Speaker 1: Pushkin, you cannot imagine a more tense, pressure packed moment
Speaker 1: with all of that at stake, and saying, mister Chief Justice,
Speaker 1: may have pleased the court and starting your argument.
Speaker 2: You understand and respect the roles that the lawyer on
Speaker 2: the other side.
Speaker 3: Is playing, but you weren't convinced by their case.
Speaker 2: I was not convinced by their case. I was not
Speaker 2: convinced by their case. Then I'm not convinced by their case.
Speaker 3: Now, hey, fiasco listeners. Today, in the fifth bonus episode
Speaker 3: of our series on the two thousand election, you'll hear
Speaker 3: my conversation with two of the highest profile lawyers involved
Speaker 3: in the saga of Bush v. Gore, David Boyse and
Speaker 3: Ted Olsen. You'll hear what it was like to make
Speaker 3: the case for both sides, from having to quickly catch
Speaker 3: up on Florida election law, to getting nervous before Supreme
Speaker 3: Court oral arguments, to even befriending your opposition. We'll start
Speaker 3: with David boys. When Boys got the call to come
Speaker 3: down to Florida, he was fresh off of arguing on
Speaker 3: behalf of the government against Microsoft in a high profile
Speaker 3: antitrust case, and he was working on a licensing lawsuit
Speaker 3: in which he was representing Calvin Klein. I asked boys
Speaker 3: why he was willing to drop everything and represent al
Speaker 3: Gore in the recount.
Speaker 2: If I hadn't been a lawyer, I would have been
Speaker 2: a high school American history teaching like my father was,
Speaker 2: and to have an opportunity to participate in what was
Speaker 2: Even at that stage, we didn't know how important the
Speaker 2: case was going to be. But even at that stage,
Speaker 2: we knew it was an important case. We knew it
Speaker 2: was a case that was going to involve historic decisions.
Speaker 2: And to have an opportunity to have a front row
Speaker 2: seat and maybe even be a participant with something that
Speaker 2: would have been hard to turn down. In addition, I'd
Speaker 2: been involved in a few electoral contests before, and democracy
Speaker 2: depends on votes being counted and the will of the
Speaker 2: people being expressed. You can suppress democracy in lots of ways,
Speaker 2: and we suppressed democracy in lots of ways in this country.
Speaker 2: But you can also suppress democracy after the votes are
Speaker 2: been cast by not counting them fairly and not counting
Speaker 2: them accurately. And so the process by which votes are
Speaker 2: counted is a critical part of the implementation of democracy,
Speaker 2: and I thought that this was going to be something
Speaker 2: that was going to be essential to people's confidence in
Speaker 2: our democratic process, and also not put too fine a
Speaker 2: point on it, making sure that the person who actually
Speaker 2: won the election occupied the White House?
Speaker 3: Did did you have a firm feeling at that point
Speaker 3: that you know two days out from election day that
Speaker 3: Gore was the winner?
Speaker 2: Not really when I was called, And indeed for the
Speaker 2: first several days and maybe most of the time that
Speaker 2: I was in Florida, I didn't really know who won Florida.
Speaker 2: It was simply too close to call. All I knew
Speaker 2: is that it was a statistical tie. And what was
Speaker 2: going to be critical, I thought, to a fair election,
Speaker 2: but also to the people's confidence in our electoral process
Speaker 2: that the votes actually be counted the way they were cast.
Speaker 2: And I didn't know who was going to win that.
Speaker 2: I just knew that it was important that that that happened,
Speaker 2: and that happened in an organized way. The first time
Speaker 2: that I really became convinced that Gore had won was
Speaker 2: actually the Saturday when they stopped the vote counting, because
Speaker 2: during the course of the previous Friday and Saturday morning,
Speaker 2: the votes had begun to come in, and you could
Speaker 2: tell that they were discovering lots of votes predominantly, not overwhelmingly,
Speaker 2: but still a majority favoring Gore, and so the margin
Speaker 2: was already disappearing at the time that the Supreme Court
Speaker 2: prematurely stopped the vote count.
