WEBVTT - Bush v. Gore: Bonus - Lawfare 0:00:16.271 --> 0:00:28.111 Pushkin, you cannot imagine a more tense, pressure packed moment 0:00:28.271 --> 0:00:31.631 with all of that at stake, and saying, mister Chief Justice, 0:00:31.711 --> 0:00:34.071 may have pleased the court and starting your argument. 0:00:34.751 --> 0:00:38.871 You understand and respect the roles that the lawyer on 0:00:38.911 --> 0:00:39.831 the other side. 0:00:39.751 --> 0:00:41.671 Is playing, but you weren't convinced by their case. 0:00:42.071 --> 0:00:44.391 I was not convinced by their case. I was not 0:00:44.431 --> 0:00:46.751 convinced by their case. Then I'm not convinced by their case. 0:00:46.830 --> 0:00:53.190 Now, hey, fiasco listeners. Today, in the fifth bonus episode 0:00:53.271 --> 0:00:56.031 of our series on the two thousand election, you'll hear 0:00:56.071 --> 0:00:59.671 my conversation with two of the highest profile lawyers involved 0:00:59.711 --> 0:01:03.351 in the saga of Bush v. Gore, David Boyse and 0:01:03.431 --> 0:01:06.631 Ted Olsen. You'll hear what it was like to make 0:01:06.631 --> 0:01:09.391 the case for both sides, from having to quickly catch 0:01:09.471 --> 0:01:12.231 up on Florida election law, to getting nervous before Supreme 0:01:12.271 --> 0:01:16.911 Court oral arguments, to even befriending your opposition. We'll start 0:01:16.911 --> 0:01:19.791 with David boys. When Boys got the call to come 0:01:19.831 --> 0:01:22.551 down to Florida, he was fresh off of arguing on 0:01:22.631 --> 0:01:25.431 behalf of the government against Microsoft in a high profile 0:01:25.471 --> 0:01:28.951 antitrust case, and he was working on a licensing lawsuit 0:01:28.991 --> 0:01:32.191 in which he was representing Calvin Klein. I asked boys 0:01:32.231 --> 0:01:34.911 why he was willing to drop everything and represent al 0:01:34.991 --> 0:01:35.991 Gore in the recount. 0:01:37.031 --> 0:01:39.151 If I hadn't been a lawyer, I would have been 0:01:39.231 --> 0:01:41.631 a high school American history teaching like my father was, 0:01:42.311 --> 0:01:46.351 and to have an opportunity to participate in what was 0:01:46.591 --> 0:01:50.071 Even at that stage, we didn't know how important the 0:01:50.111 --> 0:01:52.311 case was going to be. But even at that stage, 0:01:52.311 --> 0:01:54.271 we knew it was an important case. We knew it 0:01:54.311 --> 0:01:58.631 was a case that was going to involve historic decisions. 0:01:59.191 --> 0:02:02.631 And to have an opportunity to have a front row 0:02:02.671 --> 0:02:06.431 seat and maybe even be a participant with something that 0:02:06.391 --> 0:02:10.511 would have been hard to turn down. In addition, I'd 0:02:10.550 --> 0:02:18.071 been involved in a few electoral contests before, and democracy 0:02:18.111 --> 0:02:24.591 depends on votes being counted and the will of the 0:02:24.631 --> 0:02:29.631 people being expressed. You can suppress democracy in lots of ways, 0:02:30.191 --> 0:02:32.711 and we suppressed democracy in lots of ways in this country. 0:02:33.711 --> 0:02:37.351 But you can also suppress democracy after the votes are 0:02:38.551 --> 0:02:41.631 been cast by not counting them fairly and not counting 0:02:41.671 --> 0:02:46.311 them accurately. And so the process by which votes are 0:02:46.351 --> 0:02:50.351 counted is a critical part of the implementation of democracy, 0:02:50.751 --> 0:02:53.311 and I thought that this was going to be something 0:02:53.391 --> 0:02:57.151 that was going to be essential to people's confidence in 0:02:57.191 --> 0:03:02.471 our democratic process, and also not put too fine a 0:03:02.471 --> 0:03:04.751 point on it, making sure that the person who actually 0:03:04.791 --> 0:03:06.871 won the election occupied the White House? 0:03:07.391 --> 0:03:10.271 Did did you have a firm feeling at that point 0:03:10.071 --> 0:03:13.631 that you know two days out from election day that 0:03:13.711 --> 0:03:15.191 Gore was the winner? 