I'm surprised that no one yet has given the Gore team, or the lawyers arguing on its behalf, that it should not be using the term "determine the intent of the voter." Maybe this is an unavoidable legal term, but in the war of the soundbites, it's an absolute dog: It conjures up the notion of $5-an-hour ballot-counters trying to perform psychic readings on citizens by handling their ballots, playing precisely into the starkest descriptions of the Bush team. If public opinion starts turning on them quick, blame that phrase.
After Brian Williams' earlier reference to David Boies' Yankee sartorial style, I can now barely pay attention to anything but his clothes. The suit's undeniably natty, but somebody needs to talk to him about the clashing hairdo, which doesn't say "legendary big-city lawyer" so much as it says "Failed presidential candidate from South Dakota."
Finally, after much circular argument, the proceedings wrap up, with the Chief Justice directing the lawyers to please exit the building to do their press interviews. Unlike at the beginning of the arguments, he didn't mention whether we're all permitted to visit the restroom now, so I'll take the liberty of giving you all my blessing to do so.
Me, I've gotta go exercise my discretion something fierce.
Now speaking on behalf of the Bush campaign is ruddy-faced attorney Michael Carvin, who looks precisely like Kelsey Grammer would have had he become a mid-level union official instead of an actor. He likewise seems to have been prepped with notes from James Baker's playbook, notably the use of the word "mischief." He, like his counterparts earlier, is getting peppered from all sides with mildly derisive questions and requests for clarification. I want to be a Supreme Court Justice.
But before any of you kids out there start setting that as your career goal, we're going to need to do something about the physical setting of the Florida court's bench, which clearly was not created for television. The Justices are backed by a wall coated with some sort of dentist's office-style matting, and in the center of it, a homey-looking little picture of a courthouse, accessorized with flags. If I'm going to be sitting in judgment on the highest court in my state, I want something that screams "Justice" say, 10-foot-high granite thrones, backed by a marble frieze of an eagle holding a balance with one talon and disemboweling a three-piece-suited lawyer with the other.
Having said that, this is really fast-paced, dramatic, seven-barrel theater, the sort of thing that might really draw in a regular audience every afternoon if the Justices were raking lawyers over the coals not about electoral law but, for instance, about transsexuals suing their surgeon-lovers over their botched sex-change surgery. Contest: Submit a quick proposal to Paramount television syndicated and get a daily show, "Supreme Sex Court," on the air by fall 2001.
Fox News Channel had added to the graphic chaos of its picture a "Fox Facts" box in the upper-right-hand corner. "Broward hopes to complete its recount by 5 p.m. today Bush has picked up 15 votes in Palm Beach County. Add that to the "LIVE" box in the upper left and the chiron and "ELECTION ALERT" banner the color of a bomb pop at the bottom, and the screen now looks like a Publishers Clearinghouse Sweepstakes form.
Joseph Klock, who clearly entered this courtroom with a briefcase full of packaged soundbites, say that we are entering "the great universe of chad." Speaking of which, can we all, Republican and Democrat, agree on one thing? Namely: the word "chad" stopped being automatically funny about five days ago. Likewise "hanging chad." Likewise noting that "Chad" is also a country in Africa. Likewise anything about "pregnant chads giving birth to controversy" or "trouble coming in through the swinging-door chads." Political commentators lacking the ability to coin their own witticisms are encouraged to return to using "Is that your final answer?," "The tribe has spoken," or "Oh, behave."
The Bush team stakes out its argument early: What we have here is "not a legal problem but a political problem." The first attorney, Joseph Klock Jr. for the Florida secretary of state's office, seems almost peevish with the bench; you have to wonder whether he isn't really speaking to the home audience, on the thought that if the Bush side loses, there's still a public-opinion battle they can win, whereas if they win, they're home free. For instance, says the attorney, about the late recount hand-ins: "You can start the term paper the night before if you want to, but it's unlikely you'll be able to turn it in the next day when it's due!" Something tells me that's meant to impress nightly news editors, not legal scholars.
And from this observer's entirely uninformed legal vantage, it looks like they may be right to be looking beyond this decision. At least if you judge by the comments of Justice Barbara Pariente, who said of Katherine Harris's criteria for rejecting the manual recount, "Is that rather unusual for an agency head to come up with a decision within a few hours to allow something or not allow something?" A few moments later, she says, flat-out, "She didn't really exercise her discretion." (Hey! No giggling out there!)
It's interesting to note, by the way, that the three cable news channels, unlike the network news divisions, are continuing to run their Dow and NASDAQ tickers during the arguments. Some enterprising graphics person should have cooked up a running chart, so we could watch the S&P, say, rise and fall in response to the legal zingers.
Ten-minute timeout! Bob Schieffer and Dan Rather are parsing whether the Justices are possibly considering a statewide recount. But Rather isn't breaking out any of his election-night similes "The Court's questions are as probing as a proctologist working overtime!" so it's time to change the channel.
On CNN, Greta Van Susteren that rare television personality vain enough to color her hair yet not so much as to get an evened-out dye job notes that the court has been awfully aggressive with the Dems. On MSNBC, meanwhile, Brian Williams asks how the Florida judges must cotton to a "New York lawyer" like Boies coming down with his fancy suits to invade their justice system, as if Florida lawyers generally show up in string ties and Colonel Sanders suits, and as if Florida weren't largely New York's southernmost suburb. On Fox, we're previewing the Bush team strategy and this is the place to watch that, since it's entirely possible they've been thoroughly briefed on it by yet another Bush cousin.
