December 20, 2004

LNS Post Coup II Supplement Addendum

David Margolick, Evangelina Peretz and Michael
Shnayerson, Vanity Fair: As the Florida recount ate
away at George W. Bush's margin of victory (1,784
votes . . . 327 . . . 154 . . . ), the machinery of
political power sprang to life. In Washington, stunned
U.S. Supreme Court clerks watched justice become
partisan, while in Florida, tens of thousands of
citizens - thousands of them African-American - found
themselves disenfranchised by misleading, faulty, and
uncounted ballots, or inexplicably purged from the
David Margolick, Evangelina Peretz, and Michael
Shnayerson, zeroing in on the frenzied 36 days that
followed the 2000 election, investigate the "Brooks
Brothers riot," Jeb Bush's high-tech felon hunt, and
the new voting machines that leave no paper trail, and
ask, Could it happen again?

The Path to Florida
By David Margolick, Evangelina Peretz and Michael
Vanity Fair
October 2004 Edition
As the Florida recount ate away at George W. Bush's
margin of victory (1,784 votes . . . 327 . . . 154 . .
. ), the machinery of political power sprang to life.
In Washington, stunned U.S. Supreme Court clerks
watched justice become partisan, while in Florida,
tens of thousands of citizens - thousands of them
African-American - found themselves disenfranchised by
misleading, faulty, and uncounted ballots, or
inexplicably purged from the rolls.
David Margolick, Evangelina Peretz, and Michael
Shnayerson, zeroing in on the frenzied 36 days that
followed the 2000 election, investigate the "Brooks
Brothers riot," Jeb Bush's high-tech felon hunt, and
the new voting machines that leave no paper trail, and
ask, Could it happen again?

U.S. President George W. Bush
(Photo: Vanity Fair)

Shortly after the presidential vote in November
2000, two law clerks at the United States Supreme
Court were joking about the photo finish in Florida.
Wouldn't it be funny, one mused, if the matter landed
before them? And how, if it did, the Court would split
five to four, as it so often did in big cases, with
the conservative majority installing George W. Bush in
the White House? The two just laughed. It all seemed
too preposterous.
Sure, friends and relatives predicted that the
case would eventually land in their laps, but that was
ignorant, naïve talk - typical of people without
sophisticated legal backgrounds. A majority of the
justices were conservatives, but they weren't
partisan; mindful of the Court's fragile authority,
the justices had always steered clear of messy
political spats. Moreover, the very jurists who'd
normally side with Bush were the ones most solicitous
of states' rights, most deferential to state courts,
most devoted to the Constitution's "original intent" -
and the Founding Fathers had specifically provided
that the Congress, not the judiciary, would resolve
close elections. To top it off, the Court rarely took
cases before they were ripe, and the political process
in Florida was still unfolding. "It was just
inconceivable to us that the Court would want to lose
its credibility in such a patently political way," one
of the clerks recalls. "That would be the end of the
The commentators agreed. The New York Times
predicted that the Court would never enter the Florida
thicket. A law professor at the University of Miami
pegged Bush's chances before the tribunal at "between
slim and none, and a lot closer to none." As
Thanksgiving 2000 approached, the justices and their
clerks planned their vacations and scattered, leaving
a skeletal staff - generally only one of the three or
four clerks assigned to each chamber - behind in case
the impossible happened. There was just no way,
Justice Stephen Breyer remarked over the holiday, that
the Court would ever get involved.
It all turned out very differently, of course, and
the Court, by the very margin that the incredulous
clerk envisaged, put George W. Bush in the White
House. Now out in the working world, the two clerks,
along with most of their colleagues who worked for the
four liberal justices and the occasional conservative
justice, remain angered, haunted, shaken, and
disillusioned by what they saw. After all, they were
idealists. They'd learned in their elite law schools
that the law was just and that judges resolved legal
disputes by nonpartisan analysis of neutral
principles. But Bush v. Gore, as seen from the inside,
convinced them they'd been sold a bill of goods.
They'd left their clerkships disheartened and
The 2000 election in Florida shook Americans from
all walks of life and of all political persuasions.
Many were left wondering about the viability of
America's democratic system. Much has changed since
the election's frenzied aftermath, in which hordes of
reporters jammed the streets of Tallahassee, Palm
Beach, and Miami, chasing ballots and lawyers for 36
days before the presidency was called by a margin of
537 votes out of the six million cast in Florida. But
Florida is a state with a history of disenfranchising
blacks - a legacy that seemed all too current in 2000.
And the president's brother is still governor.
Could it happen again? "Butterfly ballots" are
gone, so there will be no more accidental votes for
fringe candidates such as Pat Buchanan. Chads -
dimpled, hanging, pregnant - are history, for the
punch-card machines that used them have been
decertified. In their place are sleek, new electronic
voting machines, known as D.R.E.'s (direct-recording
electronic voting machines). An estimated half of the
state's voters will be using them this November -
including those in the three largest Democratic
The D.R.E.'s look and work reassuringly like
A.T.M.'s. Yet unlike A.T.M.'s, touch-screens provide
no paper receipt - no proof at all that a vote has
been cast as the voter intended. Touch-screens have
been plagued around the country by serious questions
about their security and their accuracy in registering
votes. In Florida, however, the story is more
disturbing than in most states. The company that sewed
up most of the key counties with raw political clout
has installed machines that have confounded poll
workers and voters alike and led to problems that the
state, in its embarrassment, has tried to minimize
again and again.
The state has been equally disingenuous in its
attempt to bar ex-felons from voting. For the 2000
election, a notorious ex-felon list, composed of more
than 50,000 names, was compiled and the appropriate
sections were sent by the state to the elections
supervisors of Florida's 67 counties, along with a
directive to purge those confirmed as felons from the
rolls. It turned out, though, that the list had been
swollen with an estimated 20,000 names of possible
innocents, wrongly included. Roughly 54 percent of
those on the list were black, while blacks make up
just under 15 percent of the statewide population. In
Florida, some 90 percent of blacks vote Democratic.
Surely, the embarrassment would prevent the state from
attempting another high-tech felon hunt in 2004. But
no. In May, the local elections supervisors learned
that there was a new list. Only in July, when flaws
were again revealed by journalists - flaws that would
once more favor Republicans - did the state throw out
the list. While there will no longer be an electronic
list used to keep former felons from voting, the
recent events have led to disturbing new questions.
What did the state know about the flaws? How was mass
disenfranchisement almost caused again?
Florida 2000 was so bizarre, so surreal, and, for
a large number of Americans, so patently illegitimate
that they can't imagine the likes of it ever happening
again. They may be wrong. Should the election come
down to another statistical tie - and to date the
polls suggest the state is still a tossup - an all too
similar kind of chaos seems likely to shroud Florida,
with its 27 electoral votes, this November.
At 2:16 A.M., November 8, 2000, six hours after
the networks projected that Florida would go to Gore,
based on shoddy reporting done by the Voter News
Service (V.N.S.), a young hotshot at Fox News named
John Ellis, who happened to be George W. Bush's
cousin, called the state - and the election - for
Bush. Within four minutes, ABC, CBS, NBC, and CNN
followed suit. "It was just the three of us guys
handing the phone back and forth," Ellis would later
say to The New Yorker. "Me with the numbers, one of
them a governor, the other the president-elect. Now,
that was cool."
Gore phoned Bush to offer his congratulations, but
as he made his way from campaign headquarters at his
Nashville hotel to the War Memorial to give his
concession speech, Nick Baldick, his chief operative
in Florida, saw that something was seriously amiss.
V.N.S. had guessed that 180,000 votes were still
outstanding. In fact, there were 360,000 votes that
hadn't been counted - from precincts in Palm Beach,
Broward, and Miami-Dade Counties, which were largely
Gore country. And what was this? Negative 16,000 votes
for Gore in Volusia County? A computer glitch, it
turned out. Baldick watched the Bush lead wither with
each new report.
As the rain poured down on Gore's motorcade,
Baldick made a frantic call to Michael Whouley, Gore's
field strategist. Whouley passed the word on to Mike
Feldman, Gore's chief of staff. Feldman called
campaign chairman Bill Daley. This thing was not over
By the time Gore pulled up to the memorial, he was
trailing statewide by fewer than 2,000 votes. But he
didn't know that. Speechwriter Eli Attie, who had been
with Daley, fought his way through the crowd to get to
him. "I stopped him from going out onstage," recalls
Attie, "and said, ‘With 99 percent of the vote
counted, you're only 600 votes behind.'"
Gore called Bush again, and the conversation went
something like this:
"Circumstances have changed dramatically since I
first called you," Gore told him. "The state of
Florida is too close to call."
"Are you saying what I think you're saying?" Bush
asked. "Let me make sure I understand. You're calling
back to retract your concession?"
"You don't have to be snippy about it," said Gore.

