1 00:00:16,271 --> 00:00:28,111 Speaker 1: Pushkin, you cannot imagine a more tense, pressure packed moment 2 00:00:28,271 --> 00:00:31,631 Speaker 1: with all of that at stake, and saying, mister Chief Justice, 3 00:00:31,711 --> 00:00:34,071 Speaker 1: may have pleased the court and starting your argument. 4 00:00:34,751 --> 00:00:38,871 Speaker 2: You understand and respect the roles that the lawyer on 5 00:00:38,911 --> 00:00:39,831 Speaker 2: the other side. 6 00:00:39,751 --> 00:00:41,671 Speaker 3: Is playing, but you weren't convinced by their case. 7 00:00:42,071 --> 00:00:44,391 Speaker 2: I was not convinced by their case. I was not 8 00:00:44,431 --> 00:00:46,751 Speaker 2: convinced by their case. Then I'm not convinced by their case. 9 00:00:46,830 --> 00:00:53,190 Speaker 3: Now, hey, fiasco listeners. Today, in the fifth bonus episode 10 00:00:53,271 --> 00:00:56,031 Speaker 3: of our series on the two thousand election, you'll hear 11 00:00:56,071 --> 00:00:59,671 Speaker 3: my conversation with two of the highest profile lawyers involved 12 00:00:59,711 --> 00:01:03,351 Speaker 3: in the saga of Bush v. Gore, David Boyse and 13 00:01:03,431 --> 00:01:06,631 Speaker 3: Ted Olsen. You'll hear what it was like to make 14 00:01:06,631 --> 00:01:09,391 Speaker 3: the case for both sides, from having to quickly catch 15 00:01:09,471 --> 00:01:12,231 Speaker 3: up on Florida election law, to getting nervous before Supreme 16 00:01:12,271 --> 00:01:16,911 Speaker 3: Court oral arguments, to even befriending your opposition. We'll start 17 00:01:16,911 --> 00:01:19,791 Speaker 3: with David boys. When Boys got the call to come 18 00:01:19,831 --> 00:01:22,551 Speaker 3: down to Florida, he was fresh off of arguing on 19 00:01:22,631 --> 00:01:25,431 Speaker 3: behalf of the government against Microsoft in a high profile 20 00:01:25,471 --> 00:01:28,951 Speaker 3: antitrust case, and he was working on a licensing lawsuit 21 00:01:28,991 --> 00:01:32,191 Speaker 3: in which he was representing Calvin Klein. I asked boys 22 00:01:32,231 --> 00:01:34,911 Speaker 3: why he was willing to drop everything and represent al 23 00:01:34,991 --> 00:01:35,991 Speaker 3: Gore in the recount. 24 00:01:37,031 --> 00:01:39,151 Speaker 2: If I hadn't been a lawyer, I would have been 25 00:01:39,231 --> 00:01:41,631 Speaker 2: a high school American history teaching like my father was, 26 00:01:42,311 --> 00:01:46,351 Speaker 2: and to have an opportunity to participate in what was 27 00:01:46,591 --> 00:01:50,071 Speaker 2: Even at that stage, we didn't know how important the 28 00:01:50,111 --> 00:01:52,311 Speaker 2: case was going to be. But even at that stage, 29 00:01:52,311 --> 00:01:54,271 Speaker 2: we knew it was an important case. We knew it 30 00:01:54,311 --> 00:01:58,631 Speaker 2: was a case that was going to involve historic decisions. 31 00:01:59,191 --> 00:02:02,631 Speaker 2: And to have an opportunity to have a front row 32 00:02:02,671 --> 00:02:06,431 Speaker 2: seat and maybe even be a participant with something that 33 00:02:06,391 --> 00:02:10,511 Speaker 2: would have been hard to turn down. In addition, I'd 34 00:02:10,550 --> 00:02:18,071 Speaker 2: been involved in a few electoral contests before, and democracy 35 00:02:18,111 --> 00:02:24,591 Speaker 2: depends on votes being counted and the will of the 36 00:02:24,631 --> 00:02:29,631 Speaker 2: people being expressed. You can suppress democracy in lots of ways, 37 00:02:30,191 --> 00:02:32,711 Speaker 2: and we suppressed democracy in lots of ways in this country. 38 00:02:33,711 --> 00:02:37,351 Speaker 2: But you can also suppress democracy after the votes are 39 00:02:38,551 --> 00:02:41,631 Speaker 2: been cast by not counting them fairly and not counting 40 00:02:41,671 --> 00:02:46,311 Speaker 2: them accurately. And so the process by which votes are 41 00:02:46,351 --> 00:02:50,351 Speaker 2: counted is a critical part of the implementation of democracy, 42 00:02:50,751 --> 00:02:53,311 Speaker 2: and I thought that this was going to be something 43 00:02:53,391 --> 00:02:57,151 Speaker 2: that was going to be essential to people's confidence in 44 00:02:57,191 --> 00:03:02,471 Speaker 2: our democratic process, and also not put too fine a 45 00:03:02,471 --> 00:03:04,751 Speaker 2: point on it, making sure that the person who actually 46 00:03:04,791 --> 00:03:06,871 Speaker 2: won the election occupied the White House? 47 00:03:07,391 --> 00:03:10,271 Speaker 3: Did did you have a firm feeling at that point 48 00:03:10,071 --> 00:03:13,631 Speaker 3: that you know two days out from election day that 49 00:03:13,711 --> 00:03:15,191 Speaker 3: Gore was the winner? 50 00:03:15,431 --> 00:03:19,231 Speaker 2: Not really when I was called, And indeed for the 51 00:03:19,271 --> 00:03:22,711 Speaker 2: first several days and maybe most of the time that 52 00:03:22,751 --> 00:03:26,631 Speaker 2: I was in Florida, I didn't really know who won Florida. 53 00:03:27,191 --> 00:03:30,071 Speaker 2: It was simply too close to call. All I knew 54 00:03:30,431 --> 00:03:34,271 Speaker 2: is that it was a statistical tie. And what was 55 00:03:34,471 --> 00:03:37,711 Speaker 2: going to be critical, I thought, to a fair election, 56 00:03:37,831 --> 00:03:40,911 Speaker 2: but also to the people's confidence in our electoral process 57 00:03:41,951 --> 00:03:45,711 Speaker 2: that the votes actually be counted the way they were cast. 58 00:03:46,511 --> 00:03:50,271 Speaker 2: And I didn't know who was going to win that. 59 00:03:50,951 --> 00:03:54,591 Speaker 2: I just knew that it was important that that that happened, 60 00:03:54,591 --> 00:03:58,391 Speaker 2: and that happened in an organized way. The first time 61 00:03:58,431 --> 00:04:02,911 Speaker 2: that I really became convinced that Gore had won was 62 00:04:02,951 --> 00:04:08,271 Speaker 2: actually the Saturday when they stopped the vote counting, because 63 00:04:08,871 --> 00:04:14,471 Speaker 2: during the course of the previous Friday and Saturday morning, 64 00:04:15,071 --> 00:04:18,070 Speaker 2: the votes had begun to come in, and you could 65 00:04:18,111 --> 00:04:23,951 Speaker 2: tell that they were discovering lots of votes predominantly, not overwhelmingly, 66 00:04:24,031 --> 00:04:28,031 Speaker 2: but still a majority favoring Gore, and so the margin 67 00:04:28,151 --> 00:04:32,471 Speaker 2: was already disappearing at the time that the Supreme Court 68 00:04:32,751 --> 00:04:34,391 Speaker 2: prematurely stopped the vote count. 