Speaker 3: So tell me what it was like when you got
Speaker 3: down there. You flew from white planes, right.
Speaker 2: I flew from white planes. And I got down there
Speaker 2: about midnight. Because this all happened the first day I
Speaker 2: was called, they didn't get through to me until about
Speaker 2: five o'clock in the afternoon. I finished up what I
Speaker 2: was doing, got my son Jonathan to pull some cases
Speaker 2: on Florida election law so I could read it on
Speaker 2: the plane for the first time ever, read the Florida
Speaker 2: Statute as well, and arrived down there shortly before midnight.
Speaker 2: Went to the campaign headquarters in Tallahassee, and everybody was
Speaker 2: still there. I remember what walked in and ron Klain
Speaker 2: saw a man said, welcome to.
Speaker 3: Guatemala, referring to Florida. In Florida, if ron Klain was
Speaker 3: trying to tell boys that he just landed in a
Speaker 3: legal jungle, he was right, But at least he wasn't
Speaker 3: completely alone there. As the major lawsuits wound their way
Speaker 3: through the Florida courts. David Boys became pals with one
Speaker 3: of his counterparts on the bush side, Barry Richard, and
Speaker 3: why not they were going through the same thing.
Speaker 2: We were clearly in the middle of the Madge spectacle.
Speaker 2: People walked with you, cameras walked with you, every place
Speaker 2: you went. Everybody trying to get you to say something
Speaker 2: about what was going on.
Speaker 3: Was it most of the reporters coming up to you
Speaker 3: in Tallahassee streets or was it normal people who just
Speaker 3: seen your face on TV?
Speaker 2: It was both, But I remember, you know, people driving
Speaker 2: by and shouting things out either depending on what their
Speaker 2: point of view was. Everybody recognized Barry Richards and myself,
Speaker 2: and so somebody was always yelling out to you, either
Speaker 2: encouraging you or trying to discourage you. It was a
Speaker 2: It was very much a participatory spot.
Speaker 3: But you guys were often walking together, right, and.
Speaker 2: Were often walking together, and sometimes they would be showing
Speaker 2: the same things that both of us. We were walking together,
Speaker 2: and wow, we didn't really know each other prior to
Speaker 2: the contest. We became good friends during the contest.
Speaker 3: Where did you guys spend time together? Was there places
Speaker 3: in Tallahassee.
Speaker 2: There was a sports bar sort of kitty corner across
Speaker 2: the street from where I was staying. I was staying
Speaker 2: at the Governor's End, and there was a sports bar
Speaker 2: close by where we would go for either a drink
Speaker 2: or a meal.
Speaker 3: I think treat to non lawyers, this is like, this
Speaker 3: is this is counterintuitive, right, the idea of two lawyers
Speaker 3: on the opposite sides of of a case being able
Speaker 3: to come together like this, And I feel like the
Speaker 3: missing the thing that they're missing is that you guys
Speaker 3: found this fun, right, You found an intellectual stimulating It.
Speaker 2: Was intellectually stimulating. It was we both thought we were
Speaker 2: doing important work, and we both recognized that our role
Speaker 2: in the process was to present and argue for a
Speaker 2: particular side. Sometimes people who aren't lawyers confuse the lawyer
Speaker 2: with a client, and they think that the lawyer has
Speaker 2: got to be as angry as the lawyer on the
Speaker 2: other side as the client is angry at the client
Speaker 2: on the other side. And when that happens, our justice
Speaker 2: system begins to erode.
