Down & Dirty (101 page)

Bush’s Florida team has been rewarded. Olson was nominated to be solicitor general; Allbaugh is head of the Federal Emergency
Management Agency; Josh Bolten is White House deputy chief of staff. As I write this, they’re talking about putting Baker
at the helm of the World Bank. Zoellick was named U.S. trade representative. Ken Mehlman is White House political director.
Brad Blakeman is deputy assistant for appointments and scheduling. John Bolton was nominated undersecretary of state for arms
control and international security affairs. Ari Fleischer was named White House press secretary. Dan Bartlett is a senior
communications staffer. Mindy Tucker was named spokeswoman for the Justice Department. It took new White House spokesman Tucker
Eskew only a matter of seconds before he was caught in a lie so egregious he was slammed by both the
National Review
and the
Wall Street Journal.
^*
But, as has been the case, after the puff of smoke cleared, Eskew kept going.

As of this writing, of course, many Gorebies are still trying to figure out what to do with their lives. Bill Daley has an
office in the same complex where Monica Lewinsky once lived and that Bob Dole still calls home—the Watergate. David Boies
returned to his lucrative law practice. Warren Christopher and Ron Klain are back at the L.A. and D.C. offices of O’Melveny
& Myers; Klain just hired Jeremy Bash. Whouley’s back at Dewey Square, shuttling between Boston, where Newman and other Boston
Boys are, and D.C. Young, Sautter, Alper, et al. are back in D.C.; Fabiani finally got back to La Jolla; Hattaway’s in Boston.

Most of the lawyers from both sides are back in business—Bartlit in Denver, Beck in Chicago, Terrell and Bristow in Houston,
Ginsberg, Van Tine, Carvin, Terwilliger, Olson, et al. back in D.C. The Florida lawyers from both sides seem well, if not
better than ever—Richard, Martinez, De Grandy, Wallace, Scherer, Zack, Berger, and Kuehne are all fine, the Bushies maybe
a bit more so than their Gore-backing counterparts. According to sources, Coffey no longer works for the same law firm, because
one of his former law partners, a Cuban-American, has political ambitions and did not want to be associated with a man who
was associated with Al Gore.

Indeed, Hurricane Chad may have left Florida, but there is damage in its wake. Judge Lee has reregistered from the Democratic
Party to “no party”; Judge Burton and Theresa LePore were considering doing the same as of January 2001. David Boies and Mitch
Berger were cleared by the Florida Bar Association of any ethical wrongdoing in the Lavelle matter. Republicans were gearing
up to unseat the four Florida Supreme Court justices—Quince, Anstead, Pariente, and Lewis—who voted to begin a hand recount
of the state’s undervotes.

Jeb Bush launched a commission to look into how voting can be improved in his state. Harris and Clay Roberts were hauled up
and embarrassed before a U.S. Commission on Civil Rights hearing in Tallahassee that looked into the state’s elections problems.
“I heard, today especially, from supervisors who were desperate, desperate for your help,” said Commissioner Victoria Wilson.
“And the word that comes to mind is that you abandoned them. They were abandoned by your department.” Throughout the hearing,
Harris, the chief elections officer of the state, had to turn to Roberts to find out the answers to questions.

Additionally, television networks have been revisiting their rules on calling winners based on VNS data. A typical result:
an investigation of CNN, commissioned by CNN, concluded that “CNN’s election night coverage was a debacle.” A study of VNS
commissioned by VNS was less
harsh, ruling that the Election Night mistakes were “the product of a number of system errors that tended to work in concert
at various points in the evening,” and recommending “stricter quality control and quality standards.” No shit. Networks will
indubitably be more circumspect about calling a state in the future. But to be realistic, about the only thing we’re probably
guaranteed will never happen again is you won’t hear Dan Rather say, as he did on Election Night, “When
we
call a state, you can take it to the bank.”

Speaking of taking it to the bank, the whole deal looks like it will cost Florida more than $3 million. Not to mention a whole
lot of respect. Joe Klock and his Steel Hector & Davis team handed Katherine Harris—and Florida taxpayers—a bill for $682,266.
The attorneys insisted that they cut costs wherever possible; Klock slept at a friend’s house while in Tallahassee, for instance.
For 3,724 hours of work, the taxpayers got a bargain, the law firm said. Including the $10,000 to send the lawyers to Washington,
D.C., in a Lear Jet to argue before the U.S. Supreme Court. Other expenses Floridians will end up footing the bill for: around
$300,000 for the constitutional scholars hired by Rubottom, Feeney, and McKay. Sixty grand for extra security measures in
Miami-Dade. Palm Beach County paid Bruce Rogow $100,000 to represent LePore. A quarter mil went to defend Seminole County’s
Sandra Goard. The private attorney for Agriculture commissioner Bob Crawford charged taxpayers $46,477; weeks after the election
debacle concluded, Crawford resigned to take a cushy job with the Citrus Department. About the only expense that seems worth
it is the $2,500 Volusia County spent to feed its vote counters.

As America returns to its blissful slumber, perhaps the most severe divisions created are those within the U.S. Supreme Court,
where reportedly the actions of the majority—and the failure of O’Connor and Kennedy to work with Souter and Breyer on trying
to fashion a solution to the problem—have left clerks and justices demoralized.