69 00:04:35,191 --> 00:04:36,391 Speaker 3: So tell me what it was like when you got 70 00:04:36,391 --> 00:04:39,471 Speaker 3: down there. You flew from white planes, right. 71 00:04:39,311 --> 00:04:42,070 Speaker 2: I flew from white planes. And I got down there 72 00:04:42,191 --> 00:04:46,031 Speaker 2: about midnight. Because this all happened the first day I 73 00:04:46,111 --> 00:04:48,711 Speaker 2: was called, they didn't get through to me until about 74 00:04:48,711 --> 00:04:51,311 Speaker 2: five o'clock in the afternoon. I finished up what I 75 00:04:51,351 --> 00:04:55,831 Speaker 2: was doing, got my son Jonathan to pull some cases 76 00:04:55,871 --> 00:04:59,711 Speaker 2: on Florida election law so I could read it on 77 00:04:59,751 --> 00:05:04,511 Speaker 2: the plane for the first time ever, read the Florida 78 00:05:04,551 --> 00:05:08,830 Speaker 2: Statute as well, and arrived down there shortly before midnight. 79 00:05:10,151 --> 00:05:15,831 Speaker 2: Went to the campaign headquarters in Tallahassee, and everybody was 80 00:05:15,831 --> 00:05:19,070 Speaker 2: still there. I remember what walked in and ron Klain 81 00:05:20,391 --> 00:05:21,591 Speaker 2: saw a man said, welcome to. 82 00:05:21,511 --> 00:05:28,111 Speaker 3: Guatemala, referring to Florida. In Florida, if ron Klain was 83 00:05:28,111 --> 00:05:29,991 Speaker 3: trying to tell boys that he just landed in a 84 00:05:30,031 --> 00:05:33,431 Speaker 3: legal jungle, he was right, But at least he wasn't 85 00:05:33,431 --> 00:05:36,751 Speaker 3: completely alone there. As the major lawsuits wound their way 86 00:05:36,751 --> 00:05:39,511 Speaker 3: through the Florida courts. David Boys became pals with one 87 00:05:39,511 --> 00:05:42,831 Speaker 3: of his counterparts on the bush side, Barry Richard, and 88 00:05:42,871 --> 00:05:44,951 Speaker 3: why not they were going through the same thing. 89 00:05:45,551 --> 00:05:47,831 Speaker 2: We were clearly in the middle of the Madge spectacle. 90 00:05:48,191 --> 00:05:51,070 Speaker 2: People walked with you, cameras walked with you, every place 91 00:05:51,071 --> 00:05:55,551 Speaker 2: you went. Everybody trying to get you to say something 92 00:05:55,591 --> 00:05:56,711 Speaker 2: about what was going on. 93 00:05:57,351 --> 00:05:58,831 Speaker 3: Was it most of the reporters coming up to you 94 00:05:58,871 --> 00:06:01,831 Speaker 3: in Tallahassee streets or was it normal people who just 95 00:06:01,831 --> 00:06:02,711 Speaker 3: seen your face on TV? 96 00:06:02,951 --> 00:06:07,071 Speaker 2: It was both, But I remember, you know, people driving 97 00:06:07,151 --> 00:06:11,991 Speaker 2: by and shouting things out either depending on what their 98 00:06:11,991 --> 00:06:16,751 Speaker 2: point of view was. Everybody recognized Barry Richards and myself, 99 00:06:17,671 --> 00:06:23,270 Speaker 2: and so somebody was always yelling out to you, either 100 00:06:23,391 --> 00:06:27,871 Speaker 2: encouraging you or trying to discourage you. It was a 101 00:06:28,471 --> 00:06:31,190 Speaker 2: It was very much a participatory spot. 102 00:06:31,871 --> 00:06:33,791 Speaker 3: But you guys were often walking together, right, and. 103 00:06:33,791 --> 00:06:36,031 Speaker 2: Were often walking together, and sometimes they would be showing 104 00:06:36,031 --> 00:06:37,951 Speaker 2: the same things that both of us. We were walking together, 105 00:06:38,471 --> 00:06:41,271 Speaker 2: and wow, we didn't really know each other prior to 106 00:06:41,711 --> 00:06:44,671 Speaker 2: the contest. We became good friends during the contest. 107 00:06:45,111 --> 00:06:47,951 Speaker 3: Where did you guys spend time together? Was there places 108 00:06:47,951 --> 00:06:48,631 Speaker 3: in Tallahassee. 109 00:06:49,271 --> 00:06:52,111 Speaker 2: There was a sports bar sort of kitty corner across 110 00:06:52,151 --> 00:06:54,471 Speaker 2: the street from where I was staying. I was staying 111 00:06:54,511 --> 00:06:59,271 Speaker 2: at the Governor's End, and there was a sports bar 112 00:06:59,991 --> 00:07:02,830 Speaker 2: close by where we would go for either a drink 113 00:07:02,951 --> 00:07:03,951 Speaker 2: or a meal. 114 00:07:04,751 --> 00:07:06,671 Speaker 3: I think treat to non lawyers, this is like, this 115 00:07:06,751 --> 00:07:08,991 Speaker 3: is this is counterintuitive, right, the idea of two lawyers 116 00:07:08,991 --> 00:07:11,151 Speaker 3: on the opposite sides of of a case being able 117 00:07:11,191 --> 00:07:13,351 Speaker 3: to come together like this, And I feel like the 118 00:07:13,391 --> 00:07:16,511 Speaker 3: missing the thing that they're missing is that you guys 119 00:07:16,511 --> 00:07:19,671 Speaker 3: found this fun, right, You found an intellectual stimulating It. 120 00:07:19,591 --> 00:07:22,951 Speaker 2: Was intellectually stimulating. It was we both thought we were 121 00:07:22,951 --> 00:07:29,791 Speaker 2: doing important work, and we both recognized that our role 122 00:07:30,711 --> 00:07:35,791 Speaker 2: in the process was to present and argue for a 123 00:07:35,831 --> 00:07:41,671 Speaker 2: particular side. Sometimes people who aren't lawyers confuse the lawyer 124 00:07:41,711 --> 00:07:46,511 Speaker 2: with a client, and they think that the lawyer has 125 00:07:46,511 --> 00:07:49,751 Speaker 2: got to be as angry as the lawyer on the 126 00:07:49,791 --> 00:07:52,711 Speaker 2: other side as the client is angry at the client 127 00:07:52,751 --> 00:07:58,311 Speaker 2: on the other side. And when that happens, our justice 128 00:07:58,311 --> 00:08:00,471 Speaker 2: system begins to erode. 