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Flipping The Script

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Late last Friday afternoon, Senator Patrick Leahy, the gentlemanly Democrat from Vermont, sequestered himself in his office on Capitol Hill and ordered his aides not to interrupt him for anything short of war. "I don't care what's going on," he told them. "I don't want to be bothered." A bushelful of memos had piled up on his desk, the fruit of a frantic political week of Senate power struggles framed inside the titanic power struggle for the White House. Leahy figured the Florida Supreme Court would bring the hammer down on Al Gore's final appeal and didn't care to watch. So he glared when an aide came in just after 4 p.m. "I think you may want to hear what the court just did," the aide told him. "Well, is it all over?" Leahy asked.

"No, it's just starting," the aide said. Leahy's paperwork really had been interrupted by news of war. "Oh, boy," Leahy said. The state supreme court--in a bitterly divided 4-to-3 ruling--had found for Gore, cutting Bush's Florida lead from 537 votes to 193 (or 154, depending on how some disputed ballots are counted) and ordering an immediate recount of 42,000 "undervotes" from around the state. The top Democrat on the Senate Judiciary Committee, Leahy will be in the thick of things if the election dispute ends up in Congress. He summoned his staff lawyers and ordered them to dig through the law books and statutes, war-gaming all the ways this fight could go. But it was moving so fast that his lawyers couldn't possibly keep up.

By Saturday afternoon, the recount was under way in Florida, with a strong chance that by day's end Gore might pick up enough votes to move ahead of Bush for the first time. Then the U.S. Supreme Court joined the battle. In another acrimonious split decision--this one 5 to 4--the Justices halted the recount and scheduled oral arguments for Monday on George W. Bush's claim that the manual counts are unconstitutional and could do "irreparable harm" to his candidacy. Al Gore's top lawyer, David Boies, was eating lunch with another hotshot lawyer, Stephen Zack, when the news came over the television. Boise threw up his hands and cried, "What possible irreparable harm could they be talking about?" At that moment, 700 miles to the north, an aide called Leahy at home and said, "You're not going to believe what the Supreme Court just did." Just then Leahy's TV flashed the news. He was speechless. "You got to be kidding," he said finally. "After this, I never want to hear the Republicans complain about activist judges."

Americans like to think of the third branch of government--especially the highest court in the land--as a bastion against the surgical divide in the country. The voters couldn't decide between Bush and Gore, and Congress is split between Republicans and Democrats, but as we groped for a solution to the election mess, we couldn't help looking to the courts for a wisdom that rises above the nation's two angry political camps.

It was a naive hope. Judicial decisions cannot be made inside some lovely, ideology-free zone--especially when the matter before the High Court is the outcome of an election in which the appointment of future Justices was a persistent issue. The liberal Florida supreme court majority ruled for the sanctity of counting the votes, throwing Gore a lifeline, while the court's own chief justice warned that its ruling "propels this country and this state into an unprecedented and unnecessary constitutional crisis." Bush allies like Jack Kemp tried to discredit the court, charging that it had carried out a "judicial coup d'etat." But then the conservative majority of the U.S. Supreme Court ruled for the sanctity of the election procedures, questioning the legality of the recount and bailing out Bush while the liberal dissenters warned that "preventing a recount from being completed will inevitably cast a cloud on the legitimacy of the election."

"It's one more institution divided down the middle," says a Gore strategist.

The astonishing chain of events--one concussion bomb after another after another--left the soldiers in both the Gore and Bush camps dazed and bloodied, wondering when the next explosion would come. Only Bush and Gore, along with their top lawyers and strategists, seemed to have had a sense of how the week might go. Since both courts had handed down key rulings earlier on--the state supremes extending the timetable for the initial recount, the U.S. Supremes slapping that ruling back to Florida--Bush and Gore knew which courts tended to smile on their claims. On Friday night, Gore told TIME that he was "not all that surprised" by that day's state Supreme Court decision rescuing him from the abyss. "I had a feeling from the start that the principle that every vote should be counted would end up prevailing." But he hadn't predicted what the U.S. Supreme Court did the next day. About the prospects for Bush's appeal, he said, "I still have that same faith."