Beyond the closed doors of the U.S. Supreme Court building, it is disturbing how few conservative legal scholars have proved
to be intellectually honest enough to read the majority’s December 14 ruling as nothing other than a slapdash piece of work
at complete odds with conservative legal thinking. One of the few to do so was John DiIulio, Jr., who wrote, in a December
25
Weekly Standard
piece entitled “Equal Protection Run Amok,” that to “any conservative who truly respects federalism, the majority’s opinion
is hard to respect.” DiIulio continues:

The arguments that ended the battle and “gave” Bush the presidency are constitutionally disingenuous at best. They will come
back to haunt conservatives and confuse, if they do not cripple, the principled conservative case for limited government,
legislative supremacy, and universal civic deference to legitimate, duly constituted state and local public authority.

“In most cases,” acknowledge Rehnquist, Scalia, and Thomas, “comity and respect for federalism compel us to defer to the decisions
of state courts on issues of state law.” There are, however,“a few exceptional cases,” and “this is one.” Why?

Why, suddenly, do inter-county and intra-county differences in election procedures, which are quite common in every state,
rise in the Florida case to the level of “equal protection” problems solvable only by uniform standards (by implication, uniform
national standards) and strict scrutiny from federal courts?

How can the conservative jurists on the Court find prima facie fault with what the Bush legal team disparaged as “crazy quilt”
local laws and procedures?Why,in any case,weigh the alleged problem in Florida without taking cognizance of how election procedures
vary from polling station to polling station and from county to county in, say, Pennsylvania? And why, in reversing a state’s
highest court for not following the U.S. Constitution, and for infringing upon the state legislature’s authority, does the
nation’s highest court substitute its own resolution of the ultimate “political question” for the Constitution’s explicit,
black-letter reliance on state legislatures and, if need be, the U.S. Congress?…

I would like to believe there was a time when conservatives would have instinctively recoiled at the way we have all now fallen
into thinking of and battling for the presidency as if it, rather than the Congress, were constitutionally the first branch
of our national government. There was a time when conservatives understood that the localisms of little platoons and county
governments were good and to be preserved and protected by law and custom unless proven bad by experience…. There was even,
I suppose, a time when conservatives would rather have lost a close, hotly contested presidential election, even against a
person and a party from whom many feared the worst, than advance judicial imperialism, diminish respect for federalism, or
pander to mass misunderstanding and mistrust of duly elected legislative leaders.

If there ever was such a time, it has now passed, and conservatives ought to do what they can to bring the country back to
this future.
Regrettably,
Bush v. Gore
does no such thing. Desirable result aside, it is bad constitutional law.

As I write this, media organizations are conducting their statewide recounts of the election. On January 27, 2001, Dennis
Newman sent out an e-mail to the dozens of members of the Gore recount team—Charlie Baker, Jack Corrigan, Michael Whouley,
Nick Baldick, Donnie Fowler, Mitch Berger, Ron Klain, Dexter Douglass, Ben Kuehne, et al.

“As we all know,” Newman wrote, “Burton, Harris, Scalia, Jeb, et al stole the election from us. The attached article from
today’s
Palm Beach Post
is further proof. Basically it says that if Burton had counted the ballots objectively we would have picked up an additional
672 votes. This is in addition to the 174 votes (should be 215 but that’s a whole other dispute) that the Board had given
us in the recount, but Harris refused to count.

“In addition, other media counts since the election have shown that we picked up an additional 130 votes in Lake County and
120 additional votes in Hillsborough County. This gives us an additional 672+174+130+120= 1096 votes. Please circulate this
information as widely as you can. Anything to get National media attention to this would obviously be helpful.”

The
Palm Beach Post
story, however, showed nothing of the sort. It showed that “[i]f Democrats had gotten their way and dimpled ballots in Palm
Beach County had been counted as votes, Al Gore would have picked up 682 votes, which is more than President George W. Bush’s
537-vote statewide margin of victory, according to
The Palm Beach Post’
s examination of disputed ballots.”

But not even in Broward County were
all
dimples—regardless of whether or not there was a pattern—considered votes. And this is the inherent fallacy of the media-funded
recount. A truly accurate tally would reflect ballot counts that adhere to the way each county’s canvassing board would have
ruled. Since a majority of the sixty-seven counties never stopped to reconsider undervotes or overvotes, there is no precedent
as to how they would have ruled. So it doesn’t really matter what the counters hired by the
Washington Post
or any other paper judges to be a vote. All we can get is a set of hypotheticals.

Nevertheless, it’s silly to pretend that reasonable people shouldn’t wonder who, indeed, garnered the most votes in Florida—especially
considering that Al Gore gleaned more than half a million votes more than Bush in the popular-vote contest. The world entered
the swamps of Florida on Wednesday, November 8, with 175,000 unread ballots throwing the Ellisanointed
Bush coronation into serious doubt. We left it on December 13, with those same ballots unread, the vast majority of them still
uncounted.

Certainly George W. Bush and his minions did everything they could to stand in the way of anyone—witness Tucker Eskew’s discrediting
of the media attempts to examine the ballots—trying to get to the bottom of whom tax-paying, God-fearing, Americans voted
for.
^*
Baker said “NO RECOUNTS” early on, as was his right, and the lawyers and pols followed through, almost entirely within the
legal system. GOP lawyers on the ground—Wallace, Scherer, Martinez, De Grandy—stalled, whined, obstructed. Politicians and
spinners—Fleischer, Eskew, Racicot—exaggerated, misled, lied. Lawyers in the courts set traps, like Carvin, and disingenuously
represented the facts as they wanted them to be seen by the court, like Olson. The trial lawyers hired by Baker—Bartlit, Beck,
Terrell, Richard—went after victory in court regardless of The Truth or, in some cases, even their own personal politics.
Political operatives—Mehlman, Blakeman, the emboldened Miami-Dade wusses—injected venom into the air, making an already tense
situation even uglier. Bush and Cheney sat back and reaped the benefits of the ugliness their organization was putting out
there.