129 00:08:00,751 --> 00:08:02,751 Speaker 3: But I have to say, like you had clearly had 130 00:08:02,751 --> 00:08:05,871 Speaker 3: a personal investment in the outcome. I mean not because 131 00:08:05,871 --> 00:08:07,311 Speaker 3: you wanted go to win, or you wanted whatever, but 132 00:08:07,391 --> 00:08:09,231 Speaker 3: because you believed you were right, you believed you had 133 00:08:09,391 --> 00:08:12,831 Speaker 3: you're right. So I mean, I'm curious, like, even just 134 00:08:13,071 --> 00:08:15,791 Speaker 3: during the Sauls triler, during the sord of Spooing court hearings, 135 00:08:15,791 --> 00:08:19,071 Speaker 3: when you're in the courtroom across from Barry Richard, your pal, 136 00:08:19,591 --> 00:08:25,471 Speaker 3: how do you sort of balance the sense of intellectual gamesmanship, 137 00:08:26,191 --> 00:08:28,391 Speaker 3: the sense that you're like in the super Bowl, from 138 00:08:28,631 --> 00:08:31,751 Speaker 3: the stakes and the stress of possibly losing to this 139 00:08:31,831 --> 00:08:32,631 Speaker 3: other guy. 140 00:08:33,071 --> 00:08:37,631 Speaker 2: There's no doubt that in any important case the lawyer 141 00:08:38,471 --> 00:08:44,351 Speaker 2: becomes very closely identified with a client, you usually come 142 00:08:44,391 --> 00:08:46,710 Speaker 2: to believe your client is right, even if you didn't 143 00:08:46,751 --> 00:08:50,550 Speaker 2: start off feeling that way. But particularly in a case 144 00:08:50,670 --> 00:08:54,030 Speaker 2: like this, where I felt not only was my client right, 145 00:08:55,111 --> 00:08:58,310 Speaker 2: but that I felt that the principles that we're fighting 146 00:08:58,351 --> 00:09:04,511 Speaker 2: for were terribly important principles for our country, you inevitably 147 00:09:04,751 --> 00:09:09,910 Speaker 2: become personally involved in the matter. At the same time, 148 00:09:10,751 --> 00:09:15,391 Speaker 2: you understand and respect the role that the lawyer on 149 00:09:15,430 --> 00:09:20,670 Speaker 2: the other side is playing. And everybody is entitled to 150 00:09:20,871 --> 00:09:25,431 Speaker 2: a effective presentation by their lawyer. Our justice system depends 151 00:09:25,511 --> 00:09:31,071 Speaker 2: on it. And so even though I was absolutely convinced 152 00:09:31,070 --> 00:09:38,230 Speaker 2: that Gore was right. I still respected the role that 153 00:09:38,511 --> 00:09:43,870 Speaker 2: Barry Richard was playing. So you can fight very hard 154 00:09:44,830 --> 00:09:49,710 Speaker 2: and feel even emotional about your cause, and yet at 155 00:09:49,710 --> 00:09:53,590 Speaker 2: the same time respect and even admire the people on 156 00:09:53,631 --> 00:09:55,471 Speaker 2: the other side that are presenting. 157 00:09:55,151 --> 00:09:58,511 Speaker 3: Their client's case, but you weren't convinced by their case. 158 00:09:58,910 --> 00:10:01,231 Speaker 2: I was not convinced by the case. I was not 159 00:10:01,231 --> 00:10:03,310 Speaker 2: convinced by their case. Then I'm not convinced by their 160 00:10:03,351 --> 00:10:05,151 Speaker 2: case now. 161 00:10:05,910 --> 00:10:08,630 Speaker 3: So that was David Boyd's who argued the Gore campaign's 162 00:10:08,710 --> 00:10:20,111 Speaker 3: case in two thousand. Another lawyer Boys respected and admired, 163 00:10:20,190 --> 00:10:23,190 Speaker 3: but whose case he was not convinced by, was Ted Olsen. 164 00:10:24,070 --> 00:10:26,711 Speaker 3: If hearing Boys's name next to Olson's rings a bell, 165 00:10:27,351 --> 00:10:29,790 Speaker 3: it might be because they actually teamed up in twenty 166 00:10:29,871 --> 00:10:33,790 Speaker 3: thirteen to sue California over Proposition eight, the state's ban 167 00:10:33,991 --> 00:10:37,591 Speaker 3: on gay marriage. But back in two thousand, ted Olsen 168 00:10:37,670 --> 00:10:40,231 Speaker 3: was working for the Bush campaign and getting ready to 169 00:10:40,271 --> 00:10:43,951 Speaker 3: make his argument before the US Supreme Court after the 170 00:10:43,950 --> 00:10:52,511 Speaker 3: break my interview with Olsen. By the time ted Olsen 171 00:10:52,590 --> 00:10:55,070 Speaker 3: was working for the Bush campaign, he had already argued 172 00:10:55,151 --> 00:10:58,871 Speaker 3: fifteen cases before the Supreme Court, for most of them 173 00:10:58,950 --> 00:11:02,310 Speaker 3: he had prepared for months, but Bush v. Gore was different. 174 00:11:03,151 --> 00:11:06,751 Speaker 3: As Olsen explained during our interview, he didn't have months 175 00:11:06,830 --> 00:11:09,271 Speaker 3: or even weeks to get ready for this. He only 176 00:11:09,351 --> 00:11:10,391 Speaker 3: had one day. 177 00:11:10,991 --> 00:11:13,030 Speaker 1: You don't have time to do all of the things 178 00:11:13,070 --> 00:11:15,871 Speaker 1: that you would like to do. If you're preparing for 179 00:11:16,111 --> 00:11:18,830 Speaker 1: a Supreme Court argument, you like to have moot courts, 180 00:11:19,231 --> 00:11:24,950 Speaker 1: which are preparation sessions, practice sessions with other people asking 181 00:11:24,991 --> 00:11:28,751 Speaker 1: you questions, interrupting you the way the justices do. You 182 00:11:28,871 --> 00:11:31,950 Speaker 1: might want to spend more time doing research when you're 183 00:11:31,950 --> 00:11:34,591 Speaker 1: having to do it all in twenty four hours. The 184 00:11:34,631 --> 00:11:38,511 Speaker 1: Florida Supreme Court decision on that Friday came down at 185 00:11:38,830 --> 00:11:41,310 Speaker 1: four or five o'clock in the afternoon, and we filed 186 00:11:41,351 --> 00:11:44,350 Speaker 1: our papers in the Supreme Court I think by nine 187 00:11:44,391 --> 00:11:48,591 Speaker 1: o'clock Friday night, and then the Supreme Court stayed the 188 00:11:48,830 --> 00:11:53,030 Speaker 1: recount and granted the hearing on Saturday. So we had 189 00:11:53,070 --> 00:11:56,751 Speaker 1: to do all this under enormous time pressure. Obviously, you 190 00:11:56,790 --> 00:12:00,511 Speaker 1: can't do everything you want to do, but you have 191 00:12:00,550 --> 00:12:03,551 Speaker 1: a team of very conscientious people, and I'm speaking for 192 00:12:03,631 --> 00:12:06,871 Speaker 1: the other side as well, trying to do the very 193 00:12:07,030 --> 00:12:11,871 Speaker 1: very best that you can. Hope that you haven't overlooked something. 