Sunday, August 27, 2006

The Day After: Bush v. Gore December 2000

The coincidence of my birthday and the date of oral argument before the U.S. Supreme Court in George W. Bush v. Canvassing Board of Palm Beach County, Fla. spurred my imagination. I am an avid Gore partisan and active participant in the recent presidential campaign, and a member of the Supreme Court bar, which entitles me to a seat, as available, at Court. I had found the Florida Supreme Court's opinion a reasoned decision, and I supported the political decision to ask for a recount. I couldn't think of a better way to celebrate my birthday than to go to Washington for this historic occasion.

When I mentioned this at a Charlottesville Democratic post campaign meeting, fellow Democrat Alex Searls said she'd like to join me for the journey. That was all I needed - an enthusiastic co-conspirator.

We departed Thursday after work, and upon arrival, checked our bags at our bed and breakfast and then drove to Capitol Hill to check out the scene. Television camera lights lit up the front of the Supreme Court, police cars with flashing blue lights and security officers on foot were on every corner. There were two entrances - Maryland Avenue for the Bar and C Street for members of the public. Lining the walk on the public side of the Court was a corridor of humanity - young to middle age - warmly dressed on the freezing night and wrapped in blankets, lying on sleeping bags and beach chairs, sitting on the ground and the wall, standing, eating, talking, some with signs, some without.

After parking the car we walked back along the public line, and asked a security guard how many members of the public would get in - about 100, he replied. How many were in line? More than that, he said. We realized then that Alex wasn't going to get inside. As we walked over to check out the Lawyers entrance, where the Supreme Court Bar would line up, Alex remarked that she did not like being thwarted this way and that she was willing to spend the night to guarantee me a place in line. At 10 p.m. there were only three lawyers in line. Since Alex hadn't had anything to eat, we set out for Pennsylvania Avenue eateries with the idea that we would return to set Alex up for the night.

I had brought a portable camp chair and a blanket; Alex had another blanket. By the time we returned to the line at 11:30, four people were ahead of us. Alex settled into the chair with her blankets, and I set off for a snooze at the B&B.

When I returned by taxi at 4:30 a.m., the attorney line had grown to perhaps 30 or 40 people, some napping but most chatting about the case and what brought them here. People continued to arrive for the next several hours - approximately 50 would be admitted to the argument and another 50 to listen to an audio feed of the proceedings.

While the morning was still dark, there was activity and conversation 'on the line.' Number one in line was a Republican professional line sitter, who was holding a place for a lawyer.I became acquainted with my neighbors: Behind the line sitter was a dark haired, smiling and altogether pleasant Justice Department attorney whose husband had dropped her off the night before. There were several male attorneys: an elderly lawyer from Chicago, a staffer for the Federal Elections Commission, who was an agile 'celebrity' spotter; an attorney for the New York law firm Paul Weiss in town for depositions; counsel for the North Carolina legislature; a young African American attorney at Washington's prestigious Williams Connolly law firm. All were Democrats.Then, there was Marcia -- a government lawyer with the Federal Energy Commission, a self-proclaimed lifelong Republican who had not voted for either candidate in the presidential election but who professed she would never vote Republican again. Equipped with a sharp tongue, she was the line enforcer who ratted on the professional line sitter with the result that the 'client' attorney was kicked out of the line by security. As he was leaving his enviable number one spot, the attorney, who had filed an amicus brief on behalf of the Florida legislature, was accosted by a Jacksonville attorney one the line who challenged him: 'How can you represent the Florida legislature? Who authorized you to speak for the entire legislature?' (When asked a less political question, 'how much did the line sitter cost,' he responded wryly 'It's a service' and moved to the back of the line.) (According to Alex, Marcia had also turned her in as a line sitter but security and the rest of the line did not seek my ouster.) Always the enforcer, Marcia had also alerted security to another fellow, who had seemed harmless to me, but who she claimed was delusional. Indeed, later when he attempted to enter the building with us, the police stopped him and he claimed to have 'made special arrangements to get in.' Needless to say, he was stopped.Alex was photographing not only the attorney line but also the public line on the other side of the building and the emerging demonstrations on the plaza.

Inside the Court

As the pink blush of dawn peeked through the trees, we began to get ready for the doors to open. Security officers more frequently asked: are you members of the Supreme Court bar? Attorneys continued to arrive and looked surprised as they discovered we were the beginning, not the end, of the line. Finally, at about 7:30 we were escorted into the Maryland Avenue entrance of the building, passing our blankets, chairs and other evening accoutrements through the security machines and walking through the metal detector and having briefcases and pocketbooks searched again. We lined up again ('Keep your same order, please'), our names were checked in computers against the roster of Supreme Court Bar, and we received cards with our line number (I was number 5). Despite a later request to keep the numbered cards as souvenirs, we had to hand them over (no e-bay trading of Supreme Court memorabilia).
Another line up, this time, inside the building where we could flee briefly to the restrooms for morning ablutions prior to our appearance in the court. Despite our sartorial attire and elevated status as members of the Bar, a female guard with a commanding presence with a voice to match, periodically reminded us to straighten our line and lower our voices.