0:03:15.431 --> 0:03:19.231 Not really when I was called, And indeed for the 0:03:19.271 --> 0:03:22.711 first several days and maybe most of the time that 0:03:22.751 --> 0:03:26.631 I was in Florida, I didn't really know who won Florida. 0:03:27.191 --> 0:03:30.071 It was simply too close to call. All I knew 0:03:30.431 --> 0:03:34.271 is that it was a statistical tie. And what was 0:03:34.471 --> 0:03:37.711 going to be critical, I thought, to a fair election, 0:03:37.831 --> 0:03:40.911 but also to the people's confidence in our electoral process 0:03:41.951 --> 0:03:45.711 that the votes actually be counted the way they were cast. 0:03:46.511 --> 0:03:50.271 And I didn't know who was going to win that. 0:03:50.951 --> 0:03:54.591 I just knew that it was important that that that happened, 0:03:54.591 --> 0:03:58.391 and that happened in an organized way. The first time 0:03:58.431 --> 0:04:02.911 that I really became convinced that Gore had won was 0:04:02.951 --> 0:04:08.271 actually the Saturday when they stopped the vote counting, because 0:04:08.871 --> 0:04:14.471 during the course of the previous Friday and Saturday morning, 0:04:15.071 --> 0:04:18.070 the votes had begun to come in, and you could 0:04:18.111 --> 0:04:23.951 tell that they were discovering lots of votes predominantly, not overwhelmingly, 0:04:24.031 --> 0:04:28.031 but still a majority favoring Gore, and so the margin 0:04:28.151 --> 0:04:32.471 was already disappearing at the time that the Supreme Court 0:04:32.751 --> 0:04:34.391 prematurely stopped the vote count. 0:04:35.191 --> 0:04:36.391 So tell me what it was like when you got 0:04:36.391 --> 0:04:39.471 down there. You flew from white planes, right. 0:04:39.311 --> 0:04:42.070 I flew from white planes. And I got down there 0:04:42.191 --> 0:04:46.031 about midnight. Because this all happened the first day I 0:04:46.111 --> 0:04:48.711 was called, they didn't get through to me until about 0:04:48.711 --> 0:04:51.311 five o'clock in the afternoon. I finished up what I 0:04:51.351 --> 0:04:55.831 was doing, got my son Jonathan to pull some cases 0:04:55.871 --> 0:04:59.711 on Florida election law so I could read it on 0:04:59.751 --> 0:05:04.511 the plane for the first time ever, read the Florida 0:05:04.551 --> 0:05:08.830 Statute as well, and arrived down there shortly before midnight. 0:05:10.151 --> 0:05:15.831 Went to the campaign headquarters in Tallahassee, and everybody was 0:05:15.831 --> 0:05:19.070 still there. I remember what walked in and ron Klain 0:05:20.391 --> 0:05:21.591 saw a man said, welcome to. 0:05:21.511 --> 0:05:28.111 Guatemala, referring to Florida. In Florida, if ron Klain was 0:05:28.111 --> 0:05:29.991 trying to tell boys that he just landed in a 0:05:30.031 --> 0:05:33.431 legal jungle, he was right, But at least he wasn't 0:05:33.431 --> 0:05:36.751 completely alone there. As the major lawsuits wound their way 0:05:36.751 --> 0:05:39.511 through the Florida courts. David Boys became pals with one 0:05:39.511 --> 0:05:42.831 of his counterparts on the bush side, Barry Richard, and 0:05:42.871 --> 0:05:44.951 why not they were going through the same thing. 0:05:45.551 --> 0:05:47.831 We were clearly in the middle of the Madge spectacle. 0:05:48.191 --> 0:05:51.070 People walked with you, cameras walked with you, every place 0:05:51.071 --> 0:05:55.551 you went. Everybody trying to get you to say something 0:05:55.591 --> 0:05:56.711 about what was going on. 0:05:57.351 --> 0:05:58.831 Was it most of the reporters coming up to you 0:05:58.871 --> 0:06:01.831 in Tallahassee streets or was it normal people who just 0:06:01.831 --> 0:06:02.711 seen your face on TV? 0:06:02.951 --> 0:06:07.071 It was both, But I remember, you know, people driving 0:06:07.151 --> 0:06:11.991 by and shouting things out either depending on what their 0:06:11.991 --> 0:06:16.751 point of view was. Everybody recognized Barry Richards and myself, 0:06:17.671 --> 0:06:23.270 and so somebody was always yelling out to you, either 0:06:23.391 --> 0:06:27.871 encouraging you or trying to discourage you. It was a 0:06:28.471 --> 0:06:31.190 It was very much a participatory spot. 0:06:31.871 --> 0:06:33.791 But you guys were often walking together, right, and. 0:06:33.791 --> 0:06:36.031 Were often walking together, and sometimes they would be showing 0:06:36.031 --> 0:06:37.951 the same things that both of us. We were walking together, 0:06:38.471 --> 0:06:41.271 and wow, we didn't really know each other prior to 0:06:41.711 --> 0:06:44.671 the contest. We became good friends during the contest. 