December 16, 2024 • 33 mins
Attorneys David Boies and Ted Olsen, who represented the Gore and Bush sides, respectively, talk about the unique challenges that came with representing their clients before the Supreme Court.
See omnystudio.com/listener for privacy information.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:16):
Pushkin, you cannot imagine a more tense, pressure packed moment
with all of that at stake, and saying, mister Chief Justice,
may have pleased the court and starting your argument.
Speaker 2 (00:34):
You understand and respect the roles that the lawyer on
the other side.
Speaker 3 (00:39):
Is playing, but you weren't convinced by their case.
Speaker 2 (00:42):
I was not convinced by their case. I was not
convinced by their case. Then I'm not convinced by their case.
Speaker 3 (00:46):
Now, hey, fiasco listeners. Today, in the fifth bonus episode
of our series on the two thousand election, you'll hear
my conversation with two of the highest profile lawyers involved
in the saga of Bush v. Gore, David Boyse and
Ted Olsen. You'll hear what it was like to make
the case for both sides, from having to quickly catch
(01:09):
up on Florida election law, to getting nervous before Supreme
Court oral arguments, to even befriending your opposition. We'll start
with David boys. When Boys got the call to come
down to Florida, he was fresh off of arguing on
behalf of the government against Microsoft in a high profile
antitrust case, and he was working on a licensing lawsuit
in which he was representing Calvin Klein. I asked boys
(01:32):
why he was willing to drop everything and represent al
Gore in the recount.
Speaker 2 (01:37):
If I hadn't been a lawyer, I would have been
a high school American history teaching like my father was,
and to have an opportunity to participate in what was
Even at that stage, we didn't know how important the
case was going to be. But even at that stage,
we knew it was an important case. We knew it
was a case that was going to involve historic decisions.
(01:59):
And to have an opportunity to have a front row
seat and maybe even be a participant with something that
would have been hard to turn down. In addition, I'd
been involved in a few electoral contests before, and democracy
depends on votes being counted and the will of the
(02:24):
people being expressed. You can suppress democracy in lots of ways,
and we suppressed democracy in lots of ways in this country.
But you can also suppress democracy after the votes are
been cast by not counting them fairly and not counting
them accurately. And so the process by which votes are
(02:46):
counted is a critical part of the implementation of democracy,
and I thought that this was going to be something
that was going to be essential to people's confidence in
our democratic process, and also not put too fine a
point on it, making sure that the person who actually
won the election occupied the White House?
Speaker 3 (03:07):
Did did you have a firm feeling at that point
that you know two days out from election day that
Gore was the winner?
Speaker 2 (03:15):
Not really when I was called, And indeed for the
first several days and maybe most of the time that
I was in Florida, I didn't really know who won Florida.
It was simply too close to call. All I knew
is that it was a statistical tie. And what was
going to be critical, I thought, to a fair election,
(03:37):
but also to the people's confidence in our electoral process
that the votes actually be counted the way they were cast.
And I didn't know who was going to win that.
I just knew that it was important that that that happened,
and that happened in an organized way. The first time
(03:58):
that I really became convinced that Gore had won was
actually the Saturday when they stopped the vote counting, because
during the course of the previous Friday and Saturday morning,
the votes had begun to come in, and you could
tell that they were discovering lots of votes predominantly, not overwhelmingly,
(04:24):
but still a majority favoring Gore, and so the margin
was already disappearing at the time that the Supreme Court
prematurely stopped the vote count.
Speaker 3 (04:35):
So tell me what it was like when you got
down there. You flew from white planes, right.
Speaker 2 (04:39):
I flew from white planes. And I got down there
about midnight. Because this all happened the first day I
was called, they didn't get through to me until about
five o'clock in the afternoon. I finished up what I
was doing, got my son Jonathan to pull some cases
on Florida election law so I could read it on
(04:59):
the plane for the first time ever, read the Florida
Statute as well, and arrived down there shortly before midnight.
Went to the campaign headquarters in Tallahassee, and everybody was
still there. I remember what walked in and ron Klain
(05:20):
saw a man said, welcome to.
Speaker 3 (05:21):
Guatemala, referring to Florida. In Florida, if ron Klain was
trying to tell boys that he just landed in a
legal jungle, he was right, But at least he wasn't
completely alone there. As the major lawsuits wound their way
through the Florida courts. David Boys became pals with one
of his counterparts on the bush side, Barry Richard, and
(05:42):
why not they were going through the same thing.
Speaker 2 (05:45):
We were clearly in the middle of the Madge spectacle.
People walked with you, cameras walked with you, every place
you went. Everybody trying to get you to say something
about what was going on.
Speaker 3 (05:57):
Was it most of the reporters coming up to you
in Tallahassee streets or was it normal people who just
seen your face on TV?
Speaker 2 (06:02):
It was both, But I remember, you know, people driving
by and shouting things out either depending on what their
point of view was. Everybody recognized Barry Richards and myself,
and so somebody was always yelling out to you, either
(06:23):
encouraging you or trying to discourage you. It was a
It was very much a participatory spot.
Speaker 3 (06:31):
But you guys were often walking together, right, and.
Speaker 2 (06:33):
Were often walking together, and sometimes they would be showing
the same things that both of us. We were walking together,
and wow, we didn't really know each other prior to
the contest. We became good friends during the contest.
Speaker 3 (06:45):
Where did you guys spend time together? Was there places
in Tallahassee.
Speaker 2 (06:49):
There was a sports bar sort of kitty corner across
the street from where I was staying. I was staying
at the Governor's End, and there was a sports bar
close by where we would go for either a drink
or a meal.
Speaker 3 (07:04):
I think treat to non lawyers, this is like, this
is this is counterintuitive, right, the idea of two lawyers
on the opposite sides of of a case being able
to come together like this, And I feel like the
missing the thing that they're missing is that you guys
found this fun, right, You found an intellectual stimulating It.
Speaker 2 (07:19):
Was intellectually stimulating. It was we both thought we were
doing important work, and we both recognized that our role
in the process was to present and argue for a
particular side. Sometimes people who aren't lawyers confuse the lawyer
(07:41):
with a client, and they think that the lawyer has
got to be as angry as the lawyer on the
other side as the client is angry at the client
on the other side. And when that happens, our justice
system begins to erode.
