WEBVTT - Bush v. Gore: Bonus - Legacy.

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<v Speaker 1>Pushkin. Do you think the majority believed that there was

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<v Speaker 1>this equel protection thing or was there something else motivating them?

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<v Speaker 2>I have no idea. They must have believed in it

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<v Speaker 2>because they said it out in the opinion, but I

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<v Speaker 2>really find the opinion on persuasive.

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<v Speaker 3>Hey fiasco listeners, Welcome to the final bonus episode of

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<v Speaker 3>Bush v.

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<v Speaker 1>Gore.

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<v Speaker 3>As I've mentioned, we interviewed about sixty people for this series.

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<v Speaker 3>For obvious reasons, many of them were in Florida. We

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<v Speaker 3>traveled there for ten day blitz and tried to meet

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<v Speaker 3>our interview subjects in places that were convenient for them,

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<v Speaker 3>and for the most part, bat meant spending a lot

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<v Speaker 3>of time in law offices with glass enclosed conference rooms.

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<v Speaker 1>And long wooden tables.

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<v Speaker 3>But one of the interviews we did in Florida was

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<v Speaker 3>a little different. Former Supreme Court Justice John Paul Stevens

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<v Speaker 3>was living in a retirement community in Fort Lauderdale. He

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<v Speaker 3>was about to turn ninety nine. The person who arranged

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<v Speaker 3>the interview was Justice Stevens's daughter, Sue. We waited for

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<v Speaker 3>her in the lobby of the building, where the ceilings

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<v Speaker 3>were high and everything seemed to be made of marble.

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<v Speaker 3>After coming out to meet us. Sue took us over

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<v Speaker 3>to her dad. He was sitting on a couch looking

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<v Speaker 3>out a window. The first thing we saw as we

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<v Speaker 3>approached was the back of his head.

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<v Speaker 1>To meet you. Oh, thank you for seeing us.

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<v Speaker 2>I'm happy to do where.

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<v Speaker 3>It was a surreal moment. Here was someone whose impact

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<v Speaker 3>on the country was so enormous, whose mind had brought

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<v Speaker 3>about so much change and had affected so many people,

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<v Speaker 3>and yet he was just sitting there, human sized, wearing

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<v Speaker 3>khaki shorts at a polo, A true retiree.

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<v Speaker 2>Yes, well, let me walk him around.

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<v Speaker 3>And Stevens passed away in twenty nineteen. Today we want

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<v Speaker 3>to share part of the conversation we had with him

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<v Speaker 3>about his reflections on Bush v. Gore, in particular the

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<v Speaker 3>equal protection claim made by the majority in the court.

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<v Speaker 3>As you'll hear, Justice Stevens never expected the Supreme Court

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<v Speaker 3>to play a role in the recount, and he didn't

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<v Speaker 3>think there was any reason for the Court to get involved.

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<v Speaker 3>But as you heard in episode six of our series,

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<v Speaker 3>the Bush campaign asked the U. S. Supreme Court to

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<v Speaker 3>stop or stay the process of recounting Florida's votes, arguing

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<v Speaker 3>that it could cause irreparable harm to their candidate. The

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<v Speaker 3>night before the Court met to discuss the stay, Justice

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<v Speaker 3>Stevens ran into his colleague Stephen Bryer at a party.

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<v Speaker 2>And I asked him how he felt about the issue,

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<v Speaker 2>and he said the same action that I did, that

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<v Speaker 2>there was no basis for us for interfering with the

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<v Speaker 2>recount because there was something of Florida courts could do,

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<v Speaker 2>and that there had been no showing of irreparable damage.

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<v Speaker 2>We chat about a short time at that party.

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<v Speaker 3>At conference the next day, Stevens and Bryer were blindsided

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<v Speaker 3>when five of the other justices voted to grant the stay.

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<v Speaker 3>Oral arguments in Bush v. Gore were just a few

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<v Speaker 3>days away, and Stevens was.

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<v Speaker 2>Horrified addressing this issue in this way would hurt the

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<v Speaker 2>Court's reputation, how well the Court generally avoids unnecessarily participating

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<v Speaker 2>in political controversies. And I thought, here it was entering

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<v Speaker 2>into uncharged territory.

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<v Speaker 1>Before oral arguments on Monday, did you think there was

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<v Speaker 1>a possibility that anyone who had ruled in favor of

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<v Speaker 1>the stay would be convinced to lift it.

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<v Speaker 2>I don't remember anticipating that. I really I think I

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<v Speaker 2>felt that the case had already been decided.

