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Maybe it wasn’t surprising: A bench that had split on a razor edge two days earlier on whether to issue a stay was clearly conflicted when it took up Bush v. Gore at oral argument on Dec. 11. So conflicted, in fact, that the Gore legal team left the Supreme Court offering more than the obligatory positive spin about how the arguments went. They actually went to work on briefs and orders that would aid the Florida courts in getting the recount of ballots restarted again. All that was for naught, once the Court’s fractured ruling emerged late the next day. But for 90 minutes of oral argument, it seemed possible that the Supreme Court could breathe new life into the Gore election challenge. Justices on both sides of the 5-4 divide that halted the recount on Dec. 9 seemed genuinely curious during 90 minutes of oral argument about how the recount could be restarted, what standards would be imposed, and whether it could still be done in time to give Florida the 25 electoral votes it is due. At one point, Chief Justice William Rehnquist asked Gore lawyer David Boies how many ballots “will be involved in this recount.” Rehnquist seemed to be reassured when Boies said 60,000, rather than the figure of 177,000 cited by one Florida judge a few days before. Several justices also seemed hesitant to second-guess the judgment of the Florida Supreme Court, which ordered the hand recount on Dec. 8. “To say that the legislature of the state is unmoored from its own constitution and it can’t use its courts,” said Justice Anthony Kennedy, “seems to me a holding which has grave implications for our republican theory of government.” Kennedy was one of the five justices who voted for the surprise stay of the recount. As it was on Dec. 1 when the Florida election dispute first came before the Supreme Court, the chamber was filled with high-profile spectators and high expectations for a decision that could decide the outcome of the Nov. 7 election. Notables ranging from Jesse Jackson to Bob Dole filled the seats, and David Boies chatted with many of them, apparently unafflicted by the last-minute butterflies that keep most on-deck attorneys glued to their seats before argument. Boies took on the arguments at the last minute Saturday night, Dec. 9, after he and Harvard law professor Laurence Tribe agreed that much of the focus in this case was on Florida election law that Boies has become immersed in over the past month. Tribe, who argued for Gore Dec. 1, was counsel of record on the Gore brief on Dec. 11 and helped Boies prepare the day before, but he was not in the courtroom. Much of the argument did indeed focus on Florida law, and Boies’ knowledge of the law and the background of the recount helped his cause. The standard for the recount articulated by the Florida Supreme Court –discerning the “intent of the voter” — seemed too vague for several justices, who worried that it violated the equal protection clause of the 14th Amendment. “What’s bothering Justice Kennedy, and it’s bothering a lot of us here,” said Justice David Souter, “is we seem to have a situation here in which there is a subcategory of ballots in which … there is no genuinely subjective indication beyond what can be viewed as either a dimple or a hanging chad. Why shouldn’t there be one objective rule for all counties? And if there isn’t, why isn’t it an equal protection violation?” Boies said there might be an equal protection violation if one county counts dimpled ballots and another does not. Prompted by Justice John Paul Stevens, Boies added that any variation in standards would be cured by the fact that one judge would review the final results. Rebutting the equal protection claim, Boies noted that county-to-county differences between voting machines can also produce disparities in how votes get tallied. Boies, arguing before the Supreme Court for only his second time, seemed more hesitant in his presentation than he has been in his Florida court appearances in recent weeks. After the argument, he acknowledged he had fielded some questions from the justices that “I wasn’t entirely prepared for.” Though it ultimately proved important in the Court’s final decision, the Dec. 12 deadline for naming electors got little mention during oral argument. Justice Stephen Breyer seemed to brush it off in one question directed at Bush lawyer Theodore Olson, asking what standard could be used for a recount “on the assumption that it starts up missing the 12th deadline but before (December) 18th,” when electors meet in their state capitals. Olson, who also represented Texas Gov. George W. Bush before the high court on Dec. 1, argued strenuously that the Florida Supreme Court had made new law in its Nov. 21 ruling that extended the certification deadline and then its decision Dec. 8 ordering the recount. “There was a major overhaul in almost every conceivable way [in the Dec. 8 ruling],” Olson said. Almost acknowledging their role as swing votes in the case, Justices Kennedy and Sandra Day O’Connor dominated the early questioning of