At about 9 a.m. we were escorted to another part of the building for another wait before going upstairs to check our bags and electronic devices (I was still carrying the folding chair, a large basket with 2 blankets, tennis shoes, leggings and socks). Finally, we were ushered to the courtroom, and like guests at a wedding, shown to our chairs.I was in the front row behind counsel tables and facing the elevated stage where the Court would sit. The room is elegantly furnished and impressive, yet its 200-240 seats make it a fairly intimate setting.
Perpendicular to but adjoining our seating area was the press - Nina Tottenberg of NPR, Linda Greenhouse of the New York Times, Bob Schieffer of CBS. Behind the seated press were illustrators who stood and sketched the scene throughout the proceedings; there were no cameras or television.

Across the room from the press were seated guests of the justices. Behind the bar were about 10-12 rows reserved for members of Congress and the public. The FEC lawyer and I picked out Senators Patrick Leahy, Orrin Hatch, Ted Kennedy, Fred Thompson, Carl Levin, former Senator Howard Baker, Gore emissary Warren Christopher, Gore Campaign Manager Bill Daley, the Gore children, and George Will. (I overheard a reporter remark rhetorically: 'How did George Will get a seat? By flashing his nazi arm band?' )When the Clerk announced Oyez, Oyez, Oyez - we rose to our feet and the justices walked in. Regardless of how you feel about specific members of the court, the institution provides an impressive and powerful image. I felt the thrill of observing firsthand the judicial branch's deliberations about this historic election.

The Argument
Although a seasoned litigator, Ted Olson, Counsel for George W. Bush, hardly had time to speak a few sentences before he was peppered with questions and observations from almost all the justices. They probed as to whether there was any reason for them to be involved: what was the federal question here? Olson claimed that the Florida Supreme Court substantially rewrote Florida election law in violation of a 1877 federal statute (enacted after the Tilden/Hayes debacle) instructing the states to determine the electoral process. He also argued that the Florida supreme court had violated Article II of the U.S. Constitution, which dictates the selection of electors by the State legislature. In short, he said the Florida court had changed Florida election law after the election.

Justice Ginsburg twice asked why the U.S. Supreme Court should not give due deference to the highest court of the state, regardless of whether or not they agreed with that court's decision. It was good to hear a defense of the Florida judicial system rather than the political bashing that the Republicans have been engaging in (to a certain extent, Olson was doing that, even though he protested otherwise).

Next up was a fairly pallid and repetitive advocate, Joseph Klock, representing the Florida Secretary of State (Ms. Harris), who despite Justice Scalia's persistent questioning about the federal angle stuck to his theme: the Florida Supreme Court changed state election law.
Soon it was time for the Gore side with Florida's Deputy Attorney General Paul F. Hancock arguing that the Florida Supreme Court exercised its equitable powers 'to get it right', and thereby resolving conflicting laws that both called for a recount and also set a certification date. Justices Kennedy and O'Connor questioned the dramatic change of the date and, along with Justice Scalia probed whether or not a manual recount was required, as the Florida Court had ascertained.

Finally came Lawrence Tribe, 'Professor Tribe' as the Court addressed him. He was an adroit presenter, admitting to the Court when he had not reached a conclusion about some obscure aspect of the law but conversing with the justices easily about the important issues. His metaphor for the election recount was the need to re-run film of a photo-finish in an athletic contest to determine the winner.

When the time was over - an hour and a half - the Chief Justice announced 'The case is submitted.' We rose for the Court's exit, and we began to make our way out of the courtroom. Encountering Judge Burton of Palm Beach County in the halls, I greeted him: 'we all know who you are' and thanked him for all his hard work. One of my lawyer friends said he could never tell whether the Judge was a Democrat or a Republican, and Burton replied 'Democrat.'
Waiting in yet another line to the cloakroom, I overheard an attorney remark he was a Washington lawyer who had spent time in Miami Dade as a Republican observer. He went to Florida to volunteer his legal expertise as an observer but he also found himself one of the Republican chanters.

After bidding my new found colleagues goodbye, I walked out the building into the cold day where a group of about 75-100 mostly African Americans carrying signs and banners were striding down Maryland Avenue chanting 'Every Vote Counts.'

Media and cameras (but not Alex) were everywhere. As I walked to the front plaza, I observed members of the Falun Gong performing their meditative exercises, African American veterans, vociferous chanters for 'No more Gore', a group of African Americans listening to a preacher exhorting them to honor the memory of WEB Dubois, Martin Luther King, John Brown, and Fannie Lou Hamer. And there were vendors selling t-shirts and gloves.

Helmeted police marched in a display of strength onto the Capitol grounds, people were chanting on both sides of the street. It was loud and boisterous, merchandising mixed with politics.
It was a great day for American democracy and the perfect birthday present for me" (Kay Slaughter, electronic mail, December 1, 2000).

First published on George Loper's wepage: January 2000

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