High Court to Hear Vote Case Today

With the presidency of the United States on the line and five justices already on record against him, Vice President Al Gore will send one of the nation’s most celebrated lawyers to the Supreme Court this morning hoping for an upset.

But lawyers and law professors who study the high court said Sunday that David Boies will be in a position much like that of a defense lawyer who learns just before closing arguments that the jury already has voted his client guilty.

On Saturday, the high court issued an emergency order by a 5-4 vote that brought recounts of Florida’s ballots to a halt. As Justice Antonin Scalia noted at the time, granting the stay meant that “a majority of the court, while not deciding the issues presented, believe that the petitioner [Texas Gov. George W. Bush] has a substantial probability of success.”

So Boies, a 59-year-old Yale Law School graduate who has handled some of the nation’s best-known cases, including the Justice Department’s antitrust case against Microsoft, faces long odds and a skeptical audience. “I have a hill to climb,” Boies acknowledged Sunday.

“I don’t know of any case in which, two days before you have to get up to argue, the court basically has announced you have lost 5-4,” said Harvard University law professor Arthur Miller, who has argued five cases at the high court.

Or, as New York University law professor Stephen Gillers put it, Boies’ challenge goes beyond that of the proverbial magician pulling a rabbit out of a hat: “First, you have to find the rabbit.”

Several legal experts suggested that the best argument for Gore’s side in George W. Bush vs. Albert Gore Jr., 00-949, might be one that focuses less on the legal niceties than on the political position in which the court now finds itself.

“I don’t think there’s any way to win this with a straight-up argument on the law,” said Carter G. Phillips, who argues regularly before the court.

David D. Cole, a professor at the Georgetown University Law Center, agreed. “I think you have to raise the specter of a 5-4 decision doing immeasurable damage to the court as an institution,” he said.

Suggesting to the justices that they are running the risk of damaging the legitimacy of their court is a delicate matter, USC law professor Erwin Chemerinsky said.

But “at this stage, going in, you have lost, so you throw your Hail Mary pass,” he said. “It has to be made explicit that these justices will be most remembered in history by what they do in this case.”

Reminding the justices of the problems that could be caused by a 5-4 opinion deciding the presidency might sway Chief Justice William H. Rehnquist, some legal experts suggested.

But most attorneys and law professors who follow the court agreed that Boies’ best chance for changing a justice’s mind lies with Justice Sandra Day O’Connor, who is often the court’s ideological fulcrum. A third possibility for him might be Justice Anthony M. Kennedy. Both were appointed by President Reagan.

None of the attorneys interviewed thought there was any chance to turn around Scalia or his ideological soul mate, Justice Clarence Thomas.

Once before, in an extremely high-profile case in which many observers thought the Supreme Court had made up its mind before the arguments, O’Connor and Kennedy, along with Justice David H. Souter, delivered surprise votes. That case, in 1992, reaffirmed the right to an abortion laid down in Roe vs. Wade. Many legal experts had expected the conservative justices to overturn the abortion ruling.

Get on Justice’s Wavelength

This time, to appeal to O’Connor, a former state legislator and state court judge, Boies needs to try to make the decision of the Florida Supreme Court to resume hand counts “sound as routine as possible, and remind the justices that state courts resolve election challenges all the time,” said Stanford University law professor Pamela Karlan.

“You have to do your best to get on O’Connor’s wavelength and you can’t do it by waiting for her questions,” said Floyd Abrams, the New York-based specialist on the 1st Amendment who has argued 13 cases before the high court.

But while O’Connor might be Gore’s best hope, Miller noted that just more than a week ago, when the election case was last at the high court, she seemed sharply critical of what the Florida Supreme Court had done. The state justices’ decision on the deadline for counting votes represented a “dramatic change” in state law, she said then.

If you are Boies, “a shiver runs down your spine” when you recall that comment, Miller said. “Maybe you are just knocking your head against the wall.”

In the brief filed Sunday, Gore’s lawyers began to lay the groundwork for an argument about the court’s wider role, pointedly reminding the justices that before the verdict of history, all the ballots will be counted.

“The only question is whether these votes will be counted before the electoral college meets to select the next president, or whether this court will instead relegate them to be counted only by scholars and researchers, under Florida’s sunshine laws, after the next president is elected,” Gore’s lawyers said.

“Nothing in federal law, the U.S. Constitution or the opinions of this court compel it to choose the second course over the first,” said the brief, primarily written by Harvard law professor Laurence H. Tribe.

The brief added that not counting the votes now would taint “the results of the election in Florida and thereby the nation.”

Tribe represented Gore at the high court when the case was last before the justices. The announcement Sunday that Boies would argue this time surprised many observers. Tribe has argued at the high court 29 times and is considered the preeminent constitutional scholar of his generation, as well as a top-flight oral advocate.

By contrast, Boies has argued before the Supreme Court only once; he lost 9-0--to Tribe.

According to a senior official on Gore’s team, the decision to have Boies argue the case was in part designed to underscore the Democrats’ basic claim that this case is really all about Florida law--not the U.S. Constitution--and should therefore be governed by Florida’s courts.

