Down & Dirty (76 page)

In a show of solidarity, the chairman and ranking Democrat of the Senate Judiciary Committee, Senators Orrin Hatch, R-Utah
and Patrick Leahy, D-Vt., walk over to the hearing together. But Hatch and Leahy’s brief bipartisan stroll ends at the U.S.
Supreme Court building, and that’s where any figurative common ground ends as well.

“The Honorable, the Chief Justice, and the Associate Justices of the Supreme Court of the United States!” bellows the marshal.
“Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished
to draw near and give their attention, for the Court is now sitting! God save the United States and this Honorable Court!”

Sitting in the center, high atop the mahogany mountain, in this historic room, with its maroon-and-golden curtains and sculpted
marble portraits of, among others, Moses, Solomon, Confucius, Hammurabi, and Charlemagne,
Chief Justice William Rehnquist gets right to business. “We’ll hear arguments this morning in no. 00836,
George W. Bush v. the Palm Beach County Canvassing Board,”
he says. “Mr. Olson?”

Daley’s concerned. Seven of these justices were appointed by Republicans—Rehnquist by Nixon; Stevens by Ford; O’Connor, Scalia,
and Kennedy by Reagan; Souter and Thomas by Bush Sr. And though Souter and Stevens have since turned out to be quite a bit
more liberal than anticipated, Daley sees the deck as stacked against them. To Daley this has never been a legal battle, it’s
been political from Day One, a political dogfight cloaked in law. That’s just the nature of election law cases, he thinks.
And if you were to agree with Daley’s thesis, you couldn’t find worse judges than Rehnquist and Scalia.

Rehnquist, seventy-six, was Nixon’s assistant attorney general before he was named to the bench in 1972. Then, and when Reagan
nominated him to be chief justice in ’86, the Senate confirmation hearings were full of allegations that Rehnquist had long
been hostile to the rights of minorities. As a private attorney in Phoenix in the ’60s, Rehnquist opposed a plan to end school
segregation and a public accommodations ordinance. There were even allegations—which Rehnquist denied—that while heading up
a GOP ballot-security program, the future chief justice “personally challenged the eligibility of minority voters,” according
to a disputed Democratic Senate report. An intellect, and a pleasant-seeming man, Rehnquist has steered his Court on a decidedly
conservative path.

And then there’s Antonin Scalia, who in manner almost makes Rehnquist look like liberal Ruth Bader Ginsburg. Brilliant and
confrontational, Scalia is a true-blue Believer in the conservative cause—for which he is both beloved and despised. In 1974,
as an assistant attorney general, Scalia had been given the task of deciding whether newly resigned President Nixon had to
hand over his infamous tapes and documents. Scalia ruled that Nixon didn’t have to do so; he was unanimously overruled by
the Supreme Court. In ’86, Scalia—then a U.S. Court of Appeals judge for the District of Columbia—was confirmed unanimously,
sneaking past the Democrats in the Senate amid a bitter battle over Rehnquist’s promotion to chief justice. On the stump,
Bush has cited both Clarence Thomas and “Antonio” Scalia as the kinds of Supreme Court justices he admires.

Democratic attorneys keep telling Daley that Rehnquist’s Court is known for exercising judicial restraint, for bending over
backward to let states decide their own laws.
Whatever,
Daley thinks. Here we are, right?

Ted Olson steps up and immediately addresses what many feel is the weakest claim in the Bush argument—that the issue here
involves a federal law and necessitates the Court’s attention.

“The election code that the Florida legislature developed [for elections] conformed to Title 3, Section 5 of the United States
Code,” Olson says. “That provision invites states to devise rules in advance of an election to govern the counting of votes
and the settling of election controversies.” The Florida high court made new rules after the election, Olson argues. He’s
well prepared, having worked long nights with his Gibson, Dunn & Crutcher partners plus Carvin, Terwilliger, and others—including
a stable of former Supreme Court clerks who bring with them a certain understanding of what arguments appeal to their former
bosses, like Manning, who once clerked for Scalia, and Ted Cruz, who worked for Rehnquist.

But Olson is scarcely two minutes into his opening statement when Justice Sandra Day O’Connor, seated immediately to Rehnquist’s
left, jumps in.

“Well, Mr. Olson, isn’t Section 5 sort of a safe-harbor provision for states?” she asks, meaning isn’t it just in case of
emergency, if and when the electors aren’t selected by December 12.“I would have thought it was a section designed in the
case some election contest ends up before the Congress, a factor that the Congress can look at in resolving such a dispute.”
After all, as Justice Anthony Kennedy, immediately to O’Connor’s left, says, “We’re looking for a federal issue.”

Justices Stevens, Scalia, and Stephen Breyer, a Clinton appointee, also get down in there, mixing it up, probing and poking
and examining Olson’s position. Scalia asks Olson if he would hold Florida to such a tough standard if this were a debate
about speed limits and highway funding. Stevens points out that Olson’s whole argument is “based on the premise that the Florida
court overturned something that the statute had done. Is it not arguable, at least, that all they did was fill gaps that had
not been addressed before?”

Kennedy cites the
McPherson v. Blacker
case from the Bushies’ briefs. It’s up to the state legislature to design the scheme by which electors are selected. “The
state legislature
could
vest it in the judiciary if it wanted, as I read the
McPherson
case,” Kennedy says.“And here they’ve done something less.”