194 00:12:12,231 --> 00:12:13,991 Speaker 3: Tell me about the morning you know. I know this 195 00:12:14,070 --> 00:12:16,910 Speaker 3: is I always find when I'm talking to lawyers who 196 00:12:16,950 --> 00:12:22,670 Speaker 3: sort of mostly live in the world of ideas and arguments, 197 00:12:23,111 --> 00:12:24,670 Speaker 3: they always rist a little bit when I ask these 198 00:12:24,710 --> 00:12:25,951 Speaker 3: kinds of questions. But I wonder if you could just 199 00:12:25,950 --> 00:12:27,350 Speaker 3: take me back to the morning of the arguments a 200 00:12:27,391 --> 00:12:29,751 Speaker 3: little bit. What do you remember about the atmosphere in 201 00:12:29,790 --> 00:12:32,030 Speaker 3: the courtroom? You know, how it was different from other 202 00:12:32,111 --> 00:12:34,951 Speaker 3: Supreme Court cases you'd argued based on just how it 203 00:12:34,950 --> 00:12:35,751 Speaker 3: felt to be in there. 204 00:12:36,391 --> 00:12:40,190 Speaker 1: Well, it was a remarkable experience because the entire world 205 00:12:40,391 --> 00:12:44,271 Speaker 1: was watching. The Supreme Court was surrounded by the satellite 206 00:12:44,351 --> 00:12:48,871 Speaker 1: trucks of the various broadcast networks. The court was filled 207 00:12:48,910 --> 00:12:53,391 Speaker 1: with political figures, members of the United States Senate campaign 208 00:12:53,430 --> 00:12:57,950 Speaker 1: representatives from both sides, journalists, people of interest, anybody who 209 00:12:57,950 --> 00:13:00,430 Speaker 1: could get into that courtroom and managed to get into 210 00:13:00,471 --> 00:13:04,430 Speaker 1: that courtroom. And it's the presidency of the United States. 211 00:13:05,271 --> 00:13:09,431 Speaker 1: Everyone was watching. They were broadcasting, and which was a 212 00:13:09,471 --> 00:13:12,471 Speaker 1: step forward for the Supreme Court. They were broadcasting the 213 00:13:12,511 --> 00:13:17,030 Speaker 1: audio of the arguments. The moment that we finished, they 214 00:13:17,111 --> 00:13:20,551 Speaker 1: were immediately sending the audio out to the rest of 215 00:13:20,590 --> 00:13:23,471 Speaker 1: the world, and people all over the world were watching 216 00:13:23,511 --> 00:13:28,151 Speaker 1: and listening. Verius television networks were going to be broadcasting 217 00:13:28,190 --> 00:13:31,190 Speaker 1: it with drawings because the cameras aren't permitted in the 218 00:13:31,231 --> 00:13:35,391 Speaker 1: courtroom of the various individuals and the justices. You cannot 219 00:13:35,430 --> 00:13:40,671 Speaker 1: imagine a more tense, pressure packed moment than standing up 220 00:13:41,111 --> 00:13:43,430 Speaker 1: in front of the all of those people and the 221 00:13:43,550 --> 00:13:46,790 Speaker 1: nine justices, with all of that at stake, and saying, 222 00:13:46,830 --> 00:13:49,670 Speaker 1: mister Chief Justice, may it pleased the Court and starting 223 00:13:49,710 --> 00:13:52,151 Speaker 1: your argument, and I think all of us fell for 224 00:13:52,231 --> 00:13:55,151 Speaker 1: God's sakes. I hope I can get these words out 225 00:13:55,550 --> 00:13:58,910 Speaker 1: without stumbling or forgetting what I am, or forgetting who 226 00:13:58,950 --> 00:14:02,030 Speaker 1: I am, or forgetting what the arguments are. One of 227 00:14:02,070 --> 00:14:05,671 Speaker 1: the lawyers made a mistake three times, I think he did, 228 00:14:06,030 --> 00:14:11,191 Speaker 1: called the justices by the wrong name. That sort of 229 00:14:11,231 --> 00:14:14,591 Speaker 1: thing you can happen, but you have to keep your 230 00:14:14,631 --> 00:14:16,431 Speaker 1: wits about you or you shouldn't be there. 231 00:14:17,511 --> 00:14:21,551 Speaker 3: To the aspiring Supreme Court petitioners in our listenership, do 232 00:14:21,590 --> 00:14:24,311 Speaker 3: you have any psychological things that you do when you're 233 00:14:24,351 --> 00:14:26,110 Speaker 3: in that situation to try to keep yourself focused and 234 00:14:26,351 --> 00:14:28,671 Speaker 3: try not to try to say something that's the opposite 235 00:14:28,710 --> 00:14:29,151 Speaker 3: of what you mean. 236 00:14:29,391 --> 00:14:32,110 Speaker 1: Well, your adrenaline is going to be pumping through you. 237 00:14:32,151 --> 00:14:35,991 Speaker 1: So anybody says, are you nervous, of course you're nervous. 238 00:14:35,991 --> 00:14:38,991 Speaker 1: And if you're not nervous, you're not a sentient human 239 00:14:39,071 --> 00:14:43,270 Speaker 1: being or a lawyer. So you have to channel that adrenaline, 240 00:14:43,311 --> 00:14:47,711 Speaker 1: that energy that's pumping through you into the context and 241 00:14:47,830 --> 00:14:50,511 Speaker 1: the substance of what you're saying the arguments. You have 242 00:14:50,590 --> 00:14:53,590 Speaker 1: to focus on what you're saying. You have to focus 243 00:14:53,631 --> 00:14:56,590 Speaker 1: on what the justices are saying when they interrupt you, 244 00:14:56,671 --> 00:15:00,791 Speaker 1: and they interrupt you constantly. I've had sixty to seventy 245 00:15:00,871 --> 00:15:04,031 Speaker 1: interruptions in the course of a half an hour. So 246 00:15:04,071 --> 00:15:06,231 Speaker 1: you have to pay attention to what you're doing, and 247 00:15:06,271 --> 00:15:09,671 Speaker 1: it kind of helps. You've read about football players that 248 00:15:09,751 --> 00:15:12,471 Speaker 1: the order back becomes a little bit more effective after 249 00:15:12,551 --> 00:15:15,191 Speaker 1: he's been hit for the first time because then he's 250 00:15:15,231 --> 00:15:17,311 Speaker 1: you know, focused on the game and so forth. But 251 00:15:17,671 --> 00:15:21,951 Speaker 1: that's somewhat similar in court. And I also tell lawyers, 252 00:15:21,991 --> 00:15:24,871 Speaker 1: you know, take a look at all those people up 253 00:15:25,071 --> 00:15:29,071 Speaker 1: back in the courtroom watching you, and the clerks and 254 00:15:29,231 --> 00:15:34,071 Speaker 1: the journalists and the spectators and so forth, and if 255 00:15:34,151 --> 00:15:38,471 Speaker 1: you'd rather be with them watching, then that's where you 256 00:15:38,511 --> 00:15:41,311 Speaker 1: should be, But if you'd rather be up there doing it, 257 00:15:41,671 --> 00:15:45,111 Speaker 1: then take a deep breath, enjoy it, and appreciate the 258 00:15:45,151 --> 00:15:48,911 Speaker 1: fact that you've been given an opportunity to participate in 259 00:15:48,951 --> 00:15:52,071 Speaker 1: an argument, and in this case, a very important argument 260 00:15:52,111 --> 00:15:55,751 Speaker 1: in a very very important case. So in a sense, 261 00:15:55,791 --> 00:15:59,871 Speaker 1: it's necessary to relax a little bit to the extent 262 00:15:59,951 --> 00:16:03,591 Speaker 1: that you can and focus on what it is that 263 00:16:03,631 --> 00:16:05,751 Speaker 1: you're hearing and what it is that you're saying. 