Speaker 3: But I have to say, like you had clearly had
Speaker 3: a personal investment in the outcome. I mean not because
Speaker 3: you wanted go to win, or you wanted whatever, but
Speaker 3: because you believed you were right, you believed you had
Speaker 3: you're right. So I mean, I'm curious, like, even just
Speaker 3: during the Sauls triler, during the sord of Spooing court hearings,
Speaker 3: when you're in the courtroom across from Barry Richard, your pal,
Speaker 3: how do you sort of balance the sense of intellectual gamesmanship,
Speaker 3: the sense that you're like in the super Bowl, from
Speaker 3: the stakes and the stress of possibly losing to this
Speaker 3: other guy.
Speaker 2: There's no doubt that in any important case the lawyer
Speaker 2: becomes very closely identified with a client, you usually come
Speaker 2: to believe your client is right, even if you didn't
Speaker 2: start off feeling that way. But particularly in a case
Speaker 2: like this, where I felt not only was my client right,
Speaker 2: but that I felt that the principles that we're fighting
Speaker 2: for were terribly important principles for our country, you inevitably
Speaker 2: become personally involved in the matter. At the same time,
Speaker 2: you understand and respect the role that the lawyer on
Speaker 2: the other side is playing. And everybody is entitled to
Speaker 2: a effective presentation by their lawyer. Our justice system depends
Speaker 2: on it. And so even though I was absolutely convinced
Speaker 2: that Gore was right. I still respected the role that
Speaker 2: Barry Richard was playing. So you can fight very hard
Speaker 2: and feel even emotional about your cause, and yet at
Speaker 2: the same time respect and even admire the people on
Speaker 2: the other side that are presenting.
Speaker 3: Their client's case, but you weren't convinced by their case.
Speaker 2: I was not convinced by the case. I was not
Speaker 2: convinced by their case. Then I'm not convinced by their
Speaker 2: case now.
Speaker 3: So that was David Boyd's who argued the Gore campaign's
Speaker 3: case in two thousand. Another lawyer Boys respected and admired,
Speaker 3: but whose case he was not convinced by, was Ted Olsen.
Speaker 3: If hearing Boys's name next to Olson's rings a bell,
Speaker 3: it might be because they actually teamed up in twenty
Speaker 3: thirteen to sue California over Proposition eight, the state's ban
Speaker 3: on gay marriage. But back in two thousand, ted Olsen
Speaker 3: was working for the Bush campaign and getting ready to
Speaker 3: make his argument before the US Supreme Court after the
Speaker 3: break my interview with Olsen. By the time ted Olsen
Speaker 3: was working for the Bush campaign, he had already argued
Speaker 3: fifteen cases before the Supreme Court, for most of them
Speaker 3: he had prepared for months, but Bush v. Gore was different.
Speaker 3: As Olsen explained during our interview, he didn't have months
Speaker 3: or even weeks to get ready for this. He only
Speaker 3: had one day.
Speaker 1: You don't have time to do all of the things
Speaker 1: that you would like to do. If you're preparing for
Speaker 1: a Supreme Court argument, you like to have moot courts,
Speaker 1: which are preparation sessions, practice sessions with other people asking
Speaker 1: you questions, interrupting you the way the justices do. You
Speaker 1: might want to spend more time doing research when you're
Speaker 1: having to do it all in twenty four hours. The
Speaker 1: Florida Supreme Court decision on that Friday came down at
Speaker 1: four or five o'clock in the afternoon, and we filed
Speaker 1: our papers in the Supreme Court I think by nine
Speaker 1: o'clock Friday night, and then the Supreme Court stayed the
Speaker 1: recount and granted the hearing on Saturday. So we had
Speaker 1: to do all this under enormous time pressure. Obviously, you
Speaker 1: can't do everything you want to do, but you have
Speaker 1: a team of very conscientious people, and I'm speaking for
Speaker 1: the other side as well, trying to do the very
Speaker 1: very best that you can. Hope that you haven't overlooked something.
