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.