Down & Dirty (96 page)

Then, in the middle of answering a question by Souter—but thinking about something Breyer had just said—Klock commits a second
faux pas, calling Souter “Justice Breyer.” It gets to the point that when Scalia comes forward with a question for Klock,
he feels the need to introduce himself. “Mr. Klock? I’m Scalia,” he says mischievously, to much laughter from the VIP crowd—which
includes Dole and Jackson; Republican senators John Warner of Virginia, Arlen Specter of Pennsylvania, Orrin Hatch of Utah,
and Judd Gregg of New Hampshire; Democratic senators John Kerry of Massachusetts, Patrick Leahy of Vermont, Harry Reid of
Nevada, and Chris Dodd of Connecticut; Daley; and Evans, among others.

After Klock’s entertaining name-fumbling, Boies steps up. In only his second Supreme Court outing, Boies gets only twenty-six
words in before Kennedy interrupts and asks about the jurisdictional issue. He then rips Boies for defending what much of
the Court clearly sees as the Florida court’s post-election formulation of law.

“I’m not sure why if the legislature does it, it’s a new law, and when the Supreme Court does it, it isn’t,” Kennedy says
pointedly.

Boies insists that that’s not the case, and reminds the Court that “the standard” as to whether or not Florida Supreme Court
justices overstepped their bounds should be “the standard this Court has generally applied in giving deference to state supreme
court decisions.” Potential swing vote O’Connor seems doubtful of this. “But is it, in light of Article II?” she asks. “I’m
not so sure.”

“You are responding as though there were no special burden to show some deference to legislative choices in this one context,”
O’Connor, former GOP majority leader of the Arizona state senate, says to Boies. “Not when courts review laws generally, for
general elections, but in the context of selection of presidential electors, isn’t there a big red flag up there, ‘Watch Out’?”
Whether or not the Florida court acted properly is “a concern that we have,” O’Connor says.

Not that the state court has even bothered to respond to the Supreme Court’s previous concerns, which caused it to vacate
the Florida court’s extension. “I did not find, really, a response by the Florida Supreme Court to this Court’s remand in
the case a week ago,” O’Connor says, sounding rather schoolmarmy. “It just seemed to kind of bypass it and assume that all
those changes in deadlines were just fine, and they’d go ahead and adhere to them. And I found that troublesome.”

The Bush team slams Florida’s election law for essentially being ruled by chaos. But, one could counter, was it Gore’s fault
that Jeb Bush, Harris, and
the GOP-controlled state legislature had allowed that law to remain without clarification? Fairness, of course, is seldom
at issue when it comes to debating law.

“That’s very general,” Kennedy says of the Florida standard of ascertaining “intent of the voter.”“Even a dog knows the difference
in being stumbled over and being kicked,” he says. “You would say that, from the standpoint of the equal protection clause,
each—could each county give their own interpretation to what ‘intent’ means, so long as they are in good faith and with some
reasonable basis finding intent? Could that vary from county to county?”

“I think it can vary from individual to individual,” Boies acknowledges. Souter seems even more concerned about Florida’s
shifting county-by-county standards. “There is no genuinely subjective indication beyond what can be viewed as either a dimple
or a hanging chad,” he says. It “varies, we’re told, from county to county. Why shouldn’t there be one objective rule for
all counties? And if there isn’t, why isn’t it an equal protection violation?”

Assuredly making Gorebies everywhere shake in their Doc Martens, Souter says that this issue is “bothering Justice Kennedy,
Justice Breyer, me, and others.”

After all, as Scalia offers, “It was clear that Broward and Palm Beach Counties had applied different criteria to dimpled
ballots. One of them was counting all dimpled ballots; the other one plainly was not….That’s just not rational.”

Providing a speck in an electron in an atom that’s part of a glimmer of hope, Souter says that if the Court responds to this
issue, then “we would have a responsibility to tell the Florida courts what to do about it.” He asks Boies, “What would you
tell them to do about it?”

For once, the brainiac motormouth is speechless.

“Well, I think that’s a very hard question,” he finally says.

“You’d tell them to count every vote,” Souter jokes.

“I think I would say that if you’re looking for a standard—and I say that not because of the particular aspects of this election—the
Texas standard, if you wanted to specify something that was specific, it gives you a pretty good standard,” Boies says.

But Kennedy soon rains on this, returning to the argument that the certification deadline was extended by the Florida court
only by creating “a new law, a new scheme, a new system for recounting at this late date.”

“I’m very troubled by that,” potential swing-vote Kennedy says.

Boies tries to change the subject. “I think at this stage you have to leave [that] aside—because at the contest stage, what
you’re doing is you’re contesting specific ballots, whether or not they were included in the certification; it’s absolutely
clear under Florida law that that’s what the contest is about. So at the contest stage, the only question is, can you complete
the contest of the contested ballots in the time available?

“Everything that’s in the record is that we could have, and indeed we still may be able to, if that count can go forward,”
Boies says.