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<v Speaker 1>You felt it was already a fatal company.

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<v Speaker 2>Because there was no reason to grant a stay otherwise.

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<v Speaker 2>That was about an inappropriate decision in an extraordinary remedy

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<v Speaker 2>motion case that I can remember.

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<v Speaker 1>The majority felt that continuing the counting would cause irreparable

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<v Speaker 1>harm to candidate Bush and just I know that this

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<v Speaker 1>answer might seem obvious to you, but can you just

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<v Speaker 1>spell out from you why did you think there was

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<v Speaker 1>impossible for there to be a reparable harm from the

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<v Speaker 1>counting continuing.

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<v Speaker 2>Well, the burden is on the petition to demonstrate irreparable harm,

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<v Speaker 2>and I didn't think they had done that. I don't

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<v Speaker 2>think that the movement bore his Harry sustained his burden,

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<v Speaker 2>And it didn't seem to me that getting the right

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<v Speaker 2>answer in a contested election could ever be an irreal harm.

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<v Speaker 2>That's what you're what you're trying to do in elections.

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<v Speaker 1>What did you make of the fact when you read

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<v Speaker 1>the briefs from both sides, especially the Bush side, that

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<v Speaker 1>they were suddenly focused on equal protection?

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<v Speaker 2>I really have very little memory of the equal protection

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<v Speaker 2>issue being in the case, and I think I hardly

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<v Speaker 2>mentioned it in my descent, it's just to me, in

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<v Speaker 2>an equal protection case, there are two groups and you

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<v Speaker 2>favor one group over the over the other, and that's

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<v Speaker 2>the violation of equal protection. But there was no showing

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<v Speaker 2>that any any practice in the election favored either of

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<v Speaker 2>the Democrats or the Republicans. They just were random results,

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<v Speaker 2>which I don't understand to violate the equal protection prohibition.

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<v Speaker 1>The argument, as I understood it, was that there was

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<v Speaker 1>an equal protection violation because different counties in the state

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<v Speaker 1>of Florida would be using different standards to count ballots,

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<v Speaker 1>and so if you lived in a county where people

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<v Speaker 1>were counting dimple chads, you had a different your vote

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<v Speaker 1>counted more, say, than someone who lived in a county

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<v Speaker 1>where they weren't counting dimple chats.

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<v Speaker 2>Well, there are two answers to that. First of all,

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<v Speaker 2>the law does not require a state to have the

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<v Speaker 2>same kind of voting equipment in every polling place, and

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<v Speaker 2>there's more variation between different kinds of counting machines than

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<v Speaker 2>there is between the standards, and that has never been

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<v Speaker 2>considered an equal protection violation. And if that's permissible, why

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<v Speaker 2>isn't a difference in counties produced by something like a

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<v Speaker 2>non uniform rule on county because there's no showing that

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<v Speaker 2>the disuniformity favored one side or the other. And so

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<v Speaker 2>that's had very strange use of equal protection when you

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<v Speaker 2>don't have a minority that's entered by the rule they

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<v Speaker 2>lay and there's no evidence whatsoever that the use of

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<v Speaker 2>either dimple chads or whatever kind of chad it favored

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<v Speaker 2>either the Republicans or the Democrats. So there was no

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<v Speaker 2>basis for an equal protection challenge.

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<v Speaker 1>Why did the majority think there was?

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<v Speaker 2>If you can find out from their opinion, you're a

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<v Speaker 2>miracle worker. It does not provide an explanation. Just generally

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<v Speaker 2>said that the results are not completely uniform. But the

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<v Speaker 2>equal protection clause doesn't have a requirement that everything has

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<v Speaker 2>to be equal. They can't pick one side against another.

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<v Speaker 2>It's what the proper rule is.

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<v Speaker 1>To object to the statewide recount on equal protection grounds

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<v Speaker 1>seems to me like it in the sense state it's

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<v Speaker 1>an objection to all elections the way they normally happened.

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<v Speaker 2>Yes, I think that's right, And of course the case

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<v Speaker 2>has never been followed. Then that's probably why it really

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<v Speaker 2>is an exception from equal protection doctrine. That is traditionally applied.

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<v Speaker 1>Is it true that just as Suitor and Justice prior

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<v Speaker 1>signed on to the notion that there was a possible

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<v Speaker 1>violation of equal protection in the state wide they.

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<v Speaker 2>Did both, and they both indicated that their feelings that

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<v Speaker 2>it was a possible violation. And I've never been able

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<v Speaker 2>to understand why.

