Down & Dirty

by Jake Tapper

  The courtroom explodes in laughter.

  “Go ahead, Mr. Greenberg,” Sauls says.

  Comes Greenberg’s nasally charm via speakerphone: “Your Honor, we will send up with our ballots, along with all the instructions and a sample ballot,” he says.

  “You know, I really like that guy,” Sauls says.

  In Miami-Dade County, Leahy supervises the separation of undervotes. But a stocky GOP observer, Marc Lampkin, is in his face all day, complaining. Having served as Bush’s deputy campaign manager during the GOP New Hampshire primary, a state Bush ended up losing to McCain by 19 points, Lampkin is finally proving his worth here in Florida.

  Lampkin never yells; his tone is even and measured. But he is relentless. He will not stop whining about this, about that. There isn’t anything Leahy can do to satisfy him.

  Eventually Leahy comes to a conclusion: this guy is here with the express order to irritate me. To get me to delay things. And he is very good at it.

  On Wednesday in the Bush Building, Beck is not feeling the love.

  Richard’s going to be handling opening and closing arguments, Terrell’s handling the Miami-Dade deal, Bartlit’s on Broward and Nassau, Bristow’s been dispatched to Orlando to help the Republicans fend off the Seminole war.

  Beck’s in charge of destroying the Gorebies on dimples. But every time the team meets with Ginsberg and Terwilliger to discuss strategy, and Beck tries to turn the conversation to what might happen should Sauls—or, more likely, the Florida Supreme Court—actually order ballots to be recounted, Beck starts talking about what standards he feels the Bushies should push for, and the Bush lieutenants blanch.

  We don’t ever want to get to the point where there’s a hand recount of anything, Ginsberg and Terwilliger say. We don’t want to concede the point!

  Beck knows this. Yes, he says. Of course. But if there ends up being a count, we need to have standards we can argue. Hanging chads, sunshine, dimples—they need to be prepared to argue in favor of what Beck thinks are honest standards, like the ones Burton used in Palm Beach.

  But the reaction Beck gets doesn’t fill him with confidence. Like the ones Burton used in Palm Beach! Where Gore picked up votes in that bogus recount? It’s my job to be a defeatist, Beck responds. That’s my job—to prepare for anything that can happen.

  There’s another argument Beck is preparing that is met with a degree of reluctance: the idea that undervotes come not from anachronistic voting devices but from the clear fact that there were a lot of people out there who found both Gore and Bush unpalatable. It’s not that anyone tells Beck not to make the argument that plenty of Americans found both Bush and Gore rather wanting. Indeed, in a way the Bushies’“no vote” claim is in sync with this line of thinking. But when Beck articulates the idea that millions of Americans gagged at the prospect of either one of these jokers at the helm, the Bush lieutenants wince. When Beck explains it to guys who’ve lived the last several months trying to persuade America to vote for Bush, their automatic reaction is to cringe.

  It had been agreed on Tuesday that when Boies tried to get Sauls to bring the Miami-Dade and Palm Beach undervotes up, the Bush lawyers would argue that all the ballots should be brought up. They want to plop the whole 1.8 million—all 653,000 Miami-Dade ballots, and all 462,000 Palm Beach ballots—in front of Sauls. Make him see the absurdity of it all, gum it up. And, of course, the statute never refers to undervotes, it refers to all the ballots. But Richard, taking the lead, never really made that position clear. Still, they got so much that it seems debatable whether to ask for any more.

  On Wednesday, reports from GOP observers in Miami-Dade—mostly Lampkin—indicate, if you’re inclined to believe them, that there’s some question as to how the ballots were being handled as the undervotes were being sorted out. Beck is preparing to argue that there were questions as to whether the integrity of the ballots was being preserved.

  As he’s leaving the Bush Building, heading to Sauls’s courtroom, a guy Beck thinks is Bush’s senior legal adviser approaches him.

  “Tell the judge that he’s gotta bring all the ballots up,” the guy says.

  “I can’t tell him that,” Beck says.“That was yesterday’s argument, and that ship has sailed. He’s already decided that only the undervotes are coming.”

  The guy looks at Beck, as serious as a funeral.

  “Tell him that he’s gotta bring all the ballots up,” the guy repeats. “It’s important. Tell him he’s gotta bring all the ballots up.”

  Beck nods. OK.

  Terrell and Beck get into the elevator.

  “This is just great,” Beck says.“I got the client giving me these impossible instructions. We’re going to look like jerks; the judge is going to think we’re idiots. But, you know, he’s the Bush legal adviser, so I gotta do it.”

  First thing before Sauls, Beck raises the point: if you’re going to bring them up, you need to bring them all up.

  Sauls asks Greenberg via speakerphone: is this possible?

  “We will do that if Your Honor so rules,” the ever-agreeable Greenberg says. But it wouldn’t be until late Thursday night before we could get all of them packaged up and driven up to Tallahassee.

  The voice from Palm Beach County says the same.

  “Is it going to be a convoy?” Sauls asks. “How many semis?”

  Beck says that the Bushies are worried about the ballots. Our observers saw some things they didn’t like, he says. You gotta bring them all up, Beck insists.