0:06:45.111 --> 0:06:47.951 Where did you guys spend time together? Was there places 0:06:47.951 --> 0:06:48.631 in Tallahassee. 0:06:49.271 --> 0:06:52.111 There was a sports bar sort of kitty corner across 0:06:52.151 --> 0:06:54.471 the street from where I was staying. I was staying 0:06:54.511 --> 0:06:59.271 at the Governor's End, and there was a sports bar 0:06:59.991 --> 0:07:02.830 close by where we would go for either a drink 0:07:02.951 --> 0:07:03.951 or a meal. 0:07:04.751 --> 0:07:06.671 I think treat to non lawyers, this is like, this 0:07:06.751 --> 0:07:08.991 is this is counterintuitive, right, the idea of two lawyers 0:07:08.991 --> 0:07:11.151 on the opposite sides of of a case being able 0:07:11.191 --> 0:07:13.351 to come together like this, And I feel like the 0:07:13.391 --> 0:07:16.511 missing the thing that they're missing is that you guys 0:07:16.511 --> 0:07:19.671 found this fun, right, You found an intellectual stimulating It. 0:07:19.591 --> 0:07:22.951 Was intellectually stimulating. It was we both thought we were 0:07:22.951 --> 0:07:29.791 doing important work, and we both recognized that our role 0:07:30.711 --> 0:07:35.791 in the process was to present and argue for a 0:07:35.831 --> 0:07:41.671 particular side. Sometimes people who aren't lawyers confuse the lawyer 0:07:41.711 --> 0:07:46.511 with a client, and they think that the lawyer has 0:07:46.511 --> 0:07:49.751 got to be as angry as the lawyer on the 0:07:49.791 --> 0:07:52.711 other side as the client is angry at the client 0:07:52.751 --> 0:07:58.311 on the other side. And when that happens, our justice 0:07:58.311 --> 0:08:00.471 system begins to erode. 0:08:00.751 --> 0:08:02.751 But I have to say, like you had clearly had 0:08:02.751 --> 0:08:05.871 a personal investment in the outcome. I mean not because 0:08:05.871 --> 0:08:07.311 you wanted go to win, or you wanted whatever, but 0:08:07.391 --> 0:08:09.231 because you believed you were right, you believed you had 0:08:09.391 --> 0:08:12.831 you're right. So I mean, I'm curious, like, even just 0:08:13.071 --> 0:08:15.791 during the Sauls triler, during the sord of Spooing court hearings, 0:08:15.791 --> 0:08:19.071 when you're in the courtroom across from Barry Richard, your pal, 0:08:19.591 --> 0:08:25.471 how do you sort of balance the sense of intellectual gamesmanship, 0:08:26.191 --> 0:08:28.391 the sense that you're like in the super Bowl, from 0:08:28.631 --> 0:08:31.751 the stakes and the stress of possibly losing to this 0:08:31.831 --> 0:08:32.631 other guy. 0:08:33.071 --> 0:08:37.631 There's no doubt that in any important case the lawyer 0:08:38.471 --> 0:08:44.351 becomes very closely identified with a client, you usually come 0:08:44.391 --> 0:08:46.710 to believe your client is right, even if you didn't 0:08:46.751 --> 0:08:50.550 start off feeling that way. But particularly in a case 0:08:50.670 --> 0:08:54.030 like this, where I felt not only was my client right, 0:08:55.111 --> 0:08:58.310 but that I felt that the principles that we're fighting 0:08:58.351 --> 0:09:04.511 for were terribly important principles for our country, you inevitably 0:09:04.751 --> 0:09:09.910 become personally involved in the matter. At the same time, 0:09:10.751 --> 0:09:15.391 you understand and respect the role that the lawyer on 0:09:15.430 --> 0:09:20.670 the other side is playing. And everybody is entitled to 0:09:20.871 --> 0:09:25.431 a effective presentation by their lawyer. Our justice system depends 0:09:25.511 --> 0:09:31.071 on it. And so even though I was absolutely convinced 0:09:31.070 --> 0:09:38.230 that Gore was right. I still respected the role that 0:09:38.511 --> 0:09:43.870 Barry Richard was playing. So you can fight very hard 0:09:44.830 --> 0:09:49.710 and feel even emotional about your cause, and yet at 0:09:49.710 --> 0:09:53.590 the same time respect and even admire the people on 0:09:53.631 --> 0:09:55.471 the other side that are presenting. 