“This whole thing rests on whether the state laws are really controlling here or whether some federal issue is involved,” the Gore aide said. Boies “has been so steeped in these state law issues in Tallahassee that it just made sense.”

Legal experts differed about whether Gore made the right call.

“Larry Tribe is a superb oral advocate, but there will be so many factual questions and so many arguments . . . that the Florida Supreme Court overstepped that it really is useful to have the lawyer who has been on the scene in Florida,” Abrams said.

But John C. Yoo, a UC Berkeley law professor who clerked for Thomas, disagreed. “Tribe is one of the great Supreme Court lawyers; he is excellent at hearing the questions, figuring where the justices are going and trying to shape it to his clients. He could figure out the best way to appeal to Kennedy and O’Connor.”

Most legal experts said they thought that Boies could count on the votes of the court’s moderate liberal wing--Justices John Paul Stevens, Souter, Ruth Bader Ginsburg and Stephen G. Breyer--who dissented from the court’s decision to halt the recounts Saturday. “To stop the counting of legal votes, the majority today departs from three venerable rules of judicial restraint that have guided the court throughout its history,” Stevens wrote for the group.

By contrast to the task facing Boies, Bush’s lawyer Theodore B. Olson, and Joseph Klock Jr., who represents the Florida secretary of state, face a less daunting job.

With the justices indicating that they are inclined to side with Bush, Olson needs only to give them a basis in federal law for doing so.

In his earlier briefs in the case, Olson focused on only one or two legal theories. This time, his final brief reads like the legal equivalent of a restaurant menu: It gives the justices an array of choices.

They could hold, Olson wrote, that the Florida Supreme Court “lacked jurisdiction” to even hear an appeal of Leon County Circuit Judge N. Sanders Sauls’ ruling that rejected Gore’s claims. Florida law says election challenges are “to be contested in a circuit court,” the Bush brief notes, and the law does not specifically mention any right to appeal a circuit court ruling.

Ordinarily, the right to appeal could be assumed based on Florida’s Constitution. But Bush argues that, because the U.S. Constitution says that decisions over presidential electors are a matter for the state Legislature, the state courts can only exercise powers that the Legislature specifically has given them.

Focus May Be on Equal Protection

If that argument does not work, Olson’s brief also said the court could focus on “dimpled chads.” The fact that in a recount each county will use different standards for deciding what ballots are legal violates the U.S. Constitution’s guarantees of equal protection and due process of law, he asserted.

“Voters who cast identical ballots in different counties will likely have their ballots counted differently,” he wrote.

The Florida Supreme Court has created a “regime of arbitrary, selective and standardless manual recounts,” the brief says. “This unfair, new process cannot be squared with the Constitution.”

That argument faces the problem that the United States does not have any uniform voting standards, noted Yale University law professor Akhil Reed Amar. Some areas use punch-card ballots. Some use electronic vote recorders. Some still use paper ballots. The Supreme Court might be wary of a ruling that suggests such disparities violate the U.S. Constitution.

As a third option, Bush’s lawyers argue generally that the “new standards, procedures and timetables” set by the Florida Supreme Court during the postelection battle “usurp the Legislature’s exclusive authority” over how the state selects its presidential electors.

Because Article II of the U.S. Constitution gives state legislatures the power to set the rules, the changes made by the state courts in the election laws are unconstitutional, Bush’s brief asserts.

To counter those claims, the brief for Gore asserts that it would represent a change in Florida law to not count all remaining ballots.

Florida law says the presidential electors are to be chosen based on the “actual outcome of the popular vote,” they say.

“These statutes expressly provide for ‘judicial determination’ of any contest to determine the rightful winner of an election,” they add.

So in the eyes of Gore’s lawyers, for the U.S. Supreme Court to block their attempt to contest the election would be to unfairly change Florida law.

“The question is whether this [Supreme] Court may properly override Florida’s own state law process for determining the rightful winner of its electoral votes,” Gore’s brief concludes.

The 90-minute oral argument will be taped and broadcast nationally shortly after the argument’s scheduled conclusion at 9:30 a.m. PST.

*

Times political writer Ronald Brownstein contributed to this story.

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The Lawyers

For Bush: Theodore B. Olson

-- Former assistant attorney general in the Reagan administration.

-- Has argued more than a dozen cases before the high court.

-- Represented the Virginia Military Institute in its attempt to remain all male, and four white students in Texas in a case that led to the end of affirmative action at University of Texas Law School.

-- Close friend of former independent counsel Kenneth W. Starr.

For Gore: David Boies

-- Won the government’s antitrust case against software giant Microsoft Corp. Most recently represented the music-swapping firm Napster in its fight to stay in business.

-- Has been retained by cigarette maker Philip Morris to help defend it against a $69-billion lawsuit by tobacco growers in 14 states.

-- Left a big New York City law firm to start his own practice in suburban Armonk, N.Y.

-- Known for his remarkable memory, courtroom charm and the black sneakers he often wears to court.

