The Nine [93]
Breyer took Kennedy’s question as an invitation to make a play for his vote. If the problem was that the Florida Supreme Court didn’t set a standard for counting the undervotes, why couldn’t they just set a standard now? Or have the Florida courts set one? Or Katherine Harris? Then the recount could begin again, right? Olson grudgingly conceded that a new standard might work. Souter made a similar point. Why not just set a new standard and restart the recount?
Joseph Klock, a prominent Miami lawyer who was representing Harris, went next and gained a measure of immortality for his lack of grace under pressure. In answer to a question from Stevens, Klock called him “Justice Brennan.” (Brennan had been gone from the Court for ten years and dead for three.) A moment later, responding to Souter, Klock called him “Justice Breyer.” Frustrated, Souter sighed, to much laughter, and quipped, “I’m Justice Souter. You’d better cut that out.” Never one to let another justice steal the spotlight, the next voice from the bench said, “Mr. Klock? I’m Scalia!”
Gore had switched lawyers for the second argument, replacing Laurence Tribe, the Harvard law professor, with David Boies, the New York lawyer who had won both cases in the Florida Supreme Court. “I did not find, really, a response by the Florida Supreme Court to this court’s remand in the case a week ago,” O’Connor said to Boies. “And I found that troublesome.” As for the controversy over the standard, O’Connor didn’t understand the fuss: “Well, why isn’t the standard the one that voters are instructed to follow, for goodness’ sake? I mean, it couldn’t be clearer. I mean, why don’t we go to that standard?” In oral arguments, O’Connor’s chaste exclamations—my goodness!, oh dear!, and the like—were surefire clues to the way she was voting.
In oral argument, Boies didn’t have his best day. Souter repeated his concern about the lack of a standard in the Florida decision (and the possibility that different counties might adopt different rules), but he was also looking for a way to restart the count. He said to Boies, “We’ve got to make the assumption, I think, at this stage, that there may be such variation, and I think we would have a responsibility to tell the Florida courts what to do about it. On that assumption, what would you tell them to do about it?”
Boies hesitated. “Well, I think that’s a very hard question”—which produced nervous laughter in the audience. Actually, it wasn’t a hard question. The Supreme Court could simply set a standard or instruct the Florida court to set one.
There was a better answer, and Stevens jumped in and provided it. “Does not the procedure that is in place there contemplate that the uniformity will be achieved by having the final results all reviewed by the same judge?” Under the Florida decision, Judge Lewis in Tallahassee was going to monitor all controversies over the ballot counting. The review by a single judge would take care of any disparities. Boies had the wit to grab for Stevens’s lifeline, saying, “Yes, that’s what I was going to say, Your Honor.”
Olson had only a few minutes for his rebuttal, and he did what good oral advocates always do—he shifted his argument in the direction his audience was already going. He had started by focusing on Article II, but he sensed more interest than he expected in equal protection. Several justices—among them O’Connor, Kennedy, Souter, and Breyer—were concerned about the possibility of different standards in different counties. “There is no question, based upon this record, that there are different standards from county to county,” Olson said. “And that will happen in a situation where the process is ultimately subjective, completely up to the discretion of the official, and there’s no requirement of any uniformity. Now we have something that’s worse than that. We have standards that are different throughout 64 different counties.