0:09:55.151 --> 0:09:58.511 Their client's case, but you weren't convinced by their case. 0:09:58.910 --> 0:10:01.231 I was not convinced by the case. I was not 0:10:01.231 --> 0:10:03.310 convinced by their case. Then I'm not convinced by their 0:10:03.351 --> 0:10:05.151 case now. 0:10:05.910 --> 0:10:08.630 So that was David Boyd's who argued the Gore campaign's 0:10:08.710 --> 0:10:20.111 case in two thousand. Another lawyer Boys respected and admired, 0:10:20.190 --> 0:10:23.190 but whose case he was not convinced by, was Ted Olsen. 0:10:24.070 --> 0:10:26.711 If hearing Boys's name next to Olson's rings a bell, 0:10:27.351 --> 0:10:29.790 it might be because they actually teamed up in twenty 0:10:29.871 --> 0:10:33.790 thirteen to sue California over Proposition eight, the state's ban 0:10:33.991 --> 0:10:37.591 on gay marriage. But back in two thousand, ted Olsen 0:10:37.670 --> 0:10:40.231 was working for the Bush campaign and getting ready to 0:10:40.271 --> 0:10:43.951 make his argument before the US Supreme Court after the 0:10:43.950 --> 0:10:52.511 break my interview with Olsen. By the time ted Olsen 0:10:52.590 --> 0:10:55.070 was working for the Bush campaign, he had already argued 0:10:55.151 --> 0:10:58.871 fifteen cases before the Supreme Court, for most of them 0:10:58.950 --> 0:11:02.310 he had prepared for months, but Bush v. Gore was different. 0:11:03.151 --> 0:11:06.751 As Olsen explained during our interview, he didn't have months 0:11:06.830 --> 0:11:09.271 or even weeks to get ready for this. He only 0:11:09.351 --> 0:11:10.391 had one day. 0:11:10.991 --> 0:11:13.030 You don't have time to do all of the things 0:11:13.070 --> 0:11:15.871 that you would like to do. If you're preparing for 0:11:16.111 --> 0:11:18.830 a Supreme Court argument, you like to have moot courts, 0:11:19.231 --> 0:11:24.950 which are preparation sessions, practice sessions with other people asking 0:11:24.991 --> 0:11:28.751 you questions, interrupting you the way the justices do. You 0:11:28.871 --> 0:11:31.950 might want to spend more time doing research when you're 0:11:31.950 --> 0:11:34.591 having to do it all in twenty four hours. The 0:11:34.631 --> 0:11:38.511 Florida Supreme Court decision on that Friday came down at 0:11:38.830 --> 0:11:41.310 four or five o'clock in the afternoon, and we filed 0:11:41.351 --> 0:11:44.350 our papers in the Supreme Court I think by nine 0:11:44.391 --> 0:11:48.591 o'clock Friday night, and then the Supreme Court stayed the 0:11:48.830 --> 0:11:53.030 recount and granted the hearing on Saturday. So we had 0:11:53.070 --> 0:11:56.751 to do all this under enormous time pressure. Obviously, you 0:11:56.790 --> 0:12:00.511 can't do everything you want to do, but you have 0:12:00.550 --> 0:12:03.551 a team of very conscientious people, and I'm speaking for 0:12:03.631 --> 0:12:06.871 the other side as well, trying to do the very 0:12:07.030 --> 0:12:11.871 very best that you can. Hope that you haven't overlooked something. 0:12:12.231 --> 0:12:13.991 Tell me about the morning you know. I know this 0:12:14.070 --> 0:12:16.910 is I always find when I'm talking to lawyers who 0:12:16.950 --> 0:12:22.670 sort of mostly live in the world of ideas and arguments, 0:12:23.111 --> 0:12:24.670 they always rist a little bit when I ask these 0:12:24.710 --> 0:12:25.951 kinds of questions. But I wonder if you could just 0:12:25.950 --> 0:12:27.350 take me back to the morning of the arguments a 0:12:27.391 --> 0:12:29.751 little bit. What do you remember about the atmosphere in 0:12:29.790 --> 0:12:32.030 the courtroom? You know, how it was different from other 0:12:32.111 --> 0:12:34.951 Supreme Court cases you'd argued based on just how it 0:12:34.950 --> 0:12:35.751 felt to be in there. 