The Nine [80]
In keeping with the frantic pace, Olson filed the lawsuit on Saturday, November 11. Two days later, Olson stood before Judge Donald M. Middlebrooks in federal court in Miami and asked him to stop the recounts before they had even started. His rationale was pretty thin—that Gore’s “selective” recounts in only four counties violated the Equal Protection Clause of the Fourteenth Amendment, because they emphasized the votes of some counties over others. (Bush, of course, could have cured this problem by asking for his own recounts anywhere he wanted.) The judge had been working as hard as the lawyers: he was ready with an opinion by the time oral argument was completed on Monday.
Middlebrooks rejected Bush’s position and allowed the recounts to proceed. “Under the Constitution of the United States, the responsibility for selection of electors for the office of President rests primarily with the people of Florida, its election officials and, if necessary, its courts,” he wrote. “The procedures employed by Florida appear to be neutral…. I believe that intervention by a federal district court, particularly on a preliminary basis, is inappropriate.” Far from deterred, Baker and the rest of the Bush team had plenty of fight left. The onslaught of litigation prompted by the election had just begun.
The justices and their staffs watched the developments in Florida with the same bewildered fascination as the rest of the country did. But there was one person at the Court who was already thinking several steps ahead in the process. That was Anthony Kennedy.
In part, Kennedy was just doing his job. The justices divide up responsibility for procedural matters by circuit courts of appeals, and Kennedy was assigned the Eleventh Circuit, which included Florida. So he had some reason to monitor the developments there. On the day after Judge Middlebrooks’s decision, Kennedy circulated a copy to all the other chambers. Just keeping you apprised, the cover memo said. Just filling you in.
In a minor but noticeable way, Kennedy had contravened the rarefied mores of the Court. All of the justices read the newspaper; all of them knew what was happening in Florida; none of them needed Tony Kennedy to give them the latest news. It was amusing, more than offensive, that Kennedy was sniffing around the unfolding controversy. The memo showed just a hint of overeagerness to get in on the action. No one else on the Court would have sent that memo. More than any of the other justices, Kennedy loved drama and what he called “the poetry of the law.” Kennedy’s vanity was generally harmless, almost charming—sort of like the carpet in his office.
Understatement was the rule for the decor in most justices’ chambers. Everyone had a few personal touches—O’Connor employed a southwestern motif, with Native American blankets and curios; Ginsburg had opera mementos; Stevens had the box score from the World Series game in 1932 when Babe Ruth hit his “called shot” home run against the Chicago Cubs. (Stevens had attended the game as a twelve-year-old boy.) Kennedy, in contrast, installed a plush red carpet, more suited to a theater set than a judge’s chambers. Worse (or better, depending on one’s perspective), the carpet was festooned with gold