Speaker 3 (08:00):
But I have to say, like you had clearly had
a personal investment in the outcome. I mean not because
you wanted go to win, or you wanted whatever, but
because you believed you were right, you believed you had
you're right. So I mean, I'm curious, like, even just
during the Sauls triler, during the sord of Spooing court hearings,
when you're in the courtroom across from Barry Richard, your pal,
how do you sort of balance the sense of intellectual gamesmanship,
(08:26):
the sense that you're like in the super Bowl, from
the stakes and the stress of possibly losing to this
other guy.
Speaker 2 (08:33):
There's no doubt that in any important case the lawyer
becomes very closely identified with a client, you usually come
to believe your client is right, even if you didn't
start off feeling that way. But particularly in a case
like this, where I felt not only was my client right,
(08:55):
but that I felt that the principles that we're fighting
for were terribly important principles for our country, you inevitably
become personally involved in the matter. At the same time,
you understand and respect the role that the lawyer on
(09:15):
the other side is playing. And everybody is entitled to
a effective presentation by their lawyer. Our justice system depends
on it. And so even though I was absolutely convinced
that Gore was right. I still respected the role that
(09:38):
Barry Richard was playing. So you can fight very hard
and feel even emotional about your cause, and yet at
the same time respect and even admire the people on
the other side that are presenting.
Speaker 3 (09:55):
Their client's case, but you weren't convinced by their case.
Speaker 2 (09:58):
I was not convinced by the case. I was not
convinced by their case. Then I'm not convinced by their
case now.
Speaker 3 (10:05):
So that was David Boyd's who argued the Gore campaign's
case in two thousand. Another lawyer Boys respected and admired,
but whose case he was not convinced by, was Ted Olsen.
If hearing Boys's name next to Olson's rings a bell,
(10:27):
it might be because they actually teamed up in twenty
thirteen to sue California over Proposition eight, the state's ban
on gay marriage. But back in two thousand, ted Olsen
was working for the Bush campaign and getting ready to
make his argument before the US Supreme Court after the
break my interview with Olsen. By the time ted Olsen
(10:52):
was working for the Bush campaign, he had already argued
fifteen cases before the Supreme Court, for most of them
he had prepared for months, but Bush v. Gore was different.
As Olsen explained during our interview, he didn't have months
or even weeks to get ready for this. He only
had one day.
Speaker 1 (11:10):
You don't have time to do all of the things
that you would like to do. If you're preparing for
a Supreme Court argument, you like to have moot courts,
which are preparation sessions, practice sessions with other people asking
you questions, interrupting you the way the justices do. You
might want to spend more time doing research when you're
(11:31):
having to do it all in twenty four hours. The
Florida Supreme Court decision on that Friday came down at
four or five o'clock in the afternoon, and we filed
our papers in the Supreme Court I think by nine
o'clock Friday night, and then the Supreme Court stayed the
recount and granted the hearing on Saturday. So we had
(11:53):
to do all this under enormous time pressure. Obviously, you
can't do everything you want to do, but you have
a team of very conscientious people, and I'm speaking for
the other side as well, trying to do the very
very best that you can. Hope that you haven't overlooked something.
Speaker 3 (12:12):
Tell me about the morning you know. I know this
is I always find when I'm talking to lawyers who
sort of mostly live in the world of ideas and arguments,
they always rist a little bit when I ask these
kinds of questions. But I wonder if you could just
take me back to the morning of the arguments a
little bit. What do you remember about the atmosphere in
the courtroom? You know, how it was different from other
Supreme Court cases you'd argued based on just how it
(12:34):
felt to be in there.
Speaker 1 (12:36):
Well, it was a remarkable experience because the entire world
was watching. The Supreme Court was surrounded by the satellite
trucks of the various broadcast networks. The court was filled
with political figures, members of the United States Senate campaign
representatives from both sides, journalists, people of interest, anybody who
(12:57):
could get into that courtroom and managed to get into
that courtroom. And it's the presidency of the United States.
Everyone was watching. They were broadcasting, and which was a
step forward for the Supreme Court. They were broadcasting the
audio of the arguments. The moment that we finished, they
were immediately sending the audio out to the rest of
(13:20):
the world, and people all over the world were watching
and listening. Verius television networks were going to be broadcasting
it with drawings because the cameras aren't permitted in the
courtroom of the various individuals and the justices. You cannot
imagine a more tense, pressure packed moment than standing up
(13:41):
in front of the all of those people and the
nine justices, with all of that at stake, and saying,
mister Chief Justice, may it pleased the Court and starting
your argument, and I think all of us fell for
God's sakes. I hope I can get these words out
without stumbling or forgetting what I am, or forgetting who
I am, or forgetting what the arguments are. One of
(14:02):
the lawyers made a mistake three times, I think he did,
called the justices by the wrong name. That sort of
thing you can happen, but you have to keep your
wits about you or you shouldn't be there.
Speaker 3 (14:17):
To the aspiring Supreme Court petitioners in our listenership, do
you have any psychological things that you do when you're
in that situation to try to keep yourself focused and
try not to try to say something that's the opposite
of what you mean.
Speaker 1 (14:29):
Well, your adrenaline is going to be pumping through you.
So anybody says, are you nervous, of course you're nervous.
And if you're not nervous, you're not a sentient human
being or a lawyer. So you have to channel that adrenaline,
that energy that's pumping through you into the context and
the substance of what you're saying the arguments. You have
(14:50):
to focus on what you're saying. You have to focus
on what the justices are saying when they interrupt you,
and they interrupt you constantly. I've had sixty to seventy
interruptions in the course of a half an hour. So
you have to pay attention to what you're doing, and
it kind of helps. You've read about football players that
the order back becomes a little bit more effective after
(15:12):
he's been hit for the first time because then he's
you know, focused on the game and so forth. But
that's somewhat similar in court. And I also tell lawyers,
you know, take a look at all those people up
back in the courtroom watching you, and the clerks and
the journalists and the spectators and so forth, and if
(15:34):
you'd rather be with them watching, then that's where you
should be, But if you'd rather be up there doing it,
then take a deep breath, enjoy it, and appreciate the
fact that you've been given an opportunity to participate in
an argument, and in this case, a very important argument
in a very very important case. So in a sense,
(15:55):
it's necessary to relax a little bit to the extent
that you can and focus on what it is that
you're hearing and what it is that you're saying.