0:12:36.391 --> 0:12:40.190 Well, it was a remarkable experience because the entire world 0:12:40.391 --> 0:12:44.271 was watching. The Supreme Court was surrounded by the satellite 0:12:44.351 --> 0:12:48.871 trucks of the various broadcast networks. The court was filled 0:12:48.910 --> 0:12:53.391 with political figures, members of the United States Senate campaign 0:12:53.430 --> 0:12:57.950 representatives from both sides, journalists, people of interest, anybody who 0:12:57.950 --> 0:13:00.430 could get into that courtroom and managed to get into 0:13:00.471 --> 0:13:04.430 that courtroom. And it's the presidency of the United States. 0:13:05.271 --> 0:13:09.431 Everyone was watching. They were broadcasting, and which was a 0:13:09.471 --> 0:13:12.471 step forward for the Supreme Court. They were broadcasting the 0:13:12.511 --> 0:13:17.030 audio of the arguments. The moment that we finished, they 0:13:17.111 --> 0:13:20.551 were immediately sending the audio out to the rest of 0:13:20.590 --> 0:13:23.471 the world, and people all over the world were watching 0:13:23.511 --> 0:13:28.151 and listening. Verius television networks were going to be broadcasting 0:13:28.190 --> 0:13:31.190 it with drawings because the cameras aren't permitted in the 0:13:31.231 --> 0:13:35.391 courtroom of the various individuals and the justices. You cannot 0:13:35.430 --> 0:13:40.671 imagine a more tense, pressure packed moment than standing up 0:13:41.111 --> 0:13:43.430 in front of the all of those people and the 0:13:43.550 --> 0:13:46.790 nine justices, with all of that at stake, and saying, 0:13:46.830 --> 0:13:49.670 mister Chief Justice, may it pleased the Court and starting 0:13:49.710 --> 0:13:52.151 your argument, and I think all of us fell for 0:13:52.231 --> 0:13:55.151 God's sakes. I hope I can get these words out 0:13:55.550 --> 0:13:58.910 without stumbling or forgetting what I am, or forgetting who 0:13:58.950 --> 0:14:02.030 I am, or forgetting what the arguments are. One of 0:14:02.070 --> 0:14:05.671 the lawyers made a mistake three times, I think he did, 0:14:06.030 --> 0:14:11.191 called the justices by the wrong name. That sort of 0:14:11.231 --> 0:14:14.591 thing you can happen, but you have to keep your 0:14:14.631 --> 0:14:16.431 wits about you or you shouldn't be there. 0:14:17.511 --> 0:14:21.551 To the aspiring Supreme Court petitioners in our listenership, do 0:14:21.590 --> 0:14:24.311 you have any psychological things that you do when you're 0:14:24.351 --> 0:14:26.110 in that situation to try to keep yourself focused and 0:14:26.351 --> 0:14:28.671 try not to try to say something that's the opposite 0:14:28.710 --> 0:14:29.151 of what you mean. 0:14:29.391 --> 0:14:32.110 Well, your adrenaline is going to be pumping through you. 0:14:32.151 --> 0:14:35.991 So anybody says, are you nervous, of course you're nervous. 0:14:35.991 --> 0:14:38.991 And if you're not nervous, you're not a sentient human 0:14:39.071 --> 0:14:43.270 being or a lawyer. So you have to channel that adrenaline, 0:14:43.311 --> 0:14:47.711 that energy that's pumping through you into the context and 0:14:47.830 --> 0:14:50.511 the substance of what you're saying the arguments. You have 0:14:50.590 --> 0:14:53.590 to focus on what you're saying. You have to focus 0:14:53.631 --> 0:14:56.590 on what the justices are saying when they interrupt you, 0:14:56.671 --> 0:15:00.791 and they interrupt you constantly. I've had sixty to seventy 0:15:00.871 --> 0:15:04.031 interruptions in the course of a half an hour. So 0:15:04.071 --> 0:15:06.231 you have to pay attention to what you're doing, and 0:15:06.271 --> 0:15:09.671 it kind of helps. You've read about football players that 0:15:09.751 --> 0:15:12.471 the order back becomes a little bit more effective after 0:15:12.551 --> 0:15:15.191 he's been hit for the first time because then he's 0:15:15.231 --> 0:15:17.311 you know, focused on the game and so forth. But 0:15:17.671 --> 0:15:21.951 that's somewhat similar in court. And I also tell lawyers, 0:15:21.991 --> 0:15:24.871 