Speaker 3: Tell me about the morning you know. I know this
Speaker 3: is I always find when I'm talking to lawyers who
Speaker 3: sort of mostly live in the world of ideas and arguments,
Speaker 3: they always rist a little bit when I ask these
Speaker 3: kinds of questions. But I wonder if you could just
Speaker 3: take me back to the morning of the arguments a
Speaker 3: little bit. What do you remember about the atmosphere in
Speaker 3: the courtroom? You know, how it was different from other
Speaker 3: Supreme Court cases you'd argued based on just how it
Speaker 3: felt to be in there.
Speaker 1: Well, it was a remarkable experience because the entire world
Speaker 1: was watching. The Supreme Court was surrounded by the satellite
Speaker 1: trucks of the various broadcast networks. The court was filled
Speaker 1: with political figures, members of the United States Senate campaign
Speaker 1: representatives from both sides, journalists, people of interest, anybody who
Speaker 1: could get into that courtroom and managed to get into
Speaker 1: that courtroom. And it's the presidency of the United States.
Speaker 1: Everyone was watching. They were broadcasting, and which was a
Speaker 1: step forward for the Supreme Court. They were broadcasting the
Speaker 1: audio of the arguments. The moment that we finished, they
Speaker 1: were immediately sending the audio out to the rest of
Speaker 1: the world, and people all over the world were watching
Speaker 1: and listening. Verius television networks were going to be broadcasting
Speaker 1: it with drawings because the cameras aren't permitted in the
Speaker 1: courtroom of the various individuals and the justices. You cannot
Speaker 1: imagine a more tense, pressure packed moment than standing up
Speaker 1: in front of the all of those people and the
Speaker 1: nine justices, with all of that at stake, and saying,
Speaker 1: mister Chief Justice, may it pleased the Court and starting
Speaker 1: your argument, and I think all of us fell for
Speaker 1: God's sakes. I hope I can get these words out
Speaker 1: without stumbling or forgetting what I am, or forgetting who
Speaker 1: I am, or forgetting what the arguments are. One of
Speaker 1: the lawyers made a mistake three times, I think he did,
Speaker 1: called the justices by the wrong name. That sort of
Speaker 1: thing you can happen, but you have to keep your
Speaker 1: wits about you or you shouldn't be there.
Speaker 3: To the aspiring Supreme Court petitioners in our listenership, do
Speaker 3: you have any psychological things that you do when you're
Speaker 3: in that situation to try to keep yourself focused and
Speaker 3: try not to try to say something that's the opposite
Speaker 3: of what you mean.
Speaker 1: Well, your adrenaline is going to be pumping through you.
Speaker 1: So anybody says, are you nervous, of course you're nervous.
Speaker 1: And if you're not nervous, you're not a sentient human
Speaker 1: being or a lawyer. So you have to channel that adrenaline,
Speaker 1: that energy that's pumping through you into the context and
Speaker 1: the substance of what you're saying the arguments. You have
Speaker 1: to focus on what you're saying. You have to focus
Speaker 1: on what the justices are saying when they interrupt you,
Speaker 1: and they interrupt you constantly. I've had sixty to seventy
Speaker 1: interruptions in the course of a half an hour. So
Speaker 1: you have to pay attention to what you're doing, and
Speaker 1: it kind of helps. You've read about football players that
Speaker 1: the order back becomes a little bit more effective after
Speaker 1: he's been hit for the first time because then he's
Speaker 1: you know, focused on the game and so forth. But
Speaker 1: that's somewhat similar in court. And I also tell lawyers,
Speaker 1: you know, take a look at all those people up
Speaker 1: back in the courtroom watching you, and the clerks and
Speaker 1: the journalists and the spectators and so forth, and if
Speaker 1: you'd rather be with them watching, then that's where you
Speaker 1: should be, But if you'd rather be up there doing it,
Speaker 1: then take a deep breath, enjoy it, and appreciate the
Speaker 1: fact that you've been given an opportunity to participate in
Speaker 1: an argument, and in this case, a very important argument
Speaker 1: in a very very important case. So in a sense,
Speaker 1: it's necessary to relax a little bit to the extent
Speaker 1: that you can and focus on what it is that
Speaker 1: you're hearing and what it is that you're saying.