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<v Speaker 1>But they didn't join the majority on no question.

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<v Speaker 2>Can you explain that why they didn't join them? Apparently, well,

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<v Speaker 2>they thought the recount should go ahead, that even if

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<v Speaker 2>there was a violation, that they should continue with the

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<v Speaker 2>recount under uniform standards. They were not as clear as

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<v Speaker 2>I think the Florida is Freme Court was the fact

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<v Speaker 2>that the intended of the voter is a standard, and

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<v Speaker 2>is a uniform standard, which tricked trace hair of both

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<v Speaker 2>dimple chads and hanging chads and everything. If you can

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<v Speaker 2>tell who who the voter intended to vote for, that

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<v Speaker 2>is both the sensible standard and one that can be administered.

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<v Speaker 1>Did you ever look at one of those ballots and

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<v Speaker 1>see what the dimples look like?

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<v Speaker 2>I really didn't.

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<v Speaker 1>I think that. I think the controversy, right, was that

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<v Speaker 1>three members of a county canvassing board could look at

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<v Speaker 1>a single ballot and they'd see a dimple, and two

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<v Speaker 1>of them might say, well, clearly that person tried to

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<v Speaker 1>push the thing through and it didn't work, and the

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<v Speaker 1>other one would say, no, no, they that's that could

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<v Speaker 1>be They thought about voting for that person and they

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<v Speaker 1>decided not to.

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<v Speaker 2>Well, I don't think. I don't think in those countroversies

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<v Speaker 2>the question was who was who the voter intended to

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<v Speaker 2>vote for. The question was whether the dimple was a

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<v Speaker 2>sufficient evidence of that. But I don't think they were.

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<v Speaker 2>As far as I can remember, I don't remember any

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<v Speaker 2>controversies of individual balance being ambiguous as to as to

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<v Speaker 2>the intent of the voter.

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<v Speaker 3>More of my conversation with former Supreme Court Justice John

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<v Speaker 3>Paul Stevens after the break.

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<v Speaker 1>Do you remember just going back to Justice Suitor and

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<v Speaker 1>Justice Bryer's belief that there was a remedy here? What

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<v Speaker 1>were they imagining?

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<v Speaker 2>What were they?

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<v Speaker 1>Yeah, what was the remedy they were imagining?

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<v Speaker 2>They thought that the Florida Supreme Court should more clearly

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<v Speaker 2>state the intended as the best I can remember the

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<v Speaker 2>intent of the voter standard, But they didn't think there

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<v Speaker 2>was any necessarily obstacle to doing that.

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<v Speaker 1>What do you think would have happened if the Florida

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<v Speaker 1>Supreme Court had created a uniform standard and they had said, Okay,

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<v Speaker 1>dimples count or they don't count. Would that have been

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<v Speaker 1>struck down by the Bush people as a new law,

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<v Speaker 1>just like the certification deadline had been.

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<v Speaker 2>I have no idea.

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<v Speaker 1>It seemed like a trap a little bit. It says

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<v Speaker 1>you can't make up a new law, and you don't

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<v Speaker 1>have a standard, and you need a standard. But a

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<v Speaker 1>new standard would be a new law.

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<v Speaker 2>Yeah. Well I suppose that's right, But that's just speculation

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<v Speaker 2>for me. Yeah.

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<v Speaker 1>Do you think the majority believed that there was this

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<v Speaker 1>equal protection thing or was there something else motivating them?

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<v Speaker 2>I have no idea. They must have believed in it

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<v Speaker 2>because they said it out in the opinion. But I

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<v Speaker 2>really find the opinion on persuasive.

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<v Speaker 1>So I think to some people outside right, so many

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<v Speaker 1>Americans who saw this unfold, they see the same things

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<v Speaker 1>you see, and they go to the very simple explanation

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<v Speaker 1>that the five justices wanted Bush to win.

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<v Speaker 2>Well, I can't comment on that. I just don't know

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<v Speaker 2>that there was never any and never any such discussion

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<v Speaker 2>of which I was aware.

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<v Speaker 1>Those are all my questions. Would you be willing to

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<v Speaker 1>read from your descents a few things into the microphone.

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<v Speaker 1>Would that be okay?

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<v Speaker 2>I guess so if you got the descent there.

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<v Speaker 1>I have them. Yeah. So it is.

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<v Speaker 2>Confidence and the men and women who administered the judicial

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<v Speaker 2>system that is the true backbone of the rule of law.

