May It Please The Court
The Justices brought reason to the chaos, if only for a moment. But how will their ruling affect the outcome?
John Cloud Reported by Ann Blackman, Sally B. Donnelly, Tamala M. Edwards, Viveca Novak, Karen Tumulty and Douglas Waller/Washington; John F. Dickerson/Austin; Mitch Frank and Eric Roston/New York; and Tim Padgett and Timothy Roche/Tallahassee
We like to say we hate lawyers, that they pickle and fillet and
jelly common sense until we're all flummoxed. For a while now,
and particularly in the past few weeks, it has become
fashionable to say that politics has been lawyered to death,
that we face the cheerless prospect of election-by-lawsuit
forever.
And we may, at least whenever elections are as close as this
one. But there was a moment last week when nine lawyers, the
Justices of the U.S. Supreme Court, brightened rather than
blanched American democracy, asking us to look beyond the merely
dimpled. Friday was a day unlike any other since the
election--unlike the past month of candidates with their dueling
speeches and seas of American flags, of squawking pundits on the
cable channels, certainly unlike the silly spectacle of the
previous day, when news choppers chased a Ryder truck full of
ballots as it trundled up a highway for eight hours. On Friday
we saw how muscular reasoning can cut through the noise.
The moment probably won't last. The sleeper absentee-ballot
lawsuit from Seminole County or Gore's unprecedented challenge to
the presidential election results before Judge N. Sanders Sauls
or some other court proceeding could end up determining the
election's outcome. The U.S. Supreme Court may even decide not to
rule at all on the case George W. Bush brought before them, Bush
v. Palm Beach County Canvassing Board. But at least for 90
blessed minutes Friday morning, Election 2000 didn't feel like an
argument between overheated parents at a Little League game.
Capitol Hill and the White House have their own institutionalized
pageantry (think the State of the Union address), but when Dale
Bosley, the marshal of the Supreme Court, came into the chamber
on Friday to declare, "God save the United States and this
honorable court," it was hard not to feel a little bit moved. At
a time when presidential candidates buss their wives on TV and
the Republican and Democratic leaders of the House of
Representatives don't speak for months at a time, the ringing
proclamation of "Oyez, oyez, oyez" was exhilarating, a signal
that the highest court in the land was about to turn its
attention to our thorniest crisis.
True, the court's dignity has come at the price of its
staggeringly anachronistic aloofness. When the court boldly
thrust itself into the 20th century by allowing those newfangled
audiotapes of Friday's session to be released the same day, it
was praised as a step forward. But no other branch of government
could get away with such operational opacity. Recently, when a
member of the media suggested that the high court's public
information office might notify reporters of schedules via
e-mail, he was told that the computers in that office are not
Internet enabled.
Still, Friday's high-court theater showed what can happen when
the shouters are kept outside. Yes, there were plenty of them:
more than 1,000 citizens loudly exercising their First Amendment
rights, including Falun Gong members and Maryland high school
kids, Republican mothers and Al Sharpton, a lady breezing by in a
mink coat and a haggard man with a braided beard who was
clutching a protest permit. At one point, the Bushies began
yelling, "Con-cede again!" Which of course drew the Gore
partisans' response, "Don't get snippy!" But scattered among the
protesters were plenty of regular folks who waited hours--and even
spent the night in tents--for a chance to watch the proceedings in
person. Perhaps they weren't so different from the drivers who
had paused at a rest stop off Florida's Ronald Reagan Turnpike
the day before to have their picture taken with the Ryder truck
coming up from West Palm Beach. But the court watchers got much
more for their trouble.
Inside the chamber, the American elite assembled for the
arguments that most legal scholars had predicted wouldn't come.
It was quite a sight, as warring parties had to cram together in
the 400-seat hall. (Court personnel said they hadn't seen
Friday's frantic demand for seats since 1989, when a high-profile
abortion case, Webster v. Reproductive Health Services, was
argued.) Senator Edward Kennedy sat uncomfortably next to Barbara
Olson, wife of Bush lawyer Theodore Olson and author of Hell to
Pay, a vituperative book about Kennedy's new colleague Hillary
Rodham Clinton. Gore adviser Warren Christopher was there, and so
was Clinton hater Bob Barr. All four Gore children showed up, as
did Caroline Kennedy Schlossberg.
