Indeed, it was for Bush–and it marked the end of an equally wild ride, but in the opposite direction, for Al Gore. He got his good news first–in the sunlit library of the vice president’s mansion. He reacted to the Florida court’s ruling by inviting guests in for champagne and by joining Joe and Hadassah Lieberman for a Jewish welcome-the-Sabbath ceremony. (They’d brought candles and challah for the occasion.) Later, Gore chairman Bill Daley and other aides got a standing ovation at the Palm Restaurant. “We live for today!” said a giddy aide, Tom Nides. The party balloons burst the next afternoon. Gore was at the mansion, preparing to play host to the governor of Alabama and his wife, when he got the bad news about the U.S. Supreme Court from legal adviser Ron Klain. Gore canceled dinner and hunkered down to make calls. “I’ve been counted out before,” he told Klain. “Let’s stay focused.” But it was hard to rally the troops. Nides summarized the Gore team’s new position– “f—ed”–and its game plan: “Hold our breath, polish our resumes.”
A month after election night, Bush and Gore were reliving its head-spinning gyrations. This time it wasn’t the votes that buffeted them, but legal rulings that the votes provoked. An election between two men had metastasized into a proxy war between two courts, themselves split, in Tallahassee and Washington. In a divided country, soon to be led by a divided Congress and a potentially enfeebled president, the courts had been invited to take over a national election. They had done so. And why not? Since the 1960s, Americans have increasingly come to feel that every public wrong has a legal redress, every right a writ to protect it, every unfairness a cure from the equitable powers of justice.
The courts’ intervention might produce a fragile legal peace–or an election careering toward an even more chaotic denouement in Congress next January. The risk was real: a full-scale constitutional crisis with competing slates of electors, warring lawyers and, finally, the spectacle of a president’s being chosen not in the country but on Capitol Hill for the first time in more than a century.
And even if the Supreme Court settled the matter quickly (by flatly overruling the Florida court), much damage had been done. The courts’ intervention exposed the raw undercurrent of politics that runs beneath them. Their actions sullied the naive but necessary faith in their Olympian neutrality. In pulling the legal fire alarm, we may have set the fire station ablaze–with high courts just another set of institutions cuffed around in the hardball culture. As for electoral politics, last week’s events may lead to a season of rancor that will make last fall’s long campaign look tame.
Though the justices wear sober black robes, their moves last week were center stage in a political circus. In Tallahassee, the appearance of the court clerk on the courthouse steps drew a huge throng of media and demonstrators. When he announced that the court, by a 4-3 vote, had ordered the hand recount, cheers echoed throughout the plaza–and furious Republicans immediately denounced the court as a hive of partisan Democrats bent on electoral theft. “This judicial aggression must not stand,” said the GOP’s leading firebrand, House Whip Tom DeLay.
The Bush camp’s reaction was only slightly more tempered. Briefed on the ruling a few minutes in advance, Bush family consigliere James A. Baker III was livid. “One lousy vote,” he muttered to an aide. In public two hours later, he shed his corporate cool and delivered a fiery stump speech. “This is what happens when, for the first time in modern history, a candidate resorts to lawsuits to try to overturn the outcome of an election for president,” Baker said. “It is sad for Florida. It is sad for the nation. And it is sad for our democracy.”
Of course, it wasn’t the least bit sad when the Bush campaign resorted to the courts–including the U.S. Supreme Court–to halt the recounts. After the high court, on an angrily disputed 5-4 vote, agreed to stop the count last Saturday, Baker re-emerged, looking chipper, and pronounced the Bush campaign “pleased.” The new order stopped the manual recounters in their tracks. Cable TV showed their getting up from their folding tables in the Leon County Public Library. Outside, a crowd of 50 Bush supporters shouted “Give it up, Gore,” and sang “Nah, nah, nah, nah, hey, hey, hey, goodbye.”
Now it was the Democrats’ turn to decry judicial intervention. They noted that the five justices voting to stay the recount–William Rehnquist, Anthony Kennedy, Antonin Scalia, Clarence Thomas and Sandra Day O’Connor–were sent to the court by conservative Republican Presidents Ronald Reagan and George H.W. Bush. “The thing that’s clear is Gore won Florida,” said Rep. Donald Payne of New Jersey. “Now the question is, whether the courts will allow the true result to come out.” Sen. Patrick Leahy, the mild-mannered senior Democrat on the Judiciary Committee, was uncharacteristically caustic, denouncing the high court’s “extreme judicial activism.”
The Supreme Court itself was looking very much like a political arena unto itself, its justices divided roughly along party and certainly philosophical lines. “The majority has acted unwisely,” fumed Justice John Paul Stevens in dissent, writing for a foursome that included the court’s two Democrat-appointed justices, Ruth Bader Ginsburg and Stephen Breyer. There was no showing of the kind of “irreparable harm” necessary to halt state action pre-emptorily, he wrote. Justice Scalia shot back–vehemently. “The counting of votes that are of questionable legality does in my view threaten irreparable harm,” he wrote, by “undermining the public acceptance democratic stability requires.”
But when this chaotic legal season ends, the man who manages to stumble into the Oval Office may not have much “public acceptance.” In the new NEWSWEEK Poll, 40 percent of voters polled Friday predicted that Bush’s effectiveness would be “seriously hurt” if hand counts ultimately showed Gore won. It evidently won’t be easy for the self-proclaimed “uniter” to bring the country together. Gore, however, would have an even harder time, the poll shows. Forty-five percent of those polled said that his effectiveness would be seriously hurt.