Florida Governor Jeb Bush in November 2000.
(Photo: Vanity Fair)

Bush responded that the networks had already
called the result and that the numbers were correct -
his brother Jeb had told him. "Your little brother,"
Gore replied, "is not the ultimate authority on this."

Americans, some of whom went to bed thinking Gore
had won, others that Bush had won, all woke up to find
out that no one had won, in spite of Gore's
half-million vote edge in the U.S. popular vote. Since
the margin of error in Florida was within 0.5 percent
of the votes cast, a machine recount there would be
conducted. While Gore retreated home to Washington,
where he would try to remain above the fray, Ron
Klain, a Democratic lawyer who had once been his chief
of staff, descended with a planeload of volunteers on
Florida by six the next morning.
Information came pouring in faster than anyone
could digest it - about polling places that had been
understaffed, about voters who had been sent on
wild-goose chases to find their polling places, about
blacks barred from voting, and about police roadblocks
to keep people from the polls. So far, these were
rumors. The one obvious, indisputable problem was Palm
Beach County's butterfly ballot (designed by a
Democratic supervisor of elections) [who changed her
registration to Republican after the 2000 election,
and was defeated in her last re-election bid] in which
the names of candidates appeared on facing pages with
a set of holes down the center for voters to punch.
Bush's name appeared first, on the left-hand page,
with Gore's name directly below. The second hole,
however, was for Pat Buchanan, whose name was first on
the right-hand page. Buchanan won 3,407 votes in Palm
Beach - around 2,600 more than he received in any
other county in Florida. The irony was rich. Many of
those voters were elderly Jews, thrilled to be voting
for Joe Lieberman, the first Jew ever on a
presidential ticket; instead, the confusing design had
led them to cast their vote for a Holocaust
trivializer. While Bush spokesman Ari Fleischer
maintained, with trademark certitude in the face of
all reason, that Palm Beach was a "Buchanan
stronghold," Buchanan himself admitted that many of
the votes cast for him had been cast in error.
Klain and Baldick soon learned of other
irregularities. In Palm Beach, 10,000 ballots had been
set aside because the voting machines had recorded
"undervotes" - that is, no vote for president.
According to former Gore lawyer Mitchell Berger, 4
percent of voters in Palm Beach voted for senator, but
not president - an odd twist, to say the least. A
similar situation occurred in Miami-Dade. As for
Broward, third of the big three southern counties, in
which Fort Lauderdale is located, it was beset by
rumors of missing ballot boxes and unexpected totals
from certain precincts. And what about that "computer
error" in Volusia that initially cost Gore 16,000
votes? Was there more to this story?
None of these irregularities would be addressed by
the automatic recount, which at best would merely
check the totals of successfully cast votes. Manual
recounts would be needed to judge the more
questionable votes. Desperate for legal advice, Klain
reached out to prominent firms in the capital of
Tallahassee. He found little help. "All the
establishment firms knew they couldn't cross Governor
Bush and do business in Florida," recalls Klain. And
so he improvised, pulling together a team headed by
former secretary of state Warren Christopher, now a
Los Angeles - based lawyer in private practice.
Christopher, Gore felt, would imbue the team with an
image of decorous, law-abiding, above-the-fray
respectability. Instead, Christopher set a different
tone, one that would characterize the Democrats'
efforts over the next 35 days: hesitancy and
By contrast, Christopher's Republican counterpart,
James Baker, another ex - secretary of state, dug in
like a pit bull. Unlike Christopher and company, Baker
spoke to the press loudly and often, and his message
was Bush had won on November 7. Any further inspection
would result only in "mischief." Privately, however,
he knew that at the start he was on shaky political
ground. "We're getting killed on ‘count all the
votes,'" he told his team. "Who the hell could be
against that?"
Baker saw his chance that Thursday, November 9,
when the Gore team made a formal request for a manual
recount in four counties: Volusia, Palm Beach,
Broward, and Miami-Dade. Asking for a recount in these
large, Democrat-dominated counties left the Gore team
fatally vulnerable to the charge that they wanted not
all votes counted, as Gore kept claiming in his
stentorian tones, but only all Gore votes. Yet the
Bush team knew full well that Gore could not have
asked for a statewide recount, because there was no
provision for it in Florida law. A losing candidate
had 72 hours to request a manual recount on a
county-by-county basis or wait until the election was
certified to pursue a statewide recount. The requests
had to be based on perceived errors, not just the
candidate's wish to see recounts done. Certainly, Gore
chose counties that seemed likely to yield Gore votes.
But he chose them because that's where the problems
were. Proper as this was by Florida election law, the
Democrats' strategy gave Baker the sound bite he'd
been seeking: Gore was just cherry-picking Democratic
strongholds. It was a charge the Bush team wielded to
devastating effect in the media, stunning the Gore
team, which thought its strategy would be viewed as
modest and fair.
The automatic recount was finished on November 9,
and for the Bush team the news was sobering. Though
many of Florida's 67 counties "recounted" merely by
looking at their previous tallies, Bush's lead had
shrunk from 1,784 votes to 327. Gore votes, it seemed,
were everywhere. Who knew how many more a manual
recount would uncover? From then on, the Republican
strategy was simple: stop the counting. That Saturday,
Baker filed suit in federal court to stop all manual
recounts - the first legal shot across the bow, though
Republicans would later accuse Gore of taking the
election to court.
While all this was going on, Katherine Harris,
Florida's elected secretary of state, managed to make
herself into a lightning rod for both sides' feelings
about the election. She had worked in her spare time
as an ardent partisan for the Bush campaign and had
served as a delegate to the Republican convention that
summer. She remained one of George W.'s eight campaign
co-chairs for Florida right up until Election Day.
According to Jeffrey Toobin in his 2001 book, Too
Close to Call, Harris, having gone to sleep thinking
her candidate had won, was awakened at 3:30 A.M. the
morning after Election Day by a phone call from George
W.'s campaign chairman, Don Evans, who put Jeb on the
line. "Who is Ed Kast," the governor asked icily, "and
why is he giving an interview on national television?"

