Supreme Court Ruling: Right or Wrong?

In the week since the Supreme Court handed down its decision on the presidential race, the ruling has attracted harsh criticism from many legal scholars and passionate defenses from others.

Critics say the five justices in the majority decided what result they wanted to reach--an end to ballot recounts--and then cobbled together a weak rationale to get there.

The critics also say the court departed from its usual conservative principles by resolving the type of “political question” that the justices have shunned in other cases and by holding that Florida’s inconsistent standards for judging ballots violated the Constitution’s guarantee of “equal protection of the laws.”

Defenders of the ruling say the court did the nation a service by resolving a seemingly intractable dispute. The justices had no choice but to overturn a Florida Supreme Court decision that was allowing ballot recounts to go forward with no guarantees of fairness or accuracy, defenders say.

What follows are excerpts from the majority and dissenting justices’ opinions stating the opposing sides of the case along with explanatory material by The Times and commentaries by leading scholars.

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QUESTION 1

Did the court have to rule on this case?

JUSTICES’ OPINIONS

The ruling: None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution’s design to leave the selection of the President to the people, through their legislatures, and to the political sphere. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.

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Dissent [Breyer]: Of course, the selection of the President is of fundamental national importance. But that importance is political, not legal. And this Court should resist the temptation unnecessarily to resolve tangential legal disputes, where doing so threatens to determine the outcome of the election. ... [T]he 12th Amendment commits to Congress the authority and responsibility to count electoral votes. ... Congress is the body primarily authorized to resolve remaining disputes.

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WHAT’S AT ISSUE

As a purely legal matter, it was highly unusual for the Supreme Court to take up the case of Bush vs. Gore. In general, the justices see their job as deciding questions of law, not simply disputes between two parties. Typically, they vote to review a case only if it raises an issue of federal law that has divided the lower courts. And they do so many months after the issue has been fully aired and finally decided in a lower court. The Florida election dispute fits none of those criteria.

But there are exceptions to every rule, and the case of Bush vs. Gore posed a legal dispute of extraordinary national importance. If the Florida fight had truly been just about a state race and state election law, the justices would not have become involved. But a presidential election has a special, national character, and that fact alone might have warranted the Supreme Court’s involvement. By mid-December, the justices may have been convinced that only they could end the legal wrangling.

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EXPERT ANALYSIS

Yes

Marci Hamilton is a law professor at Yeshiva University in New York.

“Yes, they needed to rule. The state Supreme Court had an obligation to apply federal constitutional principles, and it had refused to do so. At that point, the Supreme Court was the only player that could resolve it finally.

“It’s true the political route could have been followed [allowing Congress to resolve the dispute], and we might have had two slates of electors going forward. But that misses the legal point. There was an issue of equal protection here that needed to be decided. To say the courts should have stayed out of it is to say an unfair procedure should have been used to decide the recounts. This was the better option and the better result. We have a Supreme Court precedent saying the states must follow uniform procedures for counting votes. In five or 10 years from now, we will see the value of having established this principle.”

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No

A.E. Dick Howard is a professor at the University of Virginia Law School.

“Legally, it is easy to say, ‘No, they shouldn’t have taken it.’ Were they prudent to take it? I think not. Prudence would call for letting the political process run its course. ... I have a problem with saying the court was compelled to decide this because it raised an equal protection issue. A lawyer or a judge can imagine an equal protection problem in every case, because every law or decision makes some classification or distinction. But that’s not the way the law works. Recall, too, when the case first came up to the court, they ... [refused to hear] the equal protection claim raising concerns about the ‘selective’ recounts. That’s rather curious. In the first instance, the equal protection question was so lacking in weight that they didn’t bother to hear it, yet it becomes suddenly the decisive issue in the end.”

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QUESTION 2

Having decided to rule on the case, did the U.S. Supreme Court have the right to independently judge Florida law?

JUSTICES’ OPINIONS

Concurring [Rehnquist]: In most cases, comity and respect for federalism compel us to defer to the decisions of state courts on issues of state law. There are a few exceptional cases. ... This is one of them. Article II, Section 1, cl. 2, provides that “(e)ach State shall appoint, in such Manner as the Legislature thereof may direct,” electors for President and Vice President. Thus, the text of the election law itself, and not just its interpretation by the courts of the States, takes on independent significance.