  Greenberg objects to Beck’s characterization of what’s going on, but Beck doesn’t respond to this. He just keeps stating that something is rotten in the county of Miami-Dade, and that all the ballots need to come up to Tallie.

  And he wants to have a representative in the convoy.

  “You got a spare tire on the back of any of those that somebody could ride for each side?” Sauls asks Greenberg.

  “I have a lot of ideas, Your Honor, but I won’t enunciate them,” Greenberg says.

  Boies steps up and says that there’s no reason why the undervotes can’t come up at once. They don’t need to wait for the rest of them to be shipped up.

  Wrong, says Beck, vociferously.“I’m concerned about the integrity of the evidence here,” he says. “And we’ve had a lot of sorting that I don’t think should have taken place….I think we ought to get all the ballots up in a unified way, ensuring the integrity of the evidence.”

  “I’m going to leave it to them,” Sauls says. “What do you all want to do down there?” he asks Greenberg. “Do you want to send up two times or do you want to do it once? It’s your call.”

  “One time, from Miami,” Greenberg says.

  “One time it is,” Sauls rules. Court dismissed ’til tomorrow.

  On the way out of the circuit courthouse, and back in the Bush Building, Beck is a hero. Everyone’s congratulating him for the stroke of genius. Beck thinks that the lawyers are looking at him with a newfound respect. Like, “Oooh, this guy takes the initiative!”

  Amid the minor celebration, Beck confides in Summers.

  “The reason I did this was because Bush’s legal adviser over here told me to,” Beck says. “I don’t even know the guy’s name.”

  “That’s not Bush’s legal adviser,” Summers says. “That’s just some precinct captain who wandered in.”

  What? Beck asks. You mean this is just some hanger-on who buttonholed me and was just giving me a piece of mind?!

  The two crack up.

  Wednesday, Theresa LePore finally sends Katherine Harris the official Palm Beach results. She had to audit the final count, double-checking numbers on the spreadsheets.

  It’s not 192 net Gore votes, as the Gorebies were asserting Sunday night, nor is it 215 net Gore votes, as they’re asserting in their legal briefs. It’s 174 net Gore votes.

  LePore keeps hearing the Democrats using this “215” number. She asks Newman where they got it. Newman tells her that that was their count. LeP
ore’s amazed. That’s simply not the number.

  Over at the legislature, the fait accompli is well on its way.

  When it starts up on Tuesday afternoon, the committee has changed its name to The Select Joint Committee on the Manner of the Appointment of Presidential Electors. And as the old name is tossed, so is any pretense that this is about anything other than setting up a safety net in case somehow Gore ends up with the state’s 25 electors.

  McKay says that he and his colleagues “firmly and unequivocally believe the state supreme court overstepped its proper boundaries in an arbitrary manner.” And the Select Joint Committee on the Manner of the Appointment of Presidential Electors’ “unbiased” experts say the same thing. Argues Elhauge,“There is no doubt of the right of the legislature to use that power at any time.” “It is your constitutional duty” to appoint Florida’s electors if none are yet chosen by December 12, says John Yoo, a constitutional law professor at Cal Berkeley and a former clerk for Supreme Court justice Clarence Thomas. “I don’t think it would be appropriate to avoid that duty by waiting until the last minute….You don’t have the discretion not to pick the electors.” The legislature has to appoint electors, says anti-gay author Roger Magnuson. Your power to do so is “plenary and full and absolute.”

  What a coincidence! That’s just what McKay and Feeney were thinking!

  And Jeb, too!

  “If there is uncertainty, the legislature has clear delegated authority from the U.S. Constitution to seek the electors. I admire them for at least on a contingency basis accepting that responsibility and duty,” W.’s younger brother states.

  Democrats are just plain pissed.

  “Are we meeting to set the stage for a special session to guarantee the presidency to George W. Bush?” asks Democratic state representative Ken Gottlieb. “We should not serve as an insurance policy for a Bush presidency. We should serve to ensure every vote is counted and the real winner, whoever he may be, receives Florida’s votes to be the next president.”

  “Why are we here?” adds senate minority leader Tom Rossin, from West Palm Beach. “Florida has its legal electors.”

  Rossin doesn’t appreciate the amicus brief Feeney filed on Bush’s behalf before the SCOTUS. “This brief hardly represents the Florida legislature,” he says. “There was not one meeting held, not one vote cast.

  “Do you think the Supreme Court knows this brief only represents the views of one party?”

  But a better question might be: do you think it cares?

  16

  “We’re going to massacre them.”

  The SCOTUS is the place to be Friday morning. An A-list affair with lines down the block to get in.

  One pew alone features, from left to right: Daley, Christopher, former GOP Senate majority leader Howard Baker of Tennessee; Sen. Fred Thompson, R-Tenn.; Barbara Olson; and Sen. Ted Kennedy. Karenna Gore Schiff is in the house, as is the Republican governor of Michigan, John Engler, and Judge Burton. Al Cardenas is here, with losing Senate candidate Rep. Bill McCollum, R-Fla., by his side. As are Gore veep short-lister Sen. John Edwards, D-N.C., and former Clinton Justice Department Microsoft nemesis Joel Klein.

  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 S
tevens, 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?