In her sleep-befuddled state, Harris had to ponder
that a moment. Who was Ed Kast? Chances were she'd
barely met the assistant director of elections, whose
division reported to her. Kast at that moment was
nattering on about the fine points of Florida election
law. Under that law, manual recounts were called for
in very close races, and voter intent was the litmus
test for whether disputed votes counted or not.
Recounts and voter intent were almost certainly not
subjects the governor wanted aired - already, his
general counsel had made a call to get Kast yanked off
the air, as brusquely as if with a cane.

"My sister and I prayed for full armour," Katherine
Haris wrote. "Queen Esther has been a wonderful role
(Photo: Vanity Fair)

In the white-hot media glare that first
post-election day, Harris appeared overwhelmed and
under-informed. She seemed to have no idea what the
county supervisors had been doing, much less that one
had drawn up a butterfly ballot, another a
"caterpillar," both sure to cause chaos at the polls.
Sensing trouble, the Bush camp gave her a "minder":
Mac Stipanovich, a coolly efficient Republican
lobbyist who worked in Tallahassee. Stipanovich had
served as a campaign adviser for Jeb in his first,
unsuccessful run for governor, in 1994, and he had
remained closely aligned with him ever since.
Stipanovich appealed to Harris's grandiosity. (Her
e-mails replying to Bush supporters later revealed
that she had begun identifying with Queen Esther, who,
in the Old Testament, saved the Jews from genocide.
"My sister and I prayed for full armour this morning,"
she wrote. "Queen Esther has been a wonderful role
model.") He told her that nothing less than the course
of history rested on her shoulders. "You have to bring
this election in for a landing," he repeated again and
Later, Stipanovich, in an interview with
documentary-film maker Fred Silverman, would proudly
describe his routine, which began two days after the
election and continued throughout the aftermath. "I
would arrive in the morning through the garage and
come up on the elevators," he said, "and come in
through the cabinet-office door, which is downstairs,
and then in the evening when I left, you know,
sometimes it'd be late, depending on what was going
on, I would go the same way. I would go down the
elevators and out through the garage and be driven -
driven to my car from the garage, just because there
were a lot of people out front on the main floor, and,
at least in this small pond, knowledge of my presence
would have been provocative, because I have a
political background."
On Friday, November 10, three of Gore's four
target counties - Miami-Dade, Broward, and Palm Beach
- which all used punch-card voting machines, started
to weigh whether to conduct manual recounts of, at
first, 1 percent of their ballots, and then, if the
results were dramatic, the other 99 percent.
At issue were "undervotes," meaning blank or
incompletely filled-out ballots. While totally blank
ballots could hardly be counted, what about, in the
case of the punch-card machines, ballots where the
puncher, or stylus, hadn't quite gone through?
In those counties using optiscan machines, manual
recounts also had to consider "overvotes," where
voters appeared to have cast more than one vote in a
contest. (In 2000, a majority of Florida's counties -
41 of 67 - had optiscans. A voter filled in ovals next
to his candidates of choice on a paper ballot and then
fed it into the optiscan, which looked rather like a
street-corner mailbox. The ballot was then recorded
electronically.) No one would dispute that some
overvotes had to be put aside - when, for example, a
voter had filled in the ovals next to Bush's name as
well as Gore's. But some voters had filled in the Gore
oval and then written "Al Gore" next to it. Should
those ballots be nixed? For that matter, a stray
pencil mark on an otherwise properly filled-in ballot
would cause the ballot to be rejected as an overvote
by an optiscan voting machine. Shouldn't these all be
examined, since the gold standard of Florida election
law was voter intent? There were, in all, 175,000
overvotes and undervotes.
Harris and Stipanovich couldn't tell the four
target counties how to do their l percent recounts -
at least, not directly. But they could, and did, send
a young, strawberry-blonde lawyer named Kerey
Carpenter to offer help to Palm Beach County's
three-person canvassing board. According to the
board's chairman, Judge Charles Burton, Carpenter
mentioned she was a lawyer, but not that she was
working for Katherine Harris.
At one point, when the recount had produced 50 new
Gore votes, Burton, after talking to Carpenter,
declared the counting would have to start again with a
more stringent standard - the punched-out paper chad
had to be hanging by one or two of its four corners.
By this stricter standard, Gore's vote gain dropped to
half a dozen. Carpenter also encouraged Burton to seek
a formal opinion from Harris as to what grounds would
justify going to a full manual recount. Burton happily
That Monday, November 13, Harris supplied the
opinion. No manual recount should take place unless
the voting machines in question were broken. Within
hours, a judge overruled her, declaring the recounts
could proceed as planned. Harris countered by saying
she would stop the clock on recounts the next day,
November 14, at 5 P.M. - before Palm Beach and
Miami-Dade had even decided whether to recount, and
before Broward had finished the recount it had
embarked upon. (Only Volusia, far smaller than the
other three counties, was due to finish its recount by
November 14, in time to be counted on Harris's
Circuit-court judge Terry Lewis, then 48, a widely
respected jurist who in his leisure time played pickup
basketball and wrote legal thrillers, rendered a
fairly gentle ruling on Harris's decision to certify
those results. She could do this, he suggested, but
only if she came up with a sensible reason. So Harris
asked the remaining three Gore-targeted counties to
explain why they wished to continue their recounts.
Palm Beach cited the discrepancies between the results
of its limited manual recount and its machine recount.
Broward told of its large voter turnout and
accompanying logistical problems. Miami-Dade argued
that the votes it had recounted so far would provide a
different total result. As soon as she received the
responses, Harris rejected them all. On Friday,
November 17, with the last of the absentee ballots
ostensibly in, Harris announced that she would certify
the election by the next morning. The Florida Supreme
Court intervened this time, declaring she could not do
that, and deciding, with a weekend to think about it,
that the three target counties could take until
Sunday, November 26, to finish counting - or, if
Harris so deigned, until Monday, November 27.
James Baker, the Bush team's consigliere, issued a
public threat after the Florida Supreme Court's
maddening decision. If necessary, he implied,
Florida's leading Republican legislator, incoming
House Speaker Tom Feeney, would take matters into his
own hands. What Feeney proposed, on Tuesday, November
21, was to vote in a slate of electors pledged to
George W. Bush - no matter what. Since both the state
House and Senate were Republican-dominated, he could
pass a bill to do that.
In Miami-Dade that week, a manual recount of
undervotes began to produce a striking number of new
votes for Gore. There, as in Palm Beach and Broward,
fractious Democratic and Republican lawyers were
challenging every vote the canvassing board decided.
In Miami-Dade, Kendall Coffey, tall and gaunt, was the
Democrats' eyes and ears. As the Gore votes
accumulated, he recalls, "panic buttons were being
On Wednesday, November 22, the canvassing board
made an ill-fated decision to move the counting up
from the 18th floor of the Clark Center, where a large
number of partisan observers had been able to view it,
to the more cloistered 19th floor. Angry shouts rang
out, and so began the "Brooks Brothers riot."
Several dozen people, ostensibly local citizens,
began banging on the doors and windows of the room
where the tallying was taking place, shouting, "Stop
the count! Stop the fraud!" They tried to force
themselves into the room and accosted the county
Democratic Party chairman, accusing him of stealing a
ballot. A subsequent report by The Washington Post
would note that most of the rioters were Republican
operatives, many of them congressional staffers.
Elections supervisor David Leahy would say that
the decision to stop counting undervotes had nothing
to do with the protest, only with the realization that
the job could not be completed by the Florida Supreme
Court's deadline of November 26. Yet the board had
seemed confident, earlier, that it could meet the
deadline, and the decision to stop counting occurred
within hours of the protest.
For all the tumult in Miami-Dade, both sides had
realized that the presidency might well be determined
not by hanging chads or overvotes but by absentee
ballots. Republicans seethed with rumors of ballots by
the bagful coming in from Israel - all, presumably,
from Jewish Democrats. Democrats envisioned thousands
of ballots coming in from military bases abroad - all,
presumably, from Bush fans in uniform.
Katherine Harris sowed confusion by issuing her
own modification of the Florida law that specified
absentee ballots could be accepted up to10 days after
a general election - in this case November 17 - as
long as they were sent from abroad and postmarked by
Election Day. "They are not required," Harris
declared, "to be postmarked on or prior" to Election
Day. Apparently, Stipanovich had decided there were
more Bush votes than Gore votes to be harvested among
the absentees, especially in the military.
Mark Herron, a Gore-team lawyer in Tallahassee,
inadvertently made matters worse for his own side. On
November 15, he sent out a long memo on rules
governing absentee ballots to the Democratic lawyers
positioned at each of the 67 county canvassing boards.
A copy of the memo somehow found its way to a
Republican law firm across the street from Herron's
office. Next thing he knew, the Republicans were
quoting his careful recitation of Florida election law
to support their claim that Democrats wanted to
disenfranchise brave Americans in uniform.
Panicked, the Gore team put Joe Lieberman on the
Sunday television talk shows to declare that the
Democrats would never do that, and that he, for one,
thought the most liberal standard should be applied to
all incoming absentee ballots. Herron was appalled
when he heard that: he knew that the western Panhandle
counties were thick with U.S. military bases. By
letting any post-election absentee votes count,
including those with late - or no - postmarks, the
presidency might well be lost.
For Pat Hollarn, the elections supervisor of
Okaloosa County, the next days brought a kind of
bedlam she couldn't believe. A deep-green Panhandle
county, Okaloosa has no fewer than six military bases,
including Eglin and Hurlburt Air Force bases and an
Army Ranger camp. And so the county's four-story
government building, nestled within a highway strip of
stores such as Mr. Cheap Butts, became ground zero for
the lawyers on both sides assigned to the fight over
absentee ballots.
Both parties were pushy, obnoxious, and sometimes
almost hysterical. The Bush lawyers argued
passionately that the rules should be eased and all
absentee ballots included. "I told them not only no
but hell no," says Hollarn, a centrist Republican, who
prides herself on being a nonpartisan supervisor. (At
the same time, in the more Democratic counties, Bush
lawyers were arguing just as passionately that rules
should be strictly adhered to and any questionable
ballots put aside.)
In Santa Rosa County, next to Okaloosa, elections
supervisor Doug Wilkes did his best to restrain the
vying partisans as they fought over some 20 late
absentee ballots. He held the line on postmarks until
a Florida Supreme Court ruling said absentee ballots
should not be rejected for minor "hypertechnical"
reasons. Then he gave up. "I said, Hey! If the Supreme
Court tells me I'm supposed to take this if it has a
minor technical problem, and I can't read this smudge
[of a postmark], and it may have been dated [before
the election], then O.K., I feel now that I can say
we're going to count Seaman Jones's ballot."
In all, the Republicans gained a net increase of
123 votes from this last-minute push.
The day before Thanksgiving, the Bush campaign
turned to the United States Supreme Court. Claiming
that the situation in Florida had degenerated into a
"circus," it asked the high court to stop everything,
and cited two highly technical federal issues for it
to consider. The first, based on an obscure law from
1887, prohibited states from changing the rules after
the date of that election. The second, a
jurisdictional issue, was that by stepping into the
case the Florida Supreme Court had usurped the Florida
legislature's exclusive powers to set the procedures
for selecting electors, as provided for by Article II
of the United States Constitution. The Bush lawyers
claimed, too, that the selective recounts violated
constitutional guarantees of due process and equal
protection - meaning the different criteria for
recounting the ballots did not give equal rights to
all voters.