Speaker 3: If you were taking beta blockers, no, I tried them
Speaker 3: once before a live show. It was quite effective.
Speaker 1: I thought, well, I'm at a point in my career
Speaker 1: where I'm probably not going to change whatever my style
Speaker 1: Old dogs, new trips kind of thing. Right.
Speaker 3: You obviously came in with a deep, deep understanding of
Speaker 3: every justice's judicial philosophy, ideological inclinations. Who were the justices
Speaker 3: you were talking to most directly during your arguments. Convince.
Speaker 1: What I tell myself and tell my colleagues when we're
Speaker 1: doing this sort of thing is don't take any justice
Speaker 1: for granted, and don't assume that you're going to lose
Speaker 1: any of the justices. Try to make arguments that if
Speaker 1: you were on one side or another in this case
Speaker 1: of the political spectrum, and I've been in various different
Speaker 1: contexts in the Supreme Court. Try to make arguments that
Speaker 1: are rational and coherent and that are respect that any
Speaker 1: justice could say, well, I understand the logic of that.
Speaker 1: That doesn't mean you're going to win them over, but
Speaker 1: that means you've got to listen to them. You've got
Speaker 1: to treat their questions with respect. You can't be dismissive.
Speaker 1: You can't ignore the questions from a justice that seems hostile.
Speaker 1: And you can't take for granted that what sounds like
Speaker 1: a friendly question isn't some kind of a trap, either
Speaker 1: an intentional trap. No, it does happen. It can be
Speaker 1: a trap. Or you can say something because you're the
Speaker 1: justice that you're talking to at that particular moment may
Speaker 1: be asking you something and you want to agree with
Speaker 1: what that justice is asking you, or the sense of
Speaker 1: that justice's question. But the impact of your answer on
Speaker 1: the other justices and the other votes you have to
Speaker 1: think about that. So you can't take anything for granted.
Speaker 1: You have to listen to them. They are the persons
Speaker 1: who are going to decide this, and you have to
Speaker 1: treat them. And of course it makes sense, and it's
Speaker 1: sort of common sense. You have to treat them with
Speaker 1: respect and listen to them. But it's hard to do
Speaker 1: because you're getting questions from all different directions and there's
Speaker 1: very very little time, and all of us at that point,
Speaker 1: we've been under pressure for thirty five days or so,
Speaker 1: and we've been back and forth to Tallahassee on airplanes
Speaker 1: and not. The airplanes are not I was on time,
Speaker 1: and you know, things go wrong, but you've got to
Speaker 1: keep your feet on the ground and your head on
Speaker 1: your shoulders.
Speaker 3: How did you feel walking out of the courtroom. Did
Speaker 3: you feel like the questions indicated that you were in
Speaker 3: good shape.
Speaker 1: I never take it for granted when I walk out
Speaker 1: of the courtroom, all I could. In the first place,
Speaker 1: you're exhausted, and the second place, you're relieved that it's over.
Speaker 1: In the third place, I did feel that we had
Speaker 1: made our arguments, that we were making cojin arguments, and
Speaker 1: that I thought we were doing better on that count
Speaker 1: than the other side. But I wasn't assuming that we
Speaker 1: were going to win. I wasn't relieved, and I never
Speaker 1: felt that we had at one And I think along
Speaker 1: with everybody in the world, I didn't know until they
Speaker 1: called me up at ten o'clock on December twelve and.
Speaker 3: Told us, do you remember who called you?
Speaker 1: There were various different clerks working that night, and General
Speaker 1: Suitor sut are different than Justice. Suitor had each one
Speaker 1: of his assistants call one of the lawyers for each
Speaker 1: of the parties, got us all on the phone, so
Speaker 1: nobody heard anything until we were all on the phone
Speaker 1: and then read the outcome at the same time. So
Speaker 1: we were all getting information at the same time, very
Speaker 1: bare bones information. There is a decision from the cars.