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<v Speaker 2>Time will one day heal the wound to that confidence

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<v Speaker 2>that will be inflicted by today's decision. One thing, however,

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<v Speaker 2>is certain, Although we may never know with complete certainty

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<v Speaker 2>the identity of the winner of this year's presidential lesson,

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<v Speaker 2>the identity of the loser is perfectly clear. Is the

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<v Speaker 2>nation's confidence in the judge as an impartial guardian of

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<v Speaker 2>the rule of law. I respected dissent, Now that's true.

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<v Speaker 2>I think that's I think I hit it right on

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<v Speaker 2>the head.

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<v Speaker 1>And to be clear, not having spoken to you, I

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<v Speaker 1>gather you you didn't mean that the uh as you

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<v Speaker 1>put it. But the nation's confidence in the judge is

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<v Speaker 1>an impartial guardian of the rule of law. The reason

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<v Speaker 1>that would be damaged was.

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<v Speaker 2>Why, because the Flora judges were not trusted to be

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<v Speaker 2>capable of handling their own responsibilities. And then and they

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<v Speaker 2>should be presumed to be a competent of intelligent people,

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<v Speaker 2>and they and they undermine that assumption on the boat

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<v Speaker 2>and the chiefs of his separate opinions saying that anything

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<v Speaker 2>that didn't qualify for machine ballots should not be a

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<v Speaker 2>legitimate vote, which the Court had set over and over again,

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<v Speaker 2>but well at least at least more than once. And

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<v Speaker 2>also the particular action they took in this case.

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<v Speaker 1>Can I tell you how I read it initially and

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<v Speaker 1>how I think a lot of people read that line

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<v Speaker 1>that you were saying that the nation's confidence in the

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<v Speaker 1>judge is an impartial guardian of the rule of law

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<v Speaker 1>was undermined because the majority in the Supreme Court had

0:14:39.071 --> 0:14:41.830
<v Speaker 1>ruled in a way that was not impartial.

0:14:42.631 --> 0:14:46.271
<v Speaker 2>Well, I didn't mean it that way. I meant to

0:14:46.311 --> 0:14:50.230
<v Speaker 2>say that their criticism of the impartiality of the Florida

0:14:50.710 --> 0:14:53.870
<v Speaker 2>course would have that effect.

0:14:55.151 --> 0:14:57.311
<v Speaker 1>What mark did the ruling leave on the court in

0:14:57.351 --> 0:14:57.871
<v Speaker 1>your view?

0:14:58.551 --> 0:15:01.870
<v Speaker 2>Well, I think it damaged a reputation of the Court

0:15:02.191 --> 0:15:08.590
<v Speaker 2>because I think it's such an agregiously mistaken opinion. But

0:15:09.111 --> 0:15:13.111
<v Speaker 2>we've had bad opinions over the years from time to time,

0:15:13.191 --> 0:15:15.870
<v Speaker 2>but this one was especially bad.

0:15:17.951 --> 0:15:21.111
<v Speaker 1>So what what what mark did it leave on the court?

0:15:21.311 --> 0:15:23.710
<v Speaker 1>I think there was a point where someone described it

0:15:23.710 --> 0:15:25.031
<v Speaker 1>as a wound on the court.

0:15:25.551 --> 0:15:27.590
<v Speaker 2>Well, yeah, I think it was, and I think it's

0:15:27.590 --> 0:15:30.990
<v Speaker 2>a wound from which they have not fully recovered. But

0:15:32.351 --> 0:15:35.110
<v Speaker 2>that's the judgment others going to make as well as

0:15:35.151 --> 0:15:35.791
<v Speaker 2>I can.

0:15:36.111 --> 0:15:38.470
<v Speaker 1>Can, just ask you to elaborate on why it costs

0:15:38.471 --> 0:15:39.071
<v Speaker 1>such a wound.

0:15:39.871 --> 0:15:45.071
<v Speaker 2>Well, because it was an important case and it was

0:15:45.111 --> 0:15:51.151
<v Speaker 2>the center of attention, and it did not comply with

0:15:51.231 --> 0:15:55.551
<v Speaker 2>the standards of excellence the Supreme Court were normally does

0:15:55.590 --> 0:15:57.750
<v Speaker 2>and should require.

0:15:58.991 --> 0:16:01.271
<v Speaker 1>And not because it was a partisan decision. But I

0:16:01.311 --> 0:16:04.391
<v Speaker 1>think I think the common wisdom, right is that it

0:16:05.791 --> 0:16:08.351
<v Speaker 1>damage the Court's reputation because it was a partisan decision.