Supreme Court justice Anthony Kennedy in 2003;
rejected ballots from Miami-Dade County.
(Photo: Vanity Fair)

Bush's petition for certiorari - that is, for the
Court to take the case - went initially to Justice
Anthony Kennedy, whose task it was to consider all
emergency motions from Florida, Georgia, and Alabama.
For Kennedy, then 64, a man known to relish the pomp
and circumstance of the Supreme Court and his own,
often crucial role in close cases, weighing such a
momentous matter must have been glorious indeed.
Batting aside a Thanksgiving Day plea from the Gore
campaign to pass on the case, Kennedy urged his
colleagues to take it on, suggesting that the Court
was absolutely the essential arbiter of such weighty
matters. He conceded, though, that Bush faced an
uphill struggle on the law.
When Kennedy's memo circulated, one flabbergasted
clerk had to track down Justice John Paul Stevens on
the golf course in Florida and read it to him over the
phone. Under the Court's rules, Kennedy needed only
three votes beside his own for the Court to hear the
matter. Quickly, the four others who make up the
Court's conservative block signed on: Chief Justice
William Rehnquist, along with Justices Antonin Scalia,
Clarence Thomas, and Sandra Day O'Connor. In an
unsigned order the day after Thanksgiving, the Court
agreed to consider the two more technical arguments,
spurning the equal-protection claim, and set down an
extraordinarily expedited calendar. Normally,
arguments are scheduled many months in advance. Now
briefs were due the following Tuesday, with oral
arguments set for December 1 - only a week away.
Clerks and justices scotched their vacations and stuck
close to the Court; Scalia's clerks ended up having
Thanksgiving dinner together. The clerks for the
liberal justices watched the events unfold with
dismay. To them, the only hopeful sign was Kennedy's
skepticism about Bush's chances. "We changed our minds
every five minutes about whether the fix was in," one
clerk remembers.
As was customary, the Court did not detail how
many justices had voted to hear the case, or who they
were, and Gore's lawyers didn't really want to know.
At that point, they felt a certain faith in the
institution and in the law: it was inconceivable to
them that the Court would intercede, much less decide
the presidency by a vote of five to four. But the
liberal clerks were more pessimistic. Why, they asked,
would a majority of the Court agree to consider the
Florida ruling unless they wanted it overturned and
the recount shut down?
Certainly, that was what the justices who'd
opposed taking the case believed. Convinced the
majority would reverse the Florida court, they began
drafting a dissent even before the case was argued in
court. It was long - about 30 pages - and elaborate,
written principally by Justice Stevens, then 80, the
most senior of the would-be dissenters and, largely by
default, the Court's most liberal member, even though
a Republican, President Gerald R. Ford, had appointed
him. With the assistance of Justices Stephen Breyer,
David Souter, and Ruth Bader Ginsburg, Stevens laid
out why the Court should never have accepted the case.