Speaker 1: There's the parality decision, there's a there's a there's a
Speaker 1: per curium decision. There's a dissenting opinion by Justice Stevens,
Speaker 1: joined by Justices so and so and so and so
Speaker 1: and so on forth, dessenting opinion by Justice Ginsburg, joined
Speaker 1: by so and so on, and you had to sort
Speaker 1: of infer what the outcome was. It was helpful that
Speaker 1: the four liberal justices who had voted against the stay,
Speaker 1: and I call them liberal, I hate to use that term,
Speaker 1: but the four justices who had voted against the stay
Speaker 1: were all rendering individually dissenting opinions. You could draw the
Speaker 1: inference that the justices who were against you on Saturday
Speaker 1: were against you on Tuesday. And that's a good sign.
Speaker 3: But even if, like, let's just imagine that all nine
Speaker 3: justices after hearing oral arguments, let's just say you had
Speaker 3: really screwed it up, all nine jud just to say, actually,
Speaker 3: we were wrong to issue to stay. Let's have this
Speaker 3: recaind on. I mean, time was up right at that point,
Speaker 3: it was over.
Speaker 1: Well, I think the justices who dissented did not believe
Speaker 1: the seven of the nine justices believed that we had
Speaker 1: made legitimate, meritorious arguments on the equal protection and do
Speaker 1: process clause. The justices were five to four on whether
Speaker 1: or not the recount, the statewide recount that had been
Speaker 1: prescribed by the Florida Supreme Court had to be stopped.
Speaker 1: So the other the four dessenting justices, for various different reasons,
Speaker 1: you have four different descending opinions there, for various different reasons,
Speaker 1: felt that somehow those statutory deadlines that were in federal
Speaker 1: law could somehow be adjusted or moved or something, that
Speaker 1: things could be done faster. I think that that assumed
Speaker 1: that things could happen faster than they could possibly be happening.
Speaker 1: If you had looked at the history we started off.
Speaker 1: Was it November eighth, I think was the date of
Speaker 1: the election? Seven seventh, Okay, So we were starting this
Speaker 1: whole process was going in various different directions beginning with
Speaker 1: November seven. We were now at December tenth, December eleventh,
Speaker 1: December twelve, and we're running up against the various statutory deadlines,
Speaker 1: which culminated in a process that had to be finished
Speaker 1: in Washington in early January, and then there had to
Speaker 1: be a new president taking an oath of office on
Speaker 1: the twentieth. And so I could not see how all
Speaker 1: of that could be done, and that the statewide recount
Speaker 1: was going to be and it was going to be
Speaker 1: different in every one of those sixty seven counties, and
Speaker 1: I could just see more chaos. And I think that
Speaker 1: the justices who voted with us with respect to stopping
Speaker 1: this entire process perceived that that was just going to
Speaker 1: be a continuing process, unfolding of chaos and people were
Speaker 1: still not going to find out who is going to
Speaker 1: be the president of the United States.
Speaker 3: Yeah, right, okay, And final question. I read Evan Thomas's
Speaker 3: book about Justice O'Connor that just came out, and in
Speaker 3: there he has a quote from Scalia. It's not firsthand,
Speaker 3: but it says that Scalia privately scoffed that the equal
Speaker 3: protection rationale was, as we say in Brooklyn, a piece
Speaker 3: of shit. And I'm curious what your reaction is to that.
Speaker 1: Well, my reaction is that that he felt, I believe,
Speaker 1: and what he meant by that is that we have
Speaker 1: a structural basis in the Constitution to decide this case.
Speaker 1: And it's in concurring opinion that the decisions with respect
Speaker 1: to the rules for the selection of the electors have
Speaker 1: to be decided by the legislature and not by the courts.