you know, take a look at all those people up 0:15:25.071 --> 0:15:29.071 back in the courtroom watching you, and the clerks and 0:15:29.231 --> 0:15:34.071 the journalists and the spectators and so forth, and if 0:15:34.151 --> 0:15:38.471 you'd rather be with them watching, then that's where you 0:15:38.511 --> 0:15:41.311 should be, But if you'd rather be up there doing it, 0:15:41.671 --> 0:15:45.111 then take a deep breath, enjoy it, and appreciate the 0:15:45.151 --> 0:15:48.911 fact that you've been given an opportunity to participate in 0:15:48.951 --> 0:15:52.071 an argument, and in this case, a very important argument 0:15:52.111 --> 0:15:55.751 in a very very important case. So in a sense, 0:15:55.791 --> 0:15:59.871 it's necessary to relax a little bit to the extent 0:15:59.951 --> 0:16:03.591 that you can and focus on what it is that 0:16:03.631 --> 0:16:05.751 you're hearing and what it is that you're saying. 0:16:06.791 --> 0:16:12.631 If you were taking beta blockers, no, I tried them 0:16:12.631 --> 0:16:14.511 once before a live show. It was quite effective. 0:16:14.551 --> 0:16:18.391 I thought, well, I'm at a point in my career 0:16:18.431 --> 0:16:21.671 where I'm probably not going to change whatever my style 0:16:21.751 --> 0:16:23.990 Old dogs, new trips kind of thing. Right. 0:16:25.111 --> 0:16:28.791 You obviously came in with a deep, deep understanding of 0:16:29.111 --> 0:16:36.551 every justice's judicial philosophy, ideological inclinations. Who were the justices 0:16:36.631 --> 0:16:41.031 you were talking to most directly during your arguments. Convince. 0:16:41.271 --> 0:16:44.711 What I tell myself and tell my colleagues when we're 0:16:44.751 --> 0:16:48.871 doing this sort of thing is don't take any justice 0:16:48.911 --> 0:16:51.951 for granted, and don't assume that you're going to lose 0:16:52.031 --> 0:16:56.311 any of the justices. Try to make arguments that if 0:16:56.351 --> 0:16:58.991 you were on one side or another in this case 0:16:59.031 --> 0:17:02.071 of the political spectrum, and I've been in various different 0:17:02.391 --> 0:17:05.630 contexts in the Supreme Court. Try to make arguments that 0:17:05.751 --> 0:17:10.951 are rational and coherent and that are respect that any 0:17:11.151 --> 0:17:15.391 justice could say, well, I understand the logic of that. 0:17:15.390 --> 0:17:17.830 That doesn't mean you're going to win them over, but 0:17:17.991 --> 0:17:20.671 that means you've got to listen to them. You've got 0:17:20.711 --> 0:17:24.151 to treat their questions with respect. You can't be dismissive. 0:17:24.711 --> 0:17:29.630 You can't ignore the questions from a justice that seems hostile. 0:17:30.031 --> 0:17:32.991 And you can't take for granted that what sounds like 0:17:33.031 --> 0:17:36.711 a friendly question isn't some kind of a trap, either 0:17:36.751 --> 0:17:40.430 an intentional trap. No, it does happen. It can be 0:17:40.511 --> 0:17:43.551 a trap. Or you can say something because you're the 0:17:43.791 --> 0:17:47.511 justice that you're talking to at that particular moment may 0:17:47.551 --> 0:17:49.910 be asking you something and you want to agree with 0:17:49.951 --> 0:17:52.991 what that justice is asking you, or the sense of 0:17:53.031 --> 0:17:56.991 that justice's question. But the impact of your answer on 0:17:57.031 --> 0:18:00.230 the other justices and the other votes you have to 0:18:00.231 --> 0:18:04.711 think about that. So you can't take anything for granted. 0:18:04.791 --> 0:18:07.991 You have to listen to them. They are the persons 0:18:07.991 --> 0:18:10.390 who are going to decide this, and you have to 0:18:10.471 --> 0:18:14.031 treat them. And of course it makes sense, and it's 0:18:14.110 --> 0:18:16.510 sort of common sense. You have to treat them with 0:18:16.630 --> 0:18:19.191 respect and listen to them. But it's hard to do 0:18:19.271 --> 0:18:22.791 because you're getting questions from all different directions and there's 0:18:22.951 --> 0:18:25.951 very very little time, and all of us at that point, 0:18:26.031 --> 0:18:29.390 we've been under pressure for thirty five days or so, 0:18:29.991 --> 0:18:32.991 and we've been back and forth to Tallahassee on airplanes 0:18:33.031 --> 0:18:35.590 and not. The airplanes are not I was on time, 0:18:35.671 --> 0:18:39.470 and you know, things go wrong, but you've got to 0:18:39.551 --> 0:18:41.670 keep your feet on the ground and your head on 0:18:41.711 --> 0:18:42.751 your shoulders. 