Meanwhile, events in Florida took their own
course. On Sunday, November 26, the Palm Beach
canvassing board sent an urgent request to Katherine
Harris, saying that in order to complete its manual
recount it needed two additional hours beyond the five
P.M. deadline she had chosen to enforce, rather than
the Monday deadline the Florida Supreme Court had
offered her as an option. Harris conferred with
Stipanovich and answered no. As a result the county's
entire recount effort was deemed null and void. That
afternoon Harris certified the election, claiming that
Bush had won by 537 votes, a total that appeared to
include Bush's net gain in absentee ballots, but none
of the recounted votes from Palm Beach or Miami-Dade.
Gore's lawyers promptly contested the certification.
At the Supreme Court, the liberal clerks
handicapped the case pretty much as the Gore camp did.
At issue, as they often were in crucial cases, were
Justices Kennedy and O'Connor. But were both really in
play? At a dinner on November 29, attended by clerks
from several chambers, an O'Connor clerk said that
O'Connor was determined to overturn the Florida
decision and was merely looking for the grounds.
O'Connor was known to decide cases on gut feelings and
facts rather than grand theories, then stick doggedly
with whatever she decided. In this instance, one clerk
recalls, "she thought the Florida court was trying to
steal the election and that they had to stop it."
Blithely ignorant of what view she actually held, the
Gore campaign acted as if she were up for grabs. In
fact, the case would come down to Kennedy.
At this point, the clerks had been at the Court
only two months, but, for many of them, Justice
Kennedy, appointed by President Reagan after the
Senate had spurned the arch-conservative Robert Bork,
was already a figure of ridicule and scorn. It was not
a matter of his generally conservative politics -
despite Clarence Thomas's public image of smoldering
rage, most of the liberal clerks had found him quite
personable. But Kennedy, they felt, was pompous and
grandiloquent. His inner office was filled with the
trappings of power - an elaborate chandelier and a
carpet with a giant red star - and his writing, too,
was loaded with grandstanding flourishes. The clerks
saw his public persona - the very public way in which
he boasted of often agonizing over decisions - as a
kind of shtick, a very conspicuous attempt to exude
fairness and appear moderate, even when he'd already
made up his mind.
Conservatives, however, were not always happy with
Kennedy, either. They had never forgiven him for his
votes to uphold abortion and gay rights, and doubted
both his intelligence and his commitment to the cause.
Convinced he'd strayed on abortion under the
pernicious influence of a liberal law clerk - a former
student of the notoriously liberal Laurence Tribe of
Harvard Law School, who was representing Gore in this
case - they took steps to prevent any reoccurrences.
Applicants for Kennedy clerkships were now screened by
a panel of right-wing stalwarts. "The premise is that
he can't think by himself, and that he can be
manipulated by someone in his second year of law
school," one liberal clerk explains. In 2000, as in
most years, that system surrounded Kennedy with true
believers, all belonging to the Federalist Society,
the farm team of the legal right. "He had four very
conservative, Federalist Society white guys, and if
you look at the portraits of law clerks on his wall,
that's true 9 times out of 10," another liberal law
clerk recalls. "They were by far the least diverse
group of clerks."
For all their philosophical differences, the nine
justices had learned to live together; they have,
after all, served together since 1994. For their
clerks, though, a chasm ran through the Court even
before Bush v. Gore. The conservative clerks read
different newspapers, went to different movies, ate
different kinds of food. Their hair was shorter, their
suits more solemn and sincere. Far more of them were
white men, screened rigorously for political
reliability. Apart from a few group activities - the
basketball games in the Court's top-floor gymnasium,
the aerobics and yoga classes Justice O'Connor had
arranged - the two groups rarely interacted. Rather
than sit with the conservatives in the same lunchroom,
the liberals dined outside, in the area reserved for
It was unusual, then, for a conservative clerk to
visit the chambers of a justice on the other side. But
that is what Kevin Martin, a clerk for Scalia, did on
November 30 when he stopped by Stevens's chambers.
Martin had gone to Columbia Law School with a Stevens
clerk named Anne Voigts; he thought that connection
could help him to bridge the political divide and to
explain that the conservative justices had legitimate
constitutional concerns about the recount. But to two
of Voigts's co-clerks, Eduardo Penalver and Andrew
Siegel, Martin was on a reconnaissance mission, trying
to learn which grounds for reversing the Florida court
Stevens would consider the most palatable. They felt
they were being manipulated, and things quickly turned
nasty. "Fuck off!" Martin finally told them before
storming out of the room. (O'Connor clerks paid
similar exploratory visits to various chambers, but
those ended more amicably.)
On December 1, lawyers for the two sides argued
their cases before the Court. Laurence Tribe, an
experienced and highly respected Supreme Court
advocate, seemed flat that day and off his game; the
justices appeared to chafe under what they considered
his condescending professorial style. Bush's lawyer,
Theodore Olson, who later became solicitor general in
John Ashcroft's Justice Department, was more
impressive, but then again, he was playing to a
friendlier audience. Rehnquist and Scalia hinted that
they favored the claim that the Florida Supreme Court
had encroached upon the Florida legislature's
exclusive turf. Both O'Connor and Kennedy also voiced
irritation with the Florida court. It did not augur
well for Gore.
Once the arguments were over, the justices met for
their usual conference. At the poles were Stevens and
Scalia - the one wanting to butt out of the case
altogether and let the political process unfold, the
other wanting to overturn the Florida Supreme Court
and, effectively, to call the election for Bush. But
neither had the votes. Eager to step back from a
constitutional abyss, convinced the matter could be
resolved in Florida, the Court punted. Rehnquist began
drafting a ruling simply asking the Florida Supreme
Court to clarify its decision: whether it had based
its ruling on the state constitution, which the Bush
team had said was improper, or had acted under state
statute, which was arguably permissible.
By December 4, all nine justices had signed on to
the chief justice's opinion. The unanimity was, in
fact, a charade; four of the justices had no beef at
all with the Florida Supreme Court, while at least
four others were determined to overturn it. But this
way each side could claim victory: the
liberal-to-moderate justices had spared the Court a
divisive and embarrassing vote on the merits, one
they'd probably have lost anyway. As for the
conservatives, by eating up Gore's clock - Gore's
lawyers had conceded that everything had to be
resolved by December 12 - they had all but killed his
chances to prevail, and without looking needlessly
partisan in the process. With the chastened Florida
court unlikely to intervene again, the election could
now stagger to a close, with the Court's reputation
intact, and with Bush all but certain to win.
On Friday, December 8, however, the Florida
Supreme Court confounded everyone by jumping back into
the fray. By a vote of four to three, it ordered a
statewide recount of all undervotes: the more than
61,000 ballots that the voting machines, for one
reason or another, had missed. The court was silent on
what standard would be used - hanging vs. pregnant
chads - and so each county, by inference, would set
