Here Comes Trouble: Stories from My Life

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Mike's Letter

December 12th, 2000 12:00 AM

The Machine Raged On Me

Dear friends,

I just put a dollar bill in the soda pop machine. 

The machine rejected my dollar bill! 

Does that mean my dollar bill can no longer be counted as a dollar? After all, the pop machine refused to accept it as a legal tender. But it IS a dollar, regardless of what this machine says, right? If I go down to my local bank, and demand that my dollar be counted as a valid American dollar, will they say, "Sorry, but this dollar bill was rejected by a soft drink machine whose patent and machinery has been approved by various state and federal agencies. It is your fault you did not insert your dollar properly. We cannot deposit your dollar bill into your account!" 

Huh. All because of a wrinkle in my dollar bill.

Do any of you Bush supporters believe that my dollar is still a dollar -- EVEN THOUGH IT WAS REJECTED BY A MACHINE?

Also, would you mind if I push for legislation that would require the New York Stock Exchange and the bank that maintains your 401K account and the broker who handles your mutual funds to switch to the same technology used to count the punch card ballots in Florida? You keep saying the votes have already been COUNTED and RE-COUNTED and RE-COUNTED AGAIN, so I take it you really have a high regard for the validity of this system?

I insist that you put your money not only where your mouth is, but also put it in the hands of that same Florida techno system you love so well! 

More good news from our telegram onslaught yesterday and today. Western Union told us that they had to "add extra emergency staff" to handle all the requests that were ignited from our letter yesterday. "We are taking at least one large bag an hour over to the Court," the Western Union person told us. "Each bag contains thousands of telegrams. Nearly all were addressed to O'Connor and Kennedy." Privately, she told me that "99%" of those O'Connor/Kennedy telegrams were demanding that ALL the votes in Florida be counted. "We have not had a day like this in years!" (Hey, we didn't even know telegrams still existed! Somebody today told me Pony Express is still in business. Next time, let's save the money and use smoke signals.) Phone lines on their 800 number have been jammed for the past 24 hours. 

Thanks to everyone who participated in this. Let's see if it works. Once the Justices made it clear this was not going to be decided on the Constitution but rather on political considerations, as far as I'm concerned, we had no choice but to respond in a political manner. 

So, while we await the Supreme Court's decision, here is a little reading material for a cold winter's night in America...

The first is from a law book -- THE law book, the United States Code. The rules are very clear about how justices and judges have to STEP ASIDE when there is a conflict of interest. Justice Thomas's wife works for the company currently recruiting staff for the potential George W. Bush administration. Justice Scalia's son works for Bush's lawyers. To not recuse themselves from this decision is a violation of the law.

Following that, I have included two powerful articles supporting this conflict of interest charge. Read them and wail.

Finally, I offer you a piece from the Pittsburgh Post-Gazette about a little incident many years ago involving Chief Justice Rehnquist. Per the U.S. Code, considering these former actions of his, maybe he, too, should step aside. (Thanks to Pamela Martens for the research.)

Still hopeful,

Michael Moore

1. The following are the rules regarding when a judge must recuse him or herself, taken directly from 28 United States Code, Section 455. 

28 USC Sec.

Sec. 455. Disqualification of justice, judge, or magistrate


(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality  might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances

(1) Where he has a personal bias or prejudice concerning a  party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the  merits of the particular case in controversy;

(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial  interest in the subject matter in controversy or in a party to  the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person 

(i) Is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) Is acting as a lawyer in the proceeding;

(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

(iv) Is to the judge's knowledge likely to be a material witness in the proceeding.

(c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to  inform himself about the personal financial interests of his spouse and minor children residing in his household.

The Associated Press
St. Louis Post-Dispatch
Page A8
(Copyright 2000)

A former Clinton White House counsel suggested Sunday that conservative Supreme Court Justice Antonin Scalia may want to recuse himself from the Florida recount case because his son works for a firm that represents George W. Bush.