That night Bush strategist Karl Rove held a conference call with G.O.P. Senators and told the skeptical and depressed Republicans that Gore's victory in the state supreme court would be short-lived. The court had clearly "overstepped" its authority, Rove said. The U.S. Supreme Court would have no choice but to lower the boom on the state justices. The Senators weren't convinced. They worried that the Supreme Court wouldn't move quickly enough to stop the recount before Gore pulled ahead and the media announced a new winner. That could alter the landscape drastically--and permanently.

The next day when the U.S. Supreme Court proved Rove correct, at least for the short term, no one in Austin or in McLean, Va., where the Bush transition team has its headquarters, had the strength to celebrate. "We're too scarred for that," says an aide. They felt a whiff of excitement and boatloads of relief. Dick Cheney was at the movies when the news broke. An aide called from transition headquarters, and Cheney picked up the call in the dark theater. He was watching the new Meg Ryan thriller, Proof of Life.

Perhaps the Gores and Liebermans should see that film, with its talismanic title, on their next double date. In the Gore camp, the latest "psychic blow," as an adviser called it, plunged the Vice President's team back into darkness. They fretted that media opinion had just been turning their way, that with the call to count the votes being heeded, Gore would finally look like a winner. And then the counting stopped. "People aren't in a good mood," says a senior adviser. "Conventional wisdom can gel against us."

That may be the least of Gore's problems. No one knows for certain how the Supreme Court will rule this week, but Justice Antonin Scalia, in a rare concurring opinion to the court's Saturday ruling, warned that the "issuance of the stay suggests that a majority of the court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success." That would be George W. Bush. For Gore to prevail, one of two swing votes among the nine Justices--either Anthony Kennedy or Sandra Day O'Connor--would have to peel from the majority that granted the stay, deciding that the Florida Supreme Court had not changed the rules after the election or otherwise violated the Constitution, which confers power over elections to the legislatures. It could happen. If it doesn't, Gore is out of options. The election will be over. The war won't.

Last week, before the state supreme court's thunderclap ruling, it was difficult if not impossible to find a lawmaker on Capitol Hill who expected Gore to survive. "The coffin was on the ground, and the dirt was being poured on top of it," says a top Senate Democratic aide. Publicly the lawmakers still supported the Vice President, albeit in a mechanical and slightly impatient way. Privately they prepared for life with President Bush.

Bush finally seemed to be slipping into the new role as well. With two stunning court rulings in his favor Monday--Leon County Judge N. Sanders Sauls rejecting Gore's plea for a recount, and the U.S. Supreme Court setting aside the Florida high court's earlier pro-Gore ruling--he hoped not just for victory but for honor. In his best television performance in months, on CBS, Bush went out of his way to appear leaderly, good humored and generous toward Gore. "He and I share something," Bush said. "We both put our heart and soul into the campaign." Message: I won. It's time for healing.

Bush began phoning G.O.P. lawmakers and asking them to give the Gore bashing a rest. He instructed Cheney and other allies to send the same message. The overheated rhetoric had outlived its usefulness; now it was only stirring up the Democrats and making it harder for Bush to govern when the time came. He hoped that Gore allies would be more likely to call for their man to step down if the Republicans weren't constantly doing so, and he wanted to smooth the way for the charm offensive he would launch as soon as Gore made it official--the calls to key Democrats that had to remain on hold until the struggle was over. "More than ever, a President-elect has a unique moment to seize," Bush told CBS on Tuesday. "And I'm going to seize it."