Speaker 3 (16:06):
If you were taking beta blockers, no, I tried them
once before a live show. It was quite effective.
Speaker 1 (16:14):
I thought, well, I'm at a point in my career
where I'm probably not going to change whatever my style
Old dogs, new trips kind of thing. Right.
Speaker 3 (16:25):
You obviously came in with a deep, deep understanding of
every justice's judicial philosophy, ideological inclinations. Who were the justices
you were talking to most directly during your arguments. Convince.
Speaker 1 (16:41):
What I tell myself and tell my colleagues when we're
doing this sort of thing is don't take any justice
for granted, and don't assume that you're going to lose
any of the justices. Try to make arguments that if
you were on one side or another in this case
of the political spectrum, and I've been in various different
(17:02):
contexts in the Supreme Court. Try to make arguments that
are rational and coherent and that are respect that any
justice could say, well, I understand the logic of that.
That doesn't mean you're going to win them over, but
that means you've got to listen to them. You've got
to treat their questions with respect. You can't be dismissive.
(17:24):
You can't ignore the questions from a justice that seems hostile.
And you can't take for granted that what sounds like
a friendly question isn't some kind of a trap, either
an intentional trap. No, it does happen. It can be
a trap. Or you can say something because you're the
justice that you're talking to at that particular moment may
(17:47):
be asking you something and you want to agree with
what that justice is asking you, or the sense of
that justice's question. But the impact of your answer on
the other justices and the other votes you have to
think about that. So you can't take anything for granted.
You have to listen to them. They are the persons
(18:07):
who are going to decide this, and you have to
treat them. And of course it makes sense, and it's
sort of common sense. You have to treat them with
respect and listen to them. But it's hard to do
because you're getting questions from all different directions and there's
very very little time, and all of us at that point,
we've been under pressure for thirty five days or so,
(18:29):
and we've been back and forth to Tallahassee on airplanes
and not. The airplanes are not I was on time,
and you know, things go wrong, but you've got to
keep your feet on the ground and your head on
your shoulders.
Speaker 3 (18:43):
How did you feel walking out of the courtroom. Did
you feel like the questions indicated that you were in
good shape.
Speaker 1 (18:49):
I never take it for granted when I walk out
of the courtroom, all I could. In the first place,
you're exhausted, and the second place, you're relieved that it's over.
In the third place, I did feel that we had
made our arguments, that we were making cojin arguments, and
(19:09):
that I thought we were doing better on that count
than the other side. But I wasn't assuming that we
were going to win. I wasn't relieved, and I never
felt that we had at one And I think along
with everybody in the world, I didn't know until they
called me up at ten o'clock on December twelve and.
Speaker 3 (19:29):
Told us, do you remember who called you?
Speaker 1 (19:31):
There were various different clerks working that night, and General
Suitor sut are different than Justice. Suitor had each one
of his assistants call one of the lawyers for each
of the parties, got us all on the phone, so
nobody heard anything until we were all on the phone
(19:55):
and then read the outcome at the same time. So
we were all getting information at the same time, very
bare bones information. There is a decision from the cars.
There's the parality decision, there's a there's a there's a
per curium decision. There's a dissenting opinion by Justice Stevens,
joined by Justices so and so and so and so
(20:16):
and so on forth, dessenting opinion by Justice Ginsburg, joined
by so and so on, and you had to sort
of infer what the outcome was. It was helpful that
the four liberal justices who had voted against the stay,
and I call them liberal, I hate to use that term,
but the four justices who had voted against the stay
(20:38):
were all rendering individually dissenting opinions. You could draw the
inference that the justices who were against you on Saturday
were against you on Tuesday. And that's a good sign.
Speaker 3 (20:51):
But even if, like, let's just imagine that all nine
justices after hearing oral arguments, let's just say you had
really screwed it up, all nine jud just to say, actually,
we were wrong to issue to stay. Let's have this
recaind on. I mean, time was up right at that point,
it was over.
Speaker 1 (21:08):
Well, I think the justices who dissented did not believe
the seven of the nine justices believed that we had
made legitimate, meritorious arguments on the equal protection and do
process clause. The justices were five to four on whether
or not the recount, the statewide recount that had been
(21:31):
prescribed by the Florida Supreme Court had to be stopped.
So the other the four dessenting justices, for various different reasons,
you have four different descending opinions there, for various different reasons,
felt that somehow those statutory deadlines that were in federal
law could somehow be adjusted or moved or something, that
(21:53):
things could be done faster. I think that that assumed
that things could happen faster than they could possibly be happening.
If you had looked at the history we started off.
Was it November eighth, I think was the date of
the election? Seven seventh, Okay, So we were starting this
whole process was going in various different directions beginning with
(22:15):
November seven. We were now at December tenth, December eleventh,
December twelve, and we're running up against the various statutory deadlines,
which culminated in a process that had to be finished
in Washington in early January, and then there had to
be a new president taking an oath of office on
the twentieth. And so I could not see how all
(22:38):
of that could be done, and that the statewide recount
was going to be and it was going to be
different in every one of those sixty seven counties, and
I could just see more chaos. And I think that
the justices who voted with us with respect to stopping
(23:00):
this entire process perceived that that was just going to
be a continuing process, unfolding of chaos and people were
still not going to find out who is going to
be the president of the United States.
Speaker 3 (23:13):
Yeah, right, okay, And final question. I read Evan Thomas's
book about Justice O'Connor that just came out, and in
there he has a quote from Scalia. It's not firsthand,
but it says that Scalia privately scoffed that the equal
protection rationale was, as we say in Brooklyn, a piece
of shit. And I'm curious what your reaction is to that.
Speaker 1 (23:36):
Well, my reaction is that that he felt, I believe,
and what he meant by that is that we have
a structural basis in the Constitution to decide this case.
And it's in concurring opinion that the decisions with respect
to the rules for the selection of the electors have
(23:59):
to be decided by the legislature and not by the courts.
