Photo: Wikipedia

Photo: Wikipedia

Norm Coleman should be crying crocodile tears over David Souter’s imminent departure from the U.S. Supreme Court. The former senator may yet bring an election case to the nation’s high court that relies on the 2000 Bush v. Gore recount ruling. Souter abhorred the Bush v. Gore decision more viscerally than any successor ever could.

Here’s how much Souter despised the Bush v. Gore decision, as recounted in New Yorker reporter Jeffrey Toobin’s 2007 book, “The Nine“:

David Souter alone was shattered. He was, fundamentally, a very different person from his colleagues. It wasn’t just that they had immediate families; their lives off the bench were entirely unlike his. They went to parties and conferences; they gave speeches; they mingled in Washington, where cynicism about everything, including the work of the Supreme Court, was universal.

Toughened, or coarsened, by their worldly lives, the other dissenters could shrug and move on, but Souter couldn’t. His whole life was being a judge. He came from a tradition where the independence of the judiciary was the foundation of the rule of law. And Souter believed Bush v. Gore mocked that tradition. His colleagues’ actions were so transparently, so crudely partisan that Souter thought he might not be able to serve with them anymore.

Souter seriously considered resigning. For many months, it was not at all clear whether he would remain as a justice. That the court met in a city he loathed made the decision even harder. At the urging of a handful of close friends, he decided to stay on, but his attitude toward the court was never the same. There were times when David Souter thought of Bush v. Gore and wept.

Souter was more restrained in his written dissent in Bush v. Gore. More remarkable was that the majority opinion that gave George W. Bush the presidency also famously proscribed using the decision as precedent:

Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

Yet in the brief he submitted to the Minnesota Supreme Court on April 30, Coleman cited Bush v. Gore five times.

On pages 1–2:

Whether the trial court violated the constitutional protecxtions of equal protection and due process when it imposed a strict compliance standard for rejected absentee ballots rather than a substantial compliance standard like that actually applied by election officials (and in accord with this Court’s longstanding policy favoring enfranchisement)? … Apposite Authorities: … Bush v. Gore, 531 U.S. 98 (2000) …

On page 23:

The applicability of the guarantees of equal protection and due process in the Fourteenth Amendment to the Constitution also made such evidence [of absentee ballots counted on Election Day not meeting the election contest court's standards] relevant. Those guarantees mandate that all similarly situated absentee ballots be reviewed under a uniform standard uniformly applied. See, e.g., Bush v. Gore, 531 U.S. 98 (2000) …

On page 41:

But the Constitution protects “more than the initial allocation of the franchise.” Bush v. Gore, 531 U.S. at 104. It also protects the right of all qualified voters to have their votes counted equally. Id. …

If the state fails to apply “specific standards during a statewide recount that will ensure “equal application” to all votes, the lack of uniform standards is a constittional violation. Bush, 531 U.S. at 106.

On pages 42–43:

The trial court’s attempt to distinguish Bush v. Gore, which makes clear that different areas of the state applying different interpretations of an applicable standard is unacceptable under the Constitution, is not persuasive. There is no logical distinction between the unequal treatment of equivalent chads caused by the Florida Supreme Court’s imprecision (different counties interpreting the court’s holding differently) and the unequal local treatment of absentee ballots caused by imprecision in officials’ understanding and intentional application of the statutory standard set forth in Minn. Stat. 203B.12, subd.2. Just because Minnesota’s standard was set by statute rather than court decision does not excuse the constitutional requirement that the standard be applied uniformly. In both cases a standard has been inconsistently applied as the result of official imprecision. Indeed, because it leaves standing — and therefore, ratifies — local decisions made in accordance with their own interpretative gloss on the statute, without insisting on strict compliance for all absentee ballots, the trial court’s decision itself confirms the same constitutional violation at issue in Bush v. Gore. Deliberate unequal treatment of similarly situated voters simply is unacceptable under federal equal protection law.

Once the first President Bush put him on the bench in 1990, Souter moved in a liberal direction, running opposite to Coleman’s Dem-to-Republican transformation. But it’s not Souter’s place among the court’s liberal minority that should make Coleman smile to see him go. (Obama can find a reliably liberal justice to replace him.) It’s Souter’s reviling of Bush v. Gore that Coleman should be glad to see vanish.