Earlier last week Vermont Democratic Senator Patrick Leahy, the
ranking minority member of the Judiciary Committee, had phoned
chairman Orrin Hatch to ask if he would walk with Leahy to the
Supreme Court hearing. The Senators felt it was important to
stage a bipartisan show of support for the American judiciary,
which has taken a drubbing since the Florida Supreme Court ruled
to extend secretary of state Katherine Harris' certification
deadline. Even Florida judge Charles Burton, the long-suffering
head of the Palm Beach canvassing board, flew up to see the show.
And what a show it was. The Justices allowed 50% more time than
usual for arguments, perhaps because the case raised an important
issue about the very role of supreme courts: whether they have
the right to inject themselves into state election disputes.
The Bush team wanted the Justices to overturn the Florida Supreme
Court's Nov. 21 ruling. Olson, a stellar appellate lawyer who
worked in Reagan's Justice Department alongside Kenneth Starr,
argued that the Florida court's ruling amounted to the creation
of a new law after the election--a breach of the federal Electoral
Count Act of 1887, a law previously untested in court and exhumed
recently by G.O.P. archaeologists. The law was written about a
decade after the last truly chaotic American election, the
Rutherford Hayes-Samuel Tilden race of 1876, when Hayes became
President after the wheeling and dealing of competing slates of
Southern electors.
The Gore team was led by Supreme Court war-horse Laurence Tribe,
the Harvard law professor who last week received his 30th
souvenir quill from the court, which gives the pens to attorneys
who argue before it. To Olson's argument, Tribe replied that the
Florida justices weren't writing new code but merely interpreting
conflicting Florida statutes. (One sets a tight deadline for
certification and the other allows hand recounts, which can take
a long time.) And anyway, Tribe argued in his typically agile
brief, the electoral-count law simply offers incentives to states
who follow its provisions--but doesn't punish them if they don't.
The Justices sliced into both sides with razor-like questions.
It's a fool's game to predict outcomes from the Justices' tone,
but legal experts say if Gore had the intuitive edge going into
Friday, the line of questioning tilted in Bush's favor. Overall,
however, "Bush had the uphill battle," says the University of
Chicago's Cass Sunstein, because he had to convince the Justices
that they have a reason to insert themselves in a state matter.
"We're looking for a federal issue," Republican-appointed Justice
Anthony Kennedy stated Friday. Olson gave the Justices two: the
1887 law and Article II of the U.S. Constitution, which gives
state legislators, not a state's judges, the authority to decide
how members of the Electoral College will be chosen.
Olson's groping for a case to establish federal jurisdiction over
the Florida election was a bit rich, since he is a leading member
of the Federalist Society, the conservative group that is highly
protective of the rights reserved to the states by the
Constitution. But it was perhaps an even lustier irony to see
Tribe, a liberal Democrat who has spent his career battling
states'-rights advocates like Chief Justice William Rehnquist,
use some key states'-rights decisions to bolster his brief that
the Florida Supreme Court ruling should stand.
Ideology stamped many of the exchanges. Clinton appointee Ruth
Bader Ginsburg chided Olson because, she said, he had "impugned a
state supreme court...I mean, in case after case, we have said we
owe the highest respect to what the state supreme court says is
the state's law." That wasn't the only moment when Olson, a
veteran of 13 arguments before the court, seemed rattled. What's
worse, none of the Justices seemed willing to buy his creative
theory that the Electoral Count Act had been violated.
But Tribe didn't have an easy time of it either, particularly
when Justice Antonin Scalia, a Reagan appointee and the
intellectual leader of the court's conservative wing, bustled in
with an argument based on a less developed part of Bush's
brief--that the Florida court didn't rely solely on statutes of
the Florida legislature when it fashioned its solution to the
case but relied more on the state constitution and the expansive
notion of having every vote count. If that's true, then there's
a violation of Article II of the Constitution. At the end of the
day, Tribe told members of his team that he was surprised by the
prevalence of that line of questioning, which could spell doom
for the Vice President. Another bad sign: Justice Sandra Day
O'Connor, a Reagan appointee who often provides the swing vote
in 5-4 cases, also scrutinized Tribe closely--and rescued a
stammering Olson at one point with a softball query. Many court
watchers saw her words as a sign of an emerging 5-4 majority for
Bush.