That's a simple, more straightforward ray of resolving it. He's
always been, or he always was, someone that felt very
strongly about the structure of the constitution, and he believed
and he said this at his confirmation, hearing that people
(24:20):
all over the world have wonderful bills of rights. The
Pakistani constitution and the Iraqi Constitution and the constitution of
the former Soviet Union had all kinds of really elegant
sounding bills of rights. What has protected us in this
country is this structure of the separated powers. I know
(24:41):
Many people, including many academics and other people in the
political world, disagree with the whole process, But I think
the United States Supreme Court did what it had to do,
and it did it when it had to do it.
Speaker 3 (25:04):
That was Ted Olsen, who argued on behalf of the
Bush campaign in federal court back in two thousand, beca
solicitor general in the Bush administration. Olsen died in November
of twenty twenty four. David Boys, for his part, had
not planned to be the one to argue Bush v.
Gore before the Supreme Court. That honor was supposed to
(25:24):
go to Lawrence Tribe, the attorney who had been handling
the Gore campaigns federal litigation efforts, but Boys got the
call instead, leaving him scrambling to prepare his case, just
like Olsen was doing at the same time. You had
gone home right after the Florida Spreme Court ruling.
Speaker 2 (25:40):
I thought my job was done. I thought that the
votes were being counted, and even when the Florida vote
count was stopped by the United States Supreme Court, I
thought my job was over with because my job had
been to argue the case in Florida, and there was
(26:03):
a separate team that had been arguing the case in
federal court. While I was actually in the air flying
back to New York from Tallahassee, al Gore decided that
he wanted me to do the argument in the United
States Supreme Court. I found that out when I landed.
Speaker 3 (26:25):
I'm curious, like if you could just list the factors
or dynamics that made this extraordinary or made this atypical
for Supreme Court hearing.
Speaker 2 (26:33):
I thought that the chances of the United States Supreme
Court were going to change was going to change its
mind were small. They'd already put a pretty big stake
in the ground when they stopped the vote Counting in
retrospect the way the argument unfolded, I think if anybody
had had a chance to change somebody's mind, I had
(26:55):
a better chance than anybody because I knew more about
what was at the core. Remember that the primary issue
Bush took the case the Supreme Court on was not
the equal protection issue. Equal protection issue was buried way
deep in the brief. So the issues that I think
(27:20):
we all thought we're going to be dispositive in terms
of whether the courts could play a role or what
role the courts could play in an election for electors.
Speaker 3 (27:35):
Whether it counted was changing the law after the election
exactly to change the certification deadline and then to order
the recount.
Speaker 2 (27:41):
Exactly whether you could do that under Article three of
the Constitution.
Speaker 3 (27:45):
And so that was was that. The Article three was
the bulk of what you guys talked about during our
arguments until Kennedy brought it up.
Speaker 2 (27:50):
Yes, I mean it was. It was say it was
buried deep in Bush's brief equal protection argument, and Ted
didn't even get to it until late in his argument,
after he'd been prompted twice.
Speaker 3 (28:02):
How did you feel leaving the court that day? Did
you realize when you left that equal protection would be
the focus of the decision.
Speaker 2 (28:10):
During the argument, I thought the argument was going very well.
I thought that it was clear that Kennedy and probably
O'Connor were not buying the Article three argument that Ted
(28:31):
Olsen was making, and I was pretty encouraged, surprisingly encouraged.
Then when Kennedy kept pushing the equal protection argument, I
became much more pessimistic. When I left the court, I
(28:53):
was concerned because it sounded to me like Kennedy and
O'Connor were searching for a way to sustain stopping the
vote count, and I knew that the three most conservative
justices were going to decide against us based on Article three,
(29:16):
if nothing else. So it looked to me like I
could count five votes against.
Speaker 3 (29:24):
Where were you when the decision was handed down.
Speaker 2 (29:27):
I was at my house in armac Armak, New York,
and Westchester County got it.
Speaker 3 (29:32):
The folks on television had some trouble understanding it in
the first few minutes of reporting on it. Did you
understand its implications right away? Or did it take you
how many pages you have to read before you realized
what it meant? Well?
Speaker 2 (29:45):
I skipped to the end, but with a judicial opinion,
I was trying to skip to the end at least
to see how the court comes out. And it was
clear that, as I had feared, there were five judges
against us and the percurium opinion. It made clear that
(30:06):
in my mind, the case was over with. And I
think that it took a little while for people for
that to sink in, but I think it eventually sunk
in that there was no real alternative at that point.
But to concede.
Speaker 3 (30:25):
How did it affect your view of the Supreme Court
that this ruling came down the way it did, and
that it was justified in the way that it was.
Did it change how you perceived this institution?
Speaker 2 (30:37):
No, not really. I was disappointed. I think it's fair
to say I was deeply disappointed. On the other hand,
the Supreme Court during my lifetime has been probably the
most powerful engine for social change in this country. The
(31:01):
Supreme Court has made a number of really bad decisions
over the years, but that does not, I think, diminish
the importance of the Supreme Court to our society, to
our constitution, to the preservation of the rights that are
(31:22):
so important to our society.
Speaker 3 (31:24):
Did it reveal to you that the institution is inherently
political and that there's no way to avoid that.
Speaker 2 (31:30):
Well, the Supreme Court was inherently political in the Japanese
internment case, in the plus e v. Ferguson on segregation
and dread Scott. The Supreme Court, like all human institutions,
is influenced by politics. I think the thing that was
most disappointing is that the political influence in prior cases
(31:54):
tended to be the influence of people pursuing a particular
policy objective. Here, the Supreme Court was intervening to actually
pick a President when they were intervening in a way
that had partisan political implications that strikes at the fundamental
(32:20):
principle of democracy that it is the people that decide elections,
not government officials.
Speaker 3 (32:46):
Thanks for listening to this bonus episode of Fiasco. We'll
be back next week with one more featuring the late
Supreme Court Justice John Paul Stevens, whom we interviewed shortly
before his death in twenty nineteen. Fiasco Bush v. Gore
is produced by Prolog Projects and distributed by Pushkin Industries.
The show is produced by Madelin Kaplan, Ulla Culpa, Andrew Parsons,
(33:08):
and me Leon Nap. We had additional editorial support from
Lisa Chase and Daniel Riley. Thanks for listening. We'll see
you next week.
Pushkin, you cannot imagine a more tense, pressure packed moment
with all of that at stake, and saying, mister Chief Justice,
may have pleased the court and starting your argument.