Right, Olson later says, when Souter brings the same issue up. The Florida Supreme Court was “doing what this court said in
the
McPherson v. Blacker
case that it cannot do, is allow itself to insert itself or the Florida constitution above what is required by Article II,
Section 1 of the Constitution,” that it’s up to the state legislature to decide how it’s to be done.

Justice Ginsburg, also a Clinton appointee, seems perhaps the least convinced that she and her colleagues should overrule
their Florida counterparts. In “even the very cases that you cite, as I checked them,” she notes, the high court ruled “that
we owe the highest respect to the state court when it says what the state law is.”

Ginsburg argues that if there are two possible readings of the Florida court’s ruling—“one that would impute to that court
injudicial behavior, lack of integrity, indeed dishonesty, and the other that would read the opinion to say we think this
court is attempting to construe the state law, but it may have been wrong, we might have interpreted it differently, but we
are not the arbiters, they are”—then why should the highest court in the land assume the worst?

In deference to her concern, Olson amends his earlier statement.“I don’t mean to suggest, and I hope my words didn’t, that
there was a lack of integrity or any dishonesty by the Florida Supreme Court,” he says. “What we’re saying [is] that it was
acting far outside the scope of its authority.”

But both sides get beat up in Supreme Court cases; it’s the nature of the beast, since to make it so far up the judicial ladder,
both parties have to have compelling arguments. So, after a few brief remarks from Joe Klock and Paul Hancock (representing
Bob Butterworth), Gore’s main man, Harvard law professor Lawrence Tribe, undergoes the same ordeal.

Tribe starts by slamming Olson’s argument as merely a sound bite.

“Although it is part of the popular culture to talk about how unfair it is to change the rules of the game, I think that misses
the point when the game is over, and when it’s over in a kind of photo finish that leaves people unsure who won,” he says.
“And then the question is: How do you develop great, sort of, greater certainty? And a rather common technique is a recount,
sometimes a manual recount, sometimes taking more time…. It’s nothing extraordinary.”

Kennedy raises an eyebrow. “You’re saying, no important policy in 3 U.S.C., Section 5?” he asks. “In fact, we change the rules
after?”

Tribe backs down a bit: “Certainly, not, Justice Kennedy.” But, he adds,“if you look at the language, I think it’s really
much too casual to say… that all of the laws must stay fixed.” Moreover, he says, “that’s really not a question for this Court,
but rather for the Congress.”

Tribe reads the law in question, arguing that it provides for the courts to step in if need be, so no big deal, no harm, no
foul. But O’Connor doesn’t take to this. Florida law states that certification should have taken place on November 14, she
notes, and the state supreme court changed that.

“‘Here is the certification date,’” she says, as if quoting the legislature. “How could it have been clearer?… Perhaps the
Florida court has to be aware of the consequences to the state of changing the rules.”

Tribe says that the “provisions are in conflict” in the Florida law, so the Florida court took the state’s emphasis on the
right to vote and used it “as a tiebreaker.” But Justice Scalia doesn’t like that.“Mr. Tribe, I don’t agree with that,” he
says. “I don’t think that the Florida Supreme Court used the Florida constitution as a tool of interpretation of this statute….I
read the Florida court’s opinion as quite clearly saying, having determined what the legislative intent was, we find that
our state constitution trumps that legislative intent. I don’t think there’s any other way to read it. And that is a real
problem, it seems to me, under Article II”—the provision of the Constitution that gives state legislatures the authority to
decide how they select their electors.

Scalia keeps needling Tribe, making it more than clear that he doesn’t approve of the Florida court’s ruling.“I just find
it implausible that they [in the Florida legislature] really invited the Florida Supreme Court to interpose the Florida constitution
between what they enacted by statute and the ultimate result of the election,” Scalia says.

O’Connor and Kennedy, too, seem rather skeptical and disapproving. Under questioning, Tribe at times steps back a little from
his own arguments. He even appears to strain occasionally for new ones, at one point actually telling the justices that “disenfranchising
people isn’t very nice.”

Finally, Rehnquist calls it a day.

“The case is submitted,” he proclaims as the gavel goes BANG! Justice Clarence Thomas is, as usual, the only one who didn’t
speak.

Also on Friday, those crazy, wacky liberals on the Florida Supreme Court rule on the butterfly ballot appeal that Henry Handler,
Andre Fladell, et al. have filed.

They rule against them with prejudice.

“They claim that the ballot is patently defective on its face in that the form and design of the ballot violated the statutory
requirements of Florida election law,” the court writes. “The appellants contend that the ballot was confusing and, as a result,
they fear that they may have cast their vote for a candidate other than the one they intended.” Even if one were to accept
the “allegations,” the court writes, the butterfly ballot isn’t anywhere near “substantial noncompliance with the statutory
requirements mandating the voiding of the election.”

“NO MOTION FOR REHEARING WILL BE ALLOWED,” the justices unanimously rule.

Bush wants attention to be paid to his Thursday meeting with Colin Powell, his likely secretary of state. It’s all part of
the “Inevitability Image.” A seven-vehicle caravan arrives at Bush’s Crawford ranch shortly before noon; the Cheneys and Powells
exit a blue Chevy Suburban and enter the side door of the Bush ranch’s temporary house; construction of the main house being,
like so many things these days, behind schedule. Ten minutes later the alpha males, with wives following them dutifully, approach
the media. Bush is at his DKE president best, winking and mugging to the scribes.