What was wonderful about the proceedings wasn't just the
seriousness and deftness with which everyone approached the
issues but also the inside look we got at the subtle drama
playing out. Because of the court's obsessive secrecy--former
clerks and administrators who speak publicly about what goes on
there are treated as outcasts--we rarely get a glimpse of how the
Justices' minds work. (By contrast, we get far too close a look
at what goes on behind closed doors on both ends of Pennsylvania
Avenue.) Swing voters O'Connor and Kennedy seemed to bat
questions between them about how they might find a federal role
for the court, almost conversing with each other through the
advocates. At one point, Justice David Souter, the moderate
appointed to the court by Bush's father, helpfully gave Tribe a
page number. "Page 3-A of the blue brief, I am reliably
informed," Tribe quipped. A beat passed, and then Rehnquist
chimed in, "It won't get you an extra two minutes."
The justices could rule early this week, given the speed with
which the court has already moved on this case. (The record time
in recent years is a four-day turnaround from oral arguments to
ruling in the 1971 Pentagon-papers case.) Judicial experts offer
three scenarios:
THE BUSH WIN
The Justices rule in favor of Bush that the Florida Supreme Court
wrongly extended the certification deadline to include hand
counts. The legal effect of this decision would actually be quite
small. Bush's lead would increase from 537 votes to the earlier
margin of 930 votes, but Gore could still proceed with his
contest before Judge Sauls, which is based on a different set of
laws entirely. Gore knows this, which is why he wasn't heavily
weighed down by Friday's events. Says Democratic strategist Paul
Begala: "Hell, we already lost" on the certification of Bush's
lead. "Now it's in the contest phase."
Politically, however, a Bush win would be a stunning public
relations defeat for Gore, one that could erode his support in
the nation and in Washington. Last week moderate Senate Democrats
said they would consider the election finished if the high court
rules against Gore. "Nobody has the stomach for this stretching
beyond early December," says a senior aide to one Democratic
Senator. Even Gore's campaign aides see an unfavorable ruling as
a death blow. "They could lock it up for Bush," says a longtime
adviser. "For Gore, they could let him live, but they can't lock
it up for him."
Although some Bush supporters fantasized about it last week, it's
highly unlikely that the court would directly rule on any of the
other legal matters related to the election--the contest, for
instance, or the Seminole case. As a matter of course, the
Justices refrain from ruling on issues not directly put to them.
Even so, says law professor John Yoo of the University of
California, Berkeley, "whenever the court does anything, it's a
significant political event. What they say will have a ripple
effect on all these other cases in the lower courts and the other
branches of government."
THE GORE WIN
The Justices affirm the Florida Supreme Court ruling, perhaps
adding a short instruction that the Florida court rewrite its
ruling to recognize that the state legislature, not the Florida
constitution, controls how electors are appointed. Gore wouldn't
gain any votes from such a ruling, but he would gain an important
talking point. "He needs disputes to the Bush claims from someone
other than his campaign staff, someone else saying these votes
need to be counted," says one of the Vice President's advisers.
Some Democratic graybeards say Gore's losses in the courts forced
him on television too often last week to explain why he keeps
going. "It's demeaning to him, and he's using up all his
credibility," says a senior Democrat.
THE PUNT
Even after friday, many legal experts were still shocked that
the court took the state case to begin with. They contend that
the Justices will simply decide not to rule, availing themselves
of an option used several times each term: dismissing the case
as "improvidently granted," a phrase at once imperious and
penitent that means the Justices believe the case does not
present the issues they thought it did when they accepted it.
The court may wait a while to decide whether to do this, looking
carefully at how Gore's contest proceeds. "I think the Justices
will be concerned about coming out with a divided opinion,
because the public will see it as a partisan thing, and the
court will lose some credibility," says Susan Low Bloch, a
constitutional-law professor at Georgetown. The Justices may
also worry about delegitimizing the Florida Supreme Court by
tossing out one of its most high-profile decisions--and one that
was unanimous.
Last week Bush's aides felt upbeat, though not quite cocky, about
Friday's high-court arguments. "Ted Olson himself urged us not to
try to read into the mood of the Justices," says Bush spokesman
Dan Bartlett. But even if they lose with the high court, the
Bushies believe they're doing very well indeed in the Florida
courts. The end of last week brought strong evidence for that
proposition. On Friday the Florida Supreme Court refused to order
both immediate hand counts of disputed ballots and the revote in
Palm Beach County sought by voters confused by the butterfly
ballot.
And Saturday Gore's contest of the election in Sauls' courtroom
continued at a glacial pace, bogged down in statistics and chads,
just as Bush's lawyers had hoped. Every delay brings them closer
to Dec. 12, when the states must appoint electors to the
Electoral College. Even if Sauls does rule in Gore's favor this
week that some 14,000 ballots from heavily Democratic areas must
be counted, the counters may not have enough time to get it done.