Time for the shooting ducks to train their sights on the Bush team.
Who wants to bet the reporter in the fuchsia suit, sitting behind the Gore bench, wore that color so her friends could pick her out on TV?
Perhaps in a sign that even the spectacle of David Boies, Megalawyer, is not compelling enough television, Fox and MSNBC are cutting in with illustrative video of vote counters in Palm Beach. The counters sit in rows of tables, arranged several deep, like pledge-phone operators at a telethon. Indeed, if the counties wanted to make their counting operations a bit more telegenic, that's exactly what they should aim for: behind the whole counting setup, there should be a big red thermometer, with "930" at the top, that rise as time went on and would ring and flash and spew red streamers out of the top when the recounts picked up enough votes for Gore to overtake Bush.
Check out the woman seated with her hands folded across her lap, just over Boies's left shoulder. Her eyelids seem to be getting heavier by the minute. Contest: When will she fall asleep? Extra credit: will she drool?
David Boies bats clean-up! All week and extending back into the Microsoft trial the media have been building the image of Boies as some kind of robot superlawyer, an insuperable juggernaut of persuasion who could convince a tree that it was a hummingbird. And sure enough, MSNBC is now running his own little electronic baseball card "* Gore attorney * Argued antitrust case against Microsoft * Represented Napster and IBM" leaving Boies's own picture in a window the size of a proof-of-purchase seal. Behold... Superlawyer!
Say this for him: He seems pretty unintimidated by the time constraints or the Justices' questions, running through his argument as crisply and matter-of- factly as a man chopping a cord of wood. No one knows whether the Florida Supreme Court was watching much TV over the weekend, but if they did, I'm guessing they took away the determination not to come off looking like a team of Democrat-appointed patsies. "Do we know how long it's going to take for us to do [the recount]?," one hits him. "Is [setting a reasonable time frame] not something the legislature tried to do in setting these time limits?"
Boies hammers them back pretty much unflustered and with a touch of humor, noting that he's not exactly the most unbiased guy to say how long a hand recount should reasonably take. The one thing he has working against him, however: His voice sounds pretty much exactly like Bob Newhart's. Close your eyes and listen to him. I keep expecting him to ask George to take a look at the furnace. There aren't three justices named Larry, Darryl and Darryl, are there?
If any good comes out of this broadcast, maybe it will lead the U.S. Supreme Court to reconsider letting cameras into their chamber. Because there's a level of drama in a Supreme Court argument that you don't get in your standard Court TV murder case. This is not so much a "The Practice"style speechmaking exercise as a really uncomfortable doctoral defense: The attorneys stand up with the clock ticking, and try to sputter out there case edgewise while the bench pelts them with questions. This is much cooler than your typical trial; it's like "X-Treme Justice," like speed chess. No, it's like one of those carnival duck-shooting games, except it's the line of ducks who have the guns. Thus far the Justices are making the Gore team tap-dance above their rat-a-tat gunfire of questions like poor saps getting their feet shot at in a western. We'll see whether they volley this hard at the other side.
Incidentally, could a man with a name like "Major B. Harding" become anything but a Supreme Court Justice? Maybe a baseball player in 1906, but that's about it.
Contest: come up with a creative act that "Major B. Harding" is a euphemism for.
Best line of the day so far: the Justice's kindergarten-like request that folks stay in the room, except to "use the restroom facilities." Which reminds me. Here's a contest for home viewers: Come up with a creative act that "exercising my discretion" is a euphemism for.
I suppose I should be commenting on the inherent drama and legal-televisual theater of the attorneys' arguments. And I would, if I had the faintest damn idea what they were driving at. Let me instead wonder this. Are TV news divisions in cahoots with television manufacturers to convince people to buy bigger TVs? Since the Recountroversy began, all the networks, led by cable news, have shown that the trend toward gigantism has continued unabated. The fat bands of text and Internet-like graphics running across the bottom of the screen, the better to satisfy the public desire for news within 5 seconds ("BREAKING NEWS: Vice President Gore takes jog, consumes lemon-lime-flavored sports drink") threaten to reduce the actual pictures to the size of a wallet photo. Soon TV broadcasts, embracing the spirit of the age, will be just as badly designed as a Geocities home page.
Contest: come up with a creative act that "breaking news" is a euphemism for.
MSNBC has been promoting today's Florida Supreme Court session like a welterweight championship bout on Showtime, running ads all weekend promising "ORAL ARGUMENTS" in big, steely letters. You'd expect Gore and Bush to show up in shiny robes, taunting each other in rhyme: "You Tell Al Gore he's going down in four! And if he's still alive, I'll kill him in five!"
So it's appropriate that as the network vamps, waiting for the arguments to start at 2 p.m. ET, it's literally running down a scorecard of the Court judges like so many prizefighters, with a commentator running down the court members' head shots, years of appointment, history everything but their stripped-down weight. And in fact, as we see the court members file in indeed, in robes like boxers, the "Hear ye! Hear ye!" of the bailiff sounds a lot like a ring announcer's bark.
Let's get ready to rumble. Watch out for spit and blood in the front row.