Olson. Asserting that the Florida Supreme Court overstepped its authority, Olson noted that Florida law gave some recount duties to trial courts in the state but said nothing about appellate review. “It may not be the most powerful argument we bring to the Supreme Court,” Olson added. Kennedy drew laughter when he replied, “I think that’s right.” Justice Antonin Scalia seemed most sympathetic to Olson’s arguments, and Ruth Bader Ginsburg the least. As she had on Dec. 1, Ginsburg seemed insistent that the Supreme Court defer to Florida’s highest court on the interpretation of its own state laws. Pressed by several justices to state an acceptable standard for a possible recount, Olson said, “Well, certainly, at minimum, Justice Breyer, the penetration of the ballot card would be required.” Miami lawyer Joseph Klock Jr., representing Florida Secretary of State Katherine Harris, provided some comic relief during his 10 minutes of argument, which came out of Olson’s 45. He addressed Justice John Paul Stevens as “Justice Brennan” and misidentified Souter as “Justice Breyer,” although he proceeded unflustered after both errors. When Scalia next asked a question, he told Klock, “I’m Scalia.” More substantively, Klock resisted any suggestion that the Court could articulate a standard for any possible recount, insisting that would have had to come from the state legislature before Election Day. — Tony Mauro THE WAR ON THE STREETS Going into last week’s oral argument, George W. Bush may have had a 5-4 advantage inside the Supreme Court. But Al Gore appeared to command the majority of the demonstrators outside. Of course, the Gore camp had more to protest: On Dec. 9, the Court’s more conservative members had ordered a stop to manual vote recounts in Florida that were critical to the vice president’s chances for the White House. The coalition of Chief Justice William Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas bore the brunt of the angry Gore supporters on Dec. 11. “Count the votes, traitors,” read one sign, which featured cutout pictures of the five justices. “Impeach Scalia et al,” read another. “Get politics out of the Supreme Court and vice versa,” read a third sign. Outnumbered but no less passionate on Dec. 11 were the Bush supporters. “Supreme Court please stop the madness today!” one signed begged, its holder hoping for a quick ruling sealing Gore’s electoral fate. Mike Wallace, a Bush backer from Stafford, Va., noted that the crowd was a little smaller than the mob that gathered 10 days earlier, when the first high court argument took place. “I think most people see the handwriting on the wall,” he said. The weather certainly could have been another factor in the smaller crowds. Round One took place on a chilly but sunny day; Round Two was wet and barely above freezing. About 200 people stood in line along East Capitol Street for the chance to see the arguments in person, at least 60 or so had been waiting since early the day before. By comparison, about 300 waited for the Dec. 1 arguments, said John Fucetola, a 20-year-old who waited in the cold for both arguments. Attorneys in particular shied away from waiting for a seat to Bush-Gore II. On Dec. 1, well over 100 stood in line just to get into the Supreme Court’s lawyers lounge, where the argument could be heard on a loudspeaker. A handful waited in line last week, the no-shows likely willing to wait until news networks played the Court-released audiotape immediately after the argument. The crowds outside let out deafening cheers as lawyers and politicians exited. They cheered wildly for the Rev. Jesse Jackson and lustily booed Bush attorney Theodore Olson and the two senior members of the Senate Judiciary Committee, Chairman Orrin Hatch, R-Utah, and ranking minority member Patrick Leahy, D-Vt. They embraced lead Gore lawyer David Boies as if he were a rock star, chanting, “Thank you, David!” — Jonathan Ringel MERRITT’S ATTENTION A call for Justices Clarence Thomas and Antonin Scalia to recuse themselves from the case of Bush v. Gore last week came from an unexpected source: a respected federal appeals judge. Gilbert Merritt, former chief judge of the 6th U.S. Circuit Court of Appeals and former chair of the executive committee of the Judicial Conference, found himself quoted by The New York Times on Dec. 12 questioning whether Thomas should stay in the case in light of his wife’s job. Virginia Thomas works at the conservative Heritage Foundation where she has been canvassing names for possible jobs in the next administration. According to an editor’s note in the Times on Dec. 13, Thomas said her transition efforts were nonpartisan, a statement that had been omitted in the original story in most editions. As Merritt tells it, Scalia’s apparent decision not to recuse bothered him even more. Scalia’s son Eugene is a partner in the D.C. office of Gibson, Dunn & Crutcher, where fellow partner Olson represented George W. Bush in arguments before the Court. Eugene Scalia says he has not worked on the case. Others at Gibson Dunn have said that even though Eugene Scalia does