Were the actions of the Supreme Court in the 2000 case of Bush v. Gore consistent with the way they have operated in the past?
What is the proper role of the Senate with regard to "advice and consent"?
What might we expect from the courts regarding decisions on the Patriot Act?
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One would have to conclude that the U.S. Supreme Court did not, in its deliberations regarding Bush v. Gore, operate as it had the past. The major reason for this is that there was only one precedent for a presidential election being determined in an unconventional manner and that involved the extraordinarily contentious era of Reconstruction. The 1876 election between Samuel Tilden and eventual winner Rutherford Hayes was played out in an atmosphere of enormous tension, the Civil War and issue of Southern rights still fresh in people’s minds. The role of Supreme Court justices in resolving that election, with partisan justices serving on the special commission established to determine the election’s outcome, tainted the court and left a blemish on Hayes’ presidency. Because of the shortage of legal precedents at the federal level involving presidential elections, the Supreme Court was navigating uncharted territory when it intervened in Bush v. Gore. That it did intervene was a product of the flurry of lawsuits that accompanied the State of Florida’s incredibly botched system for balloting. Absent those lawsuits, the election should have been determined in accordance with the 12th Amendment of the Constitution. The operative language of that amendment is too long to incorporate here, but basically places the responsibility for determining the outcome of the election first with the President of the Senate (who happens to be the incumbent vice president) and, barring a clear outcome from a recounting directed by the President of the Senate, the responsibility shifts to the House of Representatives for a vote that tracks existing electoral distributions. In short, Florida did nobody any favors by its use of complicated out-of-date punch-hole ballots that most analysts agree distorted the outcome of the election.
In any event, the Supreme Court did not operate as it had in the past precisely because this was a unique situation for which there was no precedent.
With respect to the issue of the role of the Senate in providing “advice and consent” to the president, the question is not whether the Senate “should” play such a role; the U.S. Constitution clearly states that the Senate shall play such a role. Article II (which establishes the positions of president and vice president), Section 2 states:
“He [the president] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."
The role of the Senate in providing advice and consent is an important component of the system of checks and balances the drafters of the Constitution designed to prevent the emergency of a tyranny in the new country they were forging. It is absolutely correct that members of the Senate have abused or misused this authority, usually by blocking consideration of nominations or treaties pending resolution of unrelated or marginally-related matters. Holding up a nomination or threatening to hold up a nomination can be perfectly valid if the senator in question honestly believes his or her concerns regarding the nominee have not been adequately addressed, for example, on potential conflicts of interest involving the nominee. Very often, however, such holds are placed for less meritorious reasons, such as a senator’s anger at the White House for being snubbed or ignored on a parochial matter or because the nomination in question represents the only opportunity the individual senator has to influence policy. By and large, however, the role of advice and consent is a core component of our democratic system of government, and plays an essential role in providing oversight of Executive Branch conduct with regard to international obligations and the qualifications of individual nominees for their positions. Sadly, the aborted 1987 nomination of Robert Bork to the Supreme Court for entirely partisan purposes injected a level of politics into the Supreme Court confirmation process that has negatively affected that process ever since and has cast doubt on the viability of the Senate’s role, a situation seriously aggravated with the subsequent confirmation hearings on now-Justice Clarence Thomas.
On the matter of potential future litigation involving provisions of the U.S.A. Patriot Act (officially, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001), it is highly likely that select provisions of that law will be subject to judicial review in perpetuity. The fact that the Act was passed 13 years ago now does not mean that it will remain immune from legal challenges. It is too large, too potentially invasive and too controversial not to be subject to the law suits and congressional efforts at further amending it. Title II of the Act, “Enhanced Surveillance Procedures,” has already been the subject of lawsuits, including the 2013 suit filed by the American Civil Liberty Union targeting Section 215 of Title II, “Access to Records and Other Items Under the Foreign Intelligence Surveillance Act,” following allegations of potential violations of the Constitution by the federal government. Section 202 of the same title, “Authority to Intercept Wire, Oral, and Electronic Communications Relating to Computer Fraud and Abuse Offenses,” will remain subject to legal action for years to come, as will provisions of the Title III of the Act pertaining to requirements imposed on banks and other businesses with respect to reporting instances of potential money laundering and financial transactions potentially involving terrorist operations. In short, don’t expect an end to litigation surrounding the U.S.A. Patriot Act any time soon.
The answers to all of these questions are largely matters of opinion. Democrats will be more likely to think that the Supreme Court acted in an unusual way in Bush v. Gore. Different people will have different views as to how much of a role the Senate should play in the process of appointments. One’s view of what the Supreme Court is likely to do about the Patriot Act is likely to be colored by one’s view of that act.
My own view is that the Court acted in an unusual way in Bush v. Gore. However, this is not very surprising given that the Court had never been faced with such a situation before. They Court typically tries to avoid partisan political questions. It tends to put off addressing hot button issues when it can so that it does not create any more controversy than seems necessary. This can be seen, for example, in the way in which the Roberts Court decided not to invalidate “Obamacare.” In Bush v. Gore, by contrast, the Court stepped into a clearly partisan issue and acted more decisively than usual. However, we must realize that this was a novel situation in which past precedents did not necessarily apply.
I would say that the Senate should play an important role in advice and consent. However, it should not use that power to try to obstruct all appointments by a president with whom it disagrees. I would argue that the advice and consent procedure was put in place to prevent presidents from appointing people who are clearly incompetent. An example of this is, arguably, George W. Bush’s nomination of Harriet Miers to the Supreme Court of the US in 2005. But I would say that advice and consent should not be used to simply block nominees with whom senators have political differences.
As for the Patriot Act, I do not expect much in the way of Court cases based on that act going forward. The act has been in place for more than a decade. This means that most of its provisions have been litigated and are not terribly controversial anymore. I do not expect the Court to do much about this law in the near future unless there comes to be much more of a backlash against government surveillance in general.
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