0:18:43.791 --> 0:18:45.190 How did you feel walking out of the courtroom. Did 0:18:45.231 --> 0:18:47.950 you feel like the questions indicated that you were in 0:18:47.991 --> 0:18:48.511 good shape. 0:18:49.231 --> 0:18:52.671 I never take it for granted when I walk out 0:18:52.711 --> 0:18:55.430 of the courtroom, all I could. In the first place, 0:18:55.471 --> 0:19:00.071 you're exhausted, and the second place, you're relieved that it's over. 0:19:00.231 --> 0:19:04.830 In the third place, I did feel that we had 0:19:05.071 --> 0:19:09.350 made our arguments, that we were making cojin arguments, and 0:19:09.390 --> 0:19:13.711 that I thought we were doing better on that count 0:19:13.870 --> 0:19:17.151 than the other side. But I wasn't assuming that we 0:19:17.150 --> 0:19:19.350 were going to win. I wasn't relieved, and I never 0:19:19.390 --> 0:19:22.710 felt that we had at one And I think along 0:19:22.751 --> 0:19:25.511 with everybody in the world, I didn't know until they 0:19:25.551 --> 0:19:29.791 called me up at ten o'clock on December twelve and. 0:19:29.711 --> 0:19:31.031 Told us, do you remember who called you? 0:19:31.991 --> 0:19:37.351 There were various different clerks working that night, and General 0:19:37.390 --> 0:19:42.391 Suitor sut are different than Justice. Suitor had each one 0:19:42.431 --> 0:19:48.031 of his assistants call one of the lawyers for each 0:19:48.071 --> 0:19:51.270 of the parties, got us all on the phone, so 0:19:51.630 --> 0:19:54.510 nobody heard anything until we were all on the phone 0:19:55.071 --> 0:19:59.271 and then read the outcome at the same time. So 0:19:59.311 --> 0:20:03.231 we were all getting information at the same time, very 0:20:03.311 --> 0:20:06.350 bare bones information. There is a decision from the cars. 0:20:06.350 --> 0:20:10.150 There's the parality decision, there's a there's a there's a 0:20:10.191 --> 0:20:14.311 per curium decision. There's a dissenting opinion by Justice Stevens, 0:20:14.390 --> 0:20:16.630 joined by Justices so and so and so and so 0:20:16.671 --> 0:20:21.350 and so on forth, dessenting opinion by Justice Ginsburg, joined 0:20:21.350 --> 0:20:23.271 by so and so on, and you had to sort 0:20:23.271 --> 0:20:27.830 of infer what the outcome was. It was helpful that 0:20:27.911 --> 0:20:32.031 the four liberal justices who had voted against the stay, 0:20:32.671 --> 0:20:34.870 and I call them liberal, I hate to use that term, 0:20:34.951 --> 0:20:38.390 but the four justices who had voted against the stay 0:20:38.870 --> 0:20:43.751 were all rendering individually dissenting opinions. You could draw the 0:20:43.791 --> 0:20:47.991 inference that the justices who were against you on Saturday 0:20:48.110 --> 0:20:51.471 were against you on Tuesday. And that's a good sign. 0:20:51.830 --> 0:20:55.071 But even if, like, let's just imagine that all nine 0:20:56.350 --> 0:20:59.951 justices after hearing oral arguments, let's just say you had 0:20:59.951 --> 0:21:03.031 really screwed it up, all nine jud just to say, actually, 0:21:03.071 --> 0:21:05.350 we were wrong to issue to stay. Let's have this 0:21:05.390 --> 0:21:07.671 recaind on. I mean, time was up right at that point, 0:21:07.751 --> 0:21:08.231 it was over. 0:21:08.551 --> 0:21:15.031 Well, I think the justices who dissented did not believe 0:21:15.911 --> 0:21:18.671 the seven of the nine justices believed that we had 0:21:19.471 --> 0:21:23.231 made legitimate, meritorious arguments on the equal protection and do 0:21:23.390 --> 0:21:27.590 process clause. The justices were five to four on whether 0:21:27.911 --> 0:21:31.951 or not the recount, the statewide recount that had been 0:21:31.991 --> 0:21:35.350 prescribed by the Florida Supreme Court had to be stopped. 