The poll also showed that the Florida vote–even if permanently stopped by the Supreme Court–could be the Banquo’s ghost at Bush’s cabinet table. By a 62-33 percent margin, voters said they thought it would be “unfair” not to manually re-examine the 10,000 “undervotes” from Miami-Dade County. By 72 to 21 percent, they supported a hand count of all the undervotes statewide. Under freedom-of-information laws, academics and reporters–not to mention Democratic operatives–can examine those ballots next year. If Bush wins, he’d better hope that he’s riding high in the polls when that belated “recount” emerges–or, better, that the count has him winning.
For now, both men were focused on the White House–and would be all too happy to deal with their “acceptance” problem once they got there. Bush, unbeaten before the temporary Friday reversal, had told his top speechwriter last week to begin thinking about an Inaugural Address. He finished assembling his White House staff list. Bush worked the phones, running the names of possible cabinet members by adviser-luminaries. One of them, NEWSWEEK has learned, was CEO Jack Welch of General Electric–who wasn’t interested in a job himself, but who was happy to give Bush his views on the qualifications of leaders from the business community.
Bush had the easier route to the White House–if anything in this election can be considered easy. Of course, the quickest route to victory, and a prompt Gore concession, would be a timely, favorable ruling from the U.S. Supreme Court. Many court watchers thought that result was likely. They reasoned that the Supremes wouldn’t have voted 5-4 to stay the count if they weren’t intending to stop it for good. That was especially likely, the analysts said, since the federally mandated deadline for officially certifying a slate of presidential electors was Tuesday–one day after the high court’s hearing.
Even if the high court did nothing, that, too, would favor Bush. He had, after all, been certified the winner twice–once by 930 votes and a second time by 537. Even if the court relented and allowed the count to continue, there might well not be enough time to complete the manual recount. “The timing issue is the single most disappointing point,” Gore’s lead appellate attorney, David Boies, glumly noted. And even if the count resumed, there was no guarantee that it would favor Gore in the end. Indeed, some Gore strategists had been worried about just such a result if the hand count resumed. A group of academic statisticians calculated last weekend that Bush might gain as many votes in GOP-leaning counties as he would lose elsewhere.
Yet if he lost a recount, Bush would have other–though more heavy-handed–methods of winning the White House. One would be to use the GOP-dominated Florida Legislature. Under the U.S. Constitution, it has the ultimate residual power to name a slate of presidential electors if the scheme it set up by law for doing so fails to produce a result by this Tuesday. If the recount resumes–and it somehow manages to be heading toward the finish line by Tuesday–the legislature could step in on that day. More likely, the legislature could act on Wednesday, approving a slate in time for the federally mandated meeting of electors nationwide next Monday. Then that slate would compete with any possible Gore slate for approval in Congress.
And Congress will be as split as the courts themselves if its members have to make a decision. Under the U.S. Constitution, a slate has to be accepted by a majority of both chambers to be valid. The assumption is that the Senate, split 50-50, would reject the Bush slate on a tie vote and that the House, where the GOP has a 9-vote majority, would reject the Gore slate. But it’s at least theoretically possible that renegades in either party could upset those close calculations. If everyone sticks with his party, Gore would win only if the Florida court is able to order state officials–including Bush’s brother Jeb–to “certify” a Gore victory by the time the electors are scheduled to cast their ballots next week. Gore had one other long-shot chance: to persuade electors in Florida or elsewhere to switch allegiance and vote for him. It was a course suggested by The Nation magazine last weekend–but not by anyone in Gore’s camp.
Gore and his allies were left last weekend to savor the melancholy memories of their moments of almost-triumphs. Friday afternoon and evening were the sweetest of times, when the vice president evidently thought victory was possible–if not at hand. In earlier weeks, Democratic representatives had volunteered readily for surrogate duty, but by last Friday morning they were hard to find. But after 4 p.m. Friday–when the Florida Supreme Court ruling was announced–suddenly there were surrogates galore. Several signed up for monitoring duty in the recounting counties, joining a planeload of Gore aides and election lawyers from around the country. Gore was planning to continue hosting a series of holiday parties at the Naval Observatory, next door to the mansion. Washington loves a winner, and one aide wondered aloud how many RSVPs had come in after 4 o’clock. “We should have cut off the RSVPs at 3:59,” she mordantly observed. After the U.S. Supreme Court ruling the following day, some of the guests might not show up.
Perhaps Bush could empathize with Gore. The two of them, after all, had been through the same ordeal. When the Florida Supreme Court ruling was announced, Bush suddenly faced the grim prospect of presiding at a staff party at the governor’s mansion that evening–and another one on Sunday. It was almost a relief to listen to Baker and other lawyers explain the recount details and that a squadron of lawyers had been dispatched to Florida to monitor the new recount. Bush had planned to send his political guru, Karl Rove, to Washington to begin planning legislative strategy. Instead, Rove was sent to Tallahassee. “I’m out of reactions,” said Karen Hughes, Bush’s industrious but exhausted communications adviser.
Bush rose early Saturday–6:30 a.m.–and packed up for Crawford. Before leaving Austin, he checked in with Hughes. “Have we won yet?” he joked. It was a typical show of Bush family insouciance, and a reasonable question to ask. By later that day he had even more reason to ask it–and hope he’d like the answer.