Speaker 1: That's a simple, more straightforward ray of resolving it. He's
Speaker 1: always been, or he always was, someone that felt very
Speaker 1: strongly about the structure of the constitution, and he believed
Speaker 1: and he said this at his confirmation, hearing that people
Speaker 1: all over the world have wonderful bills of rights. The
Speaker 1: Pakistani constitution and the Iraqi Constitution and the constitution of
Speaker 1: the former Soviet Union had all kinds of really elegant
Speaker 1: sounding bills of rights. What has protected us in this
Speaker 1: country is this structure of the separated powers. I know
Speaker 1: Many people, including many academics and other people in the
Speaker 1: political world, disagree with the whole process, But I think
Speaker 1: the United States Supreme Court did what it had to do,
Speaker 1: and it did it when it had to do it.
Speaker 3: That was Ted Olsen, who argued on behalf of the
Speaker 3: Bush campaign in federal court back in two thousand, beca
Speaker 3: solicitor general in the Bush administration. Olsen died in November
Speaker 3: of twenty twenty four. David Boys, for his part, had
Speaker 3: not planned to be the one to argue Bush v.
Speaker 3: Gore before the Supreme Court. That honor was supposed to
Speaker 3: go to Lawrence Tribe, the attorney who had been handling
Speaker 3: the Gore campaigns federal litigation efforts, but Boys got the
Speaker 3: call instead, leaving him scrambling to prepare his case, just
Speaker 3: like Olsen was doing at the same time. You had
Speaker 3: gone home right after the Florida Spreme Court ruling.
Speaker 2: I thought my job was done. I thought that the
Speaker 2: votes were being counted, and even when the Florida vote
Speaker 2: count was stopped by the United States Supreme Court, I
Speaker 2: thought my job was over with because my job had
Speaker 2: been to argue the case in Florida, and there was
Speaker 2: a separate team that had been arguing the case in
Speaker 2: federal court. While I was actually in the air flying
Speaker 2: back to New York from Tallahassee, al Gore decided that
Speaker 2: he wanted me to do the argument in the United
Speaker 2: States Supreme Court. I found that out when I landed.
Speaker 3: I'm curious, like if you could just list the factors
Speaker 3: or dynamics that made this extraordinary or made this atypical
Speaker 3: for Supreme Court hearing.
Speaker 2: I thought that the chances of the United States Supreme
Speaker 2: Court were going to change was going to change its
Speaker 2: mind were small. They'd already put a pretty big stake
Speaker 2: in the ground when they stopped the vote Counting in
Speaker 2: retrospect the way the argument unfolded, I think if anybody
Speaker 2: had had a chance to change somebody's mind, I had
Speaker 2: a better chance than anybody because I knew more about
Speaker 2: what was at the core. Remember that the primary issue
Speaker 2: Bush took the case the Supreme Court on was not
Speaker 2: the equal protection issue. Equal protection issue was buried way
Speaker 2: deep in the brief. So the issues that I think
Speaker 2: we all thought we're going to be dispositive in terms
Speaker 2: of whether the courts could play a role or what
Speaker 2: role the courts could play in an election for electors.
Speaker 3: Whether it counted was changing the law after the election
Speaker 3: exactly to change the certification deadline and then to order
Speaker 3: the recount.
Speaker 2: Exactly whether you could do that under Article three of
Speaker 2: the Constitution.
Speaker 3: And so that was was that. The Article three was
Speaker 3: the bulk of what you guys talked about during our
Speaker 3: arguments until Kennedy brought it up.
Speaker 2: Yes, I mean it was. It was say it was
Speaker 2: buried deep in Bush's brief equal protection argument, and Ted
Speaker 2: didn't even get to it until late in his argument,
Speaker 2: after he'd been prompted twice.
Speaker 3: How did you feel leaving the court that day? Did
Speaker 3: you realize when you left that equal protection would be
Speaker 3: the focus of the decision.
Speaker 2: During the argument, I thought the argument was going very well.