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How They Line Up

The presidential election may be settled by the U.S. Supreme justices, who will hear arguments today in the Florida recount case. The justices’ 5-4 decision on Saturday to suspend the recounts suggest they may rule in favor of George W. Bush.

THE FIVE WHO VOTED TO SUSPEND THE RECOUNTS

CHIEF JUSTICE WILLIAM H. REHNQUIST, 76

(Nominated by Nixon, sworn in 1972)

Elevated to chief justice by President Reagan in 1986; served as a Justice Department official in the Nixon administration and as a private attorney in Arizona. A staunch conservative, Rehnquist has sought to expand the rights of state governments and to limit the authority of the federal government. He favors the overturning of Roe vs. Wade, the court’s decision supporting a woman’s right to have an abortion. Last year, he presided over President Clinton’s impeachment trial in the U.S. Senate.

JUSTICE SANDRA DAY O’CONNOR, 70

(Reagan, 1981)

A Stanford Law School classmate of Rehnquist, she had served as a state appeals court judge in Arizona and as Republican majority leader of the state Senate. She has usually voted with Rehnquist and the court’s other conservatives in rulings supporting the authority of states over the federal government. But she is considered an important swing vote, because in some important cases she has forsaken her conservative colleagues and emerged as a force for moderation.

JUSTICE ANTONIN SCALIA, 64

(Reagan, 1986)

Served as a federal appeals court judge and as a Justice Department official. Scalia is probably the court’s most conservative member. He writes many acerbic dissenting opinions, occasionally challenging decisions even Rehnquist signs. ‘Bad ideas,’ he once wrote, deserve ‘clunking over the head.’ He is a strong opponent of abortion. During oral arguments, Scalia is an especially vigorous and active participant, peppering lawyers with questions that reflect his conservative viewpoint.

JUSTICE ANTHONY M. KENNEDY, 64

(Reagan, 1988)

Appointed to the seat for which Reagan had first unsuccessfully nominated conservative Judge Robert H. Bork. Kennedy had served as a federal appeals court judge in California. Kennedy is, like O’Connor, a potential swing vote; he usually votes with the conservatives but occasionally breaks off to espouse a more moderate position. Along with O’Connor, he voted in 1992 to reaffirm Roe vs. Wade. In oral arguments, Kennedy often leans forward to ask probing questions of lawyers.

JUSTICE CLARENCE THOMAS, 52

(Bush, 1991)

He was the subject of one of the most acrimonious confirmation hearings in the nation’s history -- a dispute over sexual harassment that he denounced as a ‘high-tech lynching.’ Thomas had served as chairman of the Equal Employment Opportunity Commission and as a federal appeals court judge. Thomas has regularly sided with the court’s conservatives. During oral arguments, he sits silently through the court’s hearings without posing any questions at all.

THE FOUR WHO OPPOSED STOPPING THE FLORIDA RECOUNT

JUSTICE JOHN PAUL STEVENS, 80

(Ford, 1975)

He served as a federal appeals court judge and as a private antitrust lawyer. His black, horned-rim glasses and trademark bow ties give him a scholarly appearance. He was first perceived as a moderate -- not a doctrinaire conservative, but also not allied with the liberal wing then headed by Justices William J. Brennan Jr. and Thurgood Marshall. Over the years, however, after more conservative justices joined the bench, Stevens has emerged as something of a liberal. He has voted in favor of abortion rights and opposes decisions that expand the powers of the police.

JUSTICE DAVID H. SOUTER, 61

(Bush, 1990)

At the time of his appointment, he had served only a single day on a federal appeals court in Boston; before that, he had served for seven years on the New Hampshire Supreme Court. The Bush administration assured conservative Republicans that Souter would be a ‘home run’ for causes such as overturning the right to abortion. Once on the Supreme Court, however, Souter quickly diverged from the court’s conservatives and now sides regularly with the more liberal justices.

JUSTICE RUTH BADER GINSBURG, 67

(Clinton, 1993)

Served as a federal appeals court judge. She had been a pioneering advocate for the cause of equal rights for women. During the 1970s, she argued six women’s rights cases at the court and won five of them. Ginsburg is often a stalwart of the court’s liberal wing. She supports preserving the constitutional right to abortion and opposes any official discrimination on the basis of gender.

JUSTICE STEPHEN G. BREYER, 62

(Clinton, 1994)

Served as a federal appeals court judge, as a law professor at Harvard Law School and as chief counsel to the Senate Judiciary Committee. Breyer takes a special interest in complicated cases involving copyright law, antitrust law and government regulation. On social issues, such as abortion, he sides with the court’s liberal wing. He is known for his concise opinions, his desire for consensus and his reluctance to write his own separate dissents.

TUNING IN

Today’s hearing is scheduled to run from 8 to 9:30 a.m. PST. Shortly afterward, the court will release audio of the proceeding. Cable channels CNN, C-SPAN, Fox News Channel and MSNBC plan to broadcast the entire tape, as do local radio stations KNX (1070 AM) and KCRW (89.9 FM). The court will provide a transcript of the hearing on its Web site, https://www.supremecourtus.gov.

Source: Times staff