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Dissent [Ginsburg]: The extraordinary setting of this case has obscured the ordinary principle that dictates its proper resolution: Federal courts defer to state high courts’ interpretations of their state’s own law. This principle reflects the core of federalism, on which all agree.

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WHAT’S AT ISSUE

It is very unusual for the U.S. Supreme Court to make itself the final arbiter of the meaning of a state’s law. Normally, the high court evaluates whether state laws and state supreme court decisions are consistent with the U.S. Constitution and federal laws but lets the highest court of each state decide what the state’s laws mean. In some unusual circumstances, however, the U.S. Supreme Court does make its own decisions on what a state’s laws mean.

In this case, the majority of the court decided that under Florida law, Dec. 12 should be considered a firm deadline for completing the count of all votes. That issue had been discussed by some members of the Florida Supreme Court, particularly Chief Justice Charles T. Wells, but was not decided by the state court. Chief Justice Rehnquist, in his separate opinion, would have gone further. Article II, Section 1 of the U.S. Constitution gives state legislatures the power to determine how electors are chosen. Rehnquist argued that reference to the legislature gives the U.S. Supreme Court an independent basis for reviewing a state court’s rulings about presidential elections.

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EXPERT ANALYSIS

Yes

Lino A. Graglia is professor of law at the University of Texas.

“The state Supreme Court is the ultimate authority on Florida law. No one would question that. In this case, however, there is a constitutional requirement in Article II of the U.S. Constitution that the state legislature is to select the presidential electors. ... Ordinarily, if the state legislature is unhappy with a decision of the state Supreme Court, the legislature can tell the state court that it is wrong and do something about it. In this situation, that’s not available because it would be too late to pass a new law. ... If the secretary of state says this candidate can be certified as having won, under Florida statutes, and the court says different, it is not just a state law dispute.”

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No

Erwin Chemerinsky is a professor at the USC Law Center.

“The U.S. Supreme Court can evaluate whether Florida law is consistent with the U.S. Constitution and federal statutes, but it can do no more than that. When it comes to interpreting what Florida law means, the Florida Supreme Court gets the last word. What is extraordinary here is the lack of any deference at all by the U.S. Supreme Court to the Florida Supreme Court. In the ruling, the majority says there can be no more recounts because ... Justice Breyer’s proposal to have the recount continue until Dec. 18 would violate the Florida election code. What is so troubling is that these conclusions are ... based on the U.S. Supreme Court interpreting Florida law, and the Supreme Court is grossly overstepping its bounds.”

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QUESTION 3

In its rulings, did the Florida Supreme Court rewrite the state’s laws?

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JUSTICES’ OPINIONS

Concurring [Rehnquist]: ... the Florida Supreme Court’s interpretation of the Florida election laws impermissibly distorted them beyond what a fair reading required.

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Dissent [Stevens]: [N]either in this case, nor in its earlier opinion

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Dissent [Souter]: Whatever people of good will and good sense may argue about the merits of the Florida court’s reading, there is no warrant for saying that it transcends the limits of reasonable statutory interpretation to the point of supplanting the statute enacted by the “legislature.”

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WHAT’S AT ISSUE

The line between what constitutes “interpreting” laws and “rewriting” them is a fine one. In this case, the Florida Supreme Court was confronted with three statutes that it attempted to reconcile. One says that the election canvassing board in each county “shall” report results to the Florida secretary of state within a week of the election. Another statute says that members of a canvassing board “may” be fined by state officials if they report results later. A third statute says that either candidate may request a manual recount within 72 hours of the election.

The Florida Supreme Court issued two rulings. In the first decision, the court extended the one-week deadline, saying that doing otherwise would effectively nullify the part of the law that allows recounts. In the second ruling, the court ordered the Florida secretary of state to accept the results of some of those manual recounts and ordered other counties to begin recounting.

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EXPERT ANALYSIS

Yes

J. Clark Kelso is a professor at McGeorge School of Law, University of the Pacific, Sacramento.

“In the first ruling, the Florida Supreme Court interpreted the laws, and in the course of interpretation they rewrote them. Once you say the seven-day deadline is not firm, that is rewriting the law. To set a new deadline is quite a reach. To the extent that one of the statutes provides for manual recounts, it is plausible to read it as meaning only those recounts that can be completed within seven days. In the second ruling, I didn’t see the Florida Supreme Court rewriting much of anything. The Florida election contest statute says that if there are enough contested votes to place in doubt the outcome of the election, a court is empowered to apply a wide range of remedies. In fact, the Florida Supreme Court did more than what Gore asked for--ordering a statewide recount.”