While waiting things out in Austin and at the ranch, Bush has been deeply involved in congressional politicking. Already, and almost invisibly, he has his arms around the congressional G.O.P. in a way his father never managed--a way that could serve him well if the election ends up being decided in Congress. Bush is holding regular discussions on legislative strategy with key allies such as Tennessee Senator Bill Frist, Ohio Congressman Rob Portman and Missouri Representative Roy Blunt, a conservative leader close to Tom DeLay. Bush has a team of lobbyists and consultants--known as the Gang of Six--on call to remind uncooperative members of Congress where their campaign money comes from. And Bush has even weighed in on sensitive G.O.P. leadership decisions, including the selection of new committee chairmen who would shepherd Bush's legislative agenda, House aides and Bush advisers told TIME. Rather than choose favorites, Bush's aides have mostly emphasized that Bush hopes to see lawmakers who agree with his policies installed as chairmen of the key committees. Bush allies in Congress have tried to keep a lid on Bush's involvement to head off charges that he is meddling in congressional prerogatives.

In other words, when Lieberman traveled to Capitol Hill Tuesday to rally the troops yet again, he may already have been outmatched. He met with Democratic Senators in the L.B.J. Room and received a polite reception, "the kind of applause you give for people you don't care about," as a Senator described it. Lawmakers joked among themselves that Lieberman was trying to prevent someone from "pulling a Lieberman"--speaking out against Gore the way Lieberman spoke out against Bill Clinton during the impeachment mess.

At the same moment in the nearby Senate Dining Room, Cheney was getting a very different reception from the Republican Conference. There the talk was all about transition, governance and the legislative agenda--divvying up the spoils of victory. Alaska Senator Frank Murkowski wanted to know when Bush and Cheney would roll back Clinton executive orders banning oil and natural-gas drilling on public lands. (Cheney told Murkowski to send him a memo.) Strom Thurmond, who turned 98 that day, danced a little jig to demonstrate that he had no intention of going anywhere. Both sides were focused on the power-sharing issues that sprang from the 50-50 tie in the Senate--an even split that assumed, of course, that Bush would defeat Gore, keeping Lieberman in the Senate as the 50th Democratic vote, with Cheney the Republican tie breaker. The even split gave moderates hope that they alone would hold the key to the President's legislative success. At times last week, it seemed there were more moderate groups meeting on Capitol Hill--the Wednesday Group, two Centrist Coalitions, assorted convocations of New Democrats--than there are bridge clubs in Palm Beach. Now all that has to be put on hold while the politicians wait to hear from the judges. "Until this is settled, nobody is going to be talking about any specific agenda," says an aide to a moderate Republican Senator. "This trumps any bill." The healing will have to wait.

By Saturday morning, with the votes being counted by order of the state supreme court, Bush's directive about softening the rhetoric had been rendered inoperative. Tom DeLay, the resident House G.O.P. firebrand, had vowed the night before that "this judicial aggression will not stand." His operatives were in Florida, officially to observe the recount process, and House Democratic leader Dick Gephardt warned them not to "disrupt this count." But there were plenty of other disruptions.

The state supreme court's ruling was extraordinarily ambitious, imposing a remedy no one had asked for. Gore's lawyers simply wanted a recount of 14,000 disputed ballots in two Democratic counties; the state supreme court ordered a recount of undervotes in 64 of 67 counties (three had already completed recounts). Earlier in the process, such a sweeping ruling might have seemed downright Solomonic--counting the undervotes everywhere removed the built-in Gore advantage of counting just three Democratic strongholds. But after almost five weeks of wrangling, with the hunger for finality beginning to crowd out the desire for fairness in all but the most devoted Gore partisans, the plan mostly seemed mind boggling. In fact, the recounts proceeded smartly, and in many places, Judge Terry Lewis' informal Sunday afternoon deadline would have been met. Nobody could say with certainty who would win the recount, but since most of the undervotes came from Democratic precincts with large African-American populations and outdated voting machines, Gore's chances seemed good--and so Bush's lawyers did everything in their power to shut down the recount.