its own. As they watched televised images of bug-eyed
Florida officials inspecting punch-card ballots for
hanging, dimpled, or pregnant chads, the Supreme Court
clerks knew the case was certain to head back their
Sure enough, the Bush campaign asked the Court to
stay the decision and halt the recount. In a highly
unusual move, Scalia urged his colleagues to grant the
stay immediately, even before receiving Gore's
response. Gore had been narrowing Bush's lead, and his
campaign expected that by Monday he would pull ahead.
But Scalia was convinced that all the manual recounts
were illegitimate. He told his colleagues such
recounts would cast "a needless and unjustified cloud"
over Bush's legitimacy. It was essential, he said, to
shut down the process immediately. The clerks were
amazed at how baldly Scalia was pushing what they
considered his own partisan agenda.
Scalia's wish was not granted. But at his urging,
Rehnquist moved up the conference he'd scheduled for
the next day from 1 in the afternoon to 10 that
morning. In the meantime, the conservative justices
began sending around memos to their colleagues, each
of them offering a different rationale for ruling in
Bush's favor; to the liberal clerks, it was apparent
that the conservatives had already decided the case
and were merely auditioning arguments.
This time, there would be no papering over the
divisions. Arrayed against the five conservative
justices wishing to stop the recount were their four
colleagues, who'd voted initially not to hear the
case. Justice Stevens would write for them; so eager
was the majority to stop the recount, one clerk
recalls, that Stevens had to plead for more time to
complete his dissent. What he wrote - that "counting
every legally cast vote cannot constitute irreparable
harm" - so provoked Scalia that, as eager as he was to
halt the recount, he delayed things by dashing off an
angry rejoinder, largely reiterating what he'd told
the justices the previous night. "Count first, and
rule upon legality afterwards, is not a recipe for
producing election results that have the public
acceptance democratic stability requires," he argued,
forecasting that a majority of the Court would
ultimately rule in Bush's favor on the merits.
Even some of the justices voting with Scalia
squirmed at how publicly he'd acknowledged the
divisions within the Court. To the liberal clerks,
what he had written was at least refreshing in its
candor. "The Court had worked hard to claim a moral
high ground, but at that moment he pissed it away,"
one recalls. "And there was a certain amount of glee.
He'd made our case for us to the public about how
crassly partisan the whole thing was." Scalia's
opinion held up release of the order for an hour.
Finally, shortly before three o'clock, the Court
granted the stay. No more votes would be counted. Oral
arguments were set for the following Monday, December
Gore and his team were crushed, but neither he nor
his lawyers had given up. Even at this late date, Gore
naïvely defended the good faith of the justices.
"Please be sure that no one trashes the Court," he
instructed his minions. His lawyers still hoped that
Kennedy or O'Connor or both could be won over; perhaps
they could be peeled away from the conservative bloc
as they had been several years earlier to preserve Roe
v. Wade. At a meeting that Saturday, Gore decreed that
David Boies, and not Tribe, would argue the case on
Monday, partly for fear that the more publicly liberal
Tribe might antagonize those two swing justices,
partly because Boies, the famed New York litigator who
was the government's chief lawyer during the Microsoft
anti-trust case, had been representing Gore in Florida
and was, therefore, better able to assure O'Connor of
the fundamental fairness of what was happening there.
But to the liberal clerks it was all over. They
placed their dwindling hopes not on anything that
would happen in the Court on Monday, but on the press.
The brother of a Ginsburg clerk, who covered legal
affairs for The Wall Street Journal, had learned that
the paper would soon report how, at a party on
Election Night, O'Connor was overheard expressing her
dismay over Gore's apparent victory. Once that
information became public, the liberal clerks felt,
O'Connor would have to step aside. When, on the night
before the Court convened, she sent out a sealed memo
to each of her colleagues, those clerks hoped this had
actually come to pass. In fact, she was merely stating
that she, too, felt the Florida Supreme Court had
improperly usurped the state legislature's power.
Gore's lawyers, who also knew about O'Connor's
election-night outburst, toyed briefly with asking her
to step aside. But they demurred, hoping instead that
she would now lean toward them to prove her fairness.
Things were that bleak.
When Gore's lawyers came to the Supreme Court for
oral arguments on the morning of December 11, they
felt that the Bush team's jurisdictional argument,
that the Florida Supreme Court had overstepped its
bounds, was a loser because it emasculated one
appellate court more than any other appellate court
would ever want to condone. And, though they didn't
know it, Justice Kennedy agreed with them. In a memo
circulated shortly before he took the bench, he
endorsed what O'Connor had written the night before,
but declared that it would not be enough: to carry the
day, he argued, the conservative justices needed to
assert that evaluating ballots under different
standards in the various counties violated the
equal-protection clause.
Up to now, this argument had received scant
attention from the clerks, the litigants, or even the
justices - and understandably so. Even in the best of
circumstances, voting procedures were riddled with
inconsistencies, beginning with the use of systems of
wildly varying reliability, such as punch cards and
optiscan machines, in different jurisdictions. Voters,
often poor or black, in counties with older machines
were far less likely to have their votes counted than
those in wealthier jurisdictions, and nobody ever
heard a peep from the Supreme Court about
unconstitutionality. Moreover, the Rehnquist Court had
always stingily construed the equal-protection clause
of the 14th Amendment, enacted after the Civil War to
protect freed slaves, applying it only when
discrimination was systematic, blatant, intentional,
incontrovertible. It was not surprising, then, that
the Court had originally declined to hear arguments on
the point, or that, when they returned to the Court,
Bush's lawyers had given those arguments only 5 pages
in a 50-page brief.
But here was Kennedy dusting it off. And not as
some academic exercise, but as the very basis of the
Court's decision. "We read the memo and thought, Oh,
we've lost Kennedy," one liberal clerk recalls. In the
star-studded audience awaiting the arguments that
morning, someone spotted Al Gore's daughter Karenna -
praying, he thought. It wouldn't help. The Court
already had its majority. Now it had its rationale.
As the lawyers prepared to argue, the clerks
pondered Kennedy's motives. Perhaps, they speculated,
he found an appeal to fairness, even when it was inapt
or unpersuasive, more winning than a hypertechnical
argument about jurisdiction; perhaps it offered him a
chance to sound moderate and wax eloquent. The oral
arguments began, with a question to Theodore Olson
from . . . Justice Kennedy. "Where is the federal
question here?" he asked, sounding almost baffled, as
if still genuinely wondering why the Court was hearing
the case at all. In the corner of the courtroom where
the liberal clerks sat, there were snickers, rolled
eyeballs, nudges in the ribs. "What a joke," one said
to another. Kennedy went on to denigrate the argument
about the Florida court's jurisdiction, then cued
Olson to what really mattered. "I thought your point
was that the process is being conducted in violation
of the equal-protection clause, and it is
standardless," he told Olson. Olson, a keen student of