Speaker 2: I thought that it was clear that Kennedy and probably
Speaker 2: O'Connor were not buying the Article three argument that Ted
Speaker 2: Olsen was making, and I was pretty encouraged, surprisingly encouraged.
Speaker 2: Then when Kennedy kept pushing the equal protection argument, I
Speaker 2: became much more pessimistic. When I left the court, I
Speaker 2: was concerned because it sounded to me like Kennedy and
Speaker 2: O'Connor were searching for a way to sustain stopping the
Speaker 2: vote count, and I knew that the three most conservative
Speaker 2: justices were going to decide against us based on Article three,
Speaker 2: if nothing else. So it looked to me like I
Speaker 2: could count five votes against.
Speaker 3: Where were you when the decision was handed down.
Speaker 2: I was at my house in armac Armak, New York,
Speaker 2: and Westchester County got it.
Speaker 3: The folks on television had some trouble understanding it in
Speaker 3: the first few minutes of reporting on it. Did you
Speaker 3: understand its implications right away? Or did it take you
Speaker 3: how many pages you have to read before you realized
Speaker 3: what it meant? Well?
Speaker 2: I skipped to the end, but with a judicial opinion,
Speaker 2: I was trying to skip to the end at least
Speaker 2: to see how the court comes out. And it was
Speaker 2: clear that, as I had feared, there were five judges
Speaker 2: against us and the percurium opinion. It made clear that
Speaker 2: in my mind, the case was over with. And I
Speaker 2: think that it took a little while for people for
Speaker 2: that to sink in, but I think it eventually sunk
Speaker 2: in that there was no real alternative at that point.
Speaker 2: But to concede.
Speaker 3: How did it affect your view of the Supreme Court
Speaker 3: that this ruling came down the way it did, and
Speaker 3: that it was justified in the way that it was.
Speaker 3: Did it change how you perceived this institution?
Speaker 2: No, not really. I was disappointed. I think it's fair
Speaker 2: to say I was deeply disappointed. On the other hand,
Speaker 2: the Supreme Court during my lifetime has been probably the
Speaker 2: most powerful engine for social change in this country. The
Speaker 2: Supreme Court has made a number of really bad decisions
Speaker 2: over the years, but that does not, I think, diminish
Speaker 2: the importance of the Supreme Court to our society, to
Speaker 2: our constitution, to the preservation of the rights that are
Speaker 2: so important to our society.
Speaker 3: Did it reveal to you that the institution is inherently
Speaker 3: political and that there's no way to avoid that.
Speaker 2: Well, the Supreme Court was inherently political in the Japanese
Speaker 2: internment case, in the plus e v. Ferguson on segregation
Speaker 2: and dread Scott. The Supreme Court, like all human institutions,
Speaker 2: is influenced by politics. I think the thing that was
Speaker 2: most disappointing is that the political influence in prior cases
Speaker 2: tended to be the influence of people pursuing a particular
Speaker 2: policy objective. Here, the Supreme Court was intervening to actually
Speaker 2: pick a President when they were intervening in a way
Speaker 2: that had partisan political implications that strikes at the fundamental
Speaker 2: principle of democracy that it is the people that decide elections,
Speaker 2: not government officials.
Speaker 3: Thanks for listening to this bonus episode of Fiasco. We'll
Speaker 3: be back next week with one more featuring the late
Speaker 3: Supreme Court Justice John Paul Stevens, whom we interviewed shortly
Speaker 3: before his death in twenty nineteen. Fiasco Bush v. Gore
Speaker 3: is produced by Prolog Projects and distributed by Pushkin Industries.
Speaker 3: The show is produced by Madelin Kaplan, Ulla Culpa, Andrew Parsons,
Speaker 3: and me Leon Nap. We had additional editorial support from
Speaker 3: Lisa Chase and Daniel Riley. Thanks for listening. We'll see
Speaker 3: you next week.