264 00:16:06,791 --> 00:16:12,631 Speaker 3: If you were taking beta blockers, no, I tried them 265 00:16:12,631 --> 00:16:14,511 Speaker 3: once before a live show. It was quite effective. 266 00:16:14,551 --> 00:16:18,391 Speaker 1: I thought, well, I'm at a point in my career 267 00:16:18,431 --> 00:16:21,671 Speaker 1: where I'm probably not going to change whatever my style 268 00:16:21,751 --> 00:16:23,990 Speaker 1: Old dogs, new trips kind of thing. Right. 269 00:16:25,111 --> 00:16:28,791 Speaker 3: You obviously came in with a deep, deep understanding of 270 00:16:29,111 --> 00:16:36,551 Speaker 3: every justice's judicial philosophy, ideological inclinations. Who were the justices 271 00:16:36,631 --> 00:16:41,031 Speaker 3: you were talking to most directly during your arguments. Convince. 272 00:16:41,271 --> 00:16:44,711 Speaker 1: What I tell myself and tell my colleagues when we're 273 00:16:44,751 --> 00:16:48,871 Speaker 1: doing this sort of thing is don't take any justice 274 00:16:48,911 --> 00:16:51,951 Speaker 1: for granted, and don't assume that you're going to lose 275 00:16:52,031 --> 00:16:56,311 Speaker 1: any of the justices. Try to make arguments that if 276 00:16:56,351 --> 00:16:58,991 Speaker 1: you were on one side or another in this case 277 00:16:59,031 --> 00:17:02,071 Speaker 1: of the political spectrum, and I've been in various different 278 00:17:02,391 --> 00:17:05,630 Speaker 1: contexts in the Supreme Court. Try to make arguments that 279 00:17:05,751 --> 00:17:10,951 Speaker 1: are rational and coherent and that are respect that any 280 00:17:11,151 --> 00:17:15,391 Speaker 1: justice could say, well, I understand the logic of that. 281 00:17:15,390 --> 00:17:17,830 Speaker 1: That doesn't mean you're going to win them over, but 282 00:17:17,991 --> 00:17:20,671 Speaker 1: that means you've got to listen to them. You've got 283 00:17:20,711 --> 00:17:24,151 Speaker 1: to treat their questions with respect. You can't be dismissive. 284 00:17:24,711 --> 00:17:29,630 Speaker 1: You can't ignore the questions from a justice that seems hostile. 285 00:17:30,031 --> 00:17:32,991 Speaker 1: And you can't take for granted that what sounds like 286 00:17:33,031 --> 00:17:36,711 Speaker 1: a friendly question isn't some kind of a trap, either 287 00:17:36,751 --> 00:17:40,430 Speaker 1: an intentional trap. No, it does happen. It can be 288 00:17:40,511 --> 00:17:43,551 Speaker 1: a trap. Or you can say something because you're the 289 00:17:43,791 --> 00:17:47,511 Speaker 1: justice that you're talking to at that particular moment may 290 00:17:47,551 --> 00:17:49,910 Speaker 1: be asking you something and you want to agree with 291 00:17:49,951 --> 00:17:52,991 Speaker 1: what that justice is asking you, or the sense of 292 00:17:53,031 --> 00:17:56,991 Speaker 1: that justice's question. But the impact of your answer on 293 00:17:57,031 --> 00:18:00,230 Speaker 1: the other justices and the other votes you have to 294 00:18:00,231 --> 00:18:04,711 Speaker 1: think about that. So you can't take anything for granted. 295 00:18:04,791 --> 00:18:07,991 Speaker 1: You have to listen to them. They are the persons 296 00:18:07,991 --> 00:18:10,390 Speaker 1: who are going to decide this, and you have to 297 00:18:10,471 --> 00:18:14,031 Speaker 1: treat them. And of course it makes sense, and it's 298 00:18:14,110 --> 00:18:16,510 Speaker 1: sort of common sense. You have to treat them with 299 00:18:16,630 --> 00:18:19,191 Speaker 1: respect and listen to them. But it's hard to do 300 00:18:19,271 --> 00:18:22,791 Speaker 1: because you're getting questions from all different directions and there's 301 00:18:22,951 --> 00:18:25,951 Speaker 1: very very little time, and all of us at that point, 302 00:18:26,031 --> 00:18:29,390 Speaker 1: we've been under pressure for thirty five days or so, 303 00:18:29,991 --> 00:18:32,991 Speaker 1: and we've been back and forth to Tallahassee on airplanes 304 00:18:33,031 --> 00:18:35,590 Speaker 1: and not. The airplanes are not I was on time, 305 00:18:35,671 --> 00:18:39,470 Speaker 1: and you know, things go wrong, but you've got to 306 00:18:39,551 --> 00:18:41,670 Speaker 1: keep your feet on the ground and your head on 307 00:18:41,711 --> 00:18:42,751 Speaker 1: your shoulders. 308 00:18:43,791 --> 00:18:45,190 Speaker 3: How did you feel walking out of the courtroom. Did 309 00:18:45,231 --> 00:18:47,950 Speaker 3: you feel like the questions indicated that you were in 310 00:18:47,991 --> 00:18:48,511 Speaker 3: good shape. 311 00:18:49,231 --> 00:18:52,671 Speaker 1: I never take it for granted when I walk out 312 00:18:52,711 --> 00:18:55,430 Speaker 1: of the courtroom, all I could. In the first place, 313 00:18:55,471 --> 00:19:00,071 Speaker 1: you're exhausted, and the second place, you're relieved that it's over. 314 00:19:00,231 --> 00:19:04,830 Speaker 1: In the third place, I did feel that we had 315 00:19:05,071 --> 00:19:09,350 Speaker 1: made our arguments, that we were making cojin arguments, and 316 00:19:09,390 --> 00:19:13,711 Speaker 1: that I thought we were doing better on that count 317 00:19:13,870 --> 00:19:17,151 Speaker 1: than the other side. But I wasn't assuming that we 318 00:19:17,150 --> 00:19:19,350 Speaker 1: were going to win. I wasn't relieved, and I never 319 00:19:19,390 --> 00:19:22,710 Speaker 1: felt that we had at one And I think along 320 00:19:22,751 --> 00:19:25,511 Speaker 1: with everybody in the world, I didn't know until they 321 00:19:25,551 --> 00:19:29,791 Speaker 1: called me up at ten o'clock on December twelve and. 322 00:19:29,711 --> 00:19:31,031 Speaker 3: Told us, do you remember who called you? 323 00:19:31,991 --> 00:19:37,351 Speaker 1: There were various different clerks working that night, and General 324 00:19:37,390 --> 00:19:42,391 Speaker 1: Suitor sut are different than Justice. Suitor had each one 325 00:19:42,431 --> 00:19:48,031 Speaker 1: of his assistants call one of the lawyers for each 326 00:19:48,071 --> 00:19:51,270 Speaker 1: of the parties, got us all on the phone, so 327 00:19:51,630 --> 00:19:54,510 Speaker 1: nobody heard anything until we were all on the phone 328 00:19:55,071 --> 00:19:59,271 