A lawyers game

Posted: Nov 16, 2000 12:00 AM
WASHINGTON -- The definitive signal that the search to identify the next president had been handed over to the lawyers came Tuesday in Tallahassee when former Secretary of State Warren Christopher was suddenly joined in front of television cameras by an addition to Al Gore's team. Super-litigator David Boies, the hired-gun antitrust lawyer who crushed Microsoft, was now pleading for ballot hand-counts in Florida for the vice president. The closest contest for the American presidency since 1876 had become a lawyer's game. Boies, as fluent and flamboyant as Christopher is reserved, was vigorously making the case that a seemingly adverse decision by a judge was in truth a triumph for Gore. His advocacy was being fought on one front of a bewildering legal war whose outcome will determine the presidential selection. Such is the worst-case scenario that was foreseen in the early morning hours of Wednesday, Nov. 8, when Gore withdrew his concession statement in Nashville after being informed that Florida law mandated an immediate recount. Al Gore likes to think of himself as a fighter, and he promptly went into full battle mode. Nothing less than victory would suffice. In contrast, for the first few days of the 2000 long count, George W. Bush's campaign seemed disoriented. The candidate's brother, Florida Gov. Jeb Bush, recused himself from a vote-counting process drenched in politics and conducted by partisans. The Bush premature "transition" was unwisely opened to photo opportunities. Republicans across the country complained that Bush was losing the public relations war and, more importantly, the battle for ballots. With characteristic Republican pessimism, Bush backers as this week began moaned that they were being counted out of power. But, also characteristically, the Gore team pressed too hard. A smiling Al Gore was brought out for a public appearance at the White House, taunting Bush to join him to accept the result of Florida hand-counts in Democratic counties administered by Democratic politicians. William Daley, the Gore campaign chairman, further politicized the process by going to Capitol Hill to brief Democratic leaders. Chris Lehane, the sharp-tongued Gore spokesman, assailed Florida Secretary of State Katherine Harris as a Bush partisan and called her a "Soviet commissar." But beyond such conventional political aggressiveness, the Gore campaign is handling this struggle like a very complicated lawsuit -- as witness the case of Broward County. As early as last Thursday, the Gore strategists were treating this most heavily Democratic county in the state as the jewel in their recounting crown. A Democratic-controlled Broward canvassing board was counted on to interpret the intent of some 6,000 voters as a vote for Gore even though the punch card ballot was not depressed. Thus, the Gore campaign was stunned when Broward local officials cancelled the hand-count because sample precincts showed insufficient gains for the vice president. It was at that point that the Gore campaign announced it was bringing suit to force a full hand-count in Broward County, dropping any pretext that this is anything but a monster lawsuit. Enter David Boies. Big and belligerent, the man who brought Microsoft to its knees declared victory in his reading of State Circuit Judge Terry Lewis's Solomonic decision. Boies was making clear that an increasingly aggressive Gore team was prepared to go to court against Secretary of State Harris unless she permitted open-ended hand-counting of ballots. The Bush team also plays the lawyer's game. Many Republicans were distressed when a federal injunction was sought to stop the hand-counting. That effort was quickly put down by U.S. District Judge Donald Middlebrooks, who records show to be a compulsive contributor to Democratic candidates including the 1992 and 1996 Clinton-Gore tickets. Like nearly every other politician in this tangle, Middlebrooks did not recuse himself. In this lawyer's game, sensible Republicans talk about going to the U.S. Supreme Court. Given the closeness of the vote, was it inevitable that the lawyers would take command? Not if both sides had agreed to abide by the result of the mandatory Florida recount, which would have forced a relatively early Gore concession. But that seems long ago and far away now that David Boies and the other lawyers are in control.