Over the past month, we have seen some of the best lawyering
in the country, if not the world. Ted Olson and Laurence Tribe each argued
clearly and persuasively before the U. S. Supreme Court on Friday, Dec. 1.
David Boies in Florida, though unprepared to answer some fundamental questions,
has displayed his impressive analytical and rhetorical skills. The Bush
lawyers, Barry Richard and Philip Beck, kept their case in the Florida Circuit
Court simple and made proper and effective use of the tactic of delay. It’s a
time for lawyers to be proud.
Public lawyers, of course, have been at the bottom of the
reputational barrel for decades, and not without reason. Watergate was mostly
the wrongdoing of lawyers. Iran-contra saw lawyer-created cover-ups. And the
blemish of the Clinton years saw Americans choosing between Ken Starr and the
parsing of language that President Clinton’s lawyers surely created.
The private sector has been no better. The Cochrans and the
Baileys overstating and over-strutting, making preposterous statements on
behalf of clients, have also greatly contributed to the low regard that the
American people have for both lawyers and the legal system.
But now the country has seen the best and the brightest.
Many journalists, talking heads, media pundits and even lawyers themselves
often did not understand the issues and tactics being played out. The seemingly
unsatisfying answers that Mr. Tribe and Mr. Olson gave to the U.S. Supreme
Court justices were the best possible responses to questions that did not have
clear answers. The compromises that Mr. Boies had to make to get his case tried
over the weekend of Dec. 2-putting on a very small and insufficient case, and even
then being frustrated by the Bush team’s delaying tactics-should not in any way
diminish our respect for his prowess.
When the Supreme Court justices did not get their questions
answered, they pushed on bluntly and often rudely. Yet Mr. Olson and Mr. Tribe,
under extraordinary pressure, never overreacted, were always aware of the
judges’ clear concerns and biases, and responded appropriately.
When Justice Ruth Bader Ginsburg accused the Bush camp of
legal, political and rhetorical excesses that nearly bordered on impropriety
and certainly showed great disrespect for the rule of law (“I do not know of
any case where we have impugned a State Supreme Court the way you are doing in
this case”), Mr. Olson’s response was on the mark. “This is a very unusual situation,”
he said, and continued to show why, in his view, the Florida court had acted
When Mr. Tribe was attacked, buffeted and cut off by Justice
Rehnquist’s dismissal of the Florida court (Mr. Rehnquist read the Florida
decision to support a re-count as saying “we find that our state constitution
trumps that legislative intent”), he brilliantly argued that that was not what
the Florida court said.
When I go over trial transcripts and appellate arguments, I
nearly always see things that should have been done differently. The lawyer
should have responded this way or that way, or should have taken a more or less
aggressive approach to frame the issues. But as I go through the legal
responses given by Mr. Tribe and Mr. Olson before the U.S. Supreme Court, I do
not find any situation where they did not give the best and the most
thought-out legal answer. And, in fact, the court on Monday, Dec. 4, admitted
they could not answer the questions they placed before the two lawyers, and
instead asked the Florida court to answer them.
The best lawyers can lose cases that are too difficult. The
worst lawyer can win slam-dunk cases. The question of the lawyer’s skill may
not relate to the outcome. The Democrats knew at the outset that they could win
in only one forum, the Florida Supreme Court. They could not expect to win
before the Secretary of State, before the Florida legislature or before a
hostile Dade County Board. Nor with the U.S. Supreme Court, unless they
presented an overwhelming record.
Unfortunately, that is where the flaw in the case exists-a
flaw with which the Gore team must continue to grapple if they have any shot at
seeing those ballots re-counted in Miami-Dade and having the re-count in Palm
Beach County included in the state vote tally. Having put all their eggs into
that basket, it was dismaying to see how unprepared they were.
Mr. Boies’ manner-soft, agile, wearing his knit ties and
collars too big for his neck, close to giving a Jimmy Stewart “aw shucks”
answer (I may not have the facts of the law, but damn it, I’m on the right
side)-made good television, but it made bad lawyering. Of course, even with the
teams of lawyers at his disposal, it was difficult to pull so many cases
together so quickly and be prepared for all of them.
