Trump shows fresh disdain for the rule of law as the Kavanaugh confirmation hearing begins

By James Hohmann
September 4 at 9:03 AM

THE BIG IDEA: The first thing Al Gore did when he lost 5 to 4 in Bush v. Gore was email his spokesman. “Don’t trash the Supreme Court,” the vice president ordered.

“Had Gore tried to cast doubt on the court – in the face of arguably the worst decision since Plessy v. Ferguson – we could’ve seen rioting in the streets,” said Matt Bennett, a lawyer who worked for Gore in the White House before co-founding Third Way, the moderate think tank. “One of the scariest things about Donald Trump’s assault on previously trusted institutions is the risk it poses to the peaceful transfer of power. Can anyone imagine Trump doing what Al Gore did in 2000? … It’s impossible to even summon the image of Trump selflessly declaring the recount effort over, congratulating his victorious opponent and moving gracefully off the stage.”

Brett Kavanaugh, whose confirmation hearing to join the Supreme Court begins today, was one of George W. Bush’s attorneys during the 2000 recount. His lawyering in Florida, combined with his background as a Republican operative, landed him a plum job in the White House, which in turn helped him score an appointment to the D.C. Circuit – the second most powerful court in America.

The decision remains in dispute 18 years later. Senate Democrats are unlikely to focus on Bush v. Gore during this week’s confirmation hearing because they don’t want to look like sore losers, and there is evidence that Bush would have narrowly prevailed if there had been a complete statewide recount. But it's nonetheless a timeless reminder not just that every justice counts, but also that the judiciary’s legitimacy depends on leaders of the executive and legislative branches respecting even decisions they disagree with.

Gore spokesman Chris Lehane, who received the “Don’t trash the Supreme Court” message on his BlackBerry that December night, is still critical of the rationale offered by the Republican-appointed justices. "This was an explicitly political decision, and Gore still made the decision … for the best interest of the country in the absolute heat of the moment … where he had every reason to call out the court for acting more like Chicago ward heelers than Supreme Court justices respecting the rule of law," he recalled Monday.

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