The Nine [87]
The Democrats could scarcely bring themselves to hope for so sweeping a victory, but at 3:50 p.m. on Friday, December 8, the court spokesman delivered the judgment of the court on the steps of the courthouse in Tallahassee. First, the court agreed that Sauls had erred in certifying the results in two counties—therefore cutting Bush’s margin in Florida from 537 to 154 (or 193). It would be up to Sauls, on remand, to determine whether 154 or 193 was correct. But the more astonishing announcement was to come. “By a vote of four to three, the majority of the court has reversed the decision of the trial court,” the spokesman, Craig Waters, said. “The circuit court shall order a manual recount of all undervotes in any Florida county where such a recount has not yet occurred. Because time is of the essence, the recount shall commence immediately.”
The Florida Supreme Court had resurrected Gore from the political dead.
The entire Gore legal team operated out of a three-lawyer suite in one of Tallahassee’s lesser office buildings. (It was actually a branch of a medium-sized Fort Lauderdale law firm; several larger firms in the state declined to take Gore’s case, apparently out of fear of offending the Republican power structure in Florida.) Initially, this threadbare operation had no cable-television hookup, no high-speed Internet connection, and no room for the dozen or so lawyers who eventually made their way to town to work for Gore.
The Republicans, in contrast, hired the Tallahassee office of the second-biggest law firm in the state and then rented a sprawling office of their own as well. (Later, they procured still another space in a location that they kept secret from the press, so they could prepare for the contest without being interrupted.) And that was just in the Florida capital. The Bush team was even better situated in Washington, where the center of activity moved as soon as the Florida Supreme Court ordered the expanded recount.
Bush’s Supreme Court team, working out of Ted Olson’s offices at the firm of Gibson, Dunn & Crutcher, had, under Baker’s orders, made preparations for all eventualities. So by Friday afternoon, December 8, it already had the rudiments of a brief asking the Supreme Court to step in and stop the recount ordered by the Florida court. The principal drafting was done by two of Olson’s younger partners, Miguel Estrada and Doug Cox, along with Mike Carvin, the Washington lawyer (from another firm) who had argued for Bush in the first case before the Florida Supreme Court. Uppermost in their minds was an observation that their colleague John Roberts had made earlier—that the Court would want this case. And like all other advocates before the Rehnquist Court, the Bush lawyers knew the key vote and their most important audience—Sandra O’Connor.
As always for O’Connor, the practical consequences would matter more than the legal theory, so that’s where Olson and company focused their brief. “Few issues could be more important than those presented in this case. At stake is the lawful resolution of a national election for the office of President of the United States,” they wrote. The Supreme Court had to intervene, and the justices couldn’t just grant cert; rather, they had to issue a stay and stop the recount in Florida before matters went further out of control. “This Court’s review is essential in this case in order to protect the integrity of the electoral process for President and Vice President of the