Speaker 2 (00:34):
You understand and respect the roles that the lawyer on
the other side.
Speaker 3 (00:39):
Is playing, but you weren't convinced by their case.
Speaker 2 (00:42):
I was not convinced by their case. I was not
convinced by their case. Then I'm not convinced by their case.
Speaker 3 (00:46):
Now, hey, fiasco listeners. Today, in the fifth bonus episode
of our series on the two thousand election, you'll hear
my conversation with two of the highest profile lawyers involved
in the saga of Bush v. Gore, David Boyse and
Ted Olsen. You'll hear what it was like to make
the case for both sides, from having to quickly catch
(01:09):
up on Florida election law, to getting nervous before Supreme
Court oral arguments, to even befriending your opposition. We'll start
with David boys. When Boys got the call to come
down to Florida, he was fresh off of arguing on
behalf of the government against Microsoft in a high profile
antitrust case, and he was working on a licensing lawsuit
in which he was representing Calvin Klein. I asked boys
(01:32):
why he was willing to drop everything and represent al
Gore in the recount.
Speaker 2 (01:37):
If I hadn't been a lawyer, I would have been
a high school American history teaching like my father was,
and to have an opportunity to participate in what was
Even at that stage, we didn't know how important the
case was going to be. But even at that stage,
we knew it was an important case. We knew it
was a case that was going to involve historic decisions.
(01:59):
And to have an opportunity to have a front row
seat and maybe even be a participant with something that
would have been hard to turn down. In addition, I'd
been involved in a few electoral contests before, and democracy
depends on votes being counted and the will of the
(02:24):
people being expressed. You can suppress democracy in lots of ways,
and we suppressed democracy in lots of ways in this country.
But you can also suppress democracy after the votes are
been cast by not counting them fairly and not counting
them accurately. And so the process by which votes are
(02:46):
counted is a critical part of the implementation of democracy,
and I thought that this was going to be something
that was going to be essential to people's confidence in
our democratic process, and also not put too fine a
point on it, making sure that the person who actually
won the election occupied the White House?
Speaker 3 (03:07):
Did did you have a firm feeling at that point
that you know two days out from election day that
Gore was the winner?
Speaker 2 (03:15):
Not really when I was called, And indeed for the
first several days and maybe most of the time that
I was in Florida, I didn't really know who won Florida.
It was simply too close to call. All I knew
is that it was a statistical tie. And what was
going to be critical, I thought, to a fair election,
(03:37):
but also to the people's confidence in our electoral process
that the votes actually be counted the way they were cast.
And I didn't know who was going to win that.
I just knew that it was important that that that happened,
and that happened in an organized way. The first time
(03:58):
that I really became convinced that Gore had won was
actually the Saturday when they stopped the vote counting, because
during the course of the previous Friday and Saturday morning,
the votes had begun to come in, and you could
tell that they were discovering lots of votes predominantly, not overwhelmingly,
(04:24):
but still a majority favoring Gore, and so the margin
was already disappearing at the time that the Supreme Court
prematurely stopped the vote count.
Speaker 3 (04:35):
So tell me what it was like when you got
down there. You flew from white planes, right.
Speaker 2 (04:39):
I flew from white planes. And I got down there
about midnight. Because this all happened the first day I
was called, they didn't get through to me until about
five o'clock in the afternoon. I finished up what I
was doing, got my son Jonathan to pull some cases
on Florida election law so I could read it on
(04:59):
the plane for the first time ever, read the Florida
Statute as well, and arrived down there shortly before midnight.
Went to the campaign headquarters in Tallahassee, and everybody was
still there. I remember what walked in and ron Klain
(05:20):
saw a man said, welcome to.
Speaker 3 (05:21):
Guatemala, referring to Florida. In Florida, if ron Klain was
trying to tell boys that he just landed in a
legal jungle, he was right, But at least he wasn't
completely alone there. As the major lawsuits wound their way
through the Florida courts. David Boys became pals with one
of his counterparts on the bush side, Barry Richard, and
(05:42):
why not they were going through the same thing.
Speaker 2 (05:45):
We were clearly in the middle of the Madge spectacle.
People walked with you, cameras walked with you, every place
you went. Everybody trying to get you to say something
about what was going on.
Speaker 3 (05:57):
Was it most of the reporters coming up to you
in Tallahassee streets or was it normal people who just
seen your face on TV?
Speaker 2 (06:02):
It was both, But I remember, you know, people driving
by and shouting things out either depending on what their
point of view was. Everybody recognized Barry Richards and myself,
and so somebody was always yelling out to you, either
(06:23):
encouraging you or trying to discourage you. It was a
It was very much a participatory spot.
Speaker 3 (06:31):
But you guys were often walking together, right, and.
Speaker 2 (06:33):
Were often walking together, and sometimes they would be showing
the same things that both of us. We were walking together,
and wow, we didn't really know each other prior to
the contest. We became good friends during the contest.
Speaker 3 (06:45):
Where did you guys spend time together? Was there places
in Tallahassee.
Speaker 2 (06:49):
There was a sports bar sort of kitty corner across
the street from where I was staying. I was staying
at the Governor's End, and there was a sports bar
close by where we would go for either a drink
or a meal.
Speaker 3 (07:04):
I think treat to non lawyers, this is like, this
is this is counterintuitive, right, the idea of two lawyers
on the opposite sides of of a case being able
to come together like this, And I feel like the
missing the thing that they're missing is that you guys
found this fun, right, You found an intellectual stimulating It.
Speaker 2 (07:19):
Was intellectually stimulating. It was we both thought we were
doing important work, and we both recognized that our role
in the process was to present and argue for a
particular side. Sometimes people who aren't lawyers confuse the lawyer
(07:41):
with a client, and they think that the lawyer has
got to be as angry as the lawyer on the
other side as the client is angry at the client
on the other side. And when that happens, our justice
system begins to erode.
Speaker 3 (08:00):
But I have to say, like you had clearly had
a personal investment in the outcome. I mean not because
you wanted go to win, or you wanted whatever, but
because you believed you were right, you believed you had
you're right. So I mean, I'm curious, like, even just
during the Sauls triler, during the sord of Spooing court hearings,
when you're in the courtroom across from Barry Richard, your pal,
how do you sort of balance the sense of intellectual gamesmanship,
(08:26):
the sense that you're like in the super Bowl, from
the stakes and the stress of possibly losing to this
other guy.