But in the original case that the Gore team brought to the
Florida Supreme Court, their lack of preparation at the trial and appellate
level was one of the reasons for their ultimate downfall. The two appellate
courts needed factual help, not legal help, so as to arrive at a decision that
would help the Gore team. Often at the beginning of a case, you do not have all
the facts you need. But as you become more educated and more familiar with the
facts and law, you learn where and how to get the other facts. The responses
that the Gore team gave at the very beginning of the trial were no different
from those at the very end of the Florida process.
The Gore team
fundamentally lost when they could not give sympathetic judges the factual
answers to the questions: How long would it take Dade County to re-count? What
was the last date the Florida court could have to certify the election? Was
Dec. 12 an immovable and final cut-off date? Nor did they give the court the
legal and factual answer relating to whether the U.S. Constitution was involved
in the Florida court’s decision, an argument that the U.S. Supreme Court said
was lacking. David Boies, a fine trial and appellate lawyer, confirmed that he
was not a sophisticated Constitutional lawyer.
In fact, not even Jan. 20, the inauguration date, is the
deadline. The 20th Amendment to the Constitution, called “the Lame-Duck
Amendment,” says that the terms of the President and Vice President (Bill
Clinton and Al Gore) end at noon on Jan. 20. If at that time a “President elect
shall have failed to qualify,” then Congress can declare “who shall then act as
President … until a President or Vice President shall have qualified.”
Politically and legally, it would have been better, at the very outset, to
focus on January dates rather than November or December dates. Vice President
Al Gore would not have had to move as quickly; he could have prepared his case
better, and the public would not be waiting day after day for a crisis to be
The bad factual record in the Florida State Court plagued
the Democrats in the U.S. Supreme Court argument. There was nothing in the
record to show how the federal court, either by affirming or reversing
Florida’s highest court, could make a difference.
Interestingly enough, as this is being written, all of the
issues are before the Florida Supreme Court, the best place that Mr. Gore can
be. Yet each of the cases are in the worst possible shape from Mr. Gore’s point
of view. The Florida Supreme Court is unlikely to admit, to the U.S. Supreme
Court and the world, that it did not consider the federal Constitutional issues
or that its opinion lacks clarity. And though the Florida Supreme Court has a
bias in favor of the arguments that Mr. Gore has made-namely that the right to
vote is paramount-it’s unclear whether that argument can override an inadequate
trial record in both of the cases now before the court, ambiguous language in
the Florida law and a belligerent and biased Florida Secretary of State.
Besides Mr. Boies’
failure to present the courts with crucial facts and to take all the time
allowed him by law, Mr. Gore’s case was hurt by the Bush team’s tactics. At the
weekend trial before Judge N. Sanders Sauls of Leon County Circuit Court, the
Bush team ran out the clock on the Gore team through long cross examinations
and repetitive witnesses. Delaying the law often gets a bad name, but it is a
perfectly appropriate part of a legal strategy. Mr. Boies tried to get his case
through quickly, and in so doing had to go with less-than-perfect witnesses, one
of whom was subject to a very damaging cross examination. And, yes, the case
had its “Perry Mason moment,” when the maker of the voting machine was forced
to testify that a manual re-count would be more accurate and would truly tell
all of us how Florida voted-but such a point should have been made earlier, and
by the Boies team’s own witness.
Also contributing to Mr. Gore’s Florida Circuit Court defeat
was Judge Sauls. At the end of the day, the trial judge controls the courtroom.
He can make a lawyer look good or bad. Judge Sauls constantly interrupted the
rhythm of Mr. Gore’s legal team, the rhythm of the direct and cross
examinations. The judge also controls the facts, and he solely defines the
burden of proof that each side has to meet. He reduced Mr. Boies and his team
to the appearance of novices. He kept out facts that the Gore team needed, and
he allowed in facts that the Bush team needed. Whether the Florida Supreme
Court will permit the judge’s actions to be the final say on who shall be President
of the U.S. remains to be seen.
This, however, is all in the course of trying a case. One
side has to win and one side has to lose. The Gore team lost, despite its
stellar legal team.
The supporting cast of lawyers were also excellent. They
framed their questions precisely and got what they wanted out of their
witnesses, proceeding respectful of the system. The Florida justices also
earned our respect for their humor, intelligence and commitment to try and
define a legal way out of this political thicket.
All in all, an extraordinary civics lesson for a country
that badly needs one. And the creation of role models that we should all
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