If I had been so bold as to have wagered that Al Gore would succeed in the latest Supreme Court round, I would have quickly called my bookie this morning after breakfasting in the Court's cafeteria and begged him to permit me to cover the bet.
As I stood in line awaiting runny scrambled eggs, Bush Über-strategist Karl Rove, Bush campaign chairman Don Evans and Republican Montana Governor Marc Racicot walked past, laughing and chuckling. Upbeat. Too upbeat. Evans slapped me on the shoulder, said "Howyadoing?" and flashed a large Texas smile. All I could think was, what do these guys know? Perhaps it was bravado-as-spin. Or was it because they possessed inside information? (One prominent Democratic funder had called me earlier to ask if there were any chance Justice Antonin Scalia would recuse himself because his son works in the same law firm as Ted Olson, the lead counsel for the Bush camp. Short answer: No way.) The Democrats present at the Court appeared a lot more somber than the Bush lieutenants. Their demeanor was justified.
The scene in the courtroom was much a repeat of the last time the Court addressed the recount-a-rama. In the audience were a flock of senators (Hatch, Leahy, Kerry, Dodd, Reid, Harkin, Smith and Ashcroft), a bevy of representatives (Markey, Engel, Hyde, Jackson-Lee), and other DC notables (Jesse Jackson, Bob Dole, several Gore kids). At the podium, Olson repeatedly accused the Florida Supreme Court--which last Friday ordered a manual recount of "undervote" ballots throughout Florida and the inclusion of these tallies in the final results--of going beyond the interpretation of existing law into the realm of legislating from the bench. He tried to incite the Supreme Court Justices by reminding them that the Florida justices had dared to issue such a sweeping decision "just four days" after the Supreme Court had slapped them for going too far in their first pro-Gore ruling.
Justice Anthony Kennedy and Justice Sandra O'Connor--the twins of tilt, who often provide the decisive votes--tossed several tough questions at Olson. Kennedy wondered if the Bush team was suggesting that the principles contained within a state constitution could not be applied by an appellate court to an election controversy involving a presidential race. If so, Kennedy remarked, that would be a "holding which has great implications for our republican theory of government." Was Kennedy considering a state's-rights position that would benefit Gore? O'Connor asked if Bush's squad really believed there should be no appellate review of this sort of election dispute. Olson argued it was "logical" to limit judicial review of elections to circuit courts. O'Connor didn't act convinced. Even Justice Antonin Scalia questioned this part of Olson's case.
Olson kept returning to his main point: The Florida Supreme Court had conducted a "wholesale revision" of Florida election law--that is, engaged in a "non-judicial act"--and it was not permitted to do so "simply because there is a constitution." Justice David Souter interrupted to note that Florida law allows the circuit court to order practically any remedy in election disputes, which, he noted, was "about as broad a grant to fashion orders as I can imagine." But what appeared to bother several members of the Court was the standard used for hand-counting ballots. Justice Stephen Breyer, Souter, Kennedy and O'Connor each queried Olson regarding what might be a fair rule. Was this good news for Gore? Were the in-the-middle Justices looking for a standard they could ride? Or were O'Connor and Kennedy trying to ascertain that the hand-counting process was too arbitrary and, therefore, a violation of the equal protection clause of the Constitution? Olson was not eager to suggest a standard, perhaps fearing he would be offering ammunition to the other side. But when pressed, he said, "penetration of the ballot card."
Olson left the podium only moderately scratched. The four so-called liberals--Justice John Paul Stevens, Justice Ruth Bader Ginsburg, Souter and Breyer--had taken pokes at him, but nothing devastating had happened. Still, the Gore side could look at the questions from Kennedy and O'Connor and believe they had a prayer.
At the podium, David Boies, the gentle-mannered power-lawyer, performed better than Lawrence Tribe, who argued the last case for Team Gore. Kennedy grilled Boies on the Florida Supreme Court's use of one word, referring to a passage in which the pro-recount majority of the state court had said it was "cognizant" of Title 3, Section 5 of the US Code, a federal election law that sets out guidance for selecting electors. Didn't that open the door to Supreme Court review? Kennedy asked. Boies--who was arguing there was no grounds for Supreme Court involvement in this matter--tried to persuade Kennedy the state justices were only stating they recognized a federal deadline loomed. Boies didn't succeed. And Kennedy continued asking him why the state supreme court's ruling was not new law. After all, Kennedy remarked, if the legislature had made such changes--deadline extensions, ordering recounts--those alterations would have qualified as new law.
Boies held firm: Interpretation of existing statutes is not legislating. He attempted to persuade the Justices--presumably Kennedy and O'Connor--that they would first have to find that Florida court's ruling was a "sham" in order to declare it had changed the law. O'Connor wasn't buying, though. Why didn't the Florida justices show more deference to the legislature? she asked. Moreover, she suggested the Florida Supreme Court had "bypassed" the Supreme Court's first ruling on this point. A peeved Scalia accused the Florida justices of having contravened the Supreme Court's December 4 order--which had vacated the state supreme court decision extending the deadline and permitting hand recounts. Boies then had to explain to Scalia the difference between the protest and contest periods.
The most worrisome line of questioning for Boies and the Gore gang concerned the standard for hand counts. In response to questions from Kennedy, Boies argued that the law in Florida--and in many other states--says that election officials can establish their own rules to discern the intent of the voter. But Kennedy was obviously uncomfortable with the lack of objective guidelines. He was upset by Boies's explanation that the definition of intent can vary from county to county, and from table to table within a county. "I think what's bothering Justice Kennedy and it's bothering a lot of us here," Souter said, is the absence of hard-and-firm standards for evaluating ballots by hand. Souter raised the prospect that the lack of uniform standards might violate the equal protection clause of the Constitution--and he's considered sympathetic to the Gore side. Souter almost pleaded with Boies to propose a standard that could work. In other words, counselor, how would you write our decision?
Boies paused and said. "That's a very hard question." The courtroom crowd laughed. "I would tell them to count every vote." More laughter. But the Gore partisans in the room had to be fretting. Moments later, Boies was explaining the standard used during the Palm Beach and Miami-Dade hand counts--officials there counted indentations in the presidential contest if the ballot contained indentations in other races--and O'Connor heaved a sigh of exasperation. Why is the standard not the instructions given to voters, she said, "for god's sake?" Here was more reason for Gore's lawyers to tremble.
Bush v. Gore raises a host of significant legal questions, but Gore may be done in by something far more mundane. The relief he seeks is untidy--as democracy so often is--and Kennedy and O'Connor don't want a mess. Even some of the liberals were unhappy with a process lacking neat guidelines. (After the arguments, some Republicans and conservatives were saying that they thought it was possible to win on a 6-3 vote.) Setting hand-count standards, judicial review of every county recount, new schemes, new systems--"I'm troubled by this," Kennedy said. Chief Justice William Rehnquist observed that further court action would certainly accompany any continuation of the vote count--and that the ensuing legal disputes would find their way back to his court. He didn't appear to relish that. Hanging chads, swinging chads, pregnant dimples--Gore's true challenge is to find five Justices who don't want all of this to go away.