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No

Richard L. Hasen is a professor at Loyola Law School in Los Angeles.

“There is not a sharp line between interpreting laws and rewriting them. When legislatures draft statutes, they do so without perfect knowledge of the future. They often leave gaps, and they create conflicts within their own statutes. It is the ordinary job of courts to fill in the gaps and resolve conflicts. They do that using a set of generally accepted tools, including canons of construction such as a later-enacted statute prevails over an earlier one; a more specific statute prevails over a more general one. Courts have a lot of leeway in interpreting laws. The first Florida Supreme Court opinion was not at all out of line with traditional statutory interpretation. The second opinion is harder to justify as regular statutory interpretation because the remedy--counting just ‘undervotes’--did not appear to match what the court said was the goal-- getting all the votes counted.”

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QUESTION 4

Under Florida law, were the so-called undervotes illegal ballots that could not be recounted?

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JUSTICES’ OPINIONS

Concurring [Rehnquist]: Florida statutory law cannot reasonably be thought to require the counting of improperly marked ballots. ... In precincts using punch-card ballots, voters are instructed to punch out the ballot cleanly. ... No reasonable person would call it “an error in the vote tabulation” or a “rejection of legal votes,” when electronic or elec-tromechanical equipment performs precisely in the manner designed, and fails to count those ballots that are not marked in the manner that these voting instructions explicitly and prominently specify.

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Dissent [Breyer]: The [Flor-ida] Secretary [of State] has claimed that a “legal vote” is a vote “properly executed in accordance with the instructions provided to all registered voters.” ... The Florida Supreme Court did not accept her definition. ... Its reason was that a different provision of Florida election laws [a provision that addresses damaged or defective ballots] says that no vote shall be disregarded “if there is a clear indication of the intent of the voter as determined by the canvassing board.” ... The Florida Supreme Court concluded that the term “legal vote” means a vote recorded on a ballot that clearly reflects what the voter intended. That conclusion differs from the conclusion of the Secretary. But nothing in Florida law requires the Florida Supreme Court to accept as determinative the Secretary’s view on such a matter.

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WHAT’S AT ISSUE

Florida did not have a clear definition of a legal vote. At the polling places, voters were told: “Check your ballot cards to be sure your voting selections are clearly and cleanly punched and there are no chips left hanging on the back of the card.” Lawyers for Secretary of State Katherine Harris said if voters failed to punch the cards fully and correctly, the ballots were not legal votes.

But Gore’s lawyers argued that the tabulating machines do not function correctly all the time and noted that Florida law calls for hand recounts when a county election canvassing board finds “an error in the vote tabulation which could affect the outcome of the election.” The three counties in South Florida that conducted recounts relied on that provision of the law. When Gore contested the outcome, his lawyers pointed to the provision that says he needed to show the “rejection of the number of legal votes sufficient ... to place in doubt the result of the election.” Because the law that authorizes recounts did not specify the standard for determining a legal ballot, the Florida Supreme Court looked at another section of the election code that specified that all ballots which disclose a voter’s intent are legal votes. Rehnquist’s opinion rejected that interpretation of Florida law, saying the U.S. Supreme Court could make its own judgment of the matter. The four dissenting justices disagreed with Rehnquist on that. Justices O’Connor and Kennedy wrote in the court’s ruling that “it is not necessary to decide” that issue.

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EXPERT ANALYSIS

Yes

Douglas W. Kmiec, a law professor at Pepperdine University.

“This is the heart of the problem that divided the two sides. This was the genesis of the equal protection problem, and it goes to what the Legislature intended in the first place. The Florida Supreme Court pointed to a statute dealing with damaged or spoiled ballots and used that standard as a general principle for all ballots. The Florida Legislature thought, and the Bush side assumed, the votes would be counted by machines and that the machine count was it. The vice president asked for a machine recount, and that was done. Anything beyond that was creating a new system because you are then looking at votes that normally are not included. No one could say with any certainty those little blips on the ballots were expressive of the voters’ intent, and the Legislature did not intend that.”

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No

Jon I. Mills is the interim dean of the University of Florida Law School.