Speaker 2 (08:33):
There's no doubt that in any important case the lawyer
becomes very closely identified with a client, you usually come
to believe your client is right, even if you didn't
start off feeling that way. But particularly in a case
like this, where I felt not only was my client right,
(08:55):
but that I felt that the principles that we're fighting
for were terribly important principles for our country, you inevitably
become personally involved in the matter. At the same time,
you understand and respect the role that the lawyer on
(09:15):
the other side is playing. And everybody is entitled to
a effective presentation by their lawyer. Our justice system depends
on it. And so even though I was absolutely convinced
that Gore was right. I still respected the role that
(09:38):
Barry Richard was playing. So you can fight very hard
and feel even emotional about your cause, and yet at
the same time respect and even admire the people on
the other side that are presenting.
Speaker 3 (09:55):
Their client's case, but you weren't convinced by their case.
Speaker 2 (09:58):
I was not convinced by the case. I was not
convinced by their case. Then I'm not convinced by their
case now.
Speaker 3 (10:05):
So that was David Boyd's who argued the Gore campaign's
case in two thousand. Another lawyer Boys respected and admired,
but whose case he was not convinced by, was Ted Olsen.
If hearing Boys's name next to Olson's rings a bell,
(10:27):
it might be because they actually teamed up in twenty
thirteen to sue California over Proposition eight, the state's ban
on gay marriage. But back in two thousand, ted Olsen
was working for the Bush campaign and getting ready to
make his argument before the US Supreme Court after the
break my interview with Olsen. By the time ted Olsen
(10:52):
was working for the Bush campaign, he had already argued
fifteen cases before the Supreme Court, for most of them
he had prepared for months, but Bush v. Gore was different.
As Olsen explained during our interview, he didn't have months
or even weeks to get ready for this. He only
had one day.
Speaker 1 (11:10):
You don't have time to do all of the things
that you would like to do. If you're preparing for
a Supreme Court argument, you like to have moot courts,
which are preparation sessions, practice sessions with other people asking
you questions, interrupting you the way the justices do. You
might want to spend more time doing research when you're
(11:31):
having to do it all in twenty four hours. The
Florida Supreme Court decision on that Friday came down at
four or five o'clock in the afternoon, and we filed
our papers in the Supreme Court I think by nine
o'clock Friday night, and then the Supreme Court stayed the
recount and granted the hearing on Saturday. So we had
(11:53):
to do all this under enormous time pressure. Obviously, you
can't do everything you want to do, but you have
a team of very conscientious people, and I'm speaking for
the other side as well, trying to do the very
very best that you can. Hope that you haven't overlooked something.
Speaker 3 (12:12):
Tell me about the morning you know. I know this
is I always find when I'm talking to lawyers who
sort of mostly live in the world of ideas and arguments,
they always rist a little bit when I ask these
kinds of questions. But I wonder if you could just
take me back to the morning of the arguments a
little bit. What do you remember about the atmosphere in
the courtroom? You know, how it was different from other
Supreme Court cases you'd argued based on just how it
(12:34):
felt to be in there.
Speaker 1 (12:36):
Well, it was a remarkable experience because the entire world
was watching. The Supreme Court was surrounded by the satellite
trucks of the various broadcast networks. The court was filled
with political figures, members of the United States Senate campaign
representatives from both sides, journalists, people of interest, anybody who
(12:57):
could get into that courtroom and managed to get into
that courtroom. And it's the presidency of the United States.
Everyone was watching. They were broadcasting, and which was a
step forward for the Supreme Court. They were broadcasting the
audio of the arguments. The moment that we finished, they
were immediately sending the audio out to the rest of
(13:20):
the world, and people all over the world were watching
and listening. Verius television networks were going to be broadcasting
it with drawings because the cameras aren't permitted in the
courtroom of the various individuals and the justices. You cannot
imagine a more tense, pressure packed moment than standing up
(13:41):
in front of the all of those people and the
nine justices, with all of that at stake, and saying,
mister Chief Justice, may it pleased the Court and starting
your argument, and I think all of us fell for
God's sakes. I hope I can get these words out
without stumbling or forgetting what I am, or forgetting who
I am, or forgetting what the arguments are. One of
(14:02):
the lawyers made a mistake three times, I think he did,
called the justices by the wrong name. That sort of
thing you can happen, but you have to keep your
wits about you or you shouldn't be there.
Speaker 3 (14:17):
To the aspiring Supreme Court petitioners in our listenership, do
you have any psychological things that you do when you're
in that situation to try to keep yourself focused and
try not to try to say something that's the opposite
of what you mean.
Speaker 1 (14:29):
Well, your adrenaline is going to be pumping through you.
So anybody says, are you nervous, of course you're nervous.
And if you're not nervous, you're not a sentient human
being or a lawyer. So you have to channel that adrenaline,
that energy that's pumping through you into the context and
the substance of what you're saying the arguments. You have
(14:50):
to focus on what you're saying. You have to focus
on what the justices are saying when they interrupt you,
and they interrupt you constantly. I've had sixty to seventy
interruptions in the course of a half an hour. So
you have to pay attention to what you're doing, and
it kind of helps. You've read about football players that
the order back becomes a little bit more effective after
(15:12):
he's been hit for the first time because then he's
you know, focused on the game and so forth. But
that's somewhat similar in court. And I also tell lawyers,
you know, take a look at all those people up
back in the courtroom watching you, and the clerks and
the journalists and the spectators and so forth, and if
(15:34):
you'd rather be with them watching, then that's where you
should be, But if you'd rather be up there doing it,
then take a deep breath, enjoy it, and appreciate the
fact that you've been given an opportunity to participate in
an argument, and in this case, a very important argument
in a very very important case. So in a sense,
(15:55):
it's necessary to relax a little bit to the extent
that you can and focus on what it is that
you're hearing and what it is that you're saying.
Speaker 3 (16:06):
If you were taking beta blockers, no, I tried them
once before a live show. It was quite effective.
Speaker 1 (16:14):
I thought, well, I'm at a point in my career
where I'm probably not going to change whatever my style
Old dogs, new trips kind of thing. Right.
