choose its own slate of Bush electors, setting up a possible constitutional and political showdown."

Later, Rather interviewed George Washington University law professor Jonathan Turley. His second question: "Since the U.S. Supreme Court has seven of nine justices appointed by Republican Presidents, why should one not believe that they're going to overturn this Florida state Supreme Court decision today and pretty quickly."

Turley argued the justices are "in something of a bind" since the majority believe in federalism and the FSC wrote an opinion out of state law as "they iron-plated their decision to make it as difficult as possible for this court to review it and to try to make those conservative justices look slightly hypocritical if they try to re-define what they did."

(Incidentally, FSC justice Barbara Pariente, who was in the majority, is a 1973 graduate of Turley's law school.)

Introducing another story, Rather asserted: "With an overwhelming Republican majority under Governor Jeb Bush, Florida's legislature went into special session today. It is now more determined than ever to guarantee that whatever else happens Florida's decisive votes go to Bush."

Following the legislative story, Rather passed on a decision from a seemingly non-partisan or bi-partisan agency: "Adding yet another dimension to the election dispute today, was the U.S. Commission on Civil Rights. That panel voted unanimously to convene hearings next month in Washington to hear complaints from voters from Florida, and perhaps other states, who insist that they were denied the right to vote because of racial or other discrimination."

In fact, there's not even one Republican amongst the seven commissioners on the U.S. Commission on Civil Rights. According to their Web site, the "political affiliation" for four of them is "Democrat" and the other three are "independent." But that "independent" category includes "Chairperson" Mary Frances Berry who, as anyone familiar with her Nightline appearances would know, is to the left of most Democrats. Her bio on the commission's Web site lists her Carter Administration duties: "She served as the Assistant Secretary for Education in the U.S. Department of Health, Education, and Welfare (HEW) from April 1977 until January 1980. For a period she also served as Acting U.S. Commissioner on Education."

For a list of the seven commissioners and bios for each, go to the commission's Web site info page and scroll down a bit:
http://www.usccr.gov/cominfo.htm

As for the non-partisanship of the Florida Supreme Court, the CBS and NBC evening shows on Friday didn't mention the Democratic make-up of Florida's high court, but ABC's Peter Jennings broached the topic: "Like a earthquake, the shockwaves rushed all the way across the country -- in Washington, where the Gore campaign had steeled themselves to lose, in Texas where Governor Bush and his team were convinced that Democrats on the Florida Supreme Court were determined to win this one for Mr. Gore." In prime time, NBC's David Bloom pointed out on Dateline: "Keep in mind that all seven of these justices were appointed by Democratic Governors."

Indeed, five were picked by Lawton Chiles, one by Bob Graham and one jointly by Chiles and Jeb Bush -- and in a process that makes the judges more partisan and more influenced by public opinion than the U.S. Supreme Court on which Rather focused. The Governor picks names from a list selected by a commission and then each justice must face voters in a "merit retention" vote in the next election and then every six years. The MRC's Rich Noyes found the official Web page describing the system and listing the retention vote dates for each justice, three of whom won their retention votes this year. Go to:
http://www.flcourts.org/pubinfo/history/merit.html

In contrast, while a President can nominate a U.S. Supreme Court justice they must be approved by the Senate and a majority of the currently sitting justices who were nominated by Republican Presidents were approved by Democratic majority Senates. Once affirmed, they are in for life and thus insulated from election concerns. And just how "Republican" anyway is John Paul Stevens?

2

Maybe Dan Rather was following Sam Donaldson's lead. Just before 4:30pm ET Friday at the end of an ABC News special report on the Florida Supreme Court (FSC) ruling, as he simultaneously warned against impugning judges, Donaldson admonished Republicans that they better not raise the Democratic nature of the FSC given how most on the U.S. Supreme Court were appointed by Republican Presidents.

MRC analyst Brad Wilmouth took down Donaldson's reprimand:
"If the Republicans complain that this was a Democratic court in Florida, that's a little dangerous ground because seven of the nine justices of the United States Supreme Court were appointed by Republican Presidents, so if you're gonna start saying, 'Oh that's a Democratic court,' then the Democrats are gonna say, 'That's a Republican court,' and the can of worms in incalculable. I trust this is gonna be fought out in the legal system, in the court of public opinion without impugning all the judges in the country because you know the old Shakespeare stage, 'First we have to kill the lawyers,' really meant not what it sounds like but that until we wanna do something bad, the lawyers stand in the way. If we wanna do something bad, we have to get rid of them. Let's not get rid of the judges, Peter."

3

Florida Supreme Court Chief Justice Charles Wells delivered a blistering dissent about how the majority opinion will not withstand U.S. Supreme Court review, has commenced a counting procedure without standards and will precipitate a "constitutional crisis," but the December 8 CBS Evening News didn't cite it other than in running a soundbite from James Baker in which he alluded to it. ABC and NBC reporters delivered brief quotes from Wells' warning about causing a crisis.

On ABC's World News Tonight, Erin Hayes raised the Wells dissent: "'This counting contest,' he said, 'propels this country and this state into an unprecedented and unnecessary constitutional crisis...that will do substantial damage to our country.'"

For the NBC Nightly News, Dan Abrams summarized the main points of the majority view from justices Quince, Anstead, Lewis and Pariente. Tom Brokaw asked: "And Dan, the Chief Justice of the Florida State Supreme Court had some blistering language in dissent."
Abrams relayed it: "No question. Two dissents here, Tom. One from the Chief Justice and then another by the other two justices. First, Chief Justice Wells, as you point out using some language, the following, quote: 'I have to conclude that there is a real and present likelihood that this constitutional crisis will do substantial damage to our country, our state, and to this court as an institution.' He was entirely supportive of Judge Sauls. Harding and Shaw, on the other hand, said that they thought he was right but they had problems with some of his ruling."