“I think the Florida Supreme Court got it right. The law of Florida is these undervotes are legal votes, or at least can be legal votes if the intent of the voters can be discerned. ... You can see why someone would question whether ‘dimples’ or ‘hanging chads’ would be counted, but that is the law in Florida, and it has been the law. ... Everything doesn’t depend on the machines getting it right.”

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QUESTION 5

Did recounting the ballots under the standard used by the Florida Supreme Court violate the U.S. Constitution’s guarantee of “equal protection of the laws”?

JUSTICES’ OPINIONS

The ruling: The recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum requirement for non-arbitrary treatment of voters necessary to secure the fundamental right. Florida’s basic command for the count of legally cast votes is to consider the “intent of the voter.” This is unobjectionable as an abstract proposition and a starting principle. The problem inheres in the absence of specific standards.

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Dissent [Breyer]: [T]he ballots of voters in counties that use punch-card systems are more likely to be disqualified than those in counties using optical-scanning systems. ... Thus, in a system that allows counties to use different types of voting systems, voters already arrive at the polls with an unequal chance that their votes will be counted. I do not see how the fact that this results from counties’ selection of different voting machines rather than a court order makes the outcome any more fair. Nor do I understand why the Florida Supreme Court’s recount order, which helps to redress this inequity, must be entirely prohibited based on a deficiency that could easily be remedied.

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WHAT’S AT ISSUE

The fact that this turned out to be the key question in the case was a surprise in itself. In constitutional law, “equal protection of the laws” has a special meaning. Because all laws make distinctions, people can always claim they were subjected to different treatment. Motor vehicle laws, for example, say a person who is 16 years old can obtain a driver’s license, but a 15-year-old cannot. The two people are not treated equally, but that does not violate the Constitution because the government has a rational basis for treating them differently.

The high court has used the equal protection clause to strike down laws that discriminate based on race, gender or national origin. In the 1960s, the court also used the equal protection clause to reject laws that infringed on the right to vote, such as the poll tax that discriminated against poor people. But the court in recent years has almost always ruled against equal protection claims unless a person can prove that he or she was discriminated against intentionally.

In this case, counties in Florida were using different rules to determine whether indentations on a ballot reflected an actual intent to vote. While no one alleged intentional discrimination, the result of the process was that people’s ballots would count differently depending on where they lived. The issue was whether that unintentional variation violated the equal protection guarantee.

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EXPERT ANALYSIS

Yes

Bradford Berenson, is an attorney at Sidley & Austin in Washington, D.C.

“It seems to me there is an equal protection problem of a fairly serious kind if you are applying different standards to votes in different parts of the state. ... It can’t possibly be that the ‘clear intent’ of the voters means one thing in Palm Beach and something else in Broward County. Seven justices agreed on that basic proposition, including a Clinton-Gore appointee, which shows the majority was not off on some adventurous journey. It’s true there was a wide variety of defects exposed in this election, including the disparities caused by the voting machines. But there was no way to unscramble that egg, except by throwing out the entire election. I think the justices concluded there was no fair and constitutional way to conduct a statewide recount at this late date. So, if you can’t fix the problem and make it perfect, they decided that ultimately the fairest way was to take the guy who received the most votes in the machine count.”

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No

David D. Cole is a professor at Georgetown University Law Center.

“Every state of the union uses different procedures in elections and counts vote with different machines. Sometimes it differs by county and by precinct. In the end, this means ballots are treated differently, and they always have been. Of course, there is no intent to treat people differently, but it is the necessary result of a messy voting process. Until now, no court, let alone the Supreme Court, had held these differences raised any constitutional concern, much less violated the equal protection clause. This was entirely unprecedented. The Legislature here used a system with different machines to get a statewide result, and no one thought that raised an equal protection problem. Yet, when a state court steps in to try to make sure all the votes are counted, they said it does make for an equal protection violation. It seems to me that shows this was a legal standard that was made up to decide this case, and this case only.”

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QUESTION 6

If the recount was flawed, was it too late to adopt new rules to complete it properly?

JUSTICES’ OPINIONS

The ruling: 3 U.S.C. Section 5 ... requires that any controversy or contest that is designed to lead to a conclusive selection of electors be completed by Dec. 12. That date is upon us, and there is no recount procedure in place under the State Supreme Court’s order that comports with minimal constitutional standards.