Speaker 1: and then read the outcome at the same time. So 329 00:19:59,311 --> 00:20:03,231 Speaker 1: we were all getting information at the same time, very 330 00:20:03,311 --> 00:20:06,350 Speaker 1: bare bones information. There is a decision from the cars. 331 00:20:06,350 --> 00:20:10,150 Speaker 1: There's the parality decision, there's a there's a there's a 332 00:20:10,191 --> 00:20:14,311 Speaker 1: per curium decision. There's a dissenting opinion by Justice Stevens, 333 00:20:14,390 --> 00:20:16,630 Speaker 1: joined by Justices so and so and so and so 334 00:20:16,671 --> 00:20:21,350 Speaker 1: and so on forth, dessenting opinion by Justice Ginsburg, joined 335 00:20:21,350 --> 00:20:23,271 Speaker 1: by so and so on, and you had to sort 336 00:20:23,271 --> 00:20:27,830 Speaker 1: of infer what the outcome was. It was helpful that 337 00:20:27,911 --> 00:20:32,031 Speaker 1: the four liberal justices who had voted against the stay, 338 00:20:32,671 --> 00:20:34,870 Speaker 1: and I call them liberal, I hate to use that term, 339 00:20:34,951 --> 00:20:38,390 Speaker 1: but the four justices who had voted against the stay 340 00:20:38,870 --> 00:20:43,751 Speaker 1: were all rendering individually dissenting opinions. You could draw the 341 00:20:43,791 --> 00:20:47,991 Speaker 1: inference that the justices who were against you on Saturday 342 00:20:48,110 --> 00:20:51,471 Speaker 1: were against you on Tuesday. And that's a good sign. 343 00:20:51,830 --> 00:20:55,071 Speaker 3: But even if, like, let's just imagine that all nine 344 00:20:56,350 --> 00:20:59,951 Speaker 3: justices after hearing oral arguments, let's just say you had 345 00:20:59,951 --> 00:21:03,031 Speaker 3: really screwed it up, all nine jud just to say, actually, 346 00:21:03,071 --> 00:21:05,350 Speaker 3: we were wrong to issue to stay. Let's have this 347 00:21:05,390 --> 00:21:07,671 Speaker 3: recaind on. I mean, time was up right at that point, 348 00:21:07,751 --> 00:21:08,231 Speaker 3: it was over. 349 00:21:08,551 --> 00:21:15,031 Speaker 1: Well, I think the justices who dissented did not believe 350 00:21:15,911 --> 00:21:18,671 Speaker 1: the seven of the nine justices believed that we had 351 00:21:19,471 --> 00:21:23,231 Speaker 1: made legitimate, meritorious arguments on the equal protection and do 352 00:21:23,390 --> 00:21:27,590 Speaker 1: process clause. The justices were five to four on whether 353 00:21:27,911 --> 00:21:31,951 Speaker 1: or not the recount, the statewide recount that had been 354 00:21:31,991 --> 00:21:35,350 Speaker 1: prescribed by the Florida Supreme Court had to be stopped. 355 00:21:35,671 --> 00:21:39,951 Speaker 1: So the other the four dessenting justices, for various different reasons, 356 00:21:39,951 --> 00:21:44,151 Speaker 1: you have four different descending opinions there, for various different reasons, 357 00:21:44,191 --> 00:21:49,271 Speaker 1: felt that somehow those statutory deadlines that were in federal 358 00:21:49,350 --> 00:21:53,950 Speaker 1: law could somehow be adjusted or moved or something, that 359 00:21:53,991 --> 00:21:58,670 Speaker 1: things could be done faster. I think that that assumed 360 00:21:59,110 --> 00:22:02,630 Speaker 1: that things could happen faster than they could possibly be happening. 361 00:22:03,071 --> 00:22:05,671 Speaker 1: If you had looked at the history we started off. 362 00:22:05,751 --> 00:22:07,910 Speaker 1: Was it November eighth, I think was the date of 363 00:22:07,911 --> 00:22:12,190 Speaker 1: the election? Seven seventh, Okay, So we were starting this 364 00:22:12,231 --> 00:22:15,910 Speaker 1: whole process was going in various different directions beginning with 365 00:22:15,991 --> 00:22:19,871 Speaker 1: November seven. We were now at December tenth, December eleventh, 366 00:22:19,911 --> 00:22:24,911 Speaker 1: December twelve, and we're running up against the various statutory deadlines, 367 00:22:24,911 --> 00:22:27,830 Speaker 1: which culminated in a process that had to be finished 368 00:22:28,110 --> 00:22:31,031 Speaker 1: in Washington in early January, and then there had to 369 00:22:31,031 --> 00:22:33,590 Speaker 1: be a new president taking an oath of office on 370 00:22:33,671 --> 00:22:38,431 Speaker 1: the twentieth. And so I could not see how all 371 00:22:38,471 --> 00:22:43,071 Speaker 1: of that could be done, and that the statewide recount 372 00:22:43,390 --> 00:22:46,271 Speaker 1: was going to be and it was going to be 373 00:22:46,791 --> 00:22:50,190 Speaker 1: different in every one of those sixty seven counties, and 374 00:22:50,271 --> 00:22:54,831 Speaker 1: I could just see more chaos. And I think that 375 00:22:54,870 --> 00:23:00,311 Speaker 1: the justices who voted with us with respect to stopping 376 00:23:00,311 --> 00:23:03,830 Speaker 1: this entire process perceived that that was just going to 377 00:23:03,830 --> 00:23:09,311 Speaker 1: be a continuing process, unfolding of chaos and people were 378 00:23:09,350 --> 00:23:11,751 Speaker 1: still not going to find out who is going to 379 00:23:11,751 --> 00:23:13,231 Speaker 1: be the president of the United States. 380 00:23:13,511 --> 00:23:17,751 Speaker 3: Yeah, right, okay, And final question. I read Evan Thomas's 381 00:23:17,751 --> 00:23:21,350 Speaker 3: book about Justice O'Connor that just came out, and in 382 00:23:21,390 --> 00:23:25,311 Speaker 3: there he has a quote from Scalia. It's not firsthand, 383 00:23:25,791 --> 00:23:29,590 Speaker 3: but it says that Scalia privately scoffed that the equal 384 00:23:29,590 --> 00:23:32,271 Speaker 3: protection rationale was, as we say in Brooklyn, a piece 385 00:23:32,271 --> 00:23:36,390 Speaker 3: of shit. And I'm curious what your reaction is to that. 386 00:23:36,751 --> 00:23:40,431 Speaker 1: Well, my reaction is that that he felt, I believe, 387 00:23:40,711 --> 00:23:43,111 Speaker 1: and what he meant by that is that we have 388 00:23:43,271 --> 00:23:49,271 Speaker 1: a structural basis in the Constitution to decide this case. 389 00:23:49,311 --> 00:23:55,631 Speaker 1: And it's in concurring opinion that the decisions with respect 390 00:23:55,711 --> 00:23:59,590 Speaker 1: to the rules for the selection of the electors have 391 00:23:59,671 --> 00:24:02,511 Speaker 1: to be decided by the legislature and not by the courts. 