In Gore Vidal’s novel of post-World War I Washington, Hollywood, the toughest ticket in town is a pass to the Senate debate on the League of Nations treaty. All of the capital’s high society yearned to be present at this moment of history, but mostly for the entertainment value offered by the political warfare. (Roosevelt versus Wilson–better than an opera!) Since then, high-profile Washington events have become the turf of C-SPAN (and watched mainly by political junkies). But today, inside the Supreme Court, the older days returned. As the Court adhered to its ridiculous no-cameras-allowed policy, only a few of Washington’s privileged citizens were permitted to witness the oral arguments in the case of George W. Bush v. Palm Beach County Canvassing Board, et al.–the case that has brought the Supreme Court into the No Decision 2000 circus.
The reporters who crammed into the court–only 121 journalists were let in–closely monitored which prominent Washingtonians were present. Look, there’s Ted Kennedy next to Barbara Olson, the shouting head/lawyer married to Theodore Olson, who is arguing for the Bush side. And beside her is Senator Fred Thompson. Next to him is former Senator Howard Baker. Several House impeachment managers–Bob Barr, Bill McCollum, Charles Canady– saunter in and are seated toward the front. Hey, the Gore kids are in the second row with a Tipperish-looking woman who’s not Tipper. Former Justice Department official Joel Klein (the scourge of Microsoft), who recently returned from his honeymoon with Nicole Seligman, one of Clinton’s impeachment defense lawyers, shakes many hands as he pushes his way to his spot in the pews. Senators Orrin Hatch (a Republican) and Patrick Leahy (a Democrat)–who had made a point of walking to the court together from the Senate–stride into the room, practically holding hands. Power-lobbyist Lloyd Cutler squeezes past Warren Christopher and William Daley. In the front row, Senator Bob Bennett–regarded by many as Watergate’s Deep Throat–huddles with Senator John Ashcroft , who recently was chased out of office by a dead man. Everyone in the room has been assigned a specific seat. It’s like watching a wedding or a mob funeral.
The official proceedings were–in keeping with Supreme Court tradition–less than illuminating. Most of the Justices asked tough questions of Ted Olson. (Not Clarence Thomas, who kept silent, as is his practice. Earlier in the day, the Supreme Court beat reporters had created a betting pool on whether Thomas would utter anything this time out.) Anthony Kennedy noted, “We’re looking for a federal issue.” Sandra Day O’Connor told Olson that he still had to “persuade” the Court “there’s an issue of federal law.” Olson argued that Article Two of the Constitution grants the state legislature–not state courts–the right to determine how electors are selected and that the Florida Supreme Court had usurped this right. He was asking the Supreme Court to overturn the Florida state Supreme Court decision that ordered Florida Secretary of State Katherine Harris to extend the deadline for certifying the election results and to include recounts in her final certification. Ruth Bader Ginsburg commented that the Bush side had skipped past the key issue of the conflict in Florida law between the provision that mandates a seven-day deadline for the certification and the provision that allows candidates to request recounts up until six days after the election. She also asked repeatedly whether the Supreme Court should grant the benefit of the doubt to a state court on such a matter–rather than “impugn” the court “the way you are doing.” David Souter’s questions suggested he believed existing federal law was sufficient to deal with controversies concerning electors and that Supreme Court involvement might not be necessary at this stage. Even Antonin Scalia pressed Olson on why the Supreme Court should enter the mix. For a moment, it looked good for Team Gore.
Then Paul Hancock, the lawyer for Florida’s Democratic Attorney General Robert Butterworth and Laurence Tribe, Gore’s attorney, were grilled by the Justices. O’Connor told Hancock that it seemed to her the Florida Supreme Court’s decision was a dramatic change in the rules. “A routine exercise in statutory construction,” Hancock retorted. Scalia and O’Connor posed questions that showed they were wondering if the state court had gone too far in compelling Harris to accept the recounted tallies. Scalia asked Tribe if the Florida legislature had ever granted the state courts the authority to “interpose” the Florida constitution upon the election rules written by the legislature. The court’s power to do so is implied, Tribe argued. Ginsburg inquired if the Florida legislature ever cited Article II of the Constitution and prohibited judicial review of the elector-selection process? No, Tribe answered.
After ninety minutes of argument, the line-up of the Justices, to the extent it could be discerned, appeared the usual. The two speaking-conservatives–Chief Justice William Rehnquist and Scalia–seemed amenable to the Bush argument, and, presumably, Thomas once again would be in their camp. The four (more-or-less) liberals–Ginsburg, Souter, Stephen Breyer, and John Paul Stevens–seemed predisposed to the Gore side. And the customary tie-breakers–O’Connor and Kennedy–were the hardest to figure. Several observers opined that Tribe had not performed splendidly. (“He was not at his best today,” said a lawyer who used to work with him.) Olson, though, took more of a beating. What might happen? The only honest answer was, who knows? There seemed no strong thrust from one side or the other of the Court. That may indicate that the four Justices who initially agreed to hear the case had not done so for the same reason. In the grand hallway outside the courtroom, speculation flew widely and wildly. In a case of this magnitude, would Rehnquist be angling for an unanimous decision? Might the Court find a way to criticize the Florida state Supreme Court’s opinion without actually overturning it? Perhaps the Justices would decide that, since certification has occurred, the matter was moot. (Olson argued it was not, because a Supreme Court decision overruling the Florida opinion could result in Bush’s lead returning to 900-plus votes, instead of 537–and this could make a difference if Gore picks up votes during the ongoing contest period.) Would both of the so-called moderates–Kennedy and O’Connor–be reluctant to join the conservatives and place the Court in the position of overturning the post-recount results with a split decision? And is there any chance Scalia, citing conservative principles, might conclude that the Feds should not stomp on the state justices? That scenario–delicious as it is–is not rated likely by the oddsmakers.
Outside the Supreme Court, a ruckus ensued. Thousands of demonstrators surrounded the building. The Reverend Al Sharpton led a group of dozens who marched around the courthouse. “Hail to the Chief, not the thief,” they yelled. One woman held up a sign reading “Basques for Bush.” To the tune of John Lennon’s “Give Peace a Chance,” Gore advocates sang, “All we are saying is count every vote.” Bush partisans shouted, “Slobodan Gore” and “show Gore the door.” At one point, one leader of a pro-Bush pack tried to rally his troops with the cheer, “The people united can never be divided.” (It’s suppose to be “defeated.”) That didn’t catch on. Bush and Gore backers tussled, sometimes screaming at one another, other times arguing their points back and forth. It was almost encouraging to see civic debate transpiring on a street corner. (Isn’t this how the public handled contentious matters in the days of the Founders? At least, that’s how it’s depicted in the movies.) Then one African-American sidled up to me and said, “Look at all this silliness. It’s just one group of the white middle-class screaming at another group of the white middle-class. Not even the rich folks who run each party.” Anti-abortion diehards–a daily fixture outside the court–held up grisly photographs of aborted fetuses. Ted Olson had trouble pushing his way through the assembled to reach the television cameras. A veteran newspaper columnist complained there was no easy-to-reach spin alley. And at the edge of a crowd, a woman held up a handwritten placard that read, “The truth won’t spin.” It was unclear which side she was on.