the Court and canny reader of its moods, naturally
O'Connor railed against what she suggested was the
stupidity of Florida's voters, who were too dumb or
too clumsy to puncture their ballots properly. "Well,
why isn't the standard the one that voters are
instructed to follow, for goodness' sake?" she asked.
"I mean, it couldn't be clearer." Boies tried to
explain that for more than 80 years Florida's courts
had in fact focused on the intent of the voter rather
than the condition of his ballot, but this was one
instance for the Rehnquist Court in which deference to
the states, and precedent, didn't matter.
Breyer and Souter saw Kennedy's new focus on equal
protection as an opportunity, suggesting during oral
argument that if there were problems with the fairness
of the recount the solution was simple: send the case
back once more to the Florida Supreme Court and ask it
to set a uniform standard. Breyer, whose chambers were
next door to Kennedy's, went to work on him
personally. An affable and engaging man, Breyer has
long been the moderates' most effective emissary to
the Court's right wing. But the politicking went both
ways; at one point, Kennedy stopped by Breyer's
chambers and said he hoped Breyer would join his
opinion. "We just kind of looked at him like he was
crazy - ‘We don't know what you're smoking, but leave
us alone' - and he went away," a clerk recalls.
The encounters between the two men must have been
extraordinary: with the presidency of the United
States hanging in the balance, two ambitious jurists -
each surely fancying himself a future chief justice -
working on each other. And for a brief moment Breyer
appeared to have succeeded. At the conference
following the oral argument, Kennedy joined the
dissenters and, at least temporarily, turned them into
the majority. The case would be sent back to the
Florida court for fixing; the recount would continue.
But the liberal clerks never believed that Kennedy had
really switched, and predicted that, having created
the desired image of agonizing, he would quickly
switch back. "He probably wanted to think of himself
as having wavered," one clerk speculates. And, sure
enough, within a half-hour or so, he did switch back.
Who or what sent him back isn't clear, but during
that time, Kennedy conferred both with Scalia and with
his own clerks. "We assumed that his clerks were
coordinating with Scalia's clerks and trying to push
him to stay with the majority," one liberal clerk
says. "I think his clerks were horrified, and the idea
that he would even blink for a moment here scared
them," says another. "They knew the presidency would
be decided in their chambers," a third clerk - working
for one of the majority justices - recalls. "They
would have fought tooth and nail - they would have put
chains across the door - to keep him from changing his
vote." Another clerk for another conservative justice
puts it a bit differently. "Kennedy would not have
voted the other way," this clerk says, "but had he
been tempted, the clerks could have dissuaded him."
Breyer lamented that he had Kennedy convinced, only to
have his clerks work him over and pull him back in the
other direction.
Given the approaching deadline, Rehnquist decreed
after oral arguments that any decision to send the
case back to Florida had to be handed down
immediately; were the Court to reverse, time would
cease to matter, and the decision could wait a day.
Stevens banged out a one-paragraph opinion, remanding
the case to Florida, and sent it around. "It seemed
like a Hail Mary to me," recalls a clerk in one of the
conservative chambers. There were no takers. The Court
was going to reverse, and throughout Monday evening
and into Tuesday morning the two sides drafted and
circulated their proposed opinions. Rehnquist was
writing what he thought would be the majority opinion,
reversing the Florida court on both the jurisdictional
and equal-protection grounds. Stevens was drafting the
principal dissent; it would reiterate what he'd
written in the unused dissent from the first round,
but shorn of all legalese, in order to be easily
understood by ordinary people. It chastised the Court
for holding the justices of the Florida Supreme Court
up to ridicule. "Although we may never know with
complete certainty the identity of the winner of this
year's Presidential election, the identity of the
loser is perfectly clear," it stated. "It is the
Nation's confidence in the judge as an impartial
guardian of the rule of law."
The other dissenters would join Stevens, but had
their own points to make. Because they, too, believed
the case would hinge primarily on the autonomy of the
Florida legislature, they dealt only secondarily, and
peripherally, with the equal-protection argument.
Stevens and Ginsburg denied that it applied at all.
For better or worse, Ginsburg wrote, disparities were
a part of all elections; if there were any
equal-protection concerns at all, she wrote, they
surely applied more to black voters, noting a New York
Times report that a disproportionate number of blacks
had encountered problems voting. Though racial
questions already hung over the Florida vote, hers was
to be the only reference to race in any of the
opinions, and it was relegated to a footnote. But to
the liberal clerks, these issues needed to be
acknowledged, and a footnote was better than nothing
at all.
Neither Breyer nor Souter had suggested initially
that the recount had triggered any equal-protection
questions. But each of their draft opinions voiced
such concerns; whether they'd come to believe that
judging ballots under different criteria was really
unconstitutional, or were still chasing after Kennedy,
was never clear. Ultimately, Breyer conceded that the
lack of a uniform standard "implicate[d] principles of
fundamental fairness," while Souter wrote something a
bit stronger - that they raised "a meritorious
argument for relief." But for both the remedy was
clear: send the case back to Florida. It was not to
stop the recount altogether.
Late Tuesday morning, it became apparent that
Kennedy and O'Connor would not join Rehnquist's
opinion on jurisdiction, and would decide the case
strictly on equal-protection grounds. Nowhere did
O'Connor explain why she had abandoned what she had
written on the jurisdictional matter in her memo the
night before. To clerks on both sides of the case,
what appealed both to her and to Kennedy about
invoking equal protection was that it looked fair. "It
was kind of a ‘Keep it simple, stupid' kind of thing,"
one liberal clerk theorizes. Or, as a conservative
clerk puts it, "they thought it looked better to
invoke these grand principles rather than Article II,
perhaps because it makes them look better in the press
and makes them look like heroes." Their opinion,
written by Kennedy, was joined by the other three
conservative justices. And it would go largely
uncontradicted: with time running out and the dissents
nearly complete, the losers had no chance to explain,
in any coherent way, why equal-protection concerns
should not be allowed to stop the recount.
As the drafts began circulating, tempers began to
fray. In an unusual sealed memo - an unsuccessful
attempt to avoid the clerks' prying eyes - Scalia
complained about the tone of some of the dissents. He
was, he confessed, the last person to criticize
hard-hitting language, but never had he, as the
dissenters were now doing, urged the majority to
change its decision based on its impact on the Supreme
Court's credibility. He charged that his opponents in
the case were inflicting the very wounds to the Court
that they had supposedly decried. As Jeffrey Toobin
first reported, he objected in particular to what he
called the "Al Sharpton footnote" in Ginsburg's
dissent: her comment on Florida's disenfranchised
black voters. Whether out of timidity, collegiality,
or affection - Scalia was her closest friend on the
Court - Ginsburg promptly took it out. "It was the
most classic example of what kind of bully Scalia is,"