392 00:24:02,830 --> 00:24:07,031 Speaker 1: That's a simple, more straightforward ray of resolving it. He's 393 00:24:07,110 --> 00:24:11,711 Speaker 1: always been, or he always was, someone that felt very 394 00:24:11,751 --> 00:24:16,110 Speaker 1: strongly about the structure of the constitution, and he believed 395 00:24:16,150 --> 00:24:20,430 Speaker 1: and he said this at his confirmation, hearing that people 396 00:24:20,511 --> 00:24:23,830 Speaker 1: all over the world have wonderful bills of rights. The 397 00:24:23,870 --> 00:24:28,830 Speaker 1: Pakistani constitution and the Iraqi Constitution and the constitution of 398 00:24:28,830 --> 00:24:32,751 Speaker 1: the former Soviet Union had all kinds of really elegant 399 00:24:32,791 --> 00:24:36,631 Speaker 1: sounding bills of rights. What has protected us in this 400 00:24:36,791 --> 00:24:41,830 Speaker 1: country is this structure of the separated powers. I know 401 00:24:41,951 --> 00:24:45,551 Speaker 1: Many people, including many academics and other people in the 402 00:24:45,551 --> 00:24:49,191 Speaker 1: political world, disagree with the whole process, But I think 403 00:24:49,630 --> 00:24:52,311 Speaker 1: the United States Supreme Court did what it had to do, 404 00:24:52,671 --> 00:24:54,830 Speaker 1: and it did it when it had to do it. 405 00:25:04,311 --> 00:25:06,630 Speaker 3: That was Ted Olsen, who argued on behalf of the 406 00:25:06,630 --> 00:25:09,991 Speaker 3: Bush campaign in federal court back in two thousand, beca 407 00:25:10,271 --> 00:25:13,991 Speaker 3: solicitor general in the Bush administration. Olsen died in November 408 00:25:13,991 --> 00:25:19,751 Speaker 3: of twenty twenty four. David Boys, for his part, had 409 00:25:19,751 --> 00:25:21,710 Speaker 3: not planned to be the one to argue Bush v. 410 00:25:21,830 --> 00:25:24,830 Speaker 3: Gore before the Supreme Court. That honor was supposed to 411 00:25:24,870 --> 00:25:27,390 Speaker 3: go to Lawrence Tribe, the attorney who had been handling 412 00:25:27,431 --> 00:25:31,031 Speaker 3: the Gore campaigns federal litigation efforts, but Boys got the 413 00:25:31,031 --> 00:25:34,390 Speaker 3: call instead, leaving him scrambling to prepare his case, just 414 00:25:34,390 --> 00:25:37,791 Speaker 3: like Olsen was doing at the same time. You had 415 00:25:37,791 --> 00:25:40,391 Speaker 3: gone home right after the Florida Spreme Court ruling. 416 00:25:40,751 --> 00:25:44,991 Speaker 2: I thought my job was done. I thought that the 417 00:25:45,791 --> 00:25:54,471 Speaker 2: votes were being counted, and even when the Florida vote 418 00:25:54,471 --> 00:25:57,470 Speaker 2: count was stopped by the United States Supreme Court, I 419 00:25:57,551 --> 00:26:00,271 Speaker 2: thought my job was over with because my job had 420 00:26:00,311 --> 00:26:03,791 Speaker 2: been to argue the case in Florida, and there was 421 00:26:03,830 --> 00:26:06,511 Speaker 2: a separate team that had been arguing the case in 422 00:26:06,551 --> 00:26:10,791 Speaker 2: federal court. While I was actually in the air flying 423 00:26:10,870 --> 00:26:16,910 Speaker 2: back to New York from Tallahassee, al Gore decided that 424 00:26:16,951 --> 00:26:19,031 Speaker 2: he wanted me to do the argument in the United 425 00:26:19,071 --> 00:26:24,311 Speaker 2: States Supreme Court. I found that out when I landed. 426 00:26:25,431 --> 00:26:28,231 Speaker 3: I'm curious, like if you could just list the factors 427 00:26:28,271 --> 00:26:31,150 Speaker 3: or dynamics that made this extraordinary or made this atypical 428 00:26:31,191 --> 00:26:32,231 Speaker 3: for Supreme Court hearing. 429 00:26:33,471 --> 00:26:35,791 Speaker 2: I thought that the chances of the United States Supreme 430 00:26:35,791 --> 00:26:37,551 Speaker 2: Court were going to change was going to change its 431 00:26:37,551 --> 00:26:42,590 Speaker 2: mind were small. They'd already put a pretty big stake 432 00:26:42,630 --> 00:26:45,590 Speaker 2: in the ground when they stopped the vote Counting in 433 00:26:45,711 --> 00:26:50,870 Speaker 2: retrospect the way the argument unfolded, I think if anybody 434 00:26:50,911 --> 00:26:55,830 Speaker 2: had had a chance to change somebody's mind, I had 435 00:26:55,870 --> 00:26:58,711 Speaker 2: a better chance than anybody because I knew more about 436 00:26:59,191 --> 00:27:06,511 Speaker 2: what was at the core. Remember that the primary issue 437 00:27:06,951 --> 00:27:11,510 Speaker 2: Bush took the case the Supreme Court on was not 438 00:27:11,551 --> 00:27:15,590 Speaker 2: the equal protection issue. Equal protection issue was buried way 439 00:27:15,791 --> 00:27:20,751 Speaker 2: deep in the brief. So the issues that I think 440 00:27:20,751 --> 00:27:25,031 Speaker 2: we all thought we're going to be dispositive in terms 441 00:27:25,071 --> 00:27:28,991 Speaker 2: of whether the courts could play a role or what 442 00:27:29,191 --> 00:27:36,870 Speaker 2: role the courts could play in an election for electors. 443 00:27:35,551 --> 00:27:37,751 Speaker 3: Whether it counted was changing the law after the election 444 00:27:38,071 --> 00:27:40,551 Speaker 3: exactly to change the certification deadline and then to order 445 00:27:40,711 --> 00:27:41,630 Speaker 3: the recount. 446 00:27:41,350 --> 00:27:43,630 Speaker 2: Exactly whether you could do that under Article three of 447 00:27:43,671 --> 00:27:44,231 Speaker 2: the Constitution. 448 00:27:45,551 --> 00:27:47,190 Speaker 3: And so that was was that. The Article three was 449 00:27:47,191 --> 00:27:48,670 Speaker 3: the bulk of what you guys talked about during our 450 00:27:48,751 --> 00:27:50,710 Speaker 3: arguments until Kennedy brought it up. 451 00:27:50,870 --> 00:27:53,390 Speaker 2: Yes, I mean it was. It was say it was 452 00:27:53,431 --> 00:27:57,590 Speaker 2: buried deep in Bush's brief equal protection argument, and Ted 453 00:27:57,630 --> 00:28:00,350 Speaker 2: didn't even get to it until late in his argument, 454 00:28:00,511 --> 00:28:01,870 Speaker 2: after he'd been prompted twice. 455 00:28:02,870 --> 00:28:05,230 Speaker 3: How did you feel leaving the court that day? Did 456 00:28:05,311 --> 00:28:07,591 Speaker 3: you realize when you left that equal protection would be 457 00:28:08,191 --> 00:28:09,311 Speaker 3: the focus of the decision. 