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Concurring [Rehnquist]: In Presidential elections, the contest period necessarily terminates on the date set by 3 U.S.C. Section 5 for concluding the State’s “final determination” of election controversies.

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Dissent [Breyer]: The majority justifies stopping the recount entirely on the ground that there is no more time. ... But the majority reaches this conclusion in the absence of any record evidence that the recount could not have been completed in the time allowed ... Of course, it is too late for any such recount to take place by Dec. 12, the date by which election disputes must be decided if a state is to take advantage of the safe harbor provisions of 3 U.S.C. Section 5. Whether there is time to conduct a recount prior to Dec. 18, when the electors are scheduled to meet, is a matter for the state courts to determine.

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Dissent [Ginsburg]: The Court’s concern about “the Dec. 12 deadline” is misplaced. ... Were that date to pass, Florida would still be entitled to deliver electoral votes Congress must count unless both Houses find that the votes “ha(d) not been ... regularly given.” ... None of these dates has ultimate significance in light of Congress’ detailed provisions for determining, on “the sixth day of January,” the validity of electoral votes.

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WHAT’S AT ISSUE

This question depends on several variables--prime among them whether the recount had to be completed by Dec. 12 or by a later date--and on some unclear facts, including the number of votes that had to be recounted and the extent of the resources Florida officials had available to do the counting. This year, most states did not actually have the names of their electors submitted to Washington by Dec. 12. In the 1960 election, which was also very close, Hawaii’s electors were not named until Jan. 4. But the Supreme Court majority said the recount had to be completed by Dec. 12 because, under a federal law known as the Electoral Count Act of 1887 (Section 5 of Title 3 of the U.S. Code), electors chosen by that date are protected from challenge in Congress when the electoral votes are counted. The Florida Legislature was entitled to take advantage of that “safe harbor,” the court majority said. Completing a recount by Dec. 12 was obviously impossible because the Supreme Court stopped the counting on Dec. 10 and did not issue its ruling until the night of Dec. 12.

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EXPERT ANALYSIS

Yes

Daniel H. Lowenstein is a professor at UCLA Law School.

“I believed from the start that the Dec. 12 deadline was meaningful. The Florida Supreme Court intimated that it regarded Dec. 12 as a binding deadline. I don’t regard it as shocking that the U.S. Supreme Court took them up on it. There has been a lot of debate among election law experts as to whether the U.S. Supreme Court read the Florida court correctly or should have sent the case back for clarification on that issue. That kind of hair splitting misses the point. One needs a bit of legal realism. Rightly or wrongly, the U.S. Supreme Court thought this case had to be brought to an end. This was a plausible method to reach that result. What was in the Florida Supreme Court opinions makes the U.S. Supreme Court’s analysis plausible.”

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NO

Pamela Karlan is a law professor at Stanford University.

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“We know that in Canada, which has a nonpartisan election commission, they hand-counted 13 million ballots in a day. If the Supreme Court was concerned about good objective counters, they could have told the Florida Supreme Court to hire Ernst & Young or Price Waterhouse--they know how to do these things. They could have set a single standard of two chads hanging out or actual perforation and avoided the equal protection issue. But the U.S. Supreme Court did not want the Florida Supreme Court to do that. They didn’t want the ballots recounted. That is what got Breyer and Souter so exercised. The Supreme Court majority killed the Florida process, protecting nothing other than an outcome--Bush’s victory--while disingenuously issuing a lament about its ‘unsought responsibility.’ It reminds you of what an Army captain said in Vietnam, ‘We had to destroy the village in order to save it.”’

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Scholars Assess the Quality of the Court’s Work

Emma Coleman Jordan, Georgetown University: “What the court did here was like a classic military pincer formation. At the first hearing, the Supreme Court declined to take up the equal protection issue. The court sent the case back to the Florida Supreme Court for clarification [on whether the Florida ruling made new law].... The concern raised by the Supreme Court on that issue caused the Florida Supreme Court to tiptoe around the remedy and kept it from filling in details about standards for conducting the recount. The lack of details created the equal protection issue, which the [U.S. Supreme] Court ultimately ruled on. The Florida Supreme Court was damned if they provided standards and damned if they didn’t.”