appellate work, an elaborate accounting procedure has been developed to ensure that Scalia’s partnership share does not include any revenue generated from the firm’s extensive Supreme Court practice. In 1993, Justice Scalia was among seven members of the high court who signed and publicly released a “statement of recusal policy” to spell out how they would handle ethical problems raised by family members practicing law. Under that policy, the justices said they would recuse in individual cases if their relatives are partners in firms that represent parties in those cases, “unless we have received from the firm written assurance that income from Supreme Court litigation is, on a permanent basis, excluded from our relatives’ partnership shares.” Gibson Dunn’s Thomas Hungar, who worked with Olson on the election case, said last week that “such a written assurance was filed a couple of years ago” when Eugene Scalia was made a partner at Gibson Dunn. “That doesn’t cut it ethically, for me,” says Merritt. “He may not benefit directly, but his firm will profit greatly. It’s a great boon for them, and I think it’s a substantial interest.” Merritt, who sits in Nashville and is a longtime friend of the Gore family, says he voiced his concerns about Scalia’s participation to several friends in recent weeks. One of those friends apparently passed his name along to the Gore campaign, where an unnamed operative told the Times. The reporter called Merritt and told him about the Thomas family situation. Merritt responded that Virginia Thomas “has obviously got a substantial interest that could be affected by the outcome” of the Supreme Court case. Merritt, who was once under consideration by President Bill Clinton for a Supreme Court seat, was unapologetic about criticizing Supreme Court justices — something most appeals judges shy away from. The first canon of the code of conduct for federal judges, Merritt notes, requires judges to “participate in establishing, maintaining and enforcing high standards of conduct.” He adds, “As I read it, we should not knowingly permit violations of the code of conduct go unnoticed, whether the case is a little one that only the parties care about, or a big one that the whole nation is concerned about.” Reflecting on his unusually public role in the controversy, Merritt said of the justices, “I suppose they’re all going to be pissed off at me. But I don’t care. I’m going on senior status in a couple of weeks.” Merritt turns 65 on Jan. 17. — Tony Mauro CLERKS ON CAMERA Over the last two weeks, a great flock of former Supreme Court clerks flew into the media spotlight to opine on the inscrutable workings of the high court. A cursory Lexis search reveals no fewer than 25 former clerks, of sitting justices, who have commented publicly on the Court’s machinations since Dec. 1. “They’re coming out of the woodwork,” observes Heather Gerken, who clerked for Justice David Souter. Now an assistant professor at Harvard Law School, Gerken herself appeared several times in the last few weeks on CNN and other networks. Several of the ex-clerks who have appeared in recent days are experts in their fields. (Gerken, for example, is a bona fide election law scholar.) And several routinely comment in the press on legal matters. But rarely, if ever, have so many been called to the cameras for the purpose of revealing the Court’s inner workings. The media are “just desperate to have someone who can tell them what’s going to happen next,” says Gerken. “And it just seems more interesting if they can say, ‘We’ve got someone who’s an insider to explain it.’ “ There’s nothing improper about ex-clerks commenting on Court procedures, notes Michael Dorf, a professor and vice dean at Columbia Law School. Dorf, who clerked for Justice Anthony Kennedy, appeared on CNN, NBC, and CNBC to discuss the Court and Bush v. Gore. Current clerks are “strictly forbidden” to comment to the press, Dorf explains, and former clerks are enjoined from speaking about any case that came before the Court during the clerks’ tenure. The erstwhile clerks who have littered the airwaves in recent weeks haven’t broken those rules, Dorf says. Nor, despite the media’s best efforts, have they violated the Supreme taboo against pegging a justice’s position to political or personal motives. “Especially the TV journalists ask questions of clerks that assume the clerks have some way of reading the minds of the justices,” Dorf says. “The clerks have been very good about saying, ‘I don’t know.’ “ Gerken suggests the ex-clerks may actually be doing the Court, and the public, a service. “Law clerks are going to be more respectful than some reporters,” she says. “They speak highly of the Court, they can correct the many misperceptions, and they can do so authoritatively.” Of course, among the coterie of former clerks, the discussion may be less elevated. “Law clerks talk differently to each other than they do in public,” Gerkin admits. “I know for a fact they’re more respectful when they’re speaking publicly.” — Otis Bilodeau

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