Eugene Scalia is a partner in the Washington office of Gibson, Dunn & Crutcher. Ted Olson, also a partner there, will represent Bush for a second time in oral arguments today, when the Supreme Court considers whether to allow hand counting of ballots in Florida to resume.

"Under that circumstance, Justice Scalia at the very least should disclose the relationship, the presence of his son in Ted Olson's law firm, and explain why recusal, at least for appearances' sake, isn't desirable," said Lanny Davis, former special counsel to President Bill Clinton.

Eugene Scalia said Sunday he was not working on the Bush case.

Court spokeswoman Kathy Arberg said the court would have no comment on the matter. Scalia did not recuse himself the first time Olson argued this case, so it seemed unlikely he would do so this time.

On Saturday, Scalia joined in the 5-4 majority in temporarily halting hand counting of ballots in Florida, as ordered by the Florida Supreme Court. And he issued his own opinion explaining in stronger terms why he believes Bush is likely to win his case after it is heard today.

In September, Chief Justice William H. Rehnquist, whose lawyer son is helping defend Microsoft against private antitrust lawsuits, participated in a key Supreme Court vote in a Microsoft antitrust case. He explained in writing that he had reviewed the law and concluded there was no conflict of interest.

Federal law says judges should disqualify themselves from cases in which their child is known to have "an interest that could be substantially affected by the outcome of the proceeding." 

3. December 12, 2000, New York Times CHALLENGING A JUSTICE
Job of Thomas's Wife Raises Conflict-of-Interest Questions


WASHINGTON, Dec. 11 -- The wife of Supreme Court Justice Clarence Thomas said today that she was working at a conservative research group gathering resumes for appointments in a possible Bush administration but that she saw no conflict between her job and her husband's deliberations on a case that could decide the presidency.

The comments from the justice's wife, Virginia Lamp Thomas, a former Republican Congressional aide, came as a federal judge in Nashville said Justice Thomas faced a serious conflict of interest as a result of his wife's work for the Heritage Foundation.

The foundation has close ties to the Republican Party and would probably have a say in the hiring of key government officials if Gov. George W. Bush assumed the presidency. In e-mail distributed on Capitol Hill earlier this month, Mrs. Thomas solicited resumes "for transition purposes" from the government oversight committees of Congress.

A decision by Justice Thomas to recuse himself could alter the outcome of the case now before the court, which is weighing whether to allow a manual recount of votes in Florida. On Saturday, by a vote of 5 to 4, the court blocked the recount for now. Justice Thomas, who was appointed to the court by President George Bush, Governor Bush's father, was in the majority.

If Justice Thomas were to recuse himself, it could result in a 4-to-4 tie in the case now before it, which would allow the ruling by the Florida Supreme Court to stand.

"There is no conflict here," Mrs. Thomas said in an interview. She insisted that she rarely discussed matters before the Supreme Court with her husband and that Justice Thomas therefore should not consider recusing himself from the landmark case.

A spokesman for Vice President Al Gore said he had no comment on accusations of a conflict of interest. "The Vice President has the highest regard for the independent judiciary, so we're not going to comment on the various questions that have been raised," said Mark Fabiani, a Gore campaign spokesman.

Ari Fleischer, a spokesman for the Bush transition team, said he was aware that the Heritage Foundation regularly collected job resumes during presidential transitions, but he said he did not know if the organization was coordinating its efforts with the Bush camp.

"Like many professional women, Mrs. Thomas should not be judged by her spouse," Mr. Fleischer said, denying any conflict of interest. "She should be judged on her own merits and qualifications."

He suggested that the accusations were the work of the Gore campaign.

A federal appellate judge, Gilbert S. Merritt of the United States Court of Appeals for the Sixth Circuit, said he saw a serious conflict of interest for Justice Thomas in deciding a case that could throw the election to Governor Bush.

"The spouse has obviously got a substantial interest that could be affected by the outcome," he said in an interview from his home in Nashville. "You should disqualify yourself. I think he'd be subject to some kind of investigation in the Senate."