But Rehnquist seems skeptical.“Including appeals to the Supreme Court of Florida and the other petition to this court? If
this all goes forward, there’s going to be an appeal to the Supreme Court of Florida and likely another petition to this court.
Surely that couldn’t have been done by December twelfth….Or could it?”

Boies says that it can be done, that briefs and arguments and a decision have been done so far in this fiasco “within twenty-four
hours,” and, with a handful of exceptions, most of the counties can finish up within a day or so. “As I understand it, some
of them have taken advantage of the time—”

Rehnquist starts to ask a question. But Boies, the smartest kid in the class, isn’t done speaking.

“Wouldn’t the—” Rehnquist says.

“— to get the procedures ready to count—” Boies continues.

But there’s no question who wins the argument over whose turn it is to speak.

“Just a minute, Mr. Boies,” the chief justice intones authoritatively, and Boies shuts his mouth.

Souter tries again to get Boies to admit that there’s something troubling about every county having its own ballot-reading
standard. Boies tries a new argument—that since Floridians vote differently county by county, optical ballots here, punch
cards there, what he’s asking for isn’t such a big deal.

“There are five times as many undervotes in punch card–ballot counties than in optical-ballot counties,” he says, so “some
difference in how votes are being treated county by county” already exists. “That difference is much greater than the difference
in how many votes are recovered in Palm Beach, or Broward, or Volusia, or Miami-Dade. So that the differences of interpretation
of the general standard are resulting in far fewer differences among counties than simply the differences in the machines
that they have.”

Soon enough, time’s up.“The case is submitted,” Rehnquist says. Leaving the courtroom, Sen. Tim Hutchinson, R-Ark., yawns.
In the auditorium, senators Dodd, Specter, and Tom Harkin, D-Iowa, huddle, trying to figure
out what’s going to happen. But even those esteemed senators are just as clueless as the rest of us.

Tribe is troubled. And confused. There was far too much discussion about the equal protection argument, he thinks. The justices
had never before shown any inclination to buy into that argument. In fact, twice before, the SCOTUS rebuffed the Bush team’s
efforts to get the equal protection argument before them. What changed? In Tribe’s mind, nothing. Nothing in the law or in
the record, at any rate. But now, a day before the December 12 “safe harbor” deadline, suddenly the Supreme Court is intrigued
by equal protection?!

Tribe is also a bit bothered by the Florida Supreme Court, and how it didn’t respond to their Supreme superiors’ questions.
There were some pretty obvious questions that the Florida court hadn’t yet answered satisfactorily: Where did the November
26 date come from? for instance. Or, how much did they lean on the state constitution, as opposed to state law, when they
made their first ruling?

Then there was Boies. Tribe, of course, wanted to argue before the U.S. Supreme Court and disagreed with the decision to go
with Boies, who had been there only once before, in a case where Tribe had handed him his hat on a 9 to 0 ruling. He understands
the decision, thinks the world of Boies, but also knows that arguing successfully before the U.S. Supreme Court takes more
than an agile mind and a familiarity with Florida law. It’s a very specialized tribunal, one in which experience and familiarity
help.

Tribe is very fearful of the equal protection argument, though he thinks it completely ridiculous. He wishes Boies had argued
more forcefully against it, emphasizing more how the methods of voting are vastly unequal county by county, how, for whatever
reason, voters in Miami-Dade and Palm Beach are less likely to have their votes count than those in Sarasota or Sanibel. He
wishes Boies had mentioned that dimples are randomly distributed, and not just a mark that tends to show up more on Democratic
ballots.

Boies himself seems to acknowledge a smidgen of this—if only briefly—after the argument. “There were questions that I wasn’t
prepared entirely for,” he allows in a press conference.

On Monday, December 11, the five justices who stayed the recount seem ready to rule for Bush. The Florida Supreme Court created
a new law, based on God knows what, and that’s a clear violation of both 3 U.S.C. 5—
the “changing the rules in the middle of the game” deal—as well as Article II, that electors need to be chosen “in such Manner
as the Legislature thereof may direct.” The justices order out for Chinese food for their clerks, so they can hand down a
decision that night. But then the Florida Supreme Court finally turns in its homework assignment from the week before, and
in so doing throws a wrench into the works.

When Florida Supreme Court spokesman Craig Waters walks outside to the steps of the court in Tallahassee, not one—
not one!
—reporter is there to hear what he has to say. But O’Connor and Kennedy sure hear. The Florida court explains the method by
which it arrived at its first decision, how it wasn’t rooted in the state constitution but rather state law, as written by
the state legislature.
²

Suddenly O’Connor and Kennedy are no longer with Rehnquist, Scalia, and Thomas on 3 U.S.C. 5 or Article II. Nothing’s going
to be decided tonight.

It’s Tuesday, December 12. Gore believes that the SCOTUS is either going to rule for him or is going to decide not really
to involve itself. Daley thinks he’s living in a dreamland—“Fuhget it!” he says to Gore.“Five Republican judges. We’re going
right in the tank”—but Gore is confident that they’ll be counting the ballots again, soon.