0:21:35.671 --> 0:21:39.951 So the other the four dessenting justices, for various different reasons, 0:21:39.951 --> 0:21:44.151 you have four different descending opinions there, for various different reasons, 0:21:44.191 --> 0:21:49.271 felt that somehow those statutory deadlines that were in federal 0:21:49.350 --> 0:21:53.950 law could somehow be adjusted or moved or something, that 0:21:53.991 --> 0:21:58.670 things could be done faster. I think that that assumed 0:21:59.110 --> 0:22:02.630 that things could happen faster than they could possibly be happening. 0:22:03.071 --> 0:22:05.671 If you had looked at the history we started off. 0:22:05.751 --> 0:22:07.910 Was it November eighth, I think was the date of 0:22:07.911 --> 0:22:12.190 the election? Seven seventh, Okay, So we were starting this 0:22:12.231 --> 0:22:15.910 whole process was going in various different directions beginning with 0:22:15.991 --> 0:22:19.871 November seven. We were now at December tenth, December eleventh, 0:22:19.911 --> 0:22:24.911 December twelve, and we're running up against the various statutory deadlines, 0:22:24.911 --> 0:22:27.830 which culminated in a process that had to be finished 0:22:28.110 --> 0:22:31.031 in Washington in early January, and then there had to 0:22:31.031 --> 0:22:33.590 be a new president taking an oath of office on 0:22:33.671 --> 0:22:38.431 the twentieth. And so I could not see how all 0:22:38.471 --> 0:22:43.071 of that could be done, and that the statewide recount 0:22:43.390 --> 0:22:46.271 was going to be and it was going to be 0:22:46.791 --> 0:22:50.190 different in every one of those sixty seven counties, and 0:22:50.271 --> 0:22:54.831 I could just see more chaos. And I think that 0:22:54.870 --> 0:23:00.311 the justices who voted with us with respect to stopping 0:23:00.311 --> 0:23:03.830 this entire process perceived that that was just going to 0:23:03.830 --> 0:23:09.311 be a continuing process, unfolding of chaos and people were 0:23:09.350 --> 0:23:11.751 still not going to find out who is going to 0:23:11.751 --> 0:23:13.231 be the president of the United States. 0:23:13.511 --> 0:23:17.751 Yeah, right, okay, And final question. I read Evan Thomas's 0:23:17.751 --> 0:23:21.350 book about Justice O'Connor that just came out, and in 0:23:21.390 --> 0:23:25.311 there he has a quote from Scalia. It's not firsthand, 0:23:25.791 --> 0:23:29.590 but it says that Scalia privately scoffed that the equal 0:23:29.590 --> 0:23:32.271 protection rationale was, as we say in Brooklyn, a piece 0:23:32.271 --> 0:23:36.390 of shit. And I'm curious what your reaction is to that. 0:23:36.751 --> 0:23:40.431 Well, my reaction is that that he felt, I believe, 0:23:40.711 --> 0:23:43.111 and what he meant by that is that we have 0:23:43.271 --> 0:23:49.271 a structural basis in the Constitution to decide this case. 0:23:49.311 --> 0:23:55.631 And it's in concurring opinion that the decisions with respect 0:23:55.711 --> 0:23:59.590 to the rules for the selection of the electors have 0:23:59.671 --> 0:24:02.511 to be decided by the legislature and not by the courts. 0:24:02.830 --> 0:24:07.031 That's a simple, more straightforward ray of resolving it. He's 0:24:07.110 --> 0:24:11.711 always been, or he always was, someone that felt very 0:24:11.751 --> 0:24:16.110 strongly about the structure of the constitution, and he believed 0:24:16.150 --> 0:24:20.430 and he said this at his confirmation, hearing that people 0:24:20.511 --> 0:24:23.830 all over the world have wonderful bills of rights. The 0:24:23.870 --> 0:24:28.830 Pakistani constitution and the Iraqi Constitution and the constitution of 0:24:28.830 --> 0:24:32.751 the former Soviet Union had all kinds of really elegant 0:24:32.791 --> 0:24:36.631 sounding bills of rights. What has protected us in this 0:24:36.791 --> 0:24:41.830 country is this structure of the separated powers. I know 0:24:41.951 --> 0:24:45.551