Gore's fast-moving team offered just two witnesses on Saturday, a
statistician and an expert on voting machines, but Bush
cross-examinations saw to it that their testimony took up most of
the day. Bush's team offered two witnesses and planned to call 18
more. At times the proceedings dwelled on small but crucial
matters, like whether old chads build up behind ballots and
sometimes prevent a hole from being fully punched. Gore won a
victory on that point, but Bush lawyer Phil Beck expertly
cross-examined the Gore team's statistician, Yale professor
Nicolas Hengartner. The professor had to admit that he had in
fact never inspected a certain ballot that he claimed to have
examined in his affidavit. The embarrassing admission didn't
change Hengartner's overall point that there were serious
problems with punch-card voting, but it may have damaged his
credibility with Sauls.
As the clock ticks, Gore faces mounting political problems. Polls
show that the public's attitude about his challenge splits pretty
evenly down party lines, but people are growing more impatient
with each passing day. Moderate Democrats in Congress remain
skittish and ready to bolt--and if they abandon Gore this week, he
will almost surely have to concede. Some of them argue that Gore
won Florida but should give up anyway. "Every Democrat feels that
Gore is getting screwed," says a top Democratic congressional
aide. "But at what cost?" Party leaders feel that Democrats will
have a better chance of retaking Congress in the 2002 elections
if Bush is President. Although minority leaders Richard Gephardt
and Tom Daschle flew to Florida last week to rally Democrats and
sit through a staged phone call with Gore, they didn't suggest
the trip. Gore's people had to ask.
The Democrats have tended to be more unified on those days when
Republicans are shouting about Gore's theft of the election or
stirring up heavy-handed protests in Florida. Another chance for
Democratic unity may come this week, if the Republican-controlled
Florida legislature meets in a special session to consider naming
a slate of Bush electors to be sent to the Electoral
College--regardless of the outcome of Gore's contest. These
legislators are some of Bush's most loyal servants, willing to
send the Bush electors to Washington on Dec. 18 even if the
Florida courts decide Gore electors are the rightful appointees.
The Florida Republicans say they are merely ensuring that Florida
does not lose its voice when the Electoral College meets. "The
courts along with the Gore campaign created this mess; we
didn't," says house majority leader Mike Fasano. "They've forced
our hand." But others say the legislature's Republicans have
become wildly partisan, so eager for a Bush victory that they are
even grumbling about his brother, their Governor. "There's a
growing sense among those true-believer Republicans that Jeb Bush
didn't come through for us in this presidential campaign," says
Richard Scher, a political-science professor at the University of
Florida. "Their attitude now is, 'We've got to take matters into
our own hands.'"
Gore's people don't mind such over-the-top rhetoric, in part
because they think Bush has been hurt by reaching for the prize
too fast. And Democrats have started to talk about moral victory
even in the face of electoral defeat. In the coming weeks or
months, they say, counts by independent groups will show that
Gore won Florida. Over the weekend, the Miami Herald published an
analysis of voting patterns in each of the state's 5,885
precincts suggesting that Gore would have won the state by 23,000
votes if voters hadn't made errors and balloting equipment hadn't
failed. Such a validation will be small consolation to Gore if he
loses, but it delights other Democrats--and it would undermine
President Bush. "It would be devastating to not only have lost
the popular vote but to also have been determined to have
inaccurately been declared the Electoral College winner," says
Senator Evan Bayh of Indiana. "You have no basis for legitimacy."
Which leads us back to the U.S. Supreme Court. The Justices may
have taken up this peculiar election precisely to avoid that sort
of conclusion. In the year 664 in Dark Ages Britain, an abbot
stepped down from a coveted spot as bishop after his predecessor,
missing and feared dead, turned up alive and well. The abbot
became the patron saint of good losers. His name is actually St.
Chad. The Justices know that neither Bush nor Gore will be moved
by St. Chad's grace. But they may find a way to uphold the
legitimacy of the presidency even without it.
--Reported by Ann Blackman, Sally B. Donnelly, Tamala M.
Edwards, Viveca Novak, Karen Tumulty and Douglas
Waller/Washington; John F. Dickerson/Austin; Mitch Frank and
Eric Roston/New York; and Tim Padgett and Timothy
Roche/Tallahassee
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