4

The Florida legislature's plans to name a slate of electors generated stories on all three broadcast network evening shows Friday night as each emphasized Republican control of both chambers. Only NBC's Lisa Myers, however, bothered to quote how the Constitution says "each state shall appoint in such manner as the legislature...may direct, a number of electors," though she gave equal weight to the view that they gave away their power when they allowed a public vote.

ABC's Peter Jennings set up a World News Tonight story from the angle of problems still in Gore's way: "But now to the roadblocks, legal and political. The Florida legislature, Republican-dominated, is both."

As already quoted in item #1 above, Dan Rather asserted: "With an overwhelming Republican majority under Governor Jeb Bush, Florida's legislature went into special session today. It is now more determined than ever to guarantee that whatever else happens Florida's decisive votes go to Bush."

Lisa Myers began her NBC Nightly News treatise, as transcribed by MRC analyst Brad Wilmouth: "Tonight the Florida legislature and the Florida Supreme Court, which have battled over many issues over the years, again seem on a collision course. Now that makes it increasingly likely that Congress will be forced to settle this, a scenario some call 'political Armageddon.' One hundred thirty-two years since they last intervened in a disputed presidential election, today both houses of the Florida legislature meet in special session to discuss directly appointing the state's presidential electors for Bush, setting up a possible showdown if the Florida courts ultimately certify Al Gore the winner at the polls."

After a soundbite from Florida House Speaker Tom Feeney, Myers continued: "The Florida legislation to be voted on Tuesday specifically names 25 electors committed to George W. Bush. Democrats call the session unconstitutional, an historic blunder."
Lois Frankel, Florida State House Minority Leader: "I have a vigorous disagreement with the necessity and the legality of this legislature appointing electors."
Myers: "So does the Florida legislature have the power to step in? Some experts say yes, citing Article 2 of the Constitution, which states: 'Each state shall appoint in such manner as the legislature...may direct, a number of electors.' [words with ellipses on screen, although only the word "thereof" was skipped over] They argue that that makes the legislature the ultimate referee in this struggle, giving it the right to step in if it thinks the rules are not being carried out properly."
Professor Einer Elhauge, Florida legislature legal counsel, agreed: "But when the legislature itself does the appointment itself, immediately there is no real dispute about whether it was in a manner that the state legislature directed because they did it themselves."
Myers cautioned: "But others argue the legislature's power stops the day voters go to the polls and that it can't step in now just because it may not like the outcome."
Michael Davidson, Former U.S. Senate legal counsel: "The legislature does not have the power to, at this point subsequent to the national election day, appoint a slate of electors."
Myers concluded: "Now Democrats promise to vigorously challenge any electors sent by the Florida legislature both in court and in Congress, setting the stage for a political shootout that could drag on into January."

5

How ABC, CBS and NBC led their Friday night newscasts with the Florida Supreme Court decision, characterized as an "earthquake" by Peter Jennings, who thought the court "did a life-saving exercise on Al Gore's campaign." Dan Rather asserted the ruling created a "dramatic and historic turn" in the presidential battle while Tom Brokaw pointed out Gore's team expected the court to "deliver a political death sentence," but now "Gore lives" on "a day unlike any other in modern American presidential politics."

-- Peter Jennings, ABC's World News Tonight: "Good evening. It was like an earthquake in Florida this afternoon. The Florida Supreme Court did a life-saving exercise on Al Gore's campaign to be President. In a 4-3 ruling the justices have ordered the election process to continue, a manual recount of the so-called under-votes, the ballots where a vote for President was not clear, in every part of the state...."

-- Dan Rather, CBS Evening News: "Good evening. The battle took a dramatic and historic turn today and the country could be headed into new and uncertain constitutional debate. Florida's highest court has ruled for Vice President Gore's appeal, requiring additional votes be counted.
"Here's the latest: Ruling 4 to 3, the Florida Supreme Court significantly revived Gore's chances of overtaking Texas Governor Bush. The court ordered immediate new hand counts statewide of some votes, including 9,000 votes Gore insists were never counted at all. The court set no deadline for completing these counts, even as a Tuesday national schedule for certifying electors approaches. The court also ordered several hundred votes added to Gore's tally, these are votes taken away earlier by Gore's contention, this knocks Bush's Florida margin down now to 154. Bush will appeal to the U.S. Supreme Court which has a majority of Republican-appointed justices. The Republican-controlled Florida legislature is now almost certain to choose its own slate of Bush electors, setting up a possible constitutional and political showdown."

-- Tom Brokaw, NBC Nightly News: "Good evening. All day Vice President Gore's team was publicly upbeat but privately prepared for the worst, that the Florida State Supreme Court would deliver a political death sentence. The Vice President's lawyers insisted they were gonna win in the court, but the political aides were skeptical. After all, they just lost on the absentee ballot question in lower courts. Then, shortly before 4 Eastern Time this afternoon, the word came. Four of the seven Florida justices agreed. The recount should begin again. Gore lives and once again he jettisoned any plans for a concession speech. He still could win the presidency. Understandably, Governor Bush's partisans were beyond furious and headed immediately for the United States Supreme Court. It's a day unlike any other in modern American presidential politics."

One basic fact on which the networks disagreed: Bush's new lead according to the Florida Supreme Court mandate to include hand count numbers from Palm Beach County and Miami-Dade County. CBS and NBC put it at 154, ABC, on both World News Tonight and Nightline, pegged Bush at 192 ahead of Gore. -- Brent Baker

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