At first one wondered if Florida's dysfunctional political-and-judicial world would manage to get it going in the first place. The state supreme court directed Judge Sauls--whose ruling they had just trashed--to oversee the recount, but Sauls, perhaps smarting from press reports about his previous battles with the high court, perhaps just not wanting to do its bidding, recused himself. A second judge, Nikki Clark, declared herself unavailable. So the job fell to Judge Lewis, the level-headed, mustachioed novelist-jurist who had disappointed the Gore team with his ruling four weeks ago backing Secretary of State Katherine Harris. On Friday night, when Lewis held a preliminary hearing to set a timetable for the recount, Bush lawyer Phil Beck staged a remarkable filibuster, a meandering, hourlong statement that seemed designed to delay the counting for just as long as Beck could string sentences together. Beck, the Bush team's lead trial lawyer, sensibly pushed Lewis to define the terms of the hand count--dimples, no; hanging chads, yes? But the judge declined, leaving the issue to the discretion of the local counters, and the Bush lawyers to complain, with justification, that this was a recount without standards. Beck also deserves credit for adding another fine term to the Election 2000 lexicon. He repeatedly objected to a manual recount in Miami-Dade because of his worries about the "spoliation" of the ballots. (Spoliate, from the early 18th century, means to plunder in war and to injure beyond reclamation.) Lewis told Beck to put his objections in writing.

Sixty-four recounts meant 64 county canvassing boards magically had to appear Saturday morning two weeks before Christmas. Some election officials were on vacation (Columbia County), or visiting a sister recuperating from hip-replacement surgery (Sarasota County), or just returning from Tallahassee and other court proceedings (Seminole County). Linda Howell, Madison County supervisor of elections, began the weekend thinking she would have to sift through her county's 6,642 ballots to find the 31 undervotes. As in most counties, Madison's undervotes had never been segregated. Some bigger counties--among them Duval and Hillsborough--were installing computer software to help the machines identify and separate the undercounted ballots. Duval County planned to spend 10 hours Saturday finding the 4,967 undervotes lurking amid 291,000 ballots. Then the Supreme Court ruled, and everyone was told to stop. "I am sick of this," Howell told TIME Saturday. "We're about 55 miles south of Georgia. I wish I was in Georgia."

Osceola County officials adopted a lighter attitude. On Saturday morning, when canvassing board member Mary Jane Arrington held up a completely unmarked punch card, she turned to a local judge on the board and said, "You'd think at least they would have voted for you, Judge." Later an MSNBC news crew covering the board informed Arrington and her colleagues that the U.S. Supreme Court had issued a stay. But the board waited for official word before standing down. "We don't have cable," Arrington noted.

Perhaps the only people in Florida not whipsawed by the competing state and federal Supreme Court rulings were the Republican leaders of the Florida legislature. Before the state supreme court ruled for Gore, Senate president John McKay and house speaker Tom Feeney--hard-liners closely allied to Jeb Bush--had already convened a special session to appoint presidential electors for Bush. Democrats, led by state representative Lois Frankel, have tried in vain to convince the majority that the rest of the country would see that as blatant, dangerous electoral meddling. She redoubled her efforts after the state supreme court ordered the manual recount, arguing that if the recounts showed that Gore had won while the legislature anointed Bush, the legislature's reputation would die in the resulting train wreck. But McKay told reporters that the legislature's approach "has not altered"--and of course it didn't change after the U.S. Supreme Court stopped the hand count. While Feeney and McKay marched ahead with their plans to continue the selection process this week, Frankel could be found sitting on the steps of the Leon County library Saturday, giddy as a schoolgirl because judges inside were counting ballots. Later that day, as she walked back to her office in the state Capitol, she heard a Republican crowd chanting "We got a stay! We got a stay! Na-na-na-na, na-na-na-na, hey-hey-hey, goodbye!" But the bad news for Gore didn't plunge Frankel back into depression. "The word is numb," she says. "I'm not feeling anything." She wasn't alone. --Reported by Michael Duffy, Tamala M. Edwards, Karen Tumulty, Douglas Waller and Michael Weisskopf/Washington, James Carney and John F. Dickerson/with Bush and Tim Padgett and Timothy Roche/Tallahassee

See time.com for continuing updates on the contested presidential election


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Cover Date: December 18, 2000

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