says one clerk, who called Scalia's complaint "an
attempt to stifle legitimate discourse worthy of Joe
McCarthy." As for Ginsburg, this clerk says her
response "showed a lack of courage."
Kennedy, too, sent around a memo, accusing the
dissenters of "trashing the Court." Eager to suggest
to the outside world that the Court was less divided
than it appeared, he charged that the dissenters
agreed with the equal-protection argument more than
they were willing to admit. Shortly before his opinion
went to the printers, he inserted a new line making
substantially the same point. "Eight Justices of the
Court agree that there are constitutional problems
with the recount ordered by the Florida Supreme Court
that demand a remedy," he wrote. Souter and Breyer had
said so explicitly, he reasoned, while Stevens had
done so implicitly by signing on to Breyer's opinion.
Stevens's clerks, who stumbled over the new
phrase, reacted apoplectically. Shouting over the
telephone, they told Kennedy's clerks that they had
deliberately misrepresented Stevens's position and
demanded that they change the language. When the
Kennedy clerks refused, Stevens promptly uncoupled
himself from that portion of Breyer's opinion, and
Kennedy no longer had a choice: "eight Justices"
became "seven." Later, as they handed in their
respective decisions, Eduardo Penalver, the Stevens
clerk, ran into a Kennedy clerk named Grant Dixton and
told him that what the Kennedy chambers had done was
disgusting and unprofessional.
In the Breyer chambers, too, there was unhappiness
over Kennedy's addendum. But it was too late to take
issue with it. Thus, Kennedy's point stood
uncontradicted and would be picked up in the next
day's press, including The New York Times, which
printed a graphic illustrating how the justices had
voted. On the equal-protection claim, it had seven
voting for, and only two against. Breyer, a member of
the Gore team later lamented, had been "naïve"; in his
efforts to win over Kennedy, he'd "been taken to the
Despite their loyalty to their justices - a
striking, filial-like phenomenon among most clerks -
several concede that the dissenters in Bush v. Gore
were simply outmaneuvered. Never did the four of them
have the votes to prevail. But first by endorsing a
decision suggesting that the Florida Supreme Court had
overstepped its bounds, then by appearing to buttress
the majority's equal-protection claims, the dissenters
had aided and abetted the enemy. "They gave just
enough cover to the five justices and their defenders
in the press and academia so that it was impossible to
rile up the American people about these five
conservative ideologues stealing the election," one
clerk complains. The tone and multiplicity of the
dissents didn't help. While Stevens's rhetoric was
impassioned, even enraged, the other dissents were
The Court's opinions were issued at roughly 10
o'clock that night. The only one that mattered, the
short majority opinion, was unsigned, but it bore
Kennedy's distinctive stamp. There was the usual
ringing rhetoric, like the "equal dignity owed to each
voter," even though, as a practical matter, the ruling
meant that the ballots of 60,000 of them would not
even be examined. The varying standards of the
recount, Kennedy wrote, did not satisfy even the
rudimentary requirements of equal protection. Although
six more days would pass before the electors met in
their states, he insisted there was too little time
for the Florida courts to fix things.
There were two more extraordinary passages: first,
that the ruling applied to Bush and Bush alone, lest
anyone think the Court was expanding the reach of the
equal-protection clause; and, second, that the Court
had taken the case only very reluctantly and out of
necessity. "That infuriated us," one liberal clerk
recalls. "It was typical Kennedy bullshit,
aggrandizing the power of the Court while ostensibly
wringing his hands about it."
Rehnquist, along with Scalia and Thomas, joined in
the decision, but Scalia, for one, was unimpressed.
Whether or not one agrees with him, Scalia is a
rigorous thinker; while the claim that the Florida
Supreme Court overstepped its bounds had some
superficial heft to it, the opinion on
equal-protection was mediocre and flaccid. "Like we
used to say in Brooklyn," he is said to have told a
colleague, "it's a piece of shit." (Scalia denies
disparaging the majority opinion; the other justices
would not comment for this article.)
Sharing little but a common sense of exhaustion
and Thai takeout, the clerks came together briefly to
watch the news. As reporters fumbled with the opinions
- the final line of Kennedy's opinion, sending the
case back to Florida even though there was really
nothing more the Florida court could do, confused many
of them - the clerks shouted imprecations at the
screen. The liberal ones slumped in their chairs; some
left the room, overcome by their own irrelevance. "We
had a desire to get out already and see if journalists
and politicians could stop what we couldn't stop,"
says one. They contemplated a variety of options -
holding a press conference, perhaps, or leaking
incriminating documents. There was just one problem:
there were none. "If there'd been a memo saying, ‘I
know this is total garbage but I want Bush to be
president,' I think it would have found its way into
the public domain," one clerk recalls.
Gore's lawyers read him the ruling. At last he
concluded that the Court had never really given him a
shot, and he congratulated his legal team for making
it so hard for the Court to justify its decision.
Kevin Martin, the Scalia clerk who'd tangled earlier
with Stevens's clerks, informed his colleagues by
e-mail that Gore was about to concede. To some, it
seemed like gloating; Eduardo Penalver asked him to
stop. "Life sucks," Martin replied. "Life may suck
now," Penalver responded, "but life is long."
There were reports that for some time afterward
Souter was depressed over the decision. According to
David Kaplan of Newsweek, Breyer told a group of
Russian judges that the decision was "the most
outrageous, indefensible thing" the Court had ever
done, while Souter complained to some prep-school
students that had he had "one more day - one more
day," he could have won over Kennedy. But such
comments were quickly disavowed, were out of character
for each man, and appeared inconsistent with the
facts. The clerks, for instance, believed Souter had
spent most of the last few crucial days in his
chambers brooding over the case rather than working
any back channels.
Fearful, perhaps, of the appearance of a quid pro
quo, neither of the two justices most frequently
rumored to be leaving, Rehnquist and O'Connor, has in
fact left during Bush's presidency - perhaps, some
theorize, because of how it would look to let the man
they anointed select their replacements. "The justices
who ruled for President Bush gave themselves, in
effect, a four-year sentence," said Ron Klain.
O'Connor confessed surprise at the anger that
greeted the decision, but that seemed to reflect
naïveté more than any sober second thoughts. On her
71st birthday, in March 2001, she was sitting in the
Kennedy Center when Arthur Miller, the playwright,
denounced what the Court had done. Around Washington,
a few people stopped shaking her hand, and Justice
Scalia's too; the consensus has since grown that
because of Bush v. Gore, he can never be named chief
The experience left scars on those who lived
through it. "I went through a lawyer's existential
crisis," one of the clerks recalls. "People afterwards
said, ‘It must have been very exciting,'" says
another. "It was not that exciting. What I felt was
beyond anger. It was really a profound sense of loss."
But a conservative clerk insists that when the records
are opened and the histories written, the architects
of Bush v. Gore will be vindicated. "When everybody's
dead and they read it all, it won't be embarrassing,"
he pre

Posted by richard at December 20, 2004 09:05 AM