What's Driving the Gore Team -- A Great Editorial by By George Will...
Published Dec. 10, 2000
Gore's career has been to transform the phrase "post-election campaign" from an oxymoron into a
description of the future tactic of losers of close elections. The crowning paradox of this political year is that
Americans learned more about the election's importance during the post-election month than they did during
10 pre-election months.
The election will determine whether the norms that defined the Clinton-Gore era will be transcended or
become routine. Will there be an end to slash-and-burn politics, one cost of which is wear and tear on the rule
of law?
Americans have seen David Boies, Gore's lawyer, inflict such wear and tear. Boies's behavior has not
received proper scrutiny, partly because many round-heeled journalists have a crush on Boies, who plays
them as effortlessly as Paganini played a Stradivarius. But to understand why the Boies coda to the
Clinton-Gore era illustrates the continuity of the era, step back two Decembers.
In December 1998, during the House debate on articles of impeachment, Henry Hyde said the issue was not
sex, it was lying under oath. The case for impeachment was: If a president is allowed to lie under oath in a
civil proceeding, the justice system is in jeopardy, because it depends, utterly, on the truthfulness of
advocates and witnesses. Which brings us to Gore's Florida month of living dangerously, and evidence that
Clinton's and Gore's practice of playing fast and loose with truth and law is a communicable disease.
Florida's chaos deepened when Boies convinced Florida's credulous Supreme Court of a crucial falsehood.
He said that in an Illinois election case 10 years ago, a judge ordered that stray, random--so-called
"rogue"--dimples be counted as votes. But in fact such markings were not counted. The judge counted dimples
as votes only if the voter left a pattern of dimples, indicating an intent to vote but a failure to follow
directions. Florida's court, combining judicial activism and intellectual sloth, did not trouble itself with
anything as recondite as independent verification of this assertion by an interested party.
Next, to influence the Broward County canvassing board, Boies had someone associated with the Illinois case
awakened around midnight to send an affidavit confirming Boies's misrepresentation. A day later, the sender's
memory refreshed, he sent a revised affidavit. But Boies's team did not advise Broward County of the second
affidavit. Broward counted hundreds of Gore votes by following the misrepresented standards from the
Chicago case.
Days later, in Judge N. Sanders Sauls's court, Boies, arguing that Palm Beach County's punch-card voting
machines failed to register votes for Gore, presented as an expert witness a Yale statistician. The statistician
testified that there are more "undervotes" (ballots on which no candidate for an office is voted for) when
candidates for that office are listed in a ballot's left-hand column. To validate his theory, the expert relied on
Palm Beach County's 1998 ballot. Boies's team signed and filed a "proffer" advising the court that their
statistician would testify that "a closer inspection of the [1998] Palm Beach County ballot reveals that the
senatorial race was recorded in the first column and the gubernatorial race in the second column."
But the senatorial and gubernatorial candidates were listed in the same column. The statistician never
examined that 1998 ballot, closely or otherwise. He said he relied on "facts" supplied by Gore's legal team.
Not wise.
In a sworn affidavit on the same subject, the statistician qualified his judgment in a way inconvenient to
Boies's team, saying that to be certain of a particular conclusion that Boies's team liked, further study would
be required. But Boies's team did not include the qualifying phrase in a document presenting the statistician's
views to the court.
When Boies took Gore's stricken case from Judge Sauls's circuit court to Florida's Supreme Court, Boies said,
"We accept the rule of law." How should one respond to that? Perhaps, "Awfully good of you." Or, in the
spirit of Boies's client, "Well, that's one option."
Boies, like a pet that resembles its owner, resembles his client, who in turn resembles his patron, the president,
whose spirit infused Gore's Florida war. When a few dozen mingled journalists and Republicans noisily
protested the Miami-Dade canvassing board's decision to conduct a recount in private, some Democrats
demanded an investigation by the U.S. assistant attorney general for civil rights, Bill Lann Lee. He occupies
his office by virtue of an illegal use of a recess appointment by Bill Clinton. Making the appointment after the
Senate refused to confirm Lee, Clinton breezily said, "I have done my best to work with the United States
Senate in an entirely constitutional way. But . . . " But the constitutional way is just one option. |