Judge Merritt, who has long association with the Gore family and was considered a leading contender for the Supreme Court early in the Clinton Administration, said he would not launch a formal complaint against Justice Thomas.

4. JUST OUR BILL by Dennis Roddy, Pittsburgh Post-Gazette, Saturday, December 02, 2000 Lito Pena is sure of his memory. Thirty-six years ago he, then a Democratic Party poll watcher, got into a shoving match with a Republican who had spent the opening hours of the 1964 election doing his damnedest to keep people from voting in south Phoenix. "He was holding up minority voters because he knew they were going to vote Democratic," said Pena.

The guy called himself Bill. He knew the law and applied it with the precision of a swordsman. He sat at the table at the Bethune School, a polling place brimming with black citizens, and quizzed voters ad nauseam about where they were from, how long they'd lived there -- every question in the book. A passage of the Constitution was read and people who spoke broken English were ordered to interpret it to prove they had the language skills to vote.

By the time Pena arrived at Bethune, he said, the line to vote was four abreast and a block long. People were giving up and going home.

Pena told the guy to leave. They got into an argument. Shoving followed. Arizona politics can be raw.

Finally, Pena said, the guy raised a fist as if he was fixing to throw a punch.

"I said 'If that's what you want, I'll get someone to take you out of here' " Party leaders told him not to get physical, but this was the second straight election in which Republicans had sent out people to intellectually rough up the voters. The project even had a name: Operation Eagle Eye. Pena had a group of 20 iron workers holed up in a motel nearby. He dispatched one who grabbed Bill and hustled him out of the school.

"He was pushing him across a yard and backed him into the school building," Pena remembered.

Others in Phoenix remember Operation Eagle Eye, too. Charlie Stevens, then the head of the local Young Republicans, said he got a phone call from the same lawyer Pena remembered throwing out of Bethune School. The guy wanted to know why Charlie hadn't joined Operation Eagle Eye. "I think they called them flying squads," Stevens said. "It was perfectly legal. The law at the time was that you had to be able to read English and interpret what you read."

But he didn't like the idea and he told Bill this. "My parents were immigrants," Stevens said. They'd settled in Cleveland, Ohio, a pair of Greeks driven out of Turkey who arrived in the United States with broken English and a desire to be American. After their son went to law school and settled in Phoenix, he even Americanized the name. Charlie Tsoukalas became Charlie Stevens. "I didn't think it was proper to challenge my dad or my mother to interpret the Constitution," Stevens said. "Even people who are born here have trouble interpreting the Constitution. Lawyers have trouble interpreting it."

The guy told Stevens that if he felt that way about it, then he could take a pass. There was nothing illegal going on there, Stevens said. 

"It just violated my principles. I had a poor family. I grew up in the projects in Cleveland, Ohio."

Operation Eagle Eye had a two-year run. Eventually, Arizona changed the laws that had allowed the kind of challenges that had devolved into bullying. Pena went on to serve 30 years in the Arizona State Legislature. Stevens became a prosperous and well-regarded lawyer in Phoenix and helped Sandra Day O'Connor get her start in law. The guy Pena remembers tossing out of Bethune School prospered, too. Bill Rehnquist, now better known as William H. Rehnquist, chief justice of the Supreme Court of the United States, presided yesterday over a case that centers on whether every vote for president was properly recorded in the state of Florida.

In his confirmation hearings for the court in 1971, Rehnquist denied personally intimidating voters and gave the explanation that he might have been called to polling places on Election Day to arbitrate disputes over voter qualifications. Fifteen years later, three more witnesses, including a deputy U.S. attorney, told of being called to polling places and having angry voters point to Rehnquist as their tormentor. His defenders suggested it was a case of mistaken identity.

Now, with the presidency in the balance, Rehnquist has been asked to read passages of the Constitution and interpret them. Once again, a reading and interpretation will determine whose vote gets to count.

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