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Akhil Reed Amar, Yale University: “For Supreme Court watchers, this case will be like BC and AD. For many of my colleagues, this was like the day President Kennedy was assassinated. Many of us thought that courts do not act in an openly political fashion. So this decision comes as a startling event that has shaken constitutional faith. It is not that these scholars cared so much about the outcome, but the way it was done. I have less respect for the court than before.”

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Richard Lazarus, Georgetown University: “One way to think about what happened is that the Supreme Court crashed the same way a computer crashes. The core thing the court needs is to deliberate, and deliberation takes time. If you deprive the court of the essential ingredient for deliberations, the end product is not going to represent the kind of detached, contemplative judgment that we rely upon the court to provide.... Judging is not like plugging in a calculator. The court had to make a decision in 24 hours and then produce it. Normally, you have 105 days of briefing in a case from the grant of certiorari to the time the last brief is filed. After oral argument in an easy case, the court takes 60 days to produce an opinion. In the harder cases, the court may take up to 270 days. In the [1974] Watergate tapes case, they had 38 days of briefing and 19 days to decide. The only other case where they had to do something this quickly was the Pentagon Papers in 1971. They granted a hearing on Friday, had oral argument on Saturday and issued the decision on Wednesday. The vote was 6-3, and there were nine separate opinions because the justices did not have time to cohere.”

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J. Clark Kelso, McGeorge School of Law: “I think the Supreme Court should have been a little more upfront the first time around.... The court refused to hear the equal protection issue the first time around, but that was the issue they ruled on ultimately. Sending this case back to the Florida Supreme Court the way they did was not helpful. What was missing was guidance on what would have made the recounts acceptable until arguably it was too late. Issuing the stay, halting the recounts, probably was the right thing to do, given that they knew they had five votes. But usually [granting a stay] takes more than some speculative harm to the ‘legitimacy’ of a candidate. That gets to the basic problem: The court is almost assuming the result. In the court’s final opinion, the majority probably did the right thing, given their sense that what was happening in Florida was out of control. They didn’t say that or say they didn’t trust the Florida Supreme Court, but that must have motivated some of the justices. Nonetheless, the per curiam [ruling] is very undeveloped, subject to fair doctrinal and logical criticism.”

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John C. Yoo, UC Berkeley: “I think we should balance the short-term hit to the court’s legitimacy with whether in the long run we can agree that it was in the best interest of the country to end the electoral crisis at an early date. People, like law professors, who spend their lives fixated on the court would rather have the court not do this than have the government up and running. I would rather have the divisive crisis over and the government put together than [preserve] the court’s legitimacy for some unforeseen future need. The court has regularly intervened in cases [such as abortion and gay rights] ... and my liberal colleagues never were troubled. I don’t understand the great concern here where the court was intervening in a much deeper, more important, issue.

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How the Supreme Court Voted

The Supreme Court divided 5-4 in its ruling ending Florida’s ballot recounts. But the justices issued six opinions and had different vote tallies on the questions they faced along the way. On three issues, Justices O’Connor and Kennedy offered no opinion.

* Justices Souter and Breyer agreed with the majority that Florida’s procedures for recounting votes violated the Constitution’s equal protection clause but felt those problems could be remedied without stopping the count.

Chief Justice William H. Rehnquist (Nixon; 1972)

Question

1. Yes

2. Yes

3. Yes

4. Yes

5. Yes

6. Yes

Justice John Paul Stevens (Ford; 1975)

Question

1. No

2. No

3. No

4. No

5. No

6. No

Justice Sandra Day O’Connor (Reagan; 1981)

Question

1. Yes

2. --

3. --

4. --

5. Yes

6. Yes

Justice Antonin Scalia (Reagan; 1986)

Question

1. Yes

2. Yes

3. Yes

4. Yes

5. Yes

6. Yes

Justice Anthony M. Kennedy (Reagan; 1988)

Question

1. Yes

2. --

3. --

4. --

5. Yes

6. Yes

Justice David H. Souter (Bush; 1990)

Question

1. No

2. No

3. No

4. No

5. Yes*

6. No

Justice Clarence Thomas (Bush; 1991)

Question

1. Yes

2. Yes

3. Yes

4. Yes

5. Yes

6. Yes

Justice Ruth Bader Ginsburg (Clinton; 1993)

Question

1. No

2. No

3. No

4. No

5. No

6. No

Justice Stephen G. Breyer (Clinton; 1994)

Question

1. No

2. No

3. No

4. No

5. Yes*

6. No