0:16:08.351 --> 0:16:09.551
<v Speaker 1>But that's is that not how you feel?

0:16:10.151 --> 0:16:15.470
<v Speaker 2>No, well, I suppose that may have been infected it

0:16:15.511 --> 0:16:19.431
<v Speaker 2>to some extent, but it is basically was the poor

0:16:19.590 --> 0:16:23.791
<v Speaker 2>quality of the decision that I think and the fact

0:16:24.031 --> 0:16:28.591
<v Speaker 2>it showed disrespect for state court judges, which I think

0:16:28.791 --> 0:16:35.191
<v Speaker 2>was an extremely unfortunate development from what French there. I

0:16:35.231 --> 0:16:39.391
<v Speaker 2>don't think the court and judges generally have thoroughly recovered.

0:16:41.271 --> 0:16:44.590
<v Speaker 1>There's a famous line in the majority opinion that says,

0:16:44.911 --> 0:16:48.071
<v Speaker 1>our consideration is limited to the present circumstances, for the

0:16:48.111 --> 0:16:52.151
<v Speaker 1>problem of equal protection in election processes generally presents many complexities.

0:16:52.551 --> 0:16:54.431
<v Speaker 1>So they're saying this will not be precedent.

0:16:54.511 --> 0:16:57.951
<v Speaker 2>Really, Well, I hadn't really thought about that, but it

0:16:57.991 --> 0:16:59.791
<v Speaker 2>was pretty obvious anyway.

0:17:00.151 --> 0:17:03.351
<v Speaker 1>Yeah, what are people to make of the inclusion of

0:17:03.391 --> 0:17:05.031
<v Speaker 1>this very unusual line.

0:17:06.991 --> 0:17:10.311
<v Speaker 2>Well, I guess it's just the same thing they make

0:17:10.351 --> 0:17:12.630
<v Speaker 2>of granting a stay when there was no basis for

0:17:12.751 --> 0:17:18.190
<v Speaker 2>Granning to stay. It's just an unfortunate development, and frankly,

0:17:18.271 --> 0:17:25.470
<v Speaker 2>I think it undermined the published confidence in the court

0:17:25.590 --> 0:17:30.630
<v Speaker 2>and in state courts generally, because the court really showed

0:17:30.671 --> 0:17:36.231
<v Speaker 2>disrespect for the Florida Supreme Court, which I think was unjustified.

0:17:37.471 --> 0:17:43.270
<v Speaker 1>One last question for you, nineteen years later, is this

0:17:43.551 --> 0:17:47.150
<v Speaker 1>ruling less of a tragedy than you thought at the

0:17:47.150 --> 0:17:48.711
<v Speaker 1>time or more more?

0:17:49.511 --> 0:17:57.910
<v Speaker 2>I think it really really is an unacceptable decision, and

0:17:57.991 --> 0:18:00.071
<v Speaker 2>I think the more I've thought about it, the more

0:18:00.471 --> 0:18:04.191
<v Speaker 2>I've been puzzled about how it was reached and why.

0:18:05.191 --> 0:18:09.110
<v Speaker 2>I just don't know. It's just something that seemed to

0:18:09.150 --> 0:18:11.351
<v Speaker 2>be say, asked her what had happened?

0:18:21.911 --> 0:18:24.910
<v Speaker 3>And that is it for this season of fiasco. We

0:18:24.991 --> 0:18:27.830
<v Speaker 3>hope you enjoyed these bonus interviews. This will be our

0:18:27.911 --> 0:18:30.311
<v Speaker 3>last episode for a little while, but keep an eye

0:18:30.311 --> 0:18:32.710
<v Speaker 3>out for more seasons of Fiasco that we'll be putting

0:18:32.791 --> 0:18:33.390
<v Speaker 3>in this feed.

0:18:37.911 --> 0:18:38.951
<v Speaker 1>Fiasco Bush v.

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<v Speaker 3>Gore is produced by Prolog Projects and distributed by Pushkin Industries.

0:18:43.431 --> 0:18:47.150
<v Speaker 3>The show is produced by Mattelin, kaplan Ulla Culpa, Andrew Parsons,

0:18:47.150 --> 0:18:50.791
<v Speaker 3>and me Leon Nafak. We had additional editorial support from

0:18:50.830 --> 0:18:54.031
<v Speaker 3>Lisa Chase and Daniel Riley. Thanks for listening.