458 00:28:10,711 --> 00:28:17,231 Speaker 2: During the argument, I thought the argument was going very well. 459 00:28:19,110 --> 00:28:23,511 Speaker 2: I thought that it was clear that Kennedy and probably 460 00:28:23,511 --> 00:28:31,831 Speaker 2: O'Connor were not buying the Article three argument that Ted 461 00:28:31,870 --> 00:28:38,671 Speaker 2: Olsen was making, and I was pretty encouraged, surprisingly encouraged. 462 00:28:40,511 --> 00:28:47,710 Speaker 2: Then when Kennedy kept pushing the equal protection argument, I 463 00:28:47,791 --> 00:28:53,631 Speaker 2: became much more pessimistic. When I left the court, I 464 00:28:53,791 --> 00:28:59,871 Speaker 2: was concerned because it sounded to me like Kennedy and 465 00:28:59,951 --> 00:29:06,391 Speaker 2: O'Connor were searching for a way to sustain stopping the 466 00:29:06,471 --> 00:29:13,151 Speaker 2: vote count, and I knew that the three most conservative 467 00:29:13,271 --> 00:29:16,591 Speaker 2: justices were going to decide against us based on Article three, 468 00:29:16,671 --> 00:29:21,111 Speaker 2: if nothing else. So it looked to me like I 469 00:29:21,151 --> 00:29:23,711 Speaker 2: could count five votes against. 470 00:29:24,671 --> 00:29:27,271 Speaker 3: Where were you when the decision was handed down. 471 00:29:27,991 --> 00:29:30,591 Speaker 2: I was at my house in armac Armak, New York, 472 00:29:30,631 --> 00:29:31,871 Speaker 2: and Westchester County got it. 473 00:29:32,871 --> 00:29:35,950 Speaker 3: The folks on television had some trouble understanding it in 474 00:29:35,951 --> 00:29:39,151 Speaker 3: the first few minutes of reporting on it. Did you 475 00:29:39,231 --> 00:29:41,591 Speaker 3: understand its implications right away? Or did it take you 476 00:29:41,911 --> 00:29:43,591 Speaker 3: how many pages you have to read before you realized 477 00:29:43,591 --> 00:29:45,111 Speaker 3: what it meant? Well? 478 00:29:45,191 --> 00:29:49,271 Speaker 2: I skipped to the end, but with a judicial opinion, 479 00:29:49,271 --> 00:29:51,071 Speaker 2: I was trying to skip to the end at least 480 00:29:51,151 --> 00:29:55,431 Speaker 2: to see how the court comes out. And it was 481 00:29:55,511 --> 00:29:58,951 Speaker 2: clear that, as I had feared, there were five judges 482 00:29:58,991 --> 00:30:05,871 Speaker 2: against us and the percurium opinion. It made clear that 483 00:30:06,991 --> 00:30:11,311 Speaker 2: in my mind, the case was over with. And I 484 00:30:11,351 --> 00:30:16,431 Speaker 2: think that it took a little while for people for 485 00:30:16,511 --> 00:30:19,991 Speaker 2: that to sink in, but I think it eventually sunk 486 00:30:19,991 --> 00:30:23,511 Speaker 2: in that there was no real alternative at that point. 487 00:30:24,031 --> 00:30:24,871 Speaker 2: But to concede. 488 00:30:25,471 --> 00:30:29,351 Speaker 3: How did it affect your view of the Supreme Court 489 00:30:29,751 --> 00:30:31,791 Speaker 3: that this ruling came down the way it did, and 490 00:30:31,831 --> 00:30:33,791 Speaker 3: that it was justified in the way that it was. 491 00:30:34,271 --> 00:30:36,751 Speaker 3: Did it change how you perceived this institution? 492 00:30:37,791 --> 00:30:43,391 Speaker 2: No, not really. I was disappointed. I think it's fair 493 00:30:43,391 --> 00:30:46,151 Speaker 2: to say I was deeply disappointed. On the other hand, 494 00:30:47,551 --> 00:30:53,950 Speaker 2: the Supreme Court during my lifetime has been probably the 495 00:30:53,991 --> 00:31:01,671 Speaker 2: most powerful engine for social change in this country. The 496 00:31:01,711 --> 00:31:05,470 Speaker 2: Supreme Court has made a number of really bad decisions 497 00:31:05,871 --> 00:31:10,511 Speaker 2: over the years, but that does not, I think, diminish 498 00:31:11,751 --> 00:31:16,271 Speaker 2: the importance of the Supreme Court to our society, to 499 00:31:16,351 --> 00:31:22,471 Speaker 2: our constitution, to the preservation of the rights that are 500 00:31:22,511 --> 00:31:24,151 Speaker 2: so important to our society. 501 00:31:24,231 --> 00:31:27,391 Speaker 3: Did it reveal to you that the institution is inherently 502 00:31:27,391 --> 00:31:29,471 Speaker 3: political and that there's no way to avoid that. 503 00:31:30,111 --> 00:31:33,951 Speaker 2: Well, the Supreme Court was inherently political in the Japanese 504 00:31:33,951 --> 00:31:38,190 Speaker 2: internment case, in the plus e v. Ferguson on segregation 505 00:31:38,271 --> 00:31:43,791 Speaker 2: and dread Scott. The Supreme Court, like all human institutions, 506 00:31:44,511 --> 00:31:48,190 Speaker 2: is influenced by politics. I think the thing that was 507 00:31:48,311 --> 00:31:54,230 Speaker 2: most disappointing is that the political influence in prior cases 508 00:31:54,311 --> 00:32:00,671 Speaker 2: tended to be the influence of people pursuing a particular 509 00:32:01,031 --> 00:32:08,031 Speaker 2: policy objective. Here, the Supreme Court was intervening to actually 510 00:32:08,111 --> 00:32:12,751 Speaker 2: pick a President when they were intervening in a way 511 00:32:12,791 --> 00:32:20,791 Speaker 2: that had partisan political implications that strikes at the fundamental 512 00:32:20,831 --> 00:32:26,391 Speaker 2: principle of democracy that it is the people that decide elections, 513 00:32:27,951 --> 00:32:44,831 Speaker 2: not government officials. 514 00:32:46,031 --> 00:32:49,111 Speaker 3: Thanks for listening to this bonus episode of Fiasco. We'll 515 00:32:49,151 --> 00:32:51,591 Speaker 3: be back next week with one more featuring the late 516 00:32:51,671 --> 00:32:55,591 Speaker 3: Supreme Court Justice John Paul Stevens, whom we interviewed shortly 517 00:32:55,631 --> 00:33:01,151 Speaker 3: before his death in twenty nineteen. Fiasco Bush v. Gore 518 00:33:01,311 --> 00:33:04,711 Speaker 3: is produced by Prolog Projects and distributed by Pushkin Industries. 519 00:33:05,231 --> 00:33:08,951 Speaker 3: The show is produced by Madelin Kaplan, Ulla Culpa, Andrew Parsons, 520 00:33:08,991 --> 00:33:12,591 Speaker 3: and me Leon Nap. We had additional editorial support from 521 00:33:12,631 --> 00:33:16,191 Speaker 3: Lisa Chase and Daniel Riley. Thanks for listening. We'll see 522 00:33:16,231 --> 00:33:16,711 Speaker 3: you next week.