Speaker 3 (16:25):
You obviously came in with a deep, deep understanding of
every justice's judicial philosophy, ideological inclinations. Who were the justices
you were talking to most directly during your arguments. Convince.
Speaker 1 (16:41):
What I tell myself and tell my colleagues when we're
doing this sort of thing is don't take any justice
for granted, and don't assume that you're going to lose
any of the justices. Try to make arguments that if
you were on one side or another in this case
of the political spectrum, and I've been in various different
(17:02):
contexts in the Supreme Court. Try to make arguments that
are rational and coherent and that are respect that any
justice could say, well, I understand the logic of that.
That doesn't mean you're going to win them over, but
that means you've got to listen to them. You've got
to treat their questions with respect. You can't be dismissive.
(17:24):
You can't ignore the questions from a justice that seems hostile.
And you can't take for granted that what sounds like
a friendly question isn't some kind of a trap, either
an intentional trap. No, it does happen. It can be
a trap. Or you can say something because you're the
justice that you're talking to at that particular moment may
(17:47):
be asking you something and you want to agree with
what that justice is asking you, or the sense of
that justice's question. But the impact of your answer on
the other justices and the other votes you have to
think about that. So you can't take anything for granted.
You have to listen to them. They are the persons
(18:07):
who are going to decide this, and you have to
treat them. And of course it makes sense, and it's
sort of common sense. You have to treat them with
respect and listen to them. But it's hard to do
because you're getting questions from all different directions and there's
very very little time, and all of us at that point,
we've been under pressure for thirty five days or so,
(18:29):
and we've been back and forth to Tallahassee on airplanes
and not. The airplanes are not I was on time,
and you know, things go wrong, but you've got to
keep your feet on the ground and your head on
your shoulders.
Speaker 3 (18:43):
How did you feel walking out of the courtroom. Did
you feel like the questions indicated that you were in
good shape.
Speaker 1 (18:49):
I never take it for granted when I walk out
of the courtroom, all I could. In the first place,
you're exhausted, and the second place, you're relieved that it's over.
In the third place, I did feel that we had
made our arguments, that we were making cojin arguments, and
(19:09):
that I thought we were doing better on that count
than the other side. But I wasn't assuming that we
were going to win. I wasn't relieved, and I never
felt that we had at one And I think along
with everybody in the world, I didn't know until they
called me up at ten o'clock on December twelve and.
Speaker 3 (19:29):
Told us, do you remember who called you?
Speaker 1 (19:31):
There were various different clerks working that night, and General
Suitor sut are different than Justice. Suitor had each one
of his assistants call one of the lawyers for each
of the parties, got us all on the phone, so
nobody heard anything until we were all on the phone
(19:55):
and then read the outcome at the same time. So
we were all getting information at the same time, very
bare bones information. There is a decision from the cars.
There's the parality decision, there's a there's a there's a
per curium decision. There's a dissenting opinion by Justice Stevens,
joined by Justices so and so and so and so
(20:16):
and so on forth, dessenting opinion by Justice Ginsburg, joined
by so and so on, and you had to sort
of infer what the outcome was. It was helpful that
the four liberal justices who had voted against the stay,
and I call them liberal, I hate to use that term,
but the four justices who had voted against the stay
(20:38):
were all rendering individually dissenting opinions. You could draw the
inference that the justices who were against you on Saturday
were against you on Tuesday. And that's a good sign.
Speaker 3 (20:51):
But even if, like, let's just imagine that all nine
justices after hearing oral arguments, let's just say you had
really screwed it up, all nine jud just to say, actually,
we were wrong to issue to stay. Let's have this
recaind on. I mean, time was up right at that point,
it was over.
Speaker 1 (21:08):
Well, I think the justices who dissented did not believe
the seven of the nine justices believed that we had
made legitimate, meritorious arguments on the equal protection and do
process clause. The justices were five to four on whether
or not the recount, the statewide recount that had been
(21:31):
prescribed by the Florida Supreme Court had to be stopped.
So the other the four dessenting justices, for various different reasons,
you have four different descending opinions there, for various different reasons,
felt that somehow those statutory deadlines that were in federal
law could somehow be adjusted or moved or something, that
(21:53):
things could be done faster. I think that that assumed
that things could happen faster than they could possibly be happening.
If you had looked at the history we started off.
Was it November eighth, I think was the date of
the election? Seven seventh, Okay, So we were starting this
whole process was going in various different directions beginning with
(22:15):
November seven. We were now at December tenth, December eleventh,
December twelve, and we're running up against the various statutory deadlines,
which culminated in a process that had to be finished
in Washington in early January, and then there had to
be a new president taking an oath of office on
the twentieth. And so I could not see how all
(22:38):
of that could be done, and that the statewide recount
was going to be and it was going to be
different in every one of those sixty seven counties, and
I could just see more chaos. And I think that
the justices who voted with us with respect to stopping
(23:00):
this entire process perceived that that was just going to
be a continuing process, unfolding of chaos and people were
still not going to find out who is going to
be the president of the United States.
Speaker 3 (23:13):
Yeah, right, okay, And final question. I read Evan Thomas's
book about Justice O'Connor that just came out, and in
there he has a quote from Scalia. It's not firsthand,
but it says that Scalia privately scoffed that the equal
protection rationale was, as we say in Brooklyn, a piece
of shit. And I'm curious what your reaction is to that.
Speaker 1 (23:36):
Well, my reaction is that that he felt, I believe,
and what he meant by that is that we have
a structural basis in the Constitution to decide this case.
And it's in concurring opinion that the decisions with respect
to the rules for the selection of the electors have
(23:59):
to be decided by the legislature and not by the courts.
That's a simple, more straightforward ray of resolving it. He's
always been, or he always was, someone that felt very
strongly about the structure of the constitution, and he believed
and he said this at his confirmation, hearing that people
(24:20):
all over the world have wonderful bills of rights. The
Pakistani constitution and the Iraqi Constitution and the constitution of
the former Soviet Union had all kinds of really elegant
sounding bills of rights. What has protected us in this
country is this structure of the separated powers. I know
(24:41):
Many people, including many academics and other people in the
political world, disagree with the whole process, But I think
the United States Supreme Court did what it had to do,
and it did it when it had to do it.
Speaker 3 (25:04):
That was Ted Olsen, who argued on behalf of the
Bush campaign in federal court back in two thousand, beca
solicitor general in the Bush administration. Olsen died in November
of twenty twenty four. David Boys, for his part, had
not planned to be the one to argue Bush v.
Gore before the Supreme Court. That honor was supposed to
(25:24):
go to Lawrence Tribe, the attorney who had been handling
the Gore campaigns federal litigation efforts, but Boys got the
call instead, leaving him scrambling to prepare his case, just
like Olsen was doing at the same time. You had
gone home right after the Florida Spreme Court ruling.
Speaker 2 (25:40):
I thought my job was done. I thought that the
votes were being counted, and even when the Florida vote
count was stopped by the United States Supreme Court, I
thought my job was over with because my job had
been to argue the case in Florida, and there was
(26:03):
a separate team that had been arguing the case in
federal court. While I was actually in the air flying
back to New York from Tallahassee, al Gore decided that
he wanted me to do the argument in the United
States Supreme Court. I found that out when I landed.
Speaker 3 (26:25):
I'm curious, like if you could just list the factors
or dynamics that made this extraordinary or made this atypical
for Supreme Court hearing.
Speaker 2 (26:33):
I thought that the chances of the United States Supreme
Court were going to change was going to change its
mind were small. They'd already put a pretty big stake
in the ground when they stopped the vote Counting in
retrospect the way the argument unfolded, I think if anybody
had had a chance to change somebody's mind, I had
(26:55):
a better chance than anybody because I knew more about
what was at the core. Remember that the primary issue
Bush took the case the Supreme Court on was not
the equal protection issue. Equal protection issue was buried way
deep in the brief. So the issues that I think
(27:20):
we all thought we're going to be dispositive in terms
of whether the courts could play a role or what
role the courts could play in an election for electors.
Speaker 3 (27:35):
Whether it counted was changing the law after the election
exactly to change the certification deadline and then to order
the recount.
Speaker 2 (27:41):
Exactly whether you could do that under Article three of
the Constitution.
Speaker 3 (27:45):
And so that was was that. The Article three was
the bulk of what you guys talked about during our
arguments until Kennedy brought it up.
Speaker 2 (27:50):
Yes, I mean it was. It was say it was
buried deep in Bush's brief equal protection argument, and Ted
didn't even get to it until late in his argument,
after he'd been prompted twice.
Speaker 3 (28:02):
How did you feel leaving the court that day? Did
you realize when you left that equal protection would be
the focus of the decision.
Speaker 2 (28:10):
During the argument, I thought the argument was going very well.
I thought that it was clear that Kennedy and probably
O'Connor were not buying the Article three argument that Ted
(28:31):
Olsen was making, and I was pretty encouraged, surprisingly encouraged.
Then when Kennedy kept pushing the equal protection argument, I
became much more pessimistic. When I left the court, I
(28:53):
was concerned because it sounded to me like Kennedy and
O'Connor were searching for a way to sustain stopping the
vote count, and I knew that the three most conservative
justices were going to decide against us based on Article three,
(29:16):
if nothing else. So it looked to me like I
could count five votes against.
Speaker 3 (29:24):
Where were you when the decision was handed down.
Speaker 2 (29:27):
I was at my house in armac Armak, New York,
and Westchester County got it.
Speaker 3 (29:32):
The folks on television had some trouble understanding it in
the first few minutes of reporting on it. Did you
understand its implications right away? Or did it take you
how many pages you have to read before you realized
what it meant? Well?
Speaker 2 (29:45):
I skipped to the end, but with a judicial opinion,
I was trying to skip to the end at least
to see how the court comes out. And it was
clear that, as I had feared, there were five judges
against us and the percurium opinion. It made clear that
(30:06):
in my mind, the case was over with. And I
think that it took a little while for people for
that to sink in, but I think it eventually sunk
in that there was no real alternative at that point.
But to concede.
Speaker 3 (30:25):
How did it affect your view of the Supreme Court
that this ruling came down the way it did, and
that it was justified in the way that it was.
Did it change how you perceived this institution?
Speaker 2 (30:37):
No, not really. I was disappointed. I think it's fair
to say I was deeply disappointed. On the other hand,
the Supreme Court during my lifetime has been probably the
most powerful engine for social change in this country. The
(31:01):
Supreme Court has made a number of really bad decisions
over the years, but that does not, I think, diminish
the importance of the Supreme Court to our society, to
our constitution, to the preservation of the rights that are
(31:22):
so important to our society.
Speaker 3 (31:24):
Did it reveal to you that the institution is inherently
political and that there's no way to avoid that.
Speaker 2 (31:30):
Well, the Supreme Court was inherently political in the Japanese
internment case, in the plus e v. Ferguson on segregation
and dread Scott. The Supreme Court, like all human institutions,
is influenced by politics. I think the thing that was
most disappointing is that the political influence in prior cases
(31:54):
tended to be the influence of people pursuing a particular
policy objective. Here, the Supreme Court was intervening to actually
pick a President when they were intervening in a way
that had partisan political implications that strikes at the fundamental
(32:20):
principle of democracy that it is the people that decide elections,
not government officials.
Speaker 3 (32:46):
Thanks for listening to this bonus episode of Fiasco. We'll
be back next week with one more featuring the late
Supreme Court Justice John Paul Stevens, whom we interviewed shortly
before his death in twenty nineteen. Fiasco Bush v. Gore
is produced by Prolog Projects and distributed by Pushkin Industries.
The show is produced by Madelin Kaplan, Ulla Culpa, Andrew Parsons,
(33:08):
and me Leon Nap. We had additional editorial support from
Lisa Chase and Daniel Riley. Thanks for listening. We'll see
you next week.
Popular Podcasts
Dateline NBC
Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations. Follow now to get the latest episodes of Dateline NBC completely free, or subscribe to Dateline Premium for ad-free listening and exclusive bonus content: DatelinePremium.com
24/7 News: The Latest
The latest news in 4 minutes updated every hour, every day.
Therapy Gecko
An unlicensed lizard psychologist travels the universe talking to strangers about absolutely nothing. TO CALL THE GECKO: follow me on https://www.twitch.tv/lyleforever to get a notification for when I am taking calls. I am usually live Mondays